Historians in recent times have more or less given up studying the constitutions of the Napoleonic era on the grounds that they were merely window-dressing for the pursuit of personal power. So when modern historians and writers about constitutional law describe the rules by which Napoleonic government worked, they differ from those of the 19th or early 20th century by focusing in general and usually succinct terms on the regime’s “absolutism” or “Caesarism”Though in 2010 the Librairie Générale de Droit et de Jurisprudence (L.G.D.J.) published a work by the French constitutional historian Daniel Amson entitled Histoire constitutionnelle française, de la prise de la Bastille à Waterloo, which devotes more than 500 pages to the Consulate and the First Empire.. One relatively recent legal history argues that “the Napoleonic institutions never truly existed”M. Prélot and J. Boulouis, Institutions politiques et droit constitutionnel, Dalloz, 8th ed., 1980, p. 384., while another describes the constitutional codes of the Consulate and Empire as “rather artificial”J.-J. Chevallier, Histoire des institutions et des régimes politiques de la France, de 1789 à nos jours, Dalloz, 5th ed., 1977, p. 107..
In the same vein, a sizeable constituency of English-language historians continue to regard the First Empire as a foretaste, or even a precursor, of totalitarianism, even though that was a much later phenomenon and the criteria used to define it do not in any way apply to Napoleonic France. Contradicting these viewpoints, the Napoleonic Empire functioned with a constitution and in the belief, shared by both the Emperor and those around him, that it was, if not sacred law, then at least a restrictive code of conduct that was not to be taken lightly.
It is clear that the concept of the rule of law – a notion not understood in the same way then as now See O. Jouanjan, “État de droit”, Dictionnaire de la culture juridique, P.U.F., 2003, pp. 649-653. – had begun to take form at the apex of the state. The evidence can be seen in the pains taken by Napoleon and his advisors to interpret the constitution during the many crises they faced, even to the point of remoulding it, in order to persuade others (and themselves) that they were acting in respect of it. Indeed, it was the basic law and the Emperor’s breaking of his constitutional oath that the Senate invoked when it deposed him in 1814. While constitutions may never have had the status of untouchable and inviolable tables of the law in such a storm-tossed country, including after the Empire, they at least helped to regulate political life by acting as a safeguard against what Raymond Aron rather harshly called Napoleon’s “irrational goals”R. Aron, Introduction à la philosophie de l’histoire, Gallimard, ed. 1986, p. 128.. Napoleon was a product of the Enlightenment and a son of the Revolution. His past, culture and ideology were consistent with the thinking of the day: the time for a modern state based on the rule of law had come and he knew it. Hence Napoleonic power was exercised not arbitrarily but within established legal norms. The basic law of the First Empire, willed and sometimes drafted by Napoleon himself, was the outcome of an evolutionary series of reforms begun in 1789. As Jacques Godechot has said, “We should not lose sight of the fact that at the start of the Consulate Bonaparte found himself confronted with irreversible choices. The ‘principles of 1789’ – namely, equality before the law, the abolition of feudalism (in the way the Constituent Assembly understood the term) and constitutional representative government – could no longer be abandoned”J. Godechot, “Sens et importance de la transformation des institutions révolutionnaires à l’époque napoléonienne”, Revue d’histoire moderne et contemporaine, July-September 1970, p. 795. With a few organisational readjustments, such as concentration of the executive, reorganisation of national representation and division of the legislature, constitutional activity existed and even flourished under the Consulate and Empire. Seeing how these constitutional principles developed and were interpreted and applied, eschewing the prism of “liberal” thought, dominant now but not then, helps us to understand better the evolution of the Napoleonic state as it gradually but ineluctably advanced towards “juridification” of the exercise of power in France.
