Administration, police and law making in Napoleonic Europe, 1799-1815

1. Revolutions and State Formation in
Europe, 1789-1871
Dr Christos Aliprantis
American College of Thessaloniki – Anatolia College

2. Administration, police and law making in
Napoleonic Europe, 1799-1815: Introduction
 French revolutionary-republican
expansion in Belgium and over the
left bank of the Rhine (1795-1799)
 NapoleonicFrench Empireover most
of continental Europe (1799-1815)
 New states (esp.in Germany & Italy)
 New institutions and administrative
practices (conscription, penal codes)
 New methods of control & notions
of space: police (esp. gendarmerie)

3. 1. From the Old Regime and the Revolution
to the Napoleonic Administrative Model
 Longer term continuities:
 i) tradition of royal absolutism;
 ii) continuity in terms of professions: lawyers,
barristers, court officials, central bureaucrats
 The Napoleonic administration rested largely on
past the revolutionary administrative innovations:
 i) abolition of feudalism - concept of unitary state
administered through a system of departments;
 ii) single system of national courts & principle of
equality before the law;

4. 2. War and State Formation from the
Revolutionary to the Napoleonic Era
 Never-ending need for new army recruits from 1793 to 1815
 Law Jourdan (Sept. 1798): mandatory annual conscription
 Army conscription as a “blood tax” upon which depended the
very survival of the revolutionary/Napoleonic regime
 Massive draft evasion (1/3 of official recruits): rich and poor
alike tried to avoid conscription (illness, bribes, etc.)
 Sub-prefects responsible for the local recruitment process
 Between 60,000 and 80,000 new recruits on average every year
 By 1813 French society had eventually accepted conscription

5. 3. The Napoleonic administrative
pyramid, framework, and personnel
 Centrally appointed administrative and judicial officials
 Top of the system: a Council of State, whose members held
wide de facto powers (e.g. Talleyrand, Lebrun, Cambacérès)
 The Council supervised government work of administrative and
judicial officials down to prefects and mayors (incl. ministers)
 Despite its crucial role, the military was kept out of government
 “Unbreakable System”: i) The administration and the judiciary
were kept separate across France and the Napoleonic Empire
 ii) Officials served at regions different from those of their origins

6. .
 This “Unbreakable System” led to the creation of a professional
elite of administrative officials and magistrates, who operated
in a vast space across Europe
 New institutions of secondary (Lycées) and higher education
(Universities, Grandes Écoles) produced this regime loyal elite
 The legal and judicial framework of this administration was
perfected by 1804 in the new Civil Code (the Code Napoleon)
 The Napoleonic Code guaranteed: i) equality before the law;
 ii) respect for private property and equal division of inheritance;
 iii) open, public trials (no more closed inquisitorial proceedings)
 In conclusion, the Napoleonic administrative system may have
been authoritarian to its core, but aimed to guarantee the rule of
law based on the separation of the bureaucracy from the judiciary

7. .
 Ruling through the French bureaucratic system across Europe
became the ultimate aim above all costs
 “Clone polities” were created following the model of France (e.g.
the Kingdom of Westphalia and the Grand Duchy of Berg)
 Often admin. efficiency was sacrificed for the shake of control
 The highest posts were always filled by Frenchmen even if local
collaborators were eagerly accepted into the administration
 Past local traditions of admin. centralism and Enlightened
Absolutism helped the French recruit such local personnel:
 Bureaucrats that had served under the Enlightened Habsburg ruler
Joseph II (r.1765/1780-90) eagerly joined the French efforts
(Sigismund von Reitzenstein in Baden; Maximillian von
Montgelas in Bavaria; Francesco Melzi d’Eril in Milan, etc.)

