Preliminary Address on the First Draft of the Civil Code
For as long as the Catholic religion was dominant in France, for as long as religious institutions were inextricably joined with civil institutions, it was impossible for civil law not to declare as indissoluble an engagement so declared by religion, which was itself a law of the State: there must be harmony among the principles that govern men.
Today, freedom of religion is a fundamental law, and most religious doctrines allow divorce. The possibility of divorce is therefore linked, for us, to freedom of conscience.
Citizens may profess diverse faiths; but laws must be for everyone.
We therefore did not think it necessary to forbid divorce among us, because our laws would too formally conflict with the various faiths that permit it, and the laws could not hope for the men who profess these faiths to make of marriage a stronger bond than religion itself.
Moreover, apart from the consideration inferred from the diversity of faiths, civil law may very well, out of fear of greater ills, not use authority and constraint to force unhappy spouses to remain together, or to live in a forced celibacy, which is as harmful to morals as it is to society.
Law that allows all citizens, without distinction, the possibility of divorce, without troubling spouses whose faith opposes divorce, is a result, a consequence of our regime, that is to say, of the political and religious situation in France.
But the desire for perpetuity in marriage being the very desire of nature, the laws must establish a salutary curb on passions; they must prevent the holiest of contracts from becoming the victim of caprice, of inconstancy, or even from becoming the object of all the shameful speculations of a base avidity.
Since our new laws, the mere allegation of incompatibility of temperament and character could bring about the dissolution of the marriage.
To allege is not to prove: incompatibility of temperament and character is not even susceptible of rigorous, legal proof. So, in the final analysis, permitting divorce on a single ground is to give each spouse the grievous right to dissolve the marriage at will. Is there a single contract in the world that only one of the parties can arbitrarily and capriciously dissolve, against the wishes of the party with whom he has contracted?
It is observed that the allegation of incompatibility of temperament and character may conceal the very real causes, public discussion of which would bring shame on families and be a scandal for society. Moreover, the shared life of two spouses can become unbearable through a multitude of hostile behaviours, bitter reproaches, daily scorns, relentless, biting and persistent clashes, in a word, by a host of acts no one of which may be thought serious, and which together are the misery and torment of the spouses who suffer them.
All that may be so; but it is also true that the mere allegation of incompatibility of temperament and character may conceal merely the absence of any reasonable motive. Who will assure us that sufficient cause to divorce does exist, in a case where none is given?
Marriage is not a situation, but a status. It must in no way resemble those brief and fleeting unions that pleasure forms, that end with pleasure, and that have been condemned by the laws of all civilised peoples.
It is said that we must come to the aid of two ill-matched spouses. We blame our morals and our customs for favouring bad marriages. The only remedy for these ills is found in the facility of divorce.
It is all too true that two spouses often form a union without knowing each other, and are condemned to live together without loving each other. It is all too true that designs of ambition and wealth, and often fantasies and easy morals, govern the formation of alliances and the fate of families. Moral and natural proprieties are usually sacrificed for civil proprieties.
But should these abuses summon others? Should the corruption of laws compound that of men? Because there are bad marriages, is one to conclude that there ought to be none that are sacred and inviolable? When the abuses are the work of passions alone, laws can remedy them; but when they are the work of laws, the ill is incurable, because it lies in the remedy itself.
Laws do everything within their power to prevent, in marriages, errors and mistakes that could be irreparable; they assure the contracting parties of the greatest freedom; they give the contract the widest publicity; they require the consent of fathers, a consent clearly based on the fond consideration that paternal caution, enlightened by the tenderest sentiments, is above all other. If, despite these precautions, the laws do not always achieve their proposed objective, let us blame only the weaknesses inseparable from humanity.
At what point does one demand the extreme facility of divorce for ill-suited marriages? When marriages become freer than ever; when, political equality having eliminated the extreme inequality of stations, two spouses are able to yield to the tender moods of nature and no longer have to struggle against the prejudices of pride, against all those social vanities that place, in unions and marriages, the nuisance, the need, and, dare we say, the inevitability of fate itself.
What we must fear today is that moral laxity will replace the former nuisance of marriage, and that, because of the considerable facility of divorce, a regular, as it were, libertine outlook, the product of permitted inconstancy, will replace marriage itself.
But, one might say, if the simple allegation of incompatibility of temperament and character is not allowed to stand, all the advantages of divorce are removed. Quite the contrary, we say; the abuses of divorce are merely multiplied and made worse if the means deduced from incompatibility of temperament and character are allowed to remain.
