Contested Paternity: Constructing Families in Modern France

1 Families and the Social Order from the Old Regime to the Civil Code

chapte one Families and the Social Order from the Old Regime to the Civil Code Families are adaptable forms of private and public relationships. As men and women fashion their families, private passions frequently conflict with an ideal family form. From the eighteenth century through the formulation of the Civil Code in 1804, the legally married family remained the political and social ideal, the bastion of social order. As authorities sought to safeguard it from disruption, they had to grapple with the results of private passions that threatened their ideal. Seduction and sexual love outside of marriage have been facts of life from time immemorial, and essentially, women bore the consequences— pregnancy and the responsibility for childcare. Until the last decades of the eighteenth century, customs, laws, culture, a sense of duty, and judges’ decisions could compel a number of men to accept some financial liability for their sexual activity, especially if it resulted in the birth of a child. If a mother named the putative father or “author of the pregnancy,” magistrates could order him to pay child support or repair the damage to the woman and her family, but those same magistrates disallowed introducing the illegitimate child into the legitimate