Abstract
Excavating the diverse legal practices with respect to bastardy in early modern French law, Matthew Gerber at once reveals how the multiplicity of legal standards and jurisdictions had positive cultural functions and how bastardy reflected the changing history of the family. Against the usual understanding of French law as a hodgepodge that failed to offer legislative clarity, Gerber argues that the seeming incoherence of early modern French law encouraged the development of an adjudicatory approach to legal questions. Within the familiar narrative of demographic pressure and rising rates of illegitimacy, Gerber makes sense of the legal and cultural climate around bastardy as both a reflection on and a challenge to legal norms and practices.
Gerber opens with the complicated case of Marguerite de Manse, a woman born out of wedlock and told that her father was dead. She discovered that her father was alive and initiated efforts to gain recognition as his daughter against the vociferous efforts of his family to block her claims. Because her father’s family had incarcerated him through a lettre de cachet (an extrajudicial order of arrest issued by the monarchy), the case includes a variety of elements crucial to understanding bastardy as a legal category in early modern France. Arguments over Marguerite’s status reveal distinctions among kinds of illegitimate children. The question of her paternity and whether recognition of it included inheritance rights drove the competing claims. The role of the monarchy as both an instrument of families protecting the central lineage and as the source of justice in the instance of litigation shaped the strategies available for both bastards and the families that (usually) spurned them. All together, Gerber indicates that illegitimacy provides a window into the mechanisms of family law, and especially into the adjudication of disputes over identity, property, and power relative to family strategy and state policy.
One of the key historical dynamics driving the narrative is that ideas about bastardy and its legal status changed rather dramatically over time. The first part of Gerber’s study examines the ways that bastardy was initially highly stigmatized. The story begins in the sixteenth century, during which the association of bastardy with degeneracy and moral turpitude became stronger than it had been before or would be after. In the annals of jurisprudence, Jean Bacquet’s Traité de droit de bâtardise (1577) was at the center of the pejorative assessment of bastardy. Bacquet’s moralistic conservatism reflected and codified French legal opinion around the idea that all illegitimate children, whether of parents who could marry or of parents who could not, were excluded from inheritance because they were the spawn of “criminal commerce.” The moralistic language dominated legal theory and was understood as congruent with the idea that illegitimate children were a threat to family and marriage as the primary locus of capital accumulation and economic upward mobility. At the same time, the persistence of the idea that families owed bastards “maintenance” tempered the harsh prescriptions of the sixteenth century. Gerber indicates that the social and moral conservatism of the Reformation was very much at work in French legal culture.
How the tangle of practical and moral imperatives functioned and evolved is evident in three significant issues concerning the legal position of bastards. Chapter 2 reveals how both practical concerns over inheritance and moral concerns over sexual behavior were accommodated. First, the practical decision to regard the bastard children of nobles as inheriting a lesser rank than their parents was a compromise that allowed the persistence of notions of nobility as a matter of blood while retaining the idea that bastardy contravened Christian sexual morality. Second, case law, particularly building on the 1656 case of Bourges v. Roussel, made distinctions between kinds of bastards with inheritance as a possibility for some. “Simple bastards,” those whose parents could have or perhaps did intend to marry, were recognized as distinct from “adulterine bastards,” whose parents could not marry. The former came to enjoy some possibilities for recognition and inheritance; the latter did not. Finally, case law defined the lineaments of royal power around the issue of legitimation by royal rescript. Taken together, these solutions to problems associated with illegitimacy enabled jurists to represent the legal status of bastards in terms of public interest, rather than moral or criminal culpability.
The limits of the king’s power are crucial in Chapter 3, which situates the debate over Louis XIV’s bastard sons in terms of the larger cultural trends around illegitimacy. Despite the confines of French “fundamental law” (customs that governed the royal succession) which restricted the crown to legitimate sons of the king, Louis XIV legitimated his bastard sons. Since both the king and his mistress were married, the promotion of the sons into the position of heirs to the throne was particularly provocative. The controversy this caused, known as the “Affaire des Princes,” highlighted the limits of royal power over legitimacy in the public imagination. In the end, kings had to conform to existing notions of the social and political order with respect to their bastard children. That order allowed some support and recognition from fathers, but the possibilities were circumscribed to protect family—or royal—honor.
Having established the ways that illegitimate children were stigmatized, Gerber flips the script, tracing the lessening of the stigma attached to bastardy in Part 2. In Chapter 4, Gerber utilizes quantitative methods and discourse analysis to explore the import of the 1697 tax on bastards, attempts to codify legal practices, and the exploitation of legal diversity by individuals. The administration of the 1697 tax left records of the social origins and life expectations of those who paid, and the data reveal the dimensions of bastardy in terms of gender, age, social status, and motives of those who sought royal legitimation. Both the tax records and the efforts by the crown’s leading jurist, Chancellor Daguesseau, to codify family law reveal a wide variety of local customs that determined the legal situation of natural children. This diversity frustrated Daguesseau and encouraged some illegitimate children to utilize state power to their own advantage.
Again moving between social history and discourse analysis, Chapter 5 situates the well-known rapid rise in child abandonment in the eighteenth century within the larger history of bastardy. Gerber emphasizes the dual impetus of state interest and moral reform undergirding the care for foundlings and ways that jurists contributed to the growing hostility toward women in narratives of child abandonment. As pressure on unwed mothers increased, more relinquished their children to the foundling hospital. Foundlings became “children of the state,” and secularization moved to the fore in what had been a matter left largely to the Catholic Church in earlier periods.
Following the secularization impulse, Chapter 6 traces emergent notions of “the general good of society” that led to the lessening of the penalties (legal and social) assessed against illegitimate children. Enlightenment ideas about reason and child rearing, efforts to articulate the underlying French legal tradition, and sentimental understandings of childhood informed developments. Jurists worried about dangers to society from overly solicitous natural parents favoring their illegitimate children to the detriment of the legitimate lineage. Fears of venereal disease and anxieties about racial mixing hardened against mixed-race bastardy, while religious mixing between Catholics and Protestants ceased to be a substantial legal liability. All of these developments were understood as matters of public interest, and instead of marginalizing bastard children, eighteenth-century intellectuals and jurists largely sought to incorporate them in the name of the public good.
Gerber notes that the constants in the story of bastardy in terms efforts at legal reform and debates over the status of natural children played out in the Revolution. The role of litigation in debates about family inclusion and the role of the monarchy with the impulses toward secularization, destigmatization, and democratization evident in the history of illegitimacy came to the fore in the Revolutionary imaginings and “reforms” of the family. Within the Revolutionary climate, part of the break that was the French Revolution was the failure of the adjudicatory model to satisfy French political, social, and legal needs with respect to the needs of the family relative to bastardy.
This last point is one of several significant contributions to the scholarship on early modern France, the history of sexuality, and legal history. This study indicates how French society managed extra-marital sexuality within the family, at law, as a social problem, within an intellectual scheme, and as an institutional challenge. Historians of sexuality have been handed a nuanced set of readings of bastardy that enable better interpretation of illegitimacy, adultery, and familial sexual management. Legal historians have a compelling answer to claims that jurisdictional diversity in early modernity was always a bad thing. Bastards may not be part of the family, but they are now more than ever a crucial part of the history of the family.