The allegation of this incompatibility will become the means of all those who have no means. The most important, the most noble, of contracts will have no substance and gain no respect; morals will continually be violated by laws.
Divorce could still be obtained by mutual consent, on the basis that marriage is a partnership, and that a partnership cannot exist for all time.
But can marriage be likened to ordinary partnerships?
Marriage is a partnership, but the most natural, the most holy, the most inviolable of all.
Marriage is necessary; the other contracts of partnership are not.
The purposes that become the stuff of ordinary partnerships are determined arbitrarily according to man's will; the purpose of marriage is determined by nature itself.
Ordinary partnerships concern scarcely more than the conveyance, to a greater or lesser degree, of property or industry. Property enters only incidentally into marriage; the essence of this contract is the union of persons.
In ordinary partnerships, one stipulates for one's own undisclosed and private interests, and as the supreme arbiter of one's own destiny. In marriage, one does not stipulate solely for oneself, but for others. One promises to become the protector of the new family that one will bring into being. One stipulates for the State, for the general society of the human race.
The public is therefore always a party in matters of marriage; and, over and above the public, there are always third parties worthy of the utmost consideration and for whom one can have neither the desire nor the power to do harm. The conjugal partnership is like no other.
Mutual consent therefore cannot dissolve marriage, whereas it can dissolve any other partnership.
Neither do illnesses, infirmities, seem to us to provide legitimate reasons for divorce. Are not the two spouses joined to both their good and their bad fortune? Should they abandon each other when everything requires them to assist each other? Do duties come to an end with the amenities and the pleasures? According to the fine expression of Roman laws, is marriage not a complete and perfect partnership that presumes the sharing, between two spouses, of life's fortunes and misfortunes, the communication of all things divine and human?
The infirmity of the spouse whom one would like to be permitted to repudiate may have been contracted within the marriage itself. How could it become a reasonable opportunity for divorce? Pity, gratitude, ought they not then become the auxiliaries of love?
Nature, which has distinguished men by their emotion and reason, has wanted the obligations born of the union of the two sexes to always be guided by reason and emotion.
It has been claimed, in some writings, that everything that permits the separation of property must permit divorce, and that neither of these two things should operate without the other. Why should means that can legitimise the separation of property dissolve marriage? Marriage is but the union of persons; the spouses are free not to commit their wealth. Why, then, make marriage depend on the one thing that is utterly foreign to it?
The separation of bodies once led to the separation of property, but the separation of property never led to the separation of bodies.
A man may be a bad administrator without being a bad husband. He may be entitled to the affections of his wife, without being entitled, in some regards, to her confidence. Will this wife then be forced to betray her heart in order to keep her property, or abandon her property in order to follow the impulses of her heart?
As a rule, divorce must not be pronounced without cause. The causes of the divorce must be obvious breaches of the contract. Hence, we allow, as legal causes, only civil death, which imitates natural death, and the crimes or offences of which one spouse may accuse the other. We did not think it tolerable to make divorce easier than separations once were.
Matters of divorce used to be referred to family councils; we have referred them to the courts. The intervention of justice is essential in matters as important as these. A family council, commonly made up of persons prepared in advance to agree to whatever was required of them, was no more than a band of confederates or complacent individuals always ready to conspire with the spouses against the laws. Relatives can, moreover, readily be suspected of love or hate against one party or the other; their self-interest greatly influences their opinion. They rarely retain, in matters so lightly dealt with by their circle, the gravity that morality demands in all that concerns morals. Unhappy experience has shown too well that friends or allies convened for a divorce believe they can fulfil their mission no more effectively than by signing a resolution drafted without their knowledge, and by appearing indifferent to everything that is taking place.
Moreover, all that concerns the civil status of men, their conventions and their respective rights, belongs essentially to the judicial system.
If divorce can now be granted only with cause, this cause must be verified. It is thought that the points of fact and of law to which such verification may give rise can be seriously debated only in a court of law.
To remove the danger from the debate, we have outlined a particular procedure, capable of rendering it sound and adequate, without rendering it public. All the issues of divorce must be dealt with behind closed doors, if one wants to avoid scandal.
We have left all avenues open for the reconciliation, the reuniting of the spouses.
The spouse obtaining the divorce must keep, by way of compensation, some of the benefits stipulated in the marriage contract. For we assume that he can obtain the divorce only for just cause; and his action, while bringing his troubles to an end, deprives him of his status and therefore leaves considerable damage to be repaired. There is no choosing between the person who seeks the divorce and the one who has made it necessary.
