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Family, Gender, and Law in Early Modern France

Edited by Suzanne Desan and Jeffrey Merrick

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$61.95 | Hardcover Edition
ISBN: 978-0-271-03469-0

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ISBN: 978-0-271-03472-0

304 pages
6" × 9"
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2009

Family, Gender, and Law in Early Modern France

Edited by Suzanne Desan and Jeffrey Merrick

Family, Gender, and Law in Early Modern France is a very well-conceptualized and extremely coherent volume, offering an excellent introduction to recent trends and new directions in the field of family history in early modern France.”

 

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The essays in Family, Gender, and Law in Early Modern France explore how ordinary men and women negotiated power within early modern French households and continually reinvented their families in response to external forces. Larger processes, such as state building, religious reform, changing understandings of gender roles, and economic developments, influenced family practices in the areas of marriage, separation, guardianship, and illegitimacy. Relatives, gender, community, and the law imposed limits upon families but also provided opportunities for agency. Contributors investigate patterns of courtship and decisions about marriage; the financial power exercised by wives; marital conflict and related controversies about gender, sexuality, and social order; death and guardianship; and the legitimization of children born out of wedlock. While addressing a variety of topics, this volume focuses on family members as individuals with complicated agendas and strategies of their own.
Family, Gender, and Law in Early Modern France is a very well-conceptualized and extremely coherent volume, offering an excellent introduction to recent trends and new directions in the field of family history in early modern France.”
“This is an important and timely collection that opens new lines of inquiry into the history of the family in early modern Europe.”
“An excellent primer for those new to the field of family history in early modern France. . . . For those teaching a French culture and civilization course, Family, Gender, and Law in Early Modern France is a worthy resource. It helps to set the stage for understanding what occurred in France before and after the Old Regime, and fosters a greater appreciation for what predecessors desired in a civil society.”
“This is a superb collection of essays which sheds important new light on the ever-growing field of the history of the family.”
“This is one of those rare edited volumes greater than the sum of its parts. Each chapter is a fine work of historical synthesis, document analysis or close archival research. Yet, together, the essays paint a rich picture of marriage and family life in early modern France, uncovering startling new facets beneath old assumptions.”

Suzanne Desan is Professor of History at the University of Wisconsin–Madison.

Jeffrey Merrick is Professor of History at the University of Wisconsin–Milwaukee.

Contents

Acknowledgments

Introduction

1. Making and Breaking Marriage: An Overview of Old Regime Marriage as a Social Practice

Suzanne Desan

2. Marriage Choice and Marital Success: Reasoning About Marriage, Love, and Happiness

Dena Goodman

3. Family Affairs: Wives, Credit, Consumption, and the Law in Old Regime France

Clare Crowston

4. Between State and Street: Witnesses and the Family Politics of Litigation in Early Modern France

Julie Hardwick

5. Marital Conflict in Political Context: Langeac vs. Chambonas, 1775

Jeffrey Merrick

6. Gender, Kin, and Guardianship in Early Modern Burgundy

Christopher Corley

7. On the Contested Margins of the Family: Bastardy and Legitimation by Royal Rescript in Eighteenth-Century France

Matthew Gerber

Suggested Readings

Contributors

Index

Introduction

“The family is a civil society established by Nature. This society is the most natural and most ancient of all [societies]. It serves as a foundation for the national society. . . . Families are started through marriage. . . . From that [union] are born children, who, in perpetuating families, maintain human society in being.” In these lines from his article “Family” in the Encyclopédie of Diderot and d’Alembert, the chevalier de Jaucourt highlighted the dual character and essential function of the family. At once natural and civil, it united the sexes, supported the nation, and sustained the larger community of humankind. In early modern France, the family played a significant role in individual and collective experience, social structures and relations, and political order and culture. It helped French subjects locate their places in the local community and the broader world, define identities and create alliances, and understand concepts of hierarchy, authority, deference, obligation, and justice. As a social product and legal construct, it constituted a site in which multiple private and public interests converged and conflicted. We cannot understand men and women, young and old, single and married, or rich and poor under the Old Regime, or the Old Regime itself, unless we understand the many ways in which the family, in conjunction with society and state, shaped their lives from birth to death.