8. 4. The Napoleonic Administration in
practice: the Gendarmerie
 The Napoleonic system had usually been imposed through war
and the force of arms and as such it was hardly popular
 The concept of foreign administrators strengthened the notion of
alien rule (not only Frenchmen but also e.g. Piedmontese in
Tuscany, Liguria and Rome; or Lombards in Venice)
 A strong executive branch was needed to keep order: the solution
was a new military police across Europe: the Gendarmerie
 A late 18th c. invention, the Gendarmerie brought a revolution
in the relations between admin. centers and the rural countryside

9. . The Gendarmerie units rested on six men battalions; the most
experienced among them were always French, veterans of the
Grand Army, while the others were usually locals. Thus
efficiency and obedience were secured
 The first gendarmerie units were formed by Étienne Radet in
the French South (c.1797) and were later expanded in Florence,
Rome and Naples, where Radet was sent to organize it
 Radet considered the French southerners and the Italians as
uncivilized, in need of coercion and paternalist governance – this
pattern came to characterize the gendarmes’ behavior later on
 The Napoleonic gendarmerie can be characterized as:
 i) a “colonial” institution: aiming to enforce order brutally
amidst largely hostile and “uncivilized” societies

10. .
 ii) an “imperial” institution: aiming to integrate and bring together
as close as possible the parts of the new Napoleonic Empire (esp.
since its ranks were filled primarily with Grand Army veterans)
 In practice the colonial dimension often superseded the imperial one
since the gendarmes had indeed to do with hostile populations
 The notion of a “civilizing mission” was strong as these populations
supposedly lacked any law whatsoever and thus had to be “civilized”
 Alienation was encouraged by the facts that: a) the gendarmes lived
in strict separation from the local societies inside their barracks and
were paid by the army command and not by the local authorities
 b) the gendarmerie was primarily used to enforce the local
recruitment process, which was increasingly seen as loathsome

11. .
 c) the gendarmerie was also used to suppress local rebellions and
extinguish robber bands mostly through constant persecution, even if
(or especially in case) such outlaws enjoyed noteworthy local support
 Early modern governments in Europe had tried to form “proto-gen-
darmerie” corps (e.g. the sbirri of the Papal States) but such initia-
tives failed due to lack of resources and insubordination of the corps
 The gendarmerie of the other hand was based on disciplined,
relatively numerous and highly mobile units, which used “shock”
tactics to isolate and persecute their opponents (robbers, Old Regime
supporters, etc.) so that they could uproοt the sources of resistance
 The gendarmerie embodies in the most brutal fashion the state mono-
poly of violence, which forms the core of the Weberian modern state

12. 5. Napoleonic Legal Influences in Europe:
the Penal Code
 Napoleonic institutions and admin. practices were not
disseminated only by the use of force; they were spread
through softer influence as well
 French admin. reforms found several supporters in Europe
 The legal (esp. penal) system of the German-speaking
lands offer a typical example of legal transfer
 Until ca.1800 the penal framework of the Holy Roman
Empire of the German Nation was based on the 1532
Constitutio Criminalis Carolina modified by a myriad
of subsequent amendments and local regulations and laws

13. .
 The legal “confusion” that was the product of these usually
conflicting imperial and local penal frameworks, had been the
target of many 18th c. Enlightened thinkers (e.g. Cesare Beccaria)
 Late 18th c. initiatives to systematize the laws and produce
comprehensive Codes had remained products of single states
[Florence, 1786; Austria, 1787 (“Josephina”); Prussia, 1794
(“Allgemeines Landrecht”) & 1805 (“Criminal-Ordnung”), etc.]
 The 1791 and 1795 French criminal codes provided a model for a
modern, rational and codified law, and an equivalent judicial system
 They foresaw: i) the principle of strict legality;
 ii) the proportionality of crimes and punishments;
 iii) the humanization of penalties;
 iv) the equity of law

14. .
 According to the French law, all crimes belonged to three
hierarchical categories: crimes, delicts, and contraventions;
and the court system was accordingly organized into three
basic tribunals: le tribunal criminel, le tribunal
correctionnel, le tribunal de police
 Principles such as: i) prohibition of torture; ii) defense
lawyers; iii) presumption of innocence, were established
 On the other hand, the Napoleonic Penal Code (1810) threa-
tened capital punishments;included police state elements;and
expanded crimes against the state (e.g. internal and external
security; crimes against the constitution of public officials)
 Such provisions influenced heavily the penal systems in
Germany even if many Germans understood them as foreign,
tainted by revolutionary ideas and Napoleonic power politics