We thought it necessary, in the interests of public decency, to make provision for an interval between the divorce and a second marriage.
The judge has the right to order only a brief separation if he is hopeful that peace can be restored in the household. He urges, he invites, until he is obliged to render a decision.
In general, our aim, in all the proposed laws respecting divorce, has been to prevent its abuse and defend marriage from the effects of immorality. The path to evil inclines steeply; one ascends back to good only with some effort.
Families are formed through marriage, and they are the breeding ground of the State. Every family is a separate and distinct society, the governing of which affects the large family that encompasses them all.
Also, according to the notions we have attributed to the marriage contract, it is obviously the consent of the parties that forms this contract. It is fidelity, it is the pledge given, that renders the mate worthy of a man joining her to him as his spouse, a station so honourable that, as expressed by the ancients, it is not sensual delight, but rather virtue, honour itself that gives it that name. But obviously one also needs to be reassured about the true intent of the man and woman forming the union, through conditions and conventions that make known the nature and guarantee the effects of this union. Hence all the pre-cautions, of which we have already spoken, and which have been taken to ensure the honesty and certainty of the marriage.
By these precautions, the spouses are known. Their engagement is placed under the protection of the laws, of the courts, of all good people. One learns to distinguish inconstancy from marital fidelity, and the straying of passions from the regulated exercise of the most precious rights of humanity.
The workings of nature in the mystery of procreation are impenetrable; it would be impossible for us to lift the veil that conceals them from us. Without a public and solemn marriage, all matters of filiation would remain clouded; maternity might be certain, paternity never would be. Is there a marriage in form, acknowledged by the law and recognised by society? The father is established: it is he who is proven by marriage. The presumption of the law, founded on the cohabitation of the spouses, on the self-interest and vigilance of the husband, on the obligation to assume the innocence of the woman rather than her sin, puts an end to all the uncertainties of the magistrate and guarantees the status of persons and the peace of families.
The rule that the father is he who is proven by marriage is so favourable, that it can yield only to obvious proof to the contrary.
Children born to a valid marriage are termed legitimate, because they are the issue of an engagement whose legitimacy and validity cannot be uncertain in the eyes of the laws.
In the case of a marriage that is invalid but contracted in good faith by either or both parties, the status of the children is not compromised. Positive laws, which never wholly deviate from natural law, and which, when they appear to do so, do so only to better adapt the designs of that law to the needs of society, have paid tribute to the natural principle that the essence of marriage consists in the faith the spouses place in each other. Thus, while normally only a marriage contracted in accordance with the prescribed conventions and the established law can legitimise children, one acknowledges as legitimate those children born of a putative marriage, that is, a marriage which the spouses believed to be lawful, and contracted freely between the parties with the intention of fulfilling the duties inseparable from their status, and of living with the consequences, under the patronage of virtue and in the pureness of conjugal love.
Two main reasons led to the adoption of this principle. The first is the favour that attaches to the name of marriage, a name so powerful that its very shadow suffices to purify, in children, the principle of their birth. The second is the good faith of those who have entered into such an engagement: the fatherland acknowledges their intention to give it legitimate children. They formed an honest engagement; they thought they were doing what was prescribed by law, to leave lawful issue. A secret impediment, an unforeseen event eluded their foresight: one cannot refrain from recompensing them for the desire, the appearance, the name of marriage, and considers less what the children are than what the fathers and mothers wanted them to be.
The favour of common law has been extended so far that the good faith of one of the contracting parties has been deemed sufficient to legitimise the children born of their marriage. A number of former jurisconsults thought that in such cases, the children should be legitimate in relation to one of the spouses and illegitimate in relation to the other; but their opinion was rejected, on the basis that the status of men is indivisible, and that, things being as they are, one must decide wholly for legitimacy.
It was questioned whether subsequent marriage ought to legitimise children born prior to the marriage. English laws permit no legitimisation by subsequent marriage; they regard this sort of legitimisation as capable of promoting loose morals and disturbing the order of families. In France, one looked more to natural equity, which spoke in favour of the children, than to that reason of State which sacrifices all in the interest of society as a whole. Our laws presume that fathers and mothers who marry after having lived in an unlawful union have always intended to commit themselves to each other through the bonds of formal marriage. They assume that the marriage was contracted, at least in wish and desire, from the time the children were born. And through an equitable invention, they give the marriage retroactive effect.
