A name given to the judicial decisions of the Conseil d'État; these decisions were in fact judgements.
Legal decisions of the Conseil were known as "Décrets" (Decrees) under the First Empire. After 1806, documents ruling on legal matters were always preceded by the statement "Vu l'avis" (Considering the opinion) or "Sur le Rapport de notre section du Contentieux" (On the Report of our Judicial section).
These documents were only published regularly and in full after 1822. For the First Empire we have only the following sources:
- The Bulletin des lois, in which were published, in an order dictated by internal regulation, certain decrees, not many in number, similar to the opinions ('avis') "issued by the Conseil to develop the substance of laws" and which, like them, had the force of law.
- Sirey's Jurisprudence of the Conseil d'État of (1814) and volume I (1816) of Roche and Lebon's General collection of rulings. These books reproduced certain legislative decrees (decrets contentieux) issued under the First Empire.
- Two dossiers kept in the Archives Nationales issued by the Secrétairie d'État and entitled "Renvoi au Conseil d'État des affaires contentieuses." Arch. Nat. AF IV 227 and 228
General name for general, collective or individual decisions taken by ministers, prefects, mayors or other non-supreme administrative authorities. Under the Consulate and the Empire draft orders were often submitted to the Conseil d'État.
Avis (Opinion) of the Conseil dÉtat
A declaration made by the Conseil d'État exercising its consultative role, at the prior request of the authority invested with decision-making power. Under the First Empire, this authority was not bound to comply with the declaration.
The regulation of 5 Nivôse, An VIII (art. 11) holds that the 'Conseil d'État develops the substance of laws, when questions that have been put to the Consuls are referred to it'. These 'opinions of the Conseil d'État' were only published and applicable once approved by the Consul or by the Emperor. Indeed, it was generally accepted that, like the act constituting them, they were made under the direction of the Consuls and hence the head of government was able to modify their terms. Napoleon was to explain on several occasions how the requested opinion had to be composed. From the time of the Consulate, the Court of Cassation recognised these opinions as having the same autonomy, with regard to the courts, as a law itself. The majority of government regulations were made after discussion in the Conseil d'État. The wording of the opinions given by the Conseil d'État under the First Empire can be found in:
DUVERGIER (Jean-Baptiste), Collection complète des lois, décrets, ordonnances, règlements, avis du Conseil d'Etat... de 1788 à 1830 inclusivement, par ordre chronologique / J.B. Duvergier. - 2nd édition. - Paris : A. Guyot et Scribe, 1835-1836. - Volumes 12 to 19.
A generic term used to designate a category of unilateral administrative decisions taken by the highest executive authority of the State. Decrees were divided into statutory decrees, when their provisions were general and impersonal, and non-statutory decrees, when they concerned an individual legal situation. Décrets en Conseil d'État were decrees adopted after having been submitted to the Conseil d'État.
Under the First Empire, decisions of the Conseil d'État ruling on a judicial matter were also called decrees.
See : " Arrêts ".
Printed working document of the Conseil dEtat (imprimé)
A printed document circulated to the Conseillers, maitres des requêtes and ministers, where possible several days (but sometimes several hours) before the debates in the Conseil d'État. These printed documents were usually preliminary drafts of the laws under discussion. They might therefore contain the minister's report, the section report on the matter in hand or substantial documentary appendices. Set out in a uniform manner, they were given a serial number from 1 to 3063, with printed working documents relating to a particular matter grouped together. They had no legal value.
There are sets of printed working documents from 1 to 3063 (Consulate and Empire: An VIII - 29 March 1814); from 1 to 12 (Cent-Jours: 7 April 1815 - 19 June 1815); from 1 to [42 in 1820] (1st and 2nd Restoration: 2 September 1814 - 11 March 1815 and 21 August 1815); from 1 to 155 (2nd Republic: 18 April 1849 - 27 November 1851), from 1 to 3061 (Ten-year Republic, 2nd Empire and Interim Commission: February 1852-1872) and from 1 to 2177 (3rd Republic: 14 August 1872 - 1928).
Under the Consulate and the Empire, the government had the exclusive right to initiate legislation, which neither the Tribunate nor the Legislative Body were able to amend.
Several articles of the Constitution of An VIII designate decisions which require a law and the methods of voting for laws: art. 14, 28, 34, 45, 48, 53, 61, 72, 73, [76, 77, 81, 82], 91, 92, 93.
