COURTS AND PROCEDURE
7 The triumph of a single, exclusive Code civil was achieved by organizing a hierarchy of courts and by promulgating a code of civil procedure in 1806 which was itself common to all Civiljurisdictions.
Over the centuries of the ancien regime there had been a proliferation of jurisdictions, some dependent on the church, others on great landowners. The codification replaced this diversity with a single hierarchy of state courts. It had been customary under the ancien regime for worthies who were active in politics and commerce but who had no legal education to sit in the lower courts; but in the nineteenth century the administration of justice in all but the commercial courts was reserved to professional judges educated in faculties of law. The Cour de Cassation was charged with overseeing the uniform application of statutes.Even more than the Code civil of 1804, the Code de procedure civile of 1806 owed a debt to the past. Several measures of the Ordonnance civile sur la reformation de Iajustice of 1667 (which we shall deal with later) were repeated word for word. The Code de procedure civile also adopted the old idea of civil procedure as a dispute between free and responsible citizens in which no initiative or intervention on the part
,0 Article 1781 of the Code under the rubric â€?Du Louage des domestiques et ouvriers’ provides that â€?the master is believed on his affirmation about the amount of wages, the payment of the salary for the past year, and the advances given in the current year’. The compulsory workers’ file ∖lwret d,ouvrieτ) was introduced by the statute of 22 Germinal Year XI (12 April 1803) on factories and workshops. When the employer wrote a negative comment or retained the file, the worker was condemned to unemployment and, if he moved without his file, risked being treated as a vagabond.
He had the right of recourse to the courts, but there found himself faced with article 1781. In Belgium this discriminatory situation was abolished only in 1883, when the compulsory file and article 1781 were abrogated. SeeJ. Bekers, â€?Elaboration des lois, i9'-20, siecle: La Ioi du to juillet concernant les Iivrets d’ouvrier’, La decision politique et judiciaire dans Ie passi et dans Ie prisent (an exhibition from 15 April to 17 May 1975 on the occasion of the colloquium â€?Sources de Fhistoire des institutions de la Belgique’ (Brussels, 1975), 27-64; B. S. Chlepner, Cent ans d’histoire sociale en Belgique (Brussels, 1958); J. Neuville, La condition ouυrilre au XIX' silcle, π.∙ L’ouorier suspect, 2nd edn (Brussels, 1980). of the administration or the judge was required (a principle desÂcribed in German as Verhandlungsmaxime). The Preliminaire de conciliaÂtion, one of the most popular procedural innovations of the RevoluÂtion, was maintained in principle in the Code of 1806 but in practice no longer applied. The aim of this revolutionary institution was to avoid litigation and to attempt reconciliation: parties were brought together beforehand for what was intended to be a constructive and reasonable discussion.The legislation on civil procedure was passed in the same way as that on civil law. Like other â€?feudal laws’, the Ordonnance civile of 1667 had been criticized and was abrogated by a statute of 3 Brumaire of Year II (24 October 1793). This statute aimed (rather idealistically) to abolish all formal procedure and open the way to a system of administering justice without formal legal proceedings. In Year V a draft code of procedure was compiled but the text was never promulgated. Under the consulate a statute of 27 Ventose of Year VIII (17 March 1800) established a new judicial system and reÂintroduced the Ordonnance of 1667. The Code of 1806, one of whose principal authors was E. Pigeau (d. 1818), took up again the broad lines of the 1667 system, although it did retain a number of revolutionary innovations. In some cases (notably the Preliminaire de conciliation just mentioned), the preservation of these new institutions was more apparent than real. But other achievements of the Revolution did last, such as the creation of justices of the peace; the obligation to deliver reasoned judgments; the reduction in the number of appellate courts; and the abolition of the secret examinaÂtion of witnesses.