ITS ORIGIN AND HISTORY cannot with any certitude determine the origin of that extra-legal tribunal in France, known as the Conseil de Famille, a domestic court of justice accessible alike to rich and poor and at nominal cost, occupying itself with questions the most momentous as well as the minutest, vigilantly guarding the interests of imbecile and orphan, outside the law, yet by the law rendered authoritative and binding. From the Middle Ages down to our own time, noble and roturier, wealthy merchant and small shopkeeper, have taken part in these conclaves, the exercise of such a function being regarded both as a civic duty and moral obligation. One object and one only is kept in view, namely, the protection of the weak. The law is stript of its cumbrous machinery, above all, deprived of its mercenary spirit. Not a loophole is left for underhand dealing or peculation, Simplicity itself, this system has been so nicely devised and framed that interested motive finds no place in it. Questions of property form the chief subject of inquiry and debate, yet so hedged round by precautions is the fortune of minor or incapacitated that it incurs little or no risk. And in no other institution is witnessed to the same extent the uncompromising nature of French economy. Justice here rendered is all but gratuitous.
According to the best authorities, this elaborate code of domestic legislation is the development of rnediæval or even earlier customs. Under the name of l’avis de parents, we find family councils alike in those provinces having their own legal systems, or coutumes, and those strictly adhering to Roman law. By little and little such usages were formalized, and so gradually becoming obligatory, in the fact, if not in the letter, were regarded as law. The extra-legal character of the family council is one of its most curious features.
Among the oldest documents referring to the subject is an edict of the fifteenth century, signed by René, father of Margaret of Anjou. The presiding judge is herein for-bidden to appoint any guardianship till he has heard the testimony of three syndics, as well as of the child’s relations, concerning the trustees proposed, their circumstances, position in life, and reputation. The syndics, be it re-marked, were rural and municipal functionaries, replaced in 1789 by State-paid juges de pair. Intermediaries between the law and the people, the syndics were elected by vote, their term of office generally lasting a year.
The coutumes of Brittany and Normandy took especial care to define and regulate the family council. Thus an edict of 1673 ordains that six relations on the paternal, and as many on the maternal, side of any orphan or orphans, shall assist the judge in selecting trustees. A clause of the Breton Code enjoined that consultation should be held as to the education of the minors in question, “the profession, whether of arms, letters, or otherwise, for which they should be trained, the same to be decided according to their means and position.”
In the Nivernais, the family council consisted of seven members ; in the Berri, of six ; in the Orléannais, of five. The Parliament of Bordeaux in 1700 fixed the number at six, as in the Berri.
These facts show the importance attached to the function before the Revolution. Up to that period it was an elastic system based upon usage and tradition rather than law; the family council now underwent minute and elaborate revision at the hands of successive bodies of legists ; finally embodied in the Code Napoleon, it has undergone little modification to our own day.
One of the most curious documents in this history is the rescript drawn up by Napoleon III. and his ministers at the Palace of St. Cloud, June, 185 3. Following the statutes regulating the position of all members of the Napoleonic House, we have here the Imperial Family Council, as permanently and finally organized. The Emperor decided its constitution beforehand, once and for all. In other ranks of life such an assembly is called together when occasion requires.
” The Conseil de Famille,” runs the ordonnance, ” shall be presided over by the Emperor in person, or some representative of his choosing ; its members will consist of a Prince of the Imperial family also chosen by the Emperor, of the Minister of State, the Minister of Justice, the Presidents of the Senate, the Legislative Body, and the Council of State, the first President of the Court of Cassation, of a Marshal of France or General of Division named by the Emperor.”
As we proceed in this inquiry, we see how utterly at variance are autocratic principles with the real spirit of this domestic legislation. A body thus framed was a mere vehmgericht, not dealing certainly with life and death, but with personal liberty and fundamental rights of the individual. Thus this Imperial assembly could declare any member of the family incapable of managing his affairs—in other words, shut him up as a lunatic. All the powers vested in the Conseil de Famille were in this case without a single guarantee to the individual whose interests were concerned.