The “revolution of the executive”
So many different forms of government were tried out after 1789 that some authors have suggested that the French Revolution was a “revolution of the executive” See the issue of Annales historiques de la Révolution française which discusses this question (no. 332, April-June 2003).. From constitutional monarchy and the committees of the Convention to the Directory, none survived the revolutionary storm. Each failure merely confirmed that stabilisation necessarily meant reducing the absolute control of the legislature over the executive, in a sort of resetting of the institutional pendulum. The scrapping of the 1793 constitution and the governmental organisation and practice of the Committee of Public Safety show that even the most “advanced” protagonists ended up by bowing to this practical necessity. The directorial constitution was a huge step forward, both on paper and, to a large extent, in hearts and minds: the supremacy of the legislature, which optimists had entertained for a while, had finally succumbed to the political realities. “I know only one democratic constitution”, proclaimed Thibaudeau during the debate on the Constitution of An III. “It is the one which would offer the people freedom, equality and peaceful enjoyment of their rights” Quoted by D. Chagnollaud in Histoire constitutionnelle et politique de la France (1789-1958), Dalloz, 2002, p. 51.. Napoleon would not have disagreed, and indeed said as much in almost the same terms. In the following months, while the Directory was in power, the most fashionable pamphleteers got their teeth into the subject. Benjamin Constant published De la force du gouvernement actuel et de la nécessité de s’y rallier This essay from 1796 was republished by Flammarion, with an introduction and notes by Philippe Raynaud, in 1988. It was translated into English in 1797 as Observations on the Strength of the Present Government of France and the Necessity of Rallying Around It (Google Books)., while Barrère, in De la pensée du gouvernement, asserted that the Republic could not consolidate itself without a strong governmentP. Serna, “Barrère, penseur et acteur d’un premier opportunisme républicain face au Directoire exécutif”, in Annales historiques de la Révolution française, no. 332, April-June 2003, pp. 101-128.. More indirectly but pushing in the same direction, Madame de Genlis called for the advent of a “new Charlemagne” in the three volumes of her “historical and moral tale” Les Chevaliers du Cygne, ou la Cour de CharlemagneOn this call for a “new Charlemagne”, see our Napoléon diplomate, CNRS éditions, 2012, pp. 45-73. The work by Madame de Genlis was translated into English in 1797 as The Knights of the Swan, or the Court of Charlemagne (Google Books).. One thing was already certain even then: the English model of a balance of powers had been rejected as unsuited to French circumstances. Bonaparte himself said much the same thing to Talleyrand in a famous and foundational letter from Italy: “The English charter is nothing but a charter of privileges: it is a ceiling all in black though embroidered in gold”Letter from Bonaparte to Talleyrand, 21 September 1797, in Napoléon Bonaparte, Correspondance générale publiée par la Fondation Napoléon, Fayard, 2005, no. 2065.. Despite resetting the balance, the Constitution of An III raised another problem. The executive and the legislature were now both powerful but remained strictly separate, with no safety valve to alleviate conflicts between them. The Councils were incapable of controlling, never mind overthrowing the Directory, while the Directory had neither influence on the making of laws – not even a power of initiative – nor the weapon of dissolution. All that remained were encroachments by the one on the prerogatives of the other (a frequent occurrence), followed by a stand-off and a power grab to settle the issue. The situation was compounded by the unwillingness of the directorial elites – basically moderate revolutionaries – to allow political alternation, whether in favour of the monarchists or the extreme left. It was to counter that instability and solve the problem of alternation – by making it impossible – that Sieyès instigated the “regeneration” movement that would culminate in the coup d’état of 18 BrumaireOn the constitutional causes of the coup d’état, see our 18 Brumaire, published in paperback in the “Tempus” collection (Perrin, 2010), pp. 74-104. On Sieyès, see Patrice Gueniffey’s differing opinion in “Brumaire, un coup d’État presque parfait”, Histoires de la Révolution et de l’Empire, Perrin, coll. “Tempus”, 2011, pp. 444-472.. But just as Sieyès had not “invented” the theory of national sovereignty in Qu’est-ce que le tiers état? in 1789 (14), nor was he the only promoter of the ideas of the “Brumaire movement”. His scheme was one element of the very lively debate among political, administrative and economic societies about the need for strong government, though he had the merit of being the movement’s most credible standard-bearer. His thinking was consistent with other strands of opinion which saw in the emergence of a leader the hope of an end to foreign wars and internal strife, the responsibility for which was attributed, rightly or wrongly, to the changing humours of a fickle talking-shop. On arrival, the Constitution of An VIII would be “a compromise between the aspirations of Sieyès and the other Brumairians in the Assembly and a mostly co‑opted parliamentary oligarchy, and Bonaparte’s own views”Charles Durand, “Les transformations de l’an X dans les rapports entre le Gouvernement et les Assemblées”, Revue de l’Institut Napoléon, no. 111, April 1969, p. 69.. Such a compromise was bound to be influenced by a political mood that inclined towards a tightening-up and the “freeing” of the executive. For moderate revolutionaries, kingless monarchists, ideologues, businessmen and doubtless also a difficult-to-estimate portion of the enlightened population, it was a question not of burying the Revolution but of combating “anarchy”, now symbolised by those neo-Jacobins who were using their control of electoral processes to approach the seat of power. A new constitution was clearly not sufficient to save the Republic, but “the Republic yet needed a new constitution” Steven Englund, Napoléon, Éditions de Fallois, 2004, p. 212; [Napoleon: A Political Life, Scribner, 2004, p. 169].. Bonaparte was one of those partisans of strong government.