We did not think it necessary to change this provision which the equity of our fathers seems to have recommended to us: but we have brought back the precautions that prevent it from becoming dangerous.
The status of children born outside of marriage is always more or less uncertain because, unaided by any presumption of law, it relies only on obscure facts that are often impossible to prove. It happened that, under cover of legitimisation by subsequent marriage, mysterious persons, who could not close their eyes to the vice of their origin, threatened, through contrived demands, the peace of families. These demands, almost never made until after the death of those who might have effectively dismissed them, filled the courts with quarrels so scandalous and dangerous as to shake all of society.
These troubles will be prevented if the law legitimises by subsequent marriage only those children legally recognised at the actual time of the marriage.
As the law presumes nothing, and cannot presume anything about children born of a union it does not recognise, these children must be acknowledged by those who brought them into being, in order to lay claim to rights. Were it otherwise, the honour of women, the peace of households, the wealth of citizens, would continually be in peril. The new laws made provision for ill intent, and we are retaining the provisions of these laws in this regard.
Possession was the first, and for some time the only, proof of a man's status. A man was reputed to be a husband, a child, who lived publicly, in one or other of these relationships, within a specific family. Since the discovery of writing, all that has changed: marriages, births, deaths are recorded in registers. Consequently, the most legitimate proof, in civil matters, is that derived from public registers. This principle is a kind of law of nations common to all civilised peoples.
But this proof, as authentic and legitimate as it may seem, is not the only proof. And just as it is not right for the neglect of parents, the corrupt practices of those who maintain the public registers, the misfortunes and abuses of the times, to make it impossible for a man to prove his status, so it is right for the law to provide, in all these instances, another proof that can compensate for the defect and repair the loss of registers. And that proof can only be the proof derived from other instruments and the deposition of witnesses.
Let us be mindful, however, that in matters of status, testimonial evidence ought not to be admitted without caution; it never has been admitted without a commencement of proof in writing. There must be some reassurance against a type of proof that inspires such mistrust: witnesses can be corrupted or seduced, their memory can deceive them, they can unwittingly be swept along by strange notions. Everything warns us that we must guard against simple testimony.
It would be unsound reasoning to argue, with regard to status, the ease with which testimonial evidence is accepted in criminal matters.
In criminal matters, the law would be powerless to learn of the crime it wants to suppress, if it did not allow testimonial evidence. For crimes are deeds which seldom, and only incidentally, involve writing. Now, pure deeds can be proven only by witnesses. The admission of testimonial evidence when seeking out and investigating crimes therefore derives from necessity.
The same necessity is hardly encountered in matters of status. The law intends the status of men to be recorded in public written records: it is more concerned with families than with individuals. The obscure fate of a citizen whose status may be unfairly compromised, is of less concern than the danger that may threaten all of society if, by a few solicited or suspect testimonies, one could admit into a family lowly persons who do not belong to it.
Secondly, seeking out a crime involves enquiring into an event that does not date back to a distant time, but is, in a manner of speaking, before our very eyes. Now, testimonial evidence is the natural evidence of recent events. This kind of evidence is less suitable in matters whose origin is nearly always lost in times long since past, and which, because of their complex circumstances, do not usually hold out either certainty or peace of mind.
Finally, in the investigation of a crime, the evidence of witnesses is refined through inconsistencies, through the reproaches of the accused, and through all the conventions that guarantee the accused the right to defend himself, whereas in matters of status, the dispute almost never arises until after the death of those persons who might solve the mystery or dismiss the calumny. There are none of the means which, in criminal matters, serve so well to thwart lies and deceit.
We have therefore established the maxim that, in matters of status, testimonial evidence is admissible only when supported by a more impressive commencement of evidence, namely, by domestic documents, by writings of deceased and non-suspect persons, by letters missive sent and received in proper fashion, and finally, by a certain concurrence of events leaving permanent traces that might successfully be combined to shed light on the truth.
Having determined the evidence that guarantees the civil status of persons, we turned to the particulars of family government. The husband is the head of this government. The wife can have no domicile other than that of the husband. He administers all, he oversees all, the property and morals of his mate. But the administration of the husband must be sound, and his supervision moderate. The husband's influence is more a matter of protection than of power; it is the stronger one who is called on to defend and support the weaker one. A boundless dominion over women, such as we see established in some lands, would be repugnant to both the character of the nation and the gentleness of our laws. We allow in an amiable sex indiscretions and weaknesses that are blessings; and without encouraging the actions that might disturb order and offend decency, we exclude any measure that would be incompatible with public freedom.