The origin of this truly patriarchal system is doubtless twofold. Although not directly traceable to Roman law, the family council must be considered as partly an out-growth of that source. In certain cases legal decisions concerning the property or education of minors in ancient Rome were guided or modified by the advice of near relations. But there was no obligation on the part of the magistrate ; his decision was final.
On the other hand, the spirit of the domestic conclave is eminently Gallic. We find the same spirit animating French life at the present day. In France, “the family” does not only mean the group of father, mother, and children who gather round a common board. La Famille rather conveys the notion of a clan, the members of which are often settled within easy reach of each other, their entire lives spent, not merely as kinsfolk, but as neighbours. To realize this aspect of French society we must live in the country.
” The entire system under consideration,” writes a French lawyer to me, ” is based upon the bonds which unite, or ought to unite, the members of a family. It is a development, and not one of the least happy, of the patriarchal spirit. Its general tendency is excellent, and the rules framed for practical use are admirably drawn up and adjusted. Further, this legislation is in perfect harmony with our national character and our theories concerning children generally. We love children, perhaps, too well, since so often we spoil them by excess of tenderness.” Regard for the welfare of children and of property under-lies the constitution of the Conseil de Famille ; the same motives, therefore, that actuate minds in the present day were uppermost centuries ago.
II. ITS CONSTITUTION
The family council may be described as the guardian of guardians. It is an assemblage of next-of-kin, or in default of these, of friends, presided over by a justice of the peke, called together on behalf of orphans, of mentally incapacitated or incorrigible minors (see Art. 388 and 487 of the Code Civil). It is composed of six members exclusive of the juge de paix, namely, three next of kin on the paternal and three on the maternal side ; in default of these their place may be filled by friends. Natural children, according to the law have no relations ; in their case, friends or relations of the father acknowledging them, are eligible. No one who has forfeited civil rights by imprisonment can form part of the council ; members must be of age, and where two are equally fit, the elder is selected in preference to the younger.
Here follow some clauses that strongly bring out the Napoleonic distrust and contempt of women. From end to end of the Code Civil we discern this spirit. The woman, the wife, the mother, is relegated to the status of minor, imbecile, or criminal. Thus, no married woman can join a Conseil de Famille except the mother or grandmother of the ward whose interests are in question ; the same rules hold good with regard to guardianship.
Friends taking the place of kinsfolk are always named by the juge de paix, and cannot be accepted simply from the fact of offering themselves.
Unnaturalized foreigners, or French people who have accepted another nationality, are ineligible for the family tribunal. Nor can those take part in the deliberations who at any time have had a lawsuit with parents of the minor in question,
So much for the constitution of the family council. We will now proceed to its formalities. Here it is necessary to say a word about the juge de paix, whose name occupies a prominent place in this history. ” French law,” writes a legist in his commentary on the Conseil de Famille, ” constitutes the juge de paix natural protector of the minor.”
The family council is convoked by the juge de paix on his own account or at the request of friends or relations of the minor ; summonses to attend may be sent out in two forms, either by a simple notice or by a cédule or obligatory request. In the former case, attendance is optional ; in the latter, refusal without valid excuse exposes the offender to a fine of fifty francs. But what is a valid excuse ? ” Accident, sickness, absence,” writes a commentator. In fact, any obstacle which the juge de paix holds insuperable. With him rests the responsibility of the fine, also the composition of the council, and here may be noted one of the extra-ordinary precautions taken. As the rural magistrate is supposed to know his neighbours, deliberations must take place within his especial jurisdiction. No minor’s affairs can be settled except under presidency of the juge de paix of his or her district. Again, the sittings take place at the official residence, and in case of differences of opinion the juge de paix is entitled to the casting vote, another instance of his importance. Again, he must be no mean interpreter of the law. All kinds of knotty questions and legal niceties are brought out at these family conclaves.