This collection explores the complexity and flexibility of the family, in principle and practice, with emphasis on the related themes of gender, law, and politics. The essays investigate and illuminate family construction and dynamics through research on marriage, consumption, separation, guardianship, and legitimation. The case studies and longitudinal studies include sample documents that illustrate the variety of sources (legal, police, judicial, epistolary, literary, and polemical) used by the contributors. These documents make materials from Parisian and provincial archives accessible to readers. Students in particular should benefit from considering what the documents do and do not reveal and how the authors have analyzed and interpreted them, against the background of trends in family history over the last five decades.

Although the essays in this volume focus on France, they represent recent methodological directions in the history of the European family more broadly. In our introductory overview of approaches to family history over the last few decades, we will address both French and pan-European trends and questions.

Historians launched the modern study of the history of the family in the 1960s and 1970s by exploring the development of the “modern” Western family. They set aside anecdotal and apologetic accounts of the good old days and moved beyond more serious but still limited scholarship on law and institutions. Philippe Ariès, Edward Shorter, and Lawrence Stone outlined an influential view of the early modern era as a period of transition from the “traditional” patriarchal family to the “modern” sentimental family, characterized by more companionate and egalitarian marriages and more affectionate relations between parents and children. Members of the Annales school, meanwhile, questioned generalizations about the “modern” French family based on prescriptive, literary, and impressionistic texts. They identified new sources and generated new methods for investigating the evolution of the family through the history of demography and mentalities. Using parish registers and notarial records, they studied trends in birth, marriage, fertility, illegitimacy, contraception, and death, as well as kinship structures, lineage strategies, inheritance patterns, life cycles, and age cohorts. They also explicated collective attitudes through courtship rituals, sexual behavior, religious practices, verbal and physical violence, and concepts of honor. While the Annalistes most often studied France, family historians of other parts of early modern Europe and its colonies likewise expanded the study of family strategy, demography, and day-to-day practices.

By the 1980s, after a generation of systematic research, some scholars on both sides of the Atlantic expressed doubts about the coherent and distinctive picture of the early modern period, highlighting variety among families and continuity over centuries. At the same time, feminist historians challenged the romanticization of “modern” marriages and simplistic claims about sexual liberation. Some emphasized male authority and gendered power dynamics within the household; others argued that European women gradually lost economic independence and legal autonomy between the sixteenth and eighteenth centuries. As they questioned the narrative of modernization, gender history and family history diverged into largely separate fields. While many family historians continued to work on demography and mentalities, feminist historians embraced the study of the cultural construction of gender and moved away from the classic methods of social history. Wary of defining the female sex solely as wives and mothers and of subsuming women’s history under family history, they concentrated on gendered discourse and women’s roles—communal, economic, religious, political, and creative—outside of matrimony and maternity.

More recently, as evident in this collection, historians have begun to reconnect family with gender, economic, legal, and political history. The explosion of work on gender throughout history over the last few decades has large implications—not yet fully explored—for the study of early modern French families. As a symbolic system, gender shapes assumptions about and attitudes toward women and men, operates through structural inequalities in the private and public realms, and provides categories for comprehending differences in general. Applying these insights to the family, early modern French historians have asked how maleness and femaleness framed domestic existence and cultural agendas, informed individual subjectivity and social interactions, and affected access to resources, connections with kin, and options throughout life. They have used the concept of “patriarchy” and other models to analyze power dynamics between the sexes and generations. Foucault and the feminists who rethought his work have uncovered the diffuse but potent agency of power within relations and discourses. Ethnographers and anthropologists have scrutinized subtle negotiations within households and communities. Some historians have explored the intersections of gender and power by analyzing social practices and cultural construction in tandem. Given the centrality of religious issues in the early modern period, questions about gender have enabled us to rethink the social and cultural impact of the Protestant and Catholic Reformations. Research on sexual identities and on masculinity as well as femininity has enriched our understanding of male/female spheres and of gendered experience inside and outside the family. Some historians have posed questions about gender, family, and cultural contact within the broader context of colonization and empire building.