Children must submit to the father; but he must heed only the voice of nature, the tenderest and sweetest of all voices; its name is at once the name of love, of dignity and of power. And his civic office, which has so religiously been called paternal devotion, has only that severity that can bring repentance to a wayward heart and is intended less to inflict punishment than to make worthy of forgiveness.
When children reach majority, the power of fathers ceases; but it ceases only in its civil effects. Respect and recognition continue to demand considerations and duties that the lawmaker no longer requires, and the deference of children to their noble progenitors is then the work of morals rather than of laws.
During the Revolution, majority was set at age twenty-one. We did not think its reform necessary, despite many possible reasons for doing so. In our century, a thousand reasons combine for youth to mature at an earlier age; all too often, youth itself falls into decrepitude as childhood draws to an end. The influences of society and industry, today so widespread, motivate minds, taking the place of the lessons of experience, and preparing every individual to carry, at a younger age, the weight of his own destiny. Yet despite these considerations, we have extended to the age of twenty-five the need for paternal consent to marry. An act such as marriage determines one's happiness for a lifetime. It would be unwise, in the case of something so intimately governed by the most tremendous passions, to curtail the time during which the laws combine the wisdom of fathers with the resolve of children.
Guardianship is, in domestic government, a kind of subsidiary civic office whose duration and functions we have determined based on rules that are common to virtually all civilised nations. A guardian is in charge of person and property. He must be chosen by the family and from within the family, for he must have a real interest in protecting the property, and an interest, born of honour and affection, in overseeing the person's instruction and security. He cannot alienate, without cause or form, the property entrusted to his care. He must administer intelligently, and manage reliably. He is accountable, since he is the administrator; he answers for his conduct. He cannot do wrong without being held to account for the wrong he commits. There you have the whole theory of guardianships.
Matters of domicile are, for the most part, linked to matters of the status of persons. Thus, as the wife's domicile is that of her husband, the domicile of any minor children is that of their father or their guardian.
Civil domicile has nothing in common with political domicile. One can exist without the other, for women and minors have a civil domicile, but no political domicile. The latter type of domicile is dependent on the right of citizenship, since it designates the place where, in fulfilling the conditions prescribed by the constitutional laws, one is permitted to exercise the political rights attached to the status of citizen.
Civil domicile is the place where one has carried the seat of one's affairs, one's wealth, one's usual dwelling. Mere absence does not terminate domicile. One can change domicile whenever one wants. The whole question of domicile is a mingling of law and fact. We have set down the rules for determining a man's true domicile because, in all legal proceedings, and even in the normal affairs of life, it is important to know where someone is domiciled, for purposes of contacting him.
Absence is an impermanent situation. One may be absent in one's own self-interest or in the interest of the Republic. Absent persons, and especially those absent for reasons of government, have special rights to the protection of laws: we have established these rights. It was also necessary to establish the presumed existence of the absent person of whom one has no news, so as not to leave families and estates in a state of dire uncertainty. We compared the various precedents on the different points relating to absent persons; and we opted for the principles we considered most equitable and least susceptible to unfavourable consequences.
It will be seen that in all the proposed laws relating to the status of persons, we concerned ourselves solely with civil status; the political status of men is determined by the Constitution. We did, however, discuss foreigners, to show the extent to which, in civil matters, they can be likened to Frenchmen, and the extent to which they differ from them.
It must be acknowledged that in former times, various peoples communicated little with each other; there were no relations between States, and they came together only in war, that is to say, to exterminate each other. It is to these times that the author of The Spirit of Laws traces the origin of the senseless rights of escheatage and shipwrecks. Men, he said, thought that, because foreigners were not bound to them by any civil law, they owed them neither justice of any kind, nor mercy of any kind.
The expansion of trade cured us of barbarous and destructive prejudices. It united and mingled men of all countries and all regions. The compass opened up the universe; trade made it hospitable.
Thus, foreigners have been treated justly and humanely. The relations between peoples have multiplied, and we have learned that if, as a citizen, one can belong to only one particular society, as a man, one belongs to the general society of the human race. Consequently, while political institutions continue to be peculiar to the members of each State, foreigners are permitted to participate, to varying degrees, in civil institutions, which affect far more the private rights of the man than the public status of the citizen.
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