The basis of the Constitution of An VIII
Sieyès was too convoluted, too certain of his own importance and above all too theoretical to remain the man of providence for long. A month after the coup d’état he was relegated to the presidency of the Senate, though his constitutional ideas still formed the basis of the An VIII text. Bonaparte had allowed him influence over what he considered secondary matters, the “legislative plumbing”. In contrast, he imposed his own views on the measures which conferred real power – the power of action – on the executive: faced with a divided legislature, the government was concentrated in the hands of the first of the three consuls. It marked the beginning of the constitutional history of the Napoleonic regime, albeit inextricably linked at this stage to its revolutionary antecedents. The government could legitimately call for moderation, “always the companion of strength, guaranteeing the enduring nature of social institutions [and] conferring an august character on governments as on nations”Lettre aux Français, 25 December 1799, Correspondance de Napoléon Ier publiée par ordre de l’Empereur Napoléon III (hereafter Correspondance), no. 4447.. There was nothing “counter-revolutionary” or even “reactionary” in such a profession of faith. When the Constitution of An VIII came into force, the three consuls addressed a proclamation to the French which ended with strong words indeed: “Citizens, the Revolution has remained true to the principles from which it sprang. It is now finished”Correspondance, no. 4422.. Some authors have seen this last word as an assertion that the Revolution was over – the meaning we now give to it. However, the 1798 Dictionnaire de l’Académie française defines it as follows: “When describing paintings, it is said that a work is finished to indicate that it is perfect. It is also used to describe theoretical works […]. It is also adjectival, and signifies that which is limited or bounded […]. It is also used substantively, particularly in the arts, when speaking of works completed with care”Dictionnaire de l’Académie française, 5th edition, 1798, p. 588. All the Académie Française’s dictionaries are available online at www.lib.uchicago.edu.. In the language of the time, “finished” meant “perfected” rather than “concluded”. It was thus not a denial of the Revolution but rather a recognition of its limits – in Latin too, finire means to bound – in “the principles from which it sprang”, those of 1789. Those principles were perfect or finished. That being the case, it is not clear why, unless for practical reasons or, more likely, for ideological ulterior motives, a large part of traditional historiography sees the Revolution as ending at 18 Brumaire, An VIII. In a simplified chronological classification, the Consulate and at least part of the Empire constitute a fourth Revolutionary period after the Constituent and Legislative Assemblies, the Convention and the DirectoryOn this subject see our article “Les consuls de la République: la Révolution est finie”, Terminer la Révolution, Economica, 2003, pp. 19-37.. The new constitution, dated 13 December 1799 (22 Frimaire, An VIII), came into force twelve days later and was approved by a plebiscite, the results of which were announced on 7 February 1800. For fourteen years it remained the foundation on which French institutions were built, although it underwent serious amendment. The first important reform, on 4 August 1802 (16 Thermidor, An X), as well as granting Bonaparte the consulship for life and allowing him to designate his successor, completely overhauled the electoral process, the nomination process for members of the legislature and the Senate’s powers. The senatus-consulte of 18 May 1804 (28 Floreal, An XII) placed a hereditary emperor at the head of the Republic, “changing the forms of government but not the nature of the regime”Claude Goyard, “Constitution de l’An XII”, Dictionnaire Napoléon, Fayard, 1999, vol. II, p. 527.. Between then and 1814, there were around 30 senatus‑consultes that reformed the constitution, both directly and indirectly. Most concerned the revision of a particular detail, but a few, such as the abolition of the Tribunat (19 August 1807) See our Nouvelle histoire du Premier Empire. II. Napoléon et la conquête de l’Europe, Fayard, 2005, pp. 335-338. and the organisation of the regency (5 February 1813) Ibid., pp. 347-351., modified the fundamental equilibrium at the heart of the constitution. This constitutional organisation was structured around principles already present in Bonaparte’s letter to Talleyrand, mentioned earlier, and these were subsequently refined. Executive authority was exercised by the emperor, who acted within his own area of competence (enlarged following each reform and subject to no control other than that of the nation, of which he was a representative), with a hierarchical administration below him. The two houses (the Corps Législatif and the Tribunat) drafted legislation and rarely intervened in affairs of an executive nature. “The government is no longer a direct product, as it once was, of the Corps Législatif; its ties with it are distant”, rejoiced Napoleon At the Conseil d’État, 7 February 1804, in Pelet de la Lozère, Opinions de Napoléon sur divers sujets de politique et d’administration, Firmin-Didot, 1833, p. 150.. A Senate arbitrated in constitutional