Summary

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:
a legislative role, involving the preparation of laws and codes, opinions of the Conseil;
a judicial role, involving procedures in contentious or litigious matters;
and an administrative role, in which the Conseil had miscellaneous powers.

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."
Cormenin alludes to the everyday practice during the Empire of regulating by decree matters which, by their nature, should have been the subject of laws.

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.
The conseillers d'État prepared not only major laws but also regulations proposed by Bonaparte. A significant minority in the Tribunate, in defiance of Bonaparte from An IX on, did not hesitate to speak of the "draft bills of the Conseil d'État".

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.

Conclusion
So, in spite of the constitutional rules and the difference, which was in principle absolute, between a consultative body and a body with the power to pass a law, the practice of the Consulate and the Empire shows that the consultative role of the Conseil d'Etat was extended in practice to a legislative role that went beyond that of the Legislative Body.

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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 regulation of 5 nivôse An VIII (26 décembre 1799) (26 December, 1799) throws some light on this notion: article 14 enjoined it to reach a decision, after referral to the Consuls, on two kinds of "difficulties":
- "conflicts of authority", between the law courts and the public service administration with regards to their respective jurisdiction when dealing with a dispute between a public figure and a private individual,
- "litigation for which a ruling had previously been presented to the minister".

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 (after 1807).
However, a dispute was only referred to the Conseil by the Head of State, and the Conseil could not hear the arguments of the private individual, either verbally or in writing. It was not required to give reasons for its judgement

The decrees of 11 June and 22 July 1806 then altered this arrangement.
A judicial committee was created and received disputes before their deliberation in the Conseil d'État. It was composed of six maîtres des requêtes and six auditeurs, under the presidency of the minister of justice. The auditeurs carried out the investigation, the maîtres des requêtes decided on the committee's opinion. A private individual could lodge an appeal with the Conseil d'État through a "lawyer of the Conseil d'État", a newly created office.
In fact, the judicial solution of disputes was only a small part of the work of the Conseil d'État during the First Empire. In the Archives Nationales, two records of the judicial committee mention a total of 1646 cases between September 1806 and March 1814. These judgements were always made under the authority of the Head of State, who did not however take part in the judgement, but reserved the right to disregard it.

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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.
The organic articles of the Concordat of 1801 (26 Messidor, An IX, 15 July, 1801, art. 6) gave the Conseil d'État the jurisdiction to deal with appeals on abuses in ecclesiastical matters.

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!

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These figures were taken from the General Account of the work of the Conseil d'État and its committees