Napoleon I’s fame needs no introduction. He remains an eternal reference in the realm of military genius and statesmanship. It is however unfortunate that this man who has been the subject of more literature than Christ, should have his own writings and sayings fall into obscurity. These are not translated, nor are they even published even in France. They survive only in the libraries of those few men who are looking for some inspiration, or those of senile academics. I would like to share with you an aspect of Napoleon that many have assumed but have probably rarely encountered besides in secondary literature. Napoleon the Legislator.
After seizing power as First Consul, he immediately began putting France back into order. The first step would be the drafting of a Civil Code for all French. The following text are the minutes of the Council of State which regrouped Napoleon himself as well as the best legal minds of the country. Experts in customary law, in the southern written Roman law, of the Ancien Régime and the Revolutionary innovations.
I chose to begin with the subject of adoption because I found it timely. Our frens have been discussing the topic of nature, of physis extensively. What it means to constitute a state, what are the first matters tackled. Often they relate to family, and the rearing of children.
It is my honor and immense privilege to bring the Emperor’s deliberations to a modern audience.
In which cases adoption should be permitted
I would like adoption to be granted by informed decisions and a legal judgement. It would only be permitted to individuals aged fifty. If this individual is not married, we examine whether it is out of hatred of marriage that he remained celibate, or whether it is for solid reasons, such as the love of study, the care of public affairs. We distinguish the case where a father wants to adopt his natural child (this case would be favorable). We also distinguish the case where he would have for heirs only distant relatives. And finally, that we establish a series of proper rules to guide the courts.
Should we permit spouses to adopt separately?
Adoption would cease to imitate nature, if it was permitted to one of the spouses to give themselves a child who does not belong to the other; then it could even become a principle of disunion and disorder in the family.
There is more: we understand, in truth, that the husband, supreme head of the family, has the right to introduce within a child who finds himself placed under his authority. But how could the wife — who is under the authority of the husband, who depends entirely on him — give herself a child over which she would have an independent authority, and upon which the husband would have none? This idea goes against the supremacy of the husband and the good organisation of the family.
Subsequently, and whatever may the rights of the husband be, it is however certain that by permitting him to adopt alone, we are giving him a way to introduce to the family illegitimate children. There are less difficulties when the wife chooses these children as her own, and that they harbor for her the same sentiments they have for the husband.
Thus adoption by the woman alone is inappropriate. Adoption solely by the husband is also improper. It is therefore only reasonable that adoption be done in common.
For what purpose is adoption established
Adoption is principally established to give a father to orphans when the individual who, having only distant heirs, would like to attach himself to a child by leaving him his belongings alongside his name. It is also introduced for friends who desire adding this new link to those which already bind them. These are the most ordinary and favorable cases.
Conditions which must be required for adoption
It is possible to only allow adoption under conditions. Require, for example, that it occurs only between the one who has rendered services and another who has received them. This way the care which an individual has taken for a child of small age would authorize him to adopt. The services which he has received from the adult would give him the same ability. There is more, adoption of an adult would be absurd, if it did not have as motive the recognition of the one who adopts him.
Should adoption be permitted to the unmarried?
Discussion was opened at the council of state on this question. Consul Cambacérès was of the opinion that adoption should be permitted to the unmarried. Councilor Thibaudeau was of the opposite opinion.
The system of citizen Thibaudeau seems illuminating to me. Indeed, adoption is but an addition to the effects of marriage, a fiction which must come as close to it as possible. We should therefore not allow it for the unmarried. So that it may be honorable, the adopted individual must enter the family. Otherwise, we would place adoption in parallel to bastardy, which is the crassest insult. We would reduce the number of marriages, and following that the population. Why should we get married, if we could have children without enduring the burden of marriage? It is said that these are fanciful fears: we must foresee things from afar. Who would have said that the discovery of the New World would destroy the population of Spain? These things do not come immediately. They are the effects of centuries. It is the drop of water which pierces granite. Marriage and the population could be affected later on by a cause which would not immediately act upon them. Marriage, it is said, is quite fashionable: that is true, but we must ensure it remains so. To respect our current mores, adoption must only be a rare supplement to the effects of marriage, and not a way to escape it.
Adoption should be brought close to the honorable commitment of marriage. Thus its usage cannot be granted to the unmarried. It would be astonishing that a man who lives in celibacy should be able to transmit his name. The child who would bear it would be mistaken for the bastard, and would share his debasement. If, as we agree, the highest consideration is owed to marriage, then the one who has put off marriage should not be able to replace its effects. Adoption should not be placed in opposition to the marital union: otherwise we would be destroying the spirit of the family.
Up to what age could a child be adopted?
The law should not permit the adoption of a child above ten years old, so that the sentiments of father and son could establish themselves between the adopter and the adoptee.