matters to “conserve the constitution” and, after An X, had extensive prerogatives arising as much from a derived constituent powerOr power of revision. as from a “supra-legislative” power if needed. The government was the crux of and the driving force behind the system: “The great order that governs the entire world must govern each part of the world”, declared Napoleon to the Conseil d’État. “Like the sun, the government is at the centre of society; around it the many diverse institutions must trace their orbit, and from it they must never stray. The government must regulate the combinations of each of them in such a manner that they ensure the general harmony. Nothing is left to chance in the system of the world; in the system of societies, nothing must depend on the whims of individuals” Quoted in É. Driault, Napoléon. Pensées pour l’action, Picard, 1943, p. 30..
Notionally tempered executive power
Originally, the power of the executive was tempered by the existence of the legislature and the executive’s various councils. Chaptal, who liked neither Napoleon nor what had become of the regime, nevertheless wrote with a whiff of optimism: “Truly it is difficult to conceive of a constitution which offers more guarantees for the rights of the people. It is difficult to leave less to the fiat of the head of the government. The limits of power are clear and unambiguous”Jean-Antoine Chaptal, Mes souvenirs sur Napoléon, Plon, 1893, p. 212.. Others too believed that the text gave the chambers not only considerable discretion with regard to legislation but also, via debate, power to prevent the executive from acting at will. Thus the Tribunat long opposed the Code Civil and the creation of the Légion d’Honneur, lively budget discussions took place in the Corps Législatif, and the Conseil d’État successfully amended a number of government projects. Nevertheless, without rejecting entirely the separation of powers, the authors of the constitution had fashioned “a state constructed around a power endowed with pre-eminent status”J. Chevallier, “La séparation des pouvoirs”, La continuité constitutionnelle en France de 1789 à 1958, Economica, 1990, p. 130., a concept already applied in 1791 to the Assembly and in 1795 to the Directory. Through perseverance and immutability over several years in power See for example the legally if not morally acceptable purge of the Tribunat, discussed in our book Le Grand Consulat (1799-1804), Fayard, 1999, pp. 317 et seq. That being said, the abolition of the monarchy, the arrest of the Girondins and some other major episodes of the Revolution could be seen in the same light, which shows yet again that if Napoleon is criticised anachronistically for certain decisions or attitudes, they cannot be held against him in the name of “revolutionary principles”., Napoleon was able to impose a conception that increasingly operated in the executive’s favour, dominating the executive, the legislature and, to some extent, the judiciary. This was achieved not through brute force but rather through a pragmatic and sequential approach towards the concentration of legitimacy in the person of a single sovereign. He also benefited from a succession of abdications, often at the very heart of the opposition, whether in the form of the disorderly retreat of the idéologues or the rallying of large swathes of monarchists after the Sacre [his consecration and coronation of 1804] and later his marriage to Marie-Louise. As he remarked to the president of the Corps Législatif, Fontanes, come to pay him some tribute from that chamber, “France needs a monarchy that is moderate yet strong”Mémoires de S[tanislas de] Girardin, Montardier, ed. 1834, vol. II, p. 353.. In terms of positive law, the successive reforms, extended competences and expansion of executive authority beyond its original remit all stemmed from procedures which were in appearance legally proper. The absence of a declaration of rights and the avoidance of any definition of the government’s guiding principles made all change possible provided the formalities were respected. The Napoleonic constitutions were technical not philosophical texts. Their authors were modest in their ambitions, shunning any thoughts of a “comprehensive endeavour” M. Morabito and D. Bourmaud, Histoire constitutionnelle et politique de la France, Montchrestien, ed. 1996, p. 127. that would encompass every aspect of state and society. In this context, Napoleon’s reign was a progression, uninterrupted and almost unhindered, towards what Maurice Hauriou has called an “executive dictatorship”M. Hauriou, Précis de droit constitutionnel, Sirey, 1923, vol. I, p. 338.. Initially, the authors of the Constitution of An VIII retained the principle of a collegiate executive which had already prevailed after 10 August 1792 (government of the committees), in 1793 (the Montagnard Constitution, never implemented) and in 1795 (the Directory). The consular regime Article 39: “The government is entrusted to three consuls […]”. with its three consuls did not on the face of it stray from this revolutionary norm. However, the consular triumvirate was unequal: the first of the three consuls had greater powers and took precedence over his two colleagues, whose power of restraint was limited to expressing disagreements and entering them in a register Article 42: “In other acts of government, the second and third consul shall act in an advisory capacity: they shall sign the register of such acts to attest to their presence; and if they wish they may record their opinions therein; after which the decision of the first consul suffices.”