working documents of the Conseil d'Etat
|Missions of the Conseil d'État|
The Conseil d'État fulfilled three main
missions during the Consulate and the Empire. Although not going into
great detail, the Constitution of An VIII laid down the basic structure
of the Conseil's mission, giving it namely:
Louis Cormenin, auditeur at the Conseil d'État
from 1810 on, described it as "a huge factory of opinions, interpretations,
decrees, and laws disguised as decrees and public service regulations."
Drafting and presentation of draft bills before the legislative body
The Conseil's legislative role was defined
by article 52 of the Constitution of An VIII.
During the Consulate and the Empire, only the government could initiate legislation, which neither the Tribunate nor the Legislative Body could amend. The Conseil d'État was not only responsible for the technical aspect of drafting bills, but was also consulted on the political and social content of those bills. The legislative activity of the Conseil did not just include the preparation of the five codes and the major laws on administrative, financial and judicial organisation, but also involved the preparation of certain sénatus-consultes, numerous laws of local relevance, regulations, decrees, orders, etc. The only matter that the Conseil d'État could not deal with was treaties.
In the legislative field, a few conseillers (3 at the most) chosen by the government were given a complementary task, namely: to present and then support before the Legislative Body each of the government's draft bills (art. 53 of the Constitution). Put before the Tribunate, these were discussed, and a vote taken for or against. A few days later, the legislators, without discussion, gave a hearing to the conseillers d'État and Tribunes and then voted to pass or reject the proposed draft. It was not unusual for contrary positions between conseillers and Tribunate members during these presentations to produce to a certain amount of antagonism.
Drafting of the Codes
The most visible legislative role of the Conseil d'État during the Consulate and Empire was without doubt the drawing up, in a remarkably short time, of the five great Napoleonic codes: Code of civil law (1804), Code of criminal law (1810), Code of civil procedure (1806), Code of criminal procedure (1808), Code of mercantile law (1807).
The aim of this drive towards codification in the Empire period was to create a single unified corpus of rules, both old and new, which laid down the new organising principles for modern society. This extensive legal undertaking was made possible by a conjunction of exceptional circumstances: the social disruption caused by the Revolution, Napoleon's own strong political will and sufficient high-mindedness to arouse general agreement.
The Code of civil law was the most remarkable achievement of codification undertaken in the First Empire: already researched by Cambacérès during the Convention, the project was revived by Bonaparte on 24 Thermidor, An VIII (12 August, 1800). He established a committee of four members, composed of two conseillers d'État (Portalis and Bigot de Préameneu) and two jurists (Tronchet and Maleville), given the duty of making an initial draft of this Code. This preliminary draft was presented within four months and then submitted for examination by the Court of Cassation and the courts of appeal. In accordance with the Constitution, the preliminary draft and the proposals of the courts were submitted to the Conseil d'État, initially to the Section de législation then at a general assembly, with Napoleon presiding in person over 57 of the 102 sittings that were needed to complete the project. The "Code Civil des Français" was published on 21 march 1804. The drafts of the other codes were also drawn up by the Section de législation of the Conseil d'État: the Emperor took very little part in the discussions.
Opinions of the Conseil
The preparation of draft bills was not the only task of the Conseil d'État in the legislative field. The institution also played a role in interpreting the law through acts which had a general impact. This function of interpreting legislation accentuated and reinforced the role played by the Conseil d'État in establishing the law.
The first regulation of the Conseil d'État, dated 5 Nivôse, An VIII (26 December, 1799), in its article 11 provided for the Conseil d'État "to develop the substance of laws, when questions that have been put to the consuls are referred to it". The declarations made by the Conseil in the context of this consultative work were known as avis du Conseil d'État (opinions of the Conseil d'Etat). After the Consulate, the Court of Cassation recognised these opinions as having the same autonomy, with regards to the courts, as a law itself. They were not all published however, as Napoleon did not always give his approval and only this approval could give these opinions of the Conseil d'État the force of law.
|Judicial role in contentious or litigious matters|
The Constitution of An VIII gave the Conseil
d'État, under the direction of the Consuls, the responsibility of "resolving
difficulties that arise in administrative matters". This vague wording
referred in fact to disputes between a public figure and a private individual
or between public figures.
The Revolution had abolished the various
administrative courts and referred disputes between a private individual
and a public service to the elected administrations. The law of 28 Pluviôse,
An VIII (17 February, 1800) reformed this arrangement and referred regional
administrative litigation to the prefecture counsels. The Conseil d'État
was designated as judge in appeal. It ruled also on appeals against
decisions taken by the (maritime) prize courts, and the Cour des Comptes
The decrees of 11 June and 22 July 1806
then altered this arrangement.
On the borderline between judicial and administrative
powers, the Conseil d'État was invested, by the decree of 11 June, 1806,
with a role in high-level law enforcement: these powers consisted of
examining the conduct of a public servant in the event of prosecution
or administrative sanctions.
Many other questions of an administrative nature fell within the province of the Conseil d'État. A number of laws and decrees regulating religious, political or administrative matters required decrees from the Conseil so as to establish the practical forms of their application.
The jurisdiction of the Conseil also extended, without the requirement for a law or regulation, but due solely to the Emperor, to the operation of certain public services. The budgets of the communes (when these exceeded 20,000 francs) of Holland, Illyria and the Hanseatic countries had to be examined by the Section de l'Intérieur. This highly overloaded department managed to pass more than one hundred drafts of this type in one sitting!
|Summary table of legislation governing the main powers of the Conseil d'État|
OF AN VIII
Under the direction of the consuls, a Conseil d'État is responsible for drafting the bills and regulations of public administration…
|…and for resolving any difficulties that may arise in administrative matters.||Judicial matters
Agents of the Government, other than ministers, may only be prosecuted for acts relating to their duties, following a decision of the Conseil d'État
OF 5 NIVÔSE, AN VIII
concerning regulation of the Conseil
The Conseil d'État develops the substance of laws…
|…It delivers a verdict, [on the referral
made to it by the Consuls of questions that have been put to them]:
1) in conflicts that might arise between the administration and the courts;
2) on judicial matters where the ruling had previously been submitted to the ministers.
|CONCORDAT OF 1801
Appeal may be made to the Conseil d'État in all cases of abuse on the part of superiors of the church and other ecclesiastical persons.
Appeal may be similarly made to the Conseil d'État if the public exercise of Worship is undermined.
|DECREE OF 11 JUNE 1806
on the organisation and powers of the Conseil d'État
|Art. 14 refers to the Conseil d'État:
[…] the ability to deal with
1) matters of high-level law enforcement [...]
2) all disputes or petitions relating to transactions made with our ministers, with the intendant of our household or in their name […]
3) Decisions of national auditing and of the Prize Court
|Heading IV. On judicial matters. (art.
24 to 36)
Art. 24: There will be a committee presided over by the court president, minister of justice, and composed of six maîtres des requêtes and six auditeurs.
Art. 25: This committee will carry out the investigation and prepare the report on all judicial matters on which the Conseil d'État has to give a verdict […]
|Work of the Conseil d'État and its sections from 1800 to 1813.|