My life experience and historical research has convinced me that those women who do not instinctively feel the need to nurture, love and worship their newborn are very few and far between. It would be strange if it were otherwise, we are programmed biologically to do so. The feeling is so overwhelming that we cease to be the centre of our lives. In the early 17th century, René Descartes asked:
“What parent does not seek the best for his child, preferring the subordination of his own interests, his life, to that of the child?”
It seems axiomatic to us today that all parents, without exception, are under a duty to bring up their child, to nourish and to dress him or her and to be responsible for his or her actions until he or she is able to make his or her own decisions. It also seems axiomatic that a baby is innocent, untainted by life and its challenges.
According to the legislation of virtually all European countries, illegitimate children enjoyed few rights. An illegitimate child could not inherit, and his assets could be confiscated by church or state. In the absence of any means of determining paternity, the mother of an illegitimate child usually lacked means to support her newborn, and both she and the child faced an uncertain and often certain miserable future. The prospect of the inevitable shame and scorn which would be visited upon both mother and child combined to force many a mother to abandon her child. Many resorted to infanticide. The French Revolution which had begun in 1789, offered the legislators an opportunity to address this situation. The openly homosexual lawyer and statesman Jean-Jacques Régis de Cambacérès articulated the core principles when he began to prepare his first draft of legislation to replace that of the Ancien Régime. He declared:
“All children without exception have the right to succeed to those who have brought them into existence. Differences between them are the effect of pride and superstition. They are ignominious and contrary to justice.
One would have thought that Cambacérès’ principle was unarguable. With the advance and deterioration of the French Revolution into the Terrors, the legislative project stalled. It was not until Napoleon Bonaparte staged his coup in 1799 and shortly thereafter became First Consul that minds would return to it. Bonaparte liked nothing more than that the fruits of this project would bear his name and he issued orders that the new code should be concluded as soon as possible. He did not attend all sessions of the discussions of Cambacérès’s successive drafts, but he was particularly vociferous as regards provisions relating to women. Whilst he was susceptible to their charms, he had no intention of allowing them any meaningful civil status. In his view, the recognition of the rights of women was to be deplored.
Discussions took place in the new library in the north wing of the Tuileries Palace which Napoleon Bonaparte had had refurbished and dedicated for the use of government. The hall was drafty and austere, awaiting transformation with gold leaf, Doric columns and frescoes. Napoleon, now the First Consul, had settled into the palace eighteen months earlier with the spectacle of majesty which had prompted the eviction of his predecessors, King Louis XVI and Queen Marie-Antoinette.
There could be no justification for the extension of the basic right of support to children born outside the sacred bonds of matrimony. The newborn arising out of wedlock constituted manifestation of a crime. The blame for the crime was to be laid at the mother’s door. A woman’s charms were direct evidence (if evidence there needed to be) of her debauchery. The higher the woman’s status, the graver the crime. A woman of higher social rank should have had an education and religious sentiment which would have insured her against an infraction of the laws of nature.
Bonaparte, much to the shock of the few enlightened men present and to the legislator Cambacérès, insisted that to accord illegitimate children any status at all by allowing the child to identify his mother and/or father would scandalise French courts and render correct fathers subject to the whims of capricious impudent women and children alien to them. The scourge of unchecked passions should not be allowed to destroy the harmony of the conjugal pact and to render the life of husband wife intolerable. The law must concern itself only with the reinforcement of matrimony, providing a guarantee of conditions favouring its quiet enjoyment, its security and its happy continuation.
As a concession, Bonaparte accepted that a maternity search should be allowed, but a paternity search was out of the question. A married woman who conceived a child out of wedlock was to abandon her baby to a foundling home (tantamount to a death sentence within its first year) rather than suffer the condemnation of society and severe sanctions of the Catholic Church bringing down the wrath of God upon her legitimate children and all other members of her family.
An unmarried woman rarely had any choice but to abandon her newborn to a foundling home. Abandonment was essential if the father of the child was married: revelation of the birth might undermine his marriage. Even if the mother’s financial circumstances changed so that she later found herself able to support the baby, there was little hope that she would find her child when she returned to the home to try and identify him or her by the amulet or ribbon she had lovingly placed around his neck: only one in fifty survived into adolescence. In all likelihood, the child would not live to see its first birthday, having been absolved from his or her sins by receiving baptism and the last rites.
Bonaparte insisted, prevailing over the few who opposed him, that the law must punish the individual found guilty of rape – a custodial sentence was inappropriate, pecuniary damages being sufficient compensation. However, no doubt remembering their own transgressions, they lamented that, all too often, women simulated rape to inculpate wealthy potential providers – a fact often borne out by (male) witnesses. And a man found guilty of rape must not have attributed to him a child of which he may believe himself not to be the father. Without proof of aggression, proof of paternity being impossible to establish, without recognition of any linkage between conception and the birth of the consequent child, an unmarried woman had no hope of gaining any support for her child. Napoleon declared: “Society has no interest in the recognition of bastards”.
The provisions of the legal code enshrining these principles and which was to become known as the Napoleonic Code, came into force on 21 March 1804 in France, and thereafter was adopted across Europe and the states of Latin America as they gained independence. According to this legislation, endorsed by the moral dictates of the Catholic Church, it was both legal and desirable that an illegitimate child, regarded as a pariah to both family and society, be repudiated by its parent. The sight of an unwed mother was an affront to public morality.
The Napoleonic Code established the role of women as defined by men for the next hundred years and beyond. Wives were venerated for bearing legitimate children, but were their husbands’ chattels. At best they were sport, pleasure vehicles, and their unwanted offspring cast-offs for whom men had no responsibility. Bonaparte believed that what mattered most in a woman was her physical beauty – the rest was pretty much irrelevant.
These provisions remained in force throughout the 19th century and for much of the 20th century. Infant abandonment became not only widespread but socially acceptable. Infanticide increased dramatically. In countries in Northern Europe where paternity suits were permitted, few children were abandoned or found their way to the foundling home, and infanticide was rare.
The repercussions of enshrinement in law of Bonaparte’s misogyny are still felt today. Campaigns against women’s equality and abortion which gives women control over their reproductive biology all stem from thinking which finds its roots in male supremacy. Napoleon’s outlook finds ready sympathy across the globe. Women must always remain vigilant and zealous of rights which have only been recognised relatively recently and the absence of which resulted in countless women being needlessly sacrificed.