The text of the constitution offered guidance on a few points, regarding: the army, the national guard, finances and currencies. The government took advantage of this to extend the range of the regulation and to include criminal law.
Furthermore, to repeal or amend a previous law, another law was required. However, after the Consulate, it was accepted that not all decisions with such a title since 1789 need be considered as true laws simply because they were promulgated by a legislative assembly, indeed many were everyday administrative decisions or were even aimed at individual cases. Consequently, an understanding arose whereby a government regulation could then repeal or ignore laws of this type. The government and the Conseil d'État, especially under the Empire, were to go a long way in the application of this principle.
A regulation made by the executive: :
a)Under the Ancien Régime, with value as a law. E.g.: ordinance of 1669 on Forest management, mentioned in the printed working documents on several occasions.
b)Sometimes just with the value of a decree (Restoration and Monarchy of July). No ordinance of this kind was made during the Empire.
An act by which a principal official gave a treasury official the order to receive or pay a sum on behalf of the State.
Règlement dadministration publique (Public service regulation)
The Constitution of An VIII nowhere defines the public service regulation and only provides for it in the case of governing the National Guard in operation. It gives ministers responsibility for the enforcement of laws and public service regulations, when their very function required them to ensure the enforcement of all government regulations.
Legal terminology was not then very strict: acts which concern not general situations but specific cases are sometimes called regulations. The sénatus-consulte of 28 Floréal, An XII (art. 25) rules that, to prepare public service regulations, a sitting of the Conseil d'État must include at least twenty councillors and comprise two-fifths of those who are on normal duty. In general, in acts entitled 'public service regulations', the opening phrase preceded the titles of the Emperor with: 'by the Grace of God and the Constitutions'. But this was not always the case. So, this type of regulation was distinguished from the others by a quorum requirement and by a matter of form.
A legislative text of general scope issued by the executive authority, in contrast with a law (passed by the legislative assemblies). This type of act, of a general and impersonal nature, emanated from an executive or administrative authority (First Consul, minister, prefect) and was aimed either at making provisions in fields not reserved for the legislator, or at developing the rules set by a law with a view to ensuring its application. The majority of the many government regulations of the First Empire were made after discussion in the Conseil d'État. Several, especially during the Empire, trespass upon the constitutional domain of the law, even in criminal matters, for example to create special jurisdictions. None of the regulations trespassing on the legislative domain was referred to the Senate for unconstitutionality.
Sénatus-Consulte (Senatus Consultum)
A decision of the Senate of a constitutional or legislative nature.
This nature was not established by the constitution of Year VIII: the Senate was at that time simply the guardian of the Constitution and did not officially have the power to amend basic Law. The shift came at the time of the amendment of Article 93 of the Constitution on the final confiscation of the property of émigrés. Presented as a measure of national reconciliation, the amnesty of émigrés, in violation of Art. 93, endorsed the right of the Senate to amend the Constitution. This right was sanctioned by the constitutional review of Thermidor, An X on the day following the plebiscite of the Consulate for life: the sénatus-consulte organique of 16 Thermidor ratified the new constitution that Bonaparte had had drawn up by the Conseil d'État at the beginning of Floréal.
The sénatus-consulte organique of 16 Thermidor, An X (Constitution of An X) distinguishes the different acts that the Senate may make:
Arrêtés, for the appointment of members of the Legislative Body, the Tribunate and the Court of Cassation.
Délibérations, for its internal organisation.
Sénatus-consultes ordinaires, for the appointment of consuls and dissolution of the Legislative Body and of the Tribunate, the suspension of juries in départements where this measure was necessary, the placing of certain départements under a state of siege, the quashing of court judgements that threaten the security of the State.
Sénatus-consultes organiques: these could only be passed with a majority of two-thirds of the senators present, and were used to govern the constitution of the colonies and to settle 'anything that has not been provided for by the Constitution and which gives rise to different interpretations'.
The initiative for a sénatus-consulte could come only from the First Consul ruling in a private Committee.
After Year XII, the notion of sénatus-consulte became increasingly vague, with the diminishing of the role of the Senate. In the final days of the Empire, the majority of sénatus-consultes were first discussed in the Conseil d'État. These last sénatus-consultes related essentially to the levy of new contingents, annexations and the extraordinary domain of the Emperor.