What age should the adopter have?
It is important to only permit the usage of adoption to whom has reached the age where ordinarily we cannot expect to have children.
What will be the legal age for adoption?
The legal age for adoption should be the same as for marriage.
Adoption should be irreversible
I cannot comprehend adoption, if it does not give to the adoptive son all the rights of the natural son.
What is adoption if it can be revoked? It ceases to be a bond between the father and the son. Both of them could become strangers again to one another. Because we have realized, with reason, that this revocability should be reciprocal. There is not a reasonable man who would want to expose himself to taking on the education of a child, to give him his belongings and his care, to then be estranged from him once that child had reached the age where passions become rash. Adoption and revocability are two terms which we should never bring close to each other. We could understand that adoption should not be allowed; but it would be contradicting ourselves if we allowed it, and then however wished for it to be revocable.
There have been objections to the fact that the will of the child would not intervene in the adoption, that it would be contrary to his liberty to deprive him of his natural father without his consent.
But do we not realize that, in the state of society, it is the law which makes fathers, and that man does almost nothing by the pure movement of his will? From our childhood we live under the empire of laws and customs. If we should only account for will when it acts spontaneously, then there would be no reason to view the age of twenty one as that when one can make use of his liberty. It is even possible to claim that at that age too man has not yet received the lessons of experience, and that his views are troubled by passions.
Advantages of adoption
The happiest effect of adoption will be to give children to whom is deprived of them, to give a father to children who have become orphans, to finally bond old age and manhood to childhood. The transmission of the name is the most natural bond, at the same time it is the strongest to form this alliance.
Adoption is so little a consequence of the regime of the nobility that it was mainly in republics that it was made use of.
Moreover, the proposed modifications bring it into harmony with the order of things long received in France. It becomes a simple transmission of names and goods; transmission whose use has has always been frequent, and which has never been accused of making the adoptee a monstrous being in the social order.
Adoption has always existed in the countryside; with this difference however that, as far as the law is concerned, it does not transmit to the adoptee the name of the adopter, but that, in fact, the name remains with the adoptee, because no one disputes it from him.
Adoption, it has been said, only serves vanity.
It has more real advantages: it serves to prepare for one's old age with more reliable support and consolations than those one would expect from indirect relatives. It serves the merchant, the manufacturer deprived of children, to create a helper and a successor.
The ability to make arrangements does not form the same links during the life of the testator; after his death, it does not pass on his name. However, nobler motives than vanity, affection, esteem, sentiment, can make him desire to enter into this kind of alliance with one he has deemed worthy of it. It does not change anything in our customs, since it is limited to regularizing the already existing right to have one's name carried. It incentivizes old age to rear youth, which at the same time it encourages; it prepares good citizens for the state; it is a need for all professions.
The objection that was made against the adoption of minors falls apart, since only adults will be able to be adopted. Adoption of adults is only strange when the adoptee was not raised by the adopter.
We have spoken about possible regrets of the adoptive father: this repentance can become the result of all human transactions. We repent of an alienation, a donation, a marriage. At least in adoption there remains a resource for the father whose affection has been cheated; it is to reduce the adopted child to his legitimacy.
We can therefore at present only oppose adoption to the despair of indirect relatives.
This effect will undoubtedly not be included among the disadvantages: the interest of these relatives is nothing. Even so, if we calculate it well, we will find that it is better answered by adoption than by a pure and simple donation of goods. The conformity of the name establishes relations between them and the adopted child, which, in various circumstances, can be advantageous to them.
On adoption in relation to natural children
It is a happy idea to come, through adoption, to the aid of an abandoned child, and to rescue him from the depravity to which his state of abandonment exposes him.
But, they say, we must be afraid of facilitating the adoption of bastards.
On the contrary, it would be desirable if the injustice of a man who, through his irregularities, caused a child to be born in shame, could be repaired without mores being injured.
To give bastards the capacity to succeed would be offending mores; but mores are not further outraged if this capacity is returned to them indirectly through adoption. The law, by depriving them of the right to succeed, did not want to punish these unfortunate people for the faults of their father. It only wanted to ensure respect for the mores and the dignity of marriage. The ingenious means of having them succeed as adopted children, and not as bastards, therefore reconciles justice and the interests of mores.
Downsides of adoption
It was claimed that adoption would not harm the population. No doubt the decrease would not be rapid enough to be noticed at first; but it could be progressive as it was in Spain after the discovery of the New World. In general, the effects of civil laws which may have an influence on the population of a country are hard to detect; they are only noticed after a long period of time.
On the effects of adoption in relation to the belongings of the adoptee
Adoption is an imitation of nature: a child is born naked and without possessions; he must therefore be born in that state to the new family that adoption grants him.