. “It did not take me long to realise that I had either to give up or live on good terms with the First Consul […]. Consul Lebrun had come to the same conclusion”, wrote Cambacérès (35). The proclamation of a hereditary Empire ended the legal fiction of collegiality. “Government” was now formally concentrated in the hands of one man Article 1: “The government of the Republic is entrusted to an emperor, who shall take the title Emperor of the French.”. From this point on, no institution other than the Emperor could wield that power, not even a group of ministers or his advisory councils.
The “government” at the heart of state power
The constitution entrusted the government to the head of state alone and not to an executive body, as had previously been the case. However, as the separation of powers between the executive, the legislature and the judiciary was not affected, the term government referred only to the executive power. In many ways, contemporaries found nothing shocking about such a concentration of power: it was in the French monarchical tradition, the success of an unequal three-man Consulate was encouraging and Bonaparte’s personal ability to govern needed no further proof. The United States, a much-admired republic, had a one-man executive and still does: Article 2 of the Constitution of 17 September 1787, still in force, states that “the executive power shall be vested in a President of the United States of America”. Justification was also found in the ancient Roman office of dictator, which entrusted power in times of crisis to one exceptional man while maintaining republican institutions. As the story goes, in 458 BCE Cincinattus abandoned his plough to become dictator then, having defeated the Aequi, returned to his farm as before. Bonaparte was no Cincinnatus but a Caesar, the dictator who wanted to become king, and did. In a society permeated by references to antiquity, such a comparison could quickly become reality. Napoleon Bonaparte’s personality, success and actions did the rest. “I have always commanded […]; once I had command, I no longer recognised master or law” Las Cases, Mémorial de Sainte-Hélène, 31 October 1816., he explained in a pragmatic and forthright take on Montesquieu’s axiom that “every man invested with power is apt to abuse it”. Until 1812, he had the support of a large swathe of the political, administrative and economic elite as well as popular approval. For those who harboured doubts, the strength of the “government”, backed by a firmly led and subservient army and a police with a fearsome reputation, was enough to instil a degree of caution. Napoleon set political traps, often surprisingly with Cambacérès’ backing, which ensured that individuals could just as easily be ostracised as encouraged to toe the line, each time with due respect for protocol and without bloodshed. This was impressive progress in comparison with previous regimes. The emperor was therefore the sole “governor” of his Empire. Mollien reports him as saying that “the job of king was too easy for him and he had taken on that of prime minister” Mémoires d’un ministre du Trésor public, H. Fournier, 1898, vol. III, p. 3.. The constitutions gave him two main missions: to ensure the internal security and the defence of the Empire. In order to fulfil them he had extensive powers of appointment and dismissal Ministers, counsellors of state, ambassadors, officers, local administrators, members of the judiciary except for justices of the peace and cassation judges (An VIII), justices of the peace, presidents and certain members of canton assemblies and electoral colleges, senators under certain conditions (An X), high dignitaries and high officers, president of the Senate and Tribunat, senators without condition (An XII). as well as full regulatory and budget powers, albeit with the fragile safeguard of an annual budget act. He commanded the army and the national guard, negotiated and (from An X) ratified treaties, initiated legislation and promulgated laws. Napoleon was not short of prerogatives, to say the least. Thanks to circumstance, his skill and what Machiavelli would have called his virtù, Napoleon ended up by establishing an executive dictatorship. The foundations of that dictatorship were unstable, however, because Napoleon declined to elicit support from other institutions except by bending them to his will, leaving it reliant on concepts that were either far removed from the reality of power (the people) or of a philosophical or political nature (the nation) or still fragile (monarchy). In doing so, Napoleon set himself outside a movement that had begun in 1789 but left France in a very different situation from that of English-speaking countries, with a “mixed” regime, the latest avatar of which is the presidentialism of the present constitution. Ultimately, it was against Napoleon that the rule of law prevailed. It comes as no surprise that in 1814 the proponents of Montesquieu’s theories should have sought to impose an “English-style constitution” on the King. He refused it and, in the Charter, maintained a strong executive, and so French constitutional history continued along its way.