While much of the new scholarship on gender has highlighted cultural construction, another body of work has charted connections among gender, family, and economic change. Socioeconomic historians have long stressed the complementary roles of husbands, wives, offspring, and kinship networks in forging a “family economy” in order to survive. More recently, scholars have noted that families did not simply react to outside economic forces. Patterns of labor, production, and consumption within households could affect the nature of economic change and alter the domestic negotiation of power. For example, Jan De Vries has detected an “industrious revolution” in much of northwestern Europe and colonial America from the seventeenth to early nineteenth century. As wives and children increasingly focused their labor on producing goods for the market, they fueled a surprisingly dynamic economy long before the Industrial Revolution. As a result, wives’ decision-making power within households may have increased. Historians have targeted and examined consumption not only as a cultural force that defines femininity, masculinity, and class identity but also as an economic practice integrally tied to family strategies. They have also explored the surprisingly flexible range of women’s access to property and credit and asked how marital structures and women’s participation in the informal economy contributed to developing complex forms of capitalism.

Developments in the history of law, like work on gender and the economy, have redirected the history of the family. Theorists of “critical legal studies” have unmasked the law’s role in constituting the authority of elites and the “givenness” of the status quo by demonstrating how certain discourses and institutions endowed the law with legitimacy. Scholars in several disciplines have emphasized plasticity in the production and application of law, substantial disparities between statute and practice, and the agency of multiple actors in legal processes. Within this broader trend, historians of early modern France have explored the ways in which law naturalized authority based on sex and age, regulated property and resolved disputes, and simultaneously restricted and authorized agency. Men and women were not simply subjected to law but actually involved in formulating, implementing, and transforming legal standards and practices. Older work highlighted formal and informal restrictions on women, but newer work indicates that they exercised initiative and influence in various settings. Natalie Zemon Davis, for example, showed how women as well as men shaped legal narratives to serve their own purposes and how women could even make advantageous use of their alleged inferiority. In the same vein, some early modern European historians argued that state, church, and elites used law and courts, catechism, confession, and caste consciousness, in a broad campaign of “social discipline” or “acculturation,” to repress disorder in popular culture, religion, and sexuality. But others have developed a more dynamic and fluid vision of culture as a space for elite-popular interaction, appropriation, and reinterpretation. This work is focused more on individuals and communities than on families, but it has helped us understand the family as a flexible social and legal institution in local and larger contexts.

Given French historians’ intense debates on the nature of absolutism and the political culture of the Revolution, scholars of the French family have placed particular emphasis on the intersection between monarchical power, political culture, and the family. Historians no longer confuse prescriptive statements about the rule of men, law, and king with daily experience throughout the kingdom. They see state-building as an ongoing process involving not only centralization and contestation but also negotiation, cooptation, and cooperation. In a series of influential articles frequently cited and sometimes challenged in this volume, Sarah Hanley has analyzed the “family-state” compact through which monarchy, magistrates, and notables promoted the authority of husbands-fathers-masters and kings in tandem. Using the new concept of political culture—understood as a system of discourses, symbols, images, rituals, and practices that produce power relations as well as categories of thought and patterns of action—historians have located politics not only in officially political structures and operations but in many other sites as well, such as the workshop, festival, theater, convent, and, of course, family. Sarah Maza, for example, has argued that widely publicized lawsuits about domestic scandals at the end of the Old Regime influenced public attitudes toward the aristocracy and monarchy. Lynn Hunt has suggested that the French revolutionaries imagined politics as a “family romance” in which a fraternal band of brothers sought to kill the father-king and control their unruly sisters.

