At Waterloo, the Code Napoleon didn’t surrender

Apologies if this month’s Magna Carta hype has already brought on a case of anniversary overdose, but there’s another one coming up which may be of interest to lawyers. The bicentenary of Napoleon Bonaparte’s narrow defeat at Waterloo on 18 June 1815 will provide a national excuse for one of the nation’s favourite ‘What if?’ games. In this case, what if Napoleon had won? (Pace my French friends who believe he did.)

It’s reasonable to say that if Boney had managed to hoist his tricolour over the Tower of London, the legal environment in England and Wales would be somewhat different today. 

As it happens, few military historians think that would have been the outcome if Napoleon had broken Wellington and held off the Prussians at Waterloo. After all, he still had the Austrians and Russians, who had occupied Paris the previous year, to deal with. Napoleon’s real chance of subjugating Great Britain was a decade earlier: a combination of flukey weather and British military incompetence might just have resulted in a successful French invasion in 1804. 

And with the French Army would have come the Code Civil des Francais, better known as the Code Napoléon, drafted by one of the most remarkable characters in European legal history. 

In general, Napoleon didn’t have much time for lawyers. He once described the legal profession as a ‘heap of chatterboxes and revolution fomenters who are inspired only by crime and corruption’. But one for whom he made an exception was Jean-Jacques-Régis de Cambacérès (1753-1824), the offspring of a distinguished legal family turned revolutionary. 

Cambacérès was a survivor. He had been a moderate member of the National Convention, voting for the execution of King Louis XVI only in the event of an Austrian invasion, and was instrumental in Napoleon’s 1799 coup, for which he was rewarded with the post of second consul. 

For much of the next decade and a half, Cambacérès ran domestic affairs in France – think Attlee to Churchill in world war two. Like Attlee, Cambacérès excelled at dealing with his master’s eccentricities – he was said to be the only person, Josephine apart, who could calm Napoleon’s rages. Most unlike Attlee, he was also a ‘confirmed bachelor’ (vieux garcon) and apparently quite open about it, being at the receiving end of Napoleon’s barrack-room humour on the subject. For most of his life, the penalty for homosexuality was death. 

It is to Cambacérès we owe the ‘Napoleonic’ rationalisation of pre-revolutionary France’s chaotic legal order, featuring a mix of Roman law, a customary law and canon law, promulgated in France in 1804 and in the more acquiescent of Bonaparte’s conquests thereafter. 

Would the code have followed the tricolour to Britain? We cannot be certain: a recent and sympathetic biographer Andrew Roberts* points out: ‘The French administrative model was almost never simply imposed on conquered territories so much as adapted subtly according to prevailing local circumstances.’ But one outcome of a successful French invasion might have been the ending of the English and Welsh principle of primogeniture, with consequences for the preservation of ancient estates and 19^th-century colonial ambitions. 

And of course it is likely that, had the code been imposed, the process of integrating the UK’s legal system with that of the rest of the European Union, would be a lot less painful today. That, however, is probably one ‘what if?’ too far.  

Remarkably, Cambacérès survived Napoleon’s fall in 1814, and returned reluctantly to the justice ministry during the 100 days before Waterloo, saying ‘all I want is rest’. He escaped to Brussels during the restoration but was allowed back to France in 1818, where he lived in comfortable retirement until 1824. And yet today he seems almost unknown in the anglophone world – I can’t find a single biography in English. 

Perhaps it’s inevitable that proximity to Napoleon would diminish any individual, but I can’t help wondering that if Napoleon *had* triumphed two centuries ago, Jean-Jacques-Régis de Cambacérès would have had a fairer deal from English history. 

 *Napoleon the Great, Allen Lane, £30.

Michael Cross is Gazette news editor