It is unjust that, through adoption, an individual would strip the family from which he emanates of the heritage which was acquired by the work and sweat of its ancestors, and which, in the natural course things, was to be its legacy forever.
We could secure the child his share in the property of the family from which he comes. But by deciding that it would belong to it, that is to say that it will return to the natural family if he dies without children, and that it will not, under any circumstances, become the patrimony of the adopted family.
Who would be able to give the child up for adoption?
To the father and mother alone must belong the right to give the child up for adoption: no one else can be allowed to erase the sacred character of their son. It is therefore right to prohibit the adoption of a child who has lost his father and mother.
It will be objected that adoption is established to give him other parents.
So let us only allow him to be adopted when he has no property; because it is not up to relatives and strangers to strip him of a heritage, the fruit of the sweat, work, and privations of his father.
A child can only be pulled away from his natural family by his wish, if he is of age and if adults were capable of being adopted; or by the will of his father or mother, if he is a minor. Only his extreme poverty could authorize an exception to this principle, and justify the act by which, after the death of his father, he would be stripped of a name which must be dear to him. The intervention of family councils is, apart from this case, neither a guarantee nor an excuse. By what right, after the death of a father who left his son the means of subsistence, could the will of a few individuals tear this son from his family? Such a system would destroy the spirit of family, and would facilitate the machinations of his relatives.
Any child who may have the slightest asset, even if it were but a small house and 600 francs of annuity, must be refused to the man who has 100,000 francs of annuity, unless his father gives him up for adoption.
On adoption by a friendly guardian
We can reduce the system to a small number of issues. We can allow adoption, upon reaching the age of majority, of the child whom had been cared for from early age, and of the child for whom we have become a friendly guardian. Whoever proposes to adopt will take on this last quality. But it is necessary that, neither in this nor the other case, what they had done during the child's minority produces an obligation to adopt him when he comes of age.
The person who had been the friendly guardian for five years could adopt the child through a testamentary disposition.
The friendly guardian would owe support to the child if he died without having adopted him, or if, when the child reached the age of majority, he refused to adopt him.
On the forms of adoption
During the discussion which occurred at the Council of State on this topic, Napoleon began to successively propose two systems of which neither made it into the Code. He had first wanted that the Corps Législatif would pronounce in sovereign manner on adoption. Then, seeing the difficulties which would inevitably occur with this process, he endorsed the participation of the judicial authorities. In his thinking, the Corps Législatif would therefore pronounce on the tribunal reports.
FIRST SYSTEM
Adoption must be pronounced by the Corps Législatif. — Advantages of this system. — It cannot be revocable.
Those who have spoken on the question seem not to have gone back to the principles which should resolve it. Citizen Tronchet said that among the Romans adoption was made in the assembly of comitia. Citizen Portalis, that wills were also read before the people. It was concluded that these were legislative acts. The real reason is that they were departures from the order of families and inheritances. Moreover, in Rome, all important acts were carried out in the comitia. The objection that the constitution does not authorize such a delegation to the legislative body is unfounded. Everything that it does not formally prohibit is permitted. Adoption in itself is not within the competence of either the legislative body or the courts: it is neither a civil contract nor a judicial act. Then what is it? An imitation by which society wishes to ape nature: it is a sort of new sacrament; for I cannot find a word in language which gives a fair definition of it. The son of bones and blood passes by the will of society into the bones and blood of another. It is the greatest act imaginable. It gives feelings of a son to those who did not have them and vice versa for those of fatherhood. Where should this act then come from? From above like lightning. You are not the son of such and such, says the legislative body, yet you will have the feelings of one. There is concern that this mode will restrict adoption too much; it ennobles it, it honors it. There is opposition to the difficulties it entails: it will not be the legislative body which will go into the details of the information and preparatory formalities. The fully matured endeavors will be presented to it; it will only have to examine and vote. The legislator, like a pontiff, will only intervene to imbue it with the sacred. If the child of nature comes to say to the adoptee: you are not my brother, he will answer: like you and more directly than you; I hold my quality from the law. There is objection to revocability of adoption; but I would not like it to be revocable. Divorce is cited as an example. How can we compare what destroys with what creates? When a political body has pronounced adoption, we cannot think of allowing its revocation. It would be different if it came from a court: it would be nothing more than a sentence.
It is important to distinguish the decisions of the legislative power into two classes; some deserve the title of laws, because they organize a matter and they have their effect with regard to the legislator himself, as long as they are not revoked. The others are legislative acts rather than laws, because their purpose is to establish the consequences and the application of the laws made. Nothing therefore prevents a general law from determining the causes of adoption, but that however adoptions are made by an act from the legislative.