Building on these approaches to law, gender, and politics, the essays in this collection shed new light on the early modern French family. The authors share an emphasis on the malleability of families, which were not given but made, unmade, and remade, not static and closed but flexible and permeable, changeable through individual choices, collective decisions, and outside influences. Without ignoring older questions about kinship systems and property arrangements, this volume focuses on family members as gendered individuals, engaged in negotiations between the sexes, lineages, and generations, all with complicated agendas and strategies of their own. For personal or pragmatic reasons, in concert or conflict with their relatives and communities, men and women used contractual and judicial procedures to constitute and reconfigure families through marriage, separation, guardianship, and legitimation. In the process, they exercised agency within traditional structures and engaged a variety of larger forces at work in early modern France, such as state building, evolving notions about femininity and masculinity, and the economic takeoff of the eighteenth century. This collection analyzes traditional and innovative family-making in dialogue with those larger forces. How, for example, did family members accept and resist absolutist visions of social order and attempts to enforce new royal legislation? How did the sexual and moral standards of the Catholic Reformation, the consumer revolution, or the political culture of the late Old Regime inform domestic practices and intimate relations?

Early modern clergymen, magistrates, and ordinary subjects all regarded the institution of marriage as the bedrock of social, legal, and political order. Within marriage, wives and husbands formed an economic alliance to support themselves and their children, forged emotional bonds, negotiated sexual desire and duty, and determined the meaning of gender in daily practice. As Nancy Cott has argued, “Gender relies on and to a great extent derives from the structuring provided by marriage.” At the same time, marriage linked family members to the polity and bound the private realm to the public whole. As an eighteenth-century jurist noted, “Almost all civil rights flow from the legitimacy of marriage.” It defined the status and privileges of both husbands and wives, configured property and inheritance rights, determined nationality, guaranteed the filiation and legitimacy of offspring, and reinforced male authority. The absolutist family model envisioned the household as a small kingdom and the kingdom as a large household, with prerogatives and responsibilities vested in the hands of the sovereign husband-father-master and the paternal monarch. In the words of one seventeenth-century jurist, “Since the welfare and the good order of the State result from the welfare and the good order of individual families, for this reason the prince must have sovereign authority over marriages, because these are also societies that are the pillars of his State and the seminary of his subjects.”

Whether or not Old Regime subjects thought of marriages as “seminaries” of the state, the vast majority of them embraced matrimony. Given its centrality in private and public life, all of the essays in this volume, directly or indirectly, are about marriage, viewed from multiple perspectives. To provide background for the other contributions, Suzanne Desan offers an overview of marriage as a social and legal practice. She asks how couples negotiated their initial marriages, managed property, sought companionship, and, in some cases, dealt with extensive conflict and legal separation. Her essay outlines issues that reappear throughout the volume, such as men’s and women’s options, their personal and family strategies, progeny and property, economic interests and emotional connections, and regional, urban/rural, and class differences.

In the next two essays, Dena Goodman and Clare Crowston examine courtship and decisions about marriage, the economic power of wives, and controversies about social order and disorder in the late Old Regime. Despite the idealization of matrimony as a source of stability and force of unity, some marriages inevitably broke down. In their essays on marital separations, Julie Hardwick and Jeffrey Merrick probe popular assumptions about gender and sexuality within marriage and analyze the relations between marriage and community, state, and politics. In the last two essays, Christopher Corley and Matthew Gerber explore other familial relationships shaped by marriage: the appointment of guardians for children after the death of a parent and the attempts of parents to legitimize children born out of wedlock.