Focus: Law as an organisational tool
Under Napoleon, the “rule of law” manifested itself in society, with the establishment of a court system and codes which defined the framework for legal and social relations between citizens. From the outset the courts were acknowledged to have a fundamental role through jurisprudence, a fact that is sometimes overlooked. Napoleon wanted the law to be unified, simplified and rationalised. Far from being counter-revolutionary, this aim was shared by the great minds around him. Codification was one of the most important aspects, but law-making as a whole bore its imprint. After the buzzing hive of the Consulate, activity was more torpid during the Empire: each annual session of the legislature culminated in the passing of just twenty to thirty laws, often technical, always short. Contrary to what one might think, jurists at the time believed that having a small number of stable laws was beneficial. They also had great faith in jurisprudence. In formal terms, for example, the Code Civil [the Napoleonic Code] was “clear, concise, well-ordered” (J. Godechot) and couched in simple language that could serve as a model for our present-day legislators. It did not seek to be comprehensive and consequently left plenty of scope for the courts to interpret and refine the details through the thousands of cases brought before them. The judgments of the Court of Cassation during the Consulate and Empire provide ample proof of that fact.
Notes
- Though in 2010 the Librairie Générale de Droit et de Jurisprudence (L.G.D.J.) published a work by the French constitutional historian Daniel Amson entitled Histoire constitutionnelle française, de la prise de la Bastille à Waterloo, which devotes more than 500 pages to the Consulate and the First Empire.
2. M. Prélot and J. Boulouis, Institutions politiques et droit constitutionnel, Dalloz, 8th ed., 1980, p. 384.
3. J.-J. Chevallier, Histoire des institutions et des régimes politiques de la France, de 1789 à nos jours, Dalloz, 5th ed., 1977, p. 107.
4. See O. Jouanjan, “État de droit”, Dictionnaire de la culture juridique, P.U.F., 2003, pp. 649-653.
5. R. Aron, Introduction à la philosophie de l’histoire, Gallimard, ed. 1986, p. 128.
6. J. Godechot, “Sens et importance de la transformation des institutions révolutionnaires à l’époque napoléonienne”, Revue d’histoire moderne et contemporaine, July-September 1970, p. 795
7. See the issue of Annales historiques de la Révolution française which discusses this question (no. 332, April-June 2003).
8. Quoted by D. Chagnollaud in Histoire constitutionnelle et politique de la France (1789-1958), Dalloz, 2002, p. 51.
9. This essay from 1796 was republished by Flammarion, with an introduction and notes by Philippe Raynaud, in 1988. It was translated into English in 1797 as Observations on the Strength of the Present Government of France and the Necessity of Rallying Around It (Google Books).
10. P. Serna, “Barrère, penseur et acteur d’un premier opportunisme républicain face au Directoire exécutif”, in Annales historiques de la Révolution française, no. 332, April-June 2003, pp. 101-128.
11. On this call for a “new Charlemagne”, see our Napoléon diplomate, CNRS éditions, 2012, pp. 45-73. The work by Madame de Genlis was translated into English in 1797 as The Knights of the Swan, or the Court of Charlemagne (Google Books).
12. Letter from Bonaparte to Talleyrand, 21 September 1797, in Napoléon Bonaparte, Correspondance générale publiée par la Fondation Napoléon, Fayard, 2005, no. 2065.