If adoption should not give rise, between the adopter and the adopted, feelings of father and son, and become a perfect imitation of nature, it is useless to establish it. It must be organized in such a way as to strike the imagination strongly enough so that the adoptive father obtains preference over the natural father in the heart of the adopted son. Let it be established as a political sacrament, whose most eminent authority would be the minister. It would not act in this case as a purely civil power, as when it is only a matter of deciding on a property. It would act, so to speak, as grand pontiff of the republic, in the name of the sovereign, whose power on earth is a vivid image of the omnipotence of God. If the church recognized adoption, there is no doubt that it would strive to inculcate, through the most august ceremonies, the sentiments that adoption should produce. We don't play with men like we do with inanimate things. Men are only moved by the soul. It is therefore to restrict adoption, to distort it, to carry it out by a simple declaration made before a notary, or at a registry, and where everyone can decide on the price.
We must give the adoptive father more than an heir, we must give him a son. And yet, even up to the change of name, adoption, if it is not a moral institution, if it is revocable, merely creates an heir. Where is the difference? In the East, among the Mamelukes, for example, the slave admitted into the military family is equal to the children, and has for his master the same devotion that the latter have for their father. It is therefore possible to give rise to this feeling, provided that we strike imaginations that are still virgin.
If there are quarrels between the natural father and the adoptive father, if boarding the same boat they are threatened with perishing: the son must declare himself for the adoptive father. Only the will of the sovereign can impress this feeling. The legislative body will not pronounce in this case as it does in matters of property and taxes, but as the pontiff of morality and of a sacred institution.
The minister of Justice having said that the Corps Législatif would only sanction, because only consent is required for the contract, the First Consul replied vividly:
There is no contract with a minor... A contract only contains geometric obligations, it does not contain feelings. Put ‘heir’ in your law, and leave us be! ‘Heir’ carries with it only geometric ideas. Adoption, on the contrary carries the ideas of institution, morality and sentiment… Analysis leads to most vicious results. It is not for five cents a day, for a meager reward, that we go to our deaths. It's by speaking to the soul that we electrify man. It is not the notary who will produce this effect for the 12 francs that will be paid to him. The question at hand is not being deal with properly, you are merely doing geometry. We are viewing it as lawmakers and not as statesmen. Imagination must consider adoption amidst the misfortunes of life.
SECOND SYSTEM
Councilor Regnault of Saint-Jean-D’Angely insisted in the interest of third parties so that if adoption were made by a law, courts were charged with authorizing and applying all preliminary acts. Struck by this observation, the First Consul seemed prepared to modify his system.
The disadvantage of involving the legislature in the interests of third parties is immense. It could become arbitrary and tyrannical with impunity, and turn everything upside down. Too occupied with the great interests of the state, the legislator cannot look after the interests of individuals and families. It is different with the courts. But when they have fulfilled all the preliminaries, they are not sufficient to disturb the order of nature: the cooperation of both authorities is therefore necessary. The courts will settle the civil interests of third parties, and the matter will then be transmitted by the government to the legislative body, which will give the anointing. If the legislator intervened first, there would be tyranny, as during the Convention. In the East, the lowest subject is master in his family, like the sovereign on his throne. We must therefore begin with the courts. An individual cannot fight against a government; the courts are its natural judges. In private affairs, the large bodies of the state do not offer security to citizens; I see neither sails nor oars there to provide a guarantee. If the court does not judge that there is reason to admit the adoption, the sovereign does not have the right to harm the interests of the families, which I call third parties. There is nothing more barbaric than the kings of France judging under a tree. Political bodies should not judge. There has been talk of an administrative instruction, I protest against it, it has no form. We would undoubtedly find some lights there, but there would be a lack of power. A prefect is not judge of the state of men; the administration must only intervene where it is relevant.
There are two things in adoption: a free and spontaneous act on the part of the sovereign who grants the grace of a waiver from common law; and the interest of individuals which must be respected. According to this distinction we can charge the courts with verifying whether the request is in accordance with the law, and whether private interest is not injured: but their ministry must stop there. Because their power does not go as far as to change the order established by nature and law. Everything that is above private interest is foreign to them, and belongs to other authorities. Thus their decisions would be reported to the government, to receive its sanction, which would give the adoption the great character of irrevocability, and which it would only grant after having examined its request in terms of mores and public interest.
The independence of both authorities would remain intact. The functions of the court would be to declare whether the application for adoption can be legally admitted. The functions of the administrative authority, to admit it or reject it. When the court after verifying the causes of the request, hearing the parties, ruling on the complaints, declares that there should not be adoption; then the administrative authority could not overrule. But, if the declaration of the court is favorable to the request, the administrative authority would however remain free to refuse the adoption.