Using letters between spouses, Dena Goodman takes a close look at the courtship and marriages of two propertied couples. Bernard de Bonnard and Sophie Sylvestre scarcely knew each other and married for financial reasons, but they built a loving, intimate relationship. In contrast, Manon Phlipon and Jean-Marie Roland never succeeded in developing a happy, companionate marriage, even though they had freely chosen one another out of mutual regard and had worked hard to gain the consent of their families. Goodman uses these case studies to challenge historians’ frequent but unstated assumption that the freedom of marital choice would lead to conjugal compatibility. Historians have taken this notion from Enlightenment novelists who crusaded against arranged marriage even as they left the patriarchal nature of marriage in place, or in Rousseau’s case, reinforced and redefined it. By shifting emphasis from how marriage was contracted to how it was experienced, Goodman illustrates that conjugal happiness within the emerging Rousseauist model depended above all on how the husband exercised power and on whether his wife accepted the legitimacy and nature of that power.

Clare Crowston approaches these intersections of gender, power, and property from another angle. She examines the connections among the consumer revolution, married women’s access to credit, and collective anxiety about gender, luxury, and corruption on the eve of the French Revolution. By studying lawsuits over debts incurred by clients of the prominent fashion merchant Rose Bertin, she demonstrates that wives had much greater ability to spend money and accrue debt than one might think. The Parisian Custom curtailed their control of marital property but contained a loophole for “household expenses” that was widened by the expansion of production and consumption in the later eighteenth century. For many aristocratic and some bourgeois women, “household expenses” included large sums for luxury goods. In examining cultural reactions to these practices, Crowston acknowledges that costly clothes and mounting debts made moralists uneasy, but she eschews the expected plot line in which female expenditures prompted a misogynist crackdown on female prerogatives. When Madame de Genlis admonished wives to curb spending, for example, she not only dispensed moral advice but also offered hints about maintaining power within marriage. Wise wives managed debt well. Crowston raises questions about the view that the Revolution restricted women’s options, since wives’ access to credit was neither challenged nor limited during the last decade of the eighteenth century and first decades of the nineteenth century.

As Crowston’s essay suggests, public opinion routinely and continually traced connections between conjugal dynamics and collective welfare. The family model assigned husbands and wives gendered roles that embodied cultural expectations about hierarchy and stability, but it did not legitimize unlimited male despotism and could not prevent disruptive family conflicts. Taking into account the links between private lives and public order, Julie Hardwick and Jeffrey Merrick show how marital separation suits raised questions about the origins, nature, and limits of authority. In seventeenth- and early eighteenth-century Nantes, legal process allowed the local population to define and enforce standards of male and female conduct. In late eighteenth-century Paris, commentators and “the public” connected marital conflict with larger social and political issues.

By examining the role of witnesses in separation suits, Julie Hardwick demonstrates that individuals, families, and communities reviewed and revised legal and cultural prescriptions at the grassroots level. For evidence about domestic dissension, magistrates invariably turned to relatives, neighbors, friends, servants, and co-workers, who interpreted abstract norms and articulated collective views of appropriate behavior within marriage. Witnesses without official political voices were involved in politics in the sense that they shaped the state’s justice on the ground and constructed communal opinion about authority, property, and morality. In studying their depositions, Hardwick found some attitudes at odds with common assumptions about early modern society. Witnesses did not simply define a woman’s reputation in sexual terms and a man’s reputation in economic terms. On the contrary, they expressed disapproval of undisciplined or adulterous male sexuality more often than they focused on female sexual disorder.

Jeffrey Merrick shows how plaintiffs, lawyers, judges, and “the public” understood marital separation cases in political terms during the first years of the reign of Louis XVI. At that time, as before and after, wives typically complained about drinking, gambling, whoring, and verbal and physical abuse, and husbands responded with accusations of incontinence, intransigence, and independence. By focusing on two cases that are much less typical but very well documented, Merrick explains more specifically how contemporaries viewed marital disputes in the current context. Recent attacks on Louis XV, his mistresses, and his ministers for despotism and debauchery highlighted the issues of male tyranny and female insubordination. The family model provided a framework and language for criticism of both offenses, in the kingdom and in the household. The unruly marquise de Chambonas and the abusive comte du Boscage lost their suits not only because of alleged misconduct but also because of its perceived political meaning in 1775. Their cases show that the politicization of domestic relations in the last decades of the Old Regime was not confined to causes célèbres publicized through judicial memoirs.