15. .
 French legal debates caused vivid interest in Germany: the
Prussian jurist Ernst Ferdinand Klein (1804) praised the Penal
Code for its systematization of the laws; but also criticized the
degree in which the government could intervene in the judiciary
 After Napoleon dissolved the Holy Roman Empire (1806), the
question rose of whether a new superregional Penal Code should
be implemented, or whether each state would have its own Code
 The HRE was replaced by the Confederation of the Rhine
(1806-13) but no confederal Penal Code was ever put in force
 German jurists strove to translate the French Penal Code in German
and adjust it to the German legal culture: immediate translations
appeared in the Rhineland, in Westphalia, and in Berg (1810-11)

16. .
 Legal debates among German jurists persisted: for a time, the past
imperial legal framework (and the “ius commune” that accompanied
it) remained still in force until more permanent solutions were found
 Implementing the French Penal Code would necessarily entail a new
court system with juries and the modification of the current
inquisitorial system: both changes were high cost ones and would
have drastic repercussions. Many German jurists thus rejected them
since also they interpreted the Penal Code as a “radical influence”
 The German territories controlled directly by Napoleon (Westphalia,
Berg, Frankfurt) had no choice by to implement directly the Penal
Code (1811), even if this led to problems due to the co-existence
with the previous ius commune. Yet, these problems were short-lived
due to the dissolution of the Confederation of the Rhine in 1813

17. .
 After the fall of Napoleon, th Rheinish provinces were split between
Prussia, Bavaria and Hessen-Darmstadt and the Penal Code
remained largely in force until the enactment of new legal Codes
 This codification process, which concerned the combination of the
Penal Code and the ius commune, lasted until 1842 in Hessen-
Darmstadt and in 1851 in Prussia, meaning several decades of
legal collisions
 Only in Bavaria legal developments were somewhat different:
expert jurists (Gallus Aloys Kleinschrod, Karl Ludwig Wilhelm v.
Grolman, Paul Johann Anselm Feuerbach) adapted selectively
elements of French law in the 1810s, e.g. trinity of crimes, harsh
penalties) but not the entire French Penal Code. Problems also
appeared: e.g. the codification of police contraventions failed
 The result was the French-influenced Bavarian Penal Code of 1813

18. .
 The Bavarian Code of 1813 shows exemplarily the problems of
legal transfer: jurists had tried in vain to align their philosophical
penal theories with the utilitarian spirit of the French Penal Code
 The governments on the other hand pursued only the interests of
the state and rejected constitutional achievements such as the jury
or public oral trial
 After 1813 all attempts to directly implement the French Penal
Code were frozen and penal law reform needed more than 25
years to produce new penal codes: Saxony, 1838; Württemberg,
1839, Hessen-Darmstadt, 1842; Baden, 1845; Prussia, 1851
 The 1851 Prussian penal code largely adopted the structure and
hierarchies of the French one (crimes, delicts, and contraventions)
although choosing somewhat more severe punishments allowing
also the judges greater discretionary power

19. Conclusion: the Expansion of State Power
in Napoleonic Europe
 In a time of prolonged, massive scale warfare European states strove to
enforce tighter control over their territories (old and new ones); extract
more resources; and codify and improve their legislation in order to
secure the monopoly of legislative/jurisdictional power based on
sovereignty and –in some cases- on the principle on nation state
 Under these terms the Napoleonic era sees the origins of the Weberian
state formation: this was realized either in the form of aggressive
Napoleonic expansion or through his vassal states
 Even Napoleon’s adversaries, chose a form of “defensive modernization”
(Hans-Ulrich Wehler), expressed through police reforms (gendarmerie)
or penal codes, in order to successfully cope with the challenges of the
Napoleonic era