13. On the constitutional causes of the coup d’état, see our 18 Brumaire, published in paperback in the “Tempus” collection (Perrin, 2010), pp. 74-104. On Sieyès, see Patrice Gueniffey’s differing opinion in “Brumaire, un coup d’État presque parfait”, Histoires de la Révolution et de l’Empire, Perrin, coll. “Tempus”, 2011, pp. 444-472.
14. The ideas worked out in it were in circulation well before then: the rudiments may be found in Montesquieu. Dozens of pamphlets containing the same ideas as Qu’est-ce que le Tiers-État? [What is the Third Estate?] had been published in the years before the Revolution, such as Pierre-Louis Roederer’s De la députation aux états généraux (Metz, 1788).
15. Charles Durand, “Les transformations de l’an X dans les rapports entre le Gouvernement et les Assemblées”, Revue de l’Institut Napoléon, no. 111, April 1969, p. 69.
16. Steven Englund, Napoléon, Éditions de Fallois, 2004, p. 212; [Napoleon: A Political Life, Scribner, 2004, p. 169].
17. Lettre aux Français, 25 December 1799, Correspondance de Napoléon Ier publiée par ordre de l’Empereur Napoléon III (hereafter Correspondance), no. 4447.
18. Correspondance, no. 4422.
19. Dictionnaire de l’Académie française, 5th edition, 1798, p. 588. All the Académie Française’s dictionaries are available online at www.lib.uchicago.edu.
20. On this subject see our article “Les consuls de la République: la Révolution est finie”, Terminer la Révolution, Economica, 2003, pp. 19-37.
21. Claude Goyard, “Constitution de l’An XII”, Dictionnaire Napoléon, Fayard, 1999, vol. II, p. 527.
22. See our Nouvelle histoire du Premier Empire. II. Napoléon et la conquête de l’Europe, Fayard, 2005, pp. 335-338.
23. Ibid., pp. 347-351.
24. At the Conseil d’État, 7 February 1804, in Pelet de la Lozère, Opinions de Napoléon sur divers sujets de politique et d’administration, Firmin-Didot, 1833, p. 150.
25. Or power of revision.
26. Quoted in É. Driault, Napoléon. Pensées pour l’action, Picard, 1943, p. 30.
27. Jean-Antoine Chaptal, Mes souvenirs sur Napoléon, Plon, 1893, p. 212.
28. J. Chevallier, “La séparation des pouvoirs”, La continuité constitutionnelle en France de 1789 à 1958, Economica, 1990, p. 130.
29. See for example the legally if not morally acceptable purge of the Tribunat, discussed in our book Le Grand Consulat (1799-1804), Fayard, 1999, pp. 317 et seq. That being said, the abolition of the monarchy, the arrest of the Girondins and some other major episodes of the Revolution could be seen in the same light, which shows yet again that if Napoleon is criticised anachronistically for certain decisions or attitudes, they cannot be held against him in the name of “revolutionary principles”.
30. Mémoires de S[tanislas de] Girardin, Montardier, ed. 1834, vol. II, p. 353.
31. M. Morabito and D. Bourmaud, Histoire constitutionnelle et politique de la France, Montchrestien, ed. 1996, p. 127.
32. M. Hauriou, Précis de droit constitutionnel, Sirey, 1923, vol. I, p. 338.
33. Article 39: “The government is entrusted to three consuls […]”.
34. Article 42: “In other acts of government, the second and third consul shall act in an advisory capacity: they shall sign the register of such acts to attest to their presence; and if they wish they may record their opinions therein; after which the decision of the first consul suffices.”
35. Cambacérès, Mémoires inédits, Perrin, 1999, vol. I, p. 463.
36. Article 1: “The government of the Republic is entrusted to an emperor, who shall take the title Emperor of the French.”
37. Las Cases, Mémorial de Sainte-Hélène, 31 October 1816.
38. Mémoires d’un ministre du Trésor public, H. Fournier, 1898, vol. III, p. 3.
39. Ministers, counsellors of state, ambassadors, officers, local administrators, members of the judiciary except for justices of the peace and cassation judges (An VIII), justices of the peace, presidents and certain members of canton assemblies and electoral colleges, senators under certain conditions (An X), high dignitaries and high officers, president of the Senate and Tribunat, senators without condition (An XII).
(English translation by Adrian Shaw, Janaury 2018)