Separation suits exposed fault lines in families and, more generally, in the family as a source of social and political stability. In the last two essays, Christopher Corley and Matthew Gerber examine other unstable situations that provoked conflict and prompted creative use of legal systems and kinship relations. These essays shift our focus from marriage itself to the meaning and practice of parenthood within extended networks of people connected through blood, matrimony, or sexuality. They remind us that the monarchy never managed to unify the various law codes that governed the family or simplify the many jurisdictions that complicated the legal map of France. Corley and Gerber show how lawyers and judges constructed and construed precedents, while jurists reinterpreted the differences between North and South and among provincial customs. Their essays, like others in this volume, demonstrate that legal structures and processes not only allowed central and regional authorities to exercise control from the top down but also allowed individuals, families, and communities to influence outcomes at the local level.

In his analysis of guardianship cases in Burgundy, Corley explores relations among parenthood, kinship, and law. Like jurists in other provinces, those who codified Burgundian custom restricted women’s legal prerogatives, for example, by privileging lineal rather than conjugal property and restricting a widow’s control over her husband’s estate. But women nonetheless exercised authority in specific matters, such as guardianship, into the eighteenth century. Like Crowston and Hardwick, Corley emphasizes the occasionally unexpected nature of gender practices and women’s access to legal power. Specifically, he argues that kin groups’ investment in the lineage property of their daughters and sisters encouraged them to override attempts to weaken the influence of widowed mothers. Customary law required paternal and maternal relatives to deliberate after the death of one or both parents, and these family councils routinely selected widowed mothers as guardians with responsibility for property. Perhaps in response to changes in jurisprudence, maternal kin played a larger role than paternal kin (except in noble families) in the proceedings, and their involvement often tipped the balance. Corley poses a question often ignored by family historians: how did kin shape gender dynamics? He demonstrates that kin groups not only remained involved in family dynamics and decisions but also, at times, supported and enhanced the legal authority of wives and mothers. This authority could be defined as much by women’s positions within extended families as by the letter of the law.

Like Corley, Gerber asks how parents and jurists reconfigured family practices and boundaries. Church and state alike stigmatized “bastards” throughout the early modern period, but the crown sold letters of legitimation to parents who decided to recognize children born out of wedlock. Parents had a variety of personal and strategic reasons for doing so, more commonly for sons than for daughters, such as to facilitate an advantageous marriage or perpetuate a family line. Some were motivated, or at least claimed that they were motivated, by affection for their progeny. Sixteenth- and seventeenth-century jurists and judges could not nullify royal letters of legitimation, but they could and did interpret them restrictively. Usually at the request of relatives, they stated and ruled that illegitimate children (if not conceived in adultery) could inherit offices and privileges but not property from their parents. New patterns emerged in the eighteenth century: a wider range (socially and geographically) of parents purchased letters, they more often used sentimental language to articulate their connection to “natural” children, and magistrates began to authorize inheritance of property. These shifts in late Old Regime practice and mentality paved the way for Revolutionary attempts to give full civil rights to illegitimate children. Corley shows how law empowered mothers and fathers, and Gerber show how fathers and mothers influenced law. With kin involved and property at stake, law functioned not simply as a vehicle for discipline but also as an umbrella for negotiation and transformation.

The early modern family may have been, to repeat Jaucourt’s words, “a civil society established by Nature,” but nature did not provide—or at least French subjects did not accept—one model for all families. They invoked nature when it suited their purposes, but they based their decisions about making, breaking, and reshaping families largely on their own desires and interests, frustrated, moderated, or facilitated by relatives, gender, community, and law, all of which not only imposed limits but also supplied options. In challenging limits and expanding options, men and women found themselves in collusion or conflict with others inside and outside the household as well as larger social and political structures and forces. Their activity and creativity remind us that the Old Regime was not moribund but very much alive with versions and visions of “civil society” that their descendants worked out in the following centuries.

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