Thus, upon certain occasions, the point has been raised Can a Conseil de Famille be held on a Sunday or religious festival ? Lawyers have been much exercised upon this point, no trivial one to rural magistrates. In country places important events are almost invariably put off till the resting day, and, as a rule, the matter has been decided in the affirmative.
Here we light upon a curious piece of Revolutionary legislation. A commentator on the question of Sunday family councils cites the law of 17 Thermidor, An. VI., according to which all State offices and public bodies vaquent les décadis jours de fetes nationales.
The sittings are considered private, and no publicity is given to the subjects under debate. Occasionally some member of the minor’s family not taking part in the council may be present. The greffier, or clerk of the juge de paix, is also in attendance, but no one else.
The non-responsibility of members summoned to deliberate is strictly recognized by law ; for instance, if a properly constituted family council has decided upon in-vestments which ultimately prove disastrous, neither individually nor collectively are they held responsible. If, however, on the other hand, connivance with intention to defraud is proved, they are proceeded against in the ordinary way.
The legal expenses attendant upon this domestic legislation are restricted to the minimum. Minutes are registered by the juge de paix at a cost of from one to ten or fifteen francs ; certain important transactions require a fee of fifty francs.
There remains one more point to be noted under the head of constitution of a Conseil de Famille. I allude to what in French legal phraseology is called “homologation,” in other words, the formal legalization of any decision arrived at by this body. Certain verdicts require this to be rendered valid and binding, others do not. Among the first are those relating to the sale or transference of a minor’s estate, to the dismissal of a minor’s guardian, to the dowry and marriage contract of son or daughter of any one deprived of civil rights. The nomination of trustees, the refusal or acceptance of legacies, the details of guardianship generally, i.e. education, bringing up of wards, and many other measures, do not require this process of homologation; they are valid and binding without formal legalization.
III. ITS FUNCTIONS
The family council, in its care of the fatherless child, is anticipatory. Thus we find special provision of the codes The Code Civil makes special provision for a man’s posthumous offspring. No sooner does he die leaving a widow enceinte than it is her duty to summon a family council for the purpose of choosing what in legal phraseology is called a curateur a l’enfant a naître, or a curateur au ventre. Duly elected, this guardian is authorized to undertake the entire management of her late husband’s property, rendering a full account of his stewardship on the birth of the child. This trusteeship of children as yet unborn awakens mixed feelings. Without doubt cases in which the head of a family has left no directions of the kind, may necessitate such precautions. At the same time do we not trace clearly here the subordination of women as derived from Roman law ? ” We must acknowledge,” writes a learned commentator,* ” that the curateur à l’enfant a naître is named solely in the interest of a man’s heirs, a result, as pointed out else-where, due to an adhesion to Roman law ; Article 393 has crept into our code probably without due weighing of con-sequences on the part of the legislator.” The curateur’s duty is also to verify the condition of the wife dans la mesure des convenances, also the birth of a legitimate child. When we reflect that the legal heirs of a defunct person are his next of kin, we can easily understand the offensiveness of this law to an honourable, delicate-minded woman ; at the same time we are bound to admit that such precautionary measures would in our own country prevent the scandal of a ” Baby claimant.” French law, sometimes for good, certainly sometimes for evil, interferes with private life much more than in England.
When we come to the subject of minors and orphans, we appreciate the enormous power vested in the family council. The appointment of trustees and guardians, when not made by parents, rests entirely with this assemblage ; also in its hands is a power requiring more delicate handling still, namely, the withdrawal of paternal authority. Here f When the last surviving parent has failed to appoint trustees and guardians, the duty devolves upon paternal or maternal grandfathers ; grandmothers are ineligible. This is the Tutelle Légale, the Tutelle dative being that appointed by the family council.
we meet with points recalling the Society for the Protection of Children, founded some years ago by the Rev. Benjamin Waugh. As will be seen, however, the family council holds entirely aloof from criminal cases, concerning itself with civil affairs only, first and foremost with the disposition of property. ” From the earliest time,” writes a learned commentator, ” minors have been regarded (by French law) as privileged beings, placed under the protection of society generally.”
French legists have doubtless done their best for the foundling, the illegitimate, the disowned. Especially within recent times has the lot of these waifs and strays been ameliorated by the law. Terrible was their condition formerly as revealed in early records, also in statutes and legal commentaries. During the Middle Ages, when, ac-cording to a French writer, ” Roman law fully exercised its disastrous influence, foundlings were deposited at church doors, sex and age of each child were inscribed in a book called the ` Matricule’ (Lat. matricula), they were reared in convent or nunnery, and, when sufficiently grown, sold by auction. These wretched little beings were chiefly offered for sale in the large cities and purchased by the poor for a mere trifle, these often disfiguring or even maiming their chattels so as to excite public compassion. It was not till 164o that St. Vincent de Paul founded the first foundling hospital in France. A century before, the ordonnance of Moulins had obliged the communes of that jurisdiction to maintain all abandoned children found within their limits. In 1599, the Parliament of Paris had moved in the same direction, ordaining that the charge of foundlings should fall upon the parishes to which they belonged.”
It is the honour of the Republic to have established orphanages in all the cities and larger towns. By a law, moreover, of 15 Pluviose, An. III., a kind of family council was appointed for the children of the State. The conseil de tutelle discharged the functions of a conseil de famille. This trusteeship lasts till the majority or marriage of the individual.
We now come to a class only a degree less unfortunate. I allude to the acknowledged children of irregular connections, the illegitimate. French law, as we know, is very merciful to parents who will atone for such lapses. Marriage, no matter the age of the offspring, legitimizes. A natural child is thereby put on precisely the same footing as if born in wedlock.
In all other cases the law stands by him, in so far as possible, protecting and promoting his interests. If there is a human being in the world requiring legal guardian-ship,” writes a commentator before mentioned, it is with-out doubt the illegitimate, friendless from the cradle, having no relations, none to look to but him to whom he owes his birth. The care and maintenance of natural children is the duty, the obligation of every father. If no provision were made by law to this effect, such provision would have to be made.” The Code Civil has, in so far as possible, regulated the position of natural children. A family council, however, summoned on their behalf cannot be composed in the ordinary way, the illegitimate having neither kith nor kin. The relations of the father acknowledging them, friends of both father and mother are accepted, and the legal guardianship is framed on the same principles as that of children lawfully begotten. Volumes have been written on this subject, legists differing as to the right of a natural child to what is called legal or confessed guardianship, tutelle 11g-ale, i.e. paternal, or tutelle dative, i.e. appointed by the family council. When difficulties arise, the matter is settled by the Cour de Cassation.
After minors, orphans, and illegitimates come the interdis, or individuals pronounced incapable of managing their affairs. These are- imbeciles, maniacs, and persons condemned for criminal offences. Here the Code Napoléon now known as the Code Civil, amended the sterner Roman clause, according to which a deaf mute was placed on a level with idiots. A dispute on this question having arisen at Lyons in 1812, the Cour de Cassation decided that a deaf mute giving evidence of intelligence, although unable to read and write, must be pronounced cempos mentis.
In the case of insanity, a family council is summoned as a preliminary measure, a judicial sentence being required before depriving the individual in question of his liberty. An instance of the kind came some time ago under my own notice. The conseil de famille had agreed as to the necessity of seclusion, the tribunal decided otherwise. It will thus be seen that, except in case of a veritable conspiracy of relations, friends, and juge de paix, the extensive powers of this domestic court are hemmed round with guarantees. Again, we must bear in mind a fact constantly insisted upon by French legists, namely, that we are here dealing with a conseil d’avis, a consultation acknowledged by the law and responsible to the law, not with legislation itself.
A final class coming under the wardship of the family council consists of the incorrigible and the spendthriftin French phraseology le prodigue, a subject treated in the foregoing chapter.
Any guardian, having grave matter for complaint against his ward, is empowered to summon a family council in order to pass the disciplinary measure called la réclusion, in other words, a term of modified imprisonment (Code Civil, Art. 468, De la puissance paternelle).
Without doubt the most important function of the family council is the choice of guardians, the tutelle dative as opposed to the tutelle legate, the former being accorded by this body, the latter being the natural guardianship of parents. The tutelle légale is obligatory, no father being at liberty to reject the duty. So also is the tutelle dative; no individual selected by a family council as guardian and being related to the family of the minor is at liberty to refuse the charge ; it is as much incumbent upon any French citizen as military service or the payment of taxes. This is a most important point to note.
A few exemptions are specified in the code. Thus, the father of five legitimate children is exempt, also per-sons having attained the age of sixty-five, or being able to prove incompetency from illness. The following also may refuse : ministers and members of the legislative body, admirals, generals, and officers in active service, préfeis and other public functionaries at a distance from the minor’s home.
The conseil de famille having named a guardian, also names a tuteur subroje, or surrogate, whose office is not in any way to interfere with the trustee, but to examine accounts and watch over the interests in question.
On the subject of tutorial sphere and duty the law is explicit to minuteness. Generally speaking, he is expected to act as a father towards his own child, having care of his ward’s moral and intellectual education, protecting his or her interests, in fact, filling the place of a second father. Whilst entrusted with the management of affairs as a whole, certain transactions lie outside his control. Thus he is not at liberty to accept a legacy for his ward without the consent of the conseil de famille. This precautionary measure requires explanation. Sometimes the reversion Of property may mean very heavy legal expenses, an enjoyment of the same being a prospect too remote to be counted upon. An instance of this has come under my own observation. A boy, son of French friends of mine, was left the reversion of an estate, the life interest being bequeathed to another. His parents, somewhat reluctantly accepted the charge, paying a little fortune in legal fees and duties for property most likely to come to a grandson. No family council would hive authorized such a course in the case of a minor.
Again, the guardian cannot purchase an? part of his ward’s estate or belongings. Nor can he re-invest stocks and shares without authorization. On the expiry of his charge, that is to say, on the marriage or coming of age of the minor, the property in trust has to be surrendered intact, all deficits made up from his own.
On this subject a French lawyer wrote to me, “It is extremely rare that any ward has occasion to complain of his or her guardian. During a legal experience of twenty-five years, no serious matters of the kind have come under my notice. Nevertheless, my practice lay in a part of France where folks are very fond of going to law. It will occasionally happen that some elderly trustee persuades his young ward to marry him ; these gentlemen have not perhaps been over-pleased with their success in the long run. They are too much of a laughing stock.” Legal coming of age, l’émancipation, brings the guardian’s task to a close. According to French law there are two kinds of emancipation, the formal and the tacit ; these matters, however, lie beyond the scope of my paper.
The functions of the family council are fully set forth in the Code Civil ; to understand its scope and spirit we must study the commentators. ” Le Répertoire de jurisprudence général,” compiled by Victor and Armand Dalloz, was first published in 1836, but remains the standard work of reference on legal questions. A handy and admirable digest of the conseil de famille is to be found in the ” Traité,” by J.-L. jay (Bureau des Annales des Juges de Paix, Paris, 1854). Unfortunately, this book is out of print, and only to be picked up on the quays or at bookstalls.
In conclusion, I cite the words of a friend before quoted, an experienced French lawyer, no learned commentator, but a hard-working practitioner. ” The excellence of such a system,” he wrote, ” is proved by one fact, namely, the very small number of lawsuits arising therefrom. Very rarely it happens that a ward has any reason to complain of his trustees.”
We must bear in mind that inadmissibility to the charge of trusteeship is a disgrace, almost on a footing with the forfeiture of civil rights. Hence the high character of French trustees generally.
The family council is not often introduced into novels, an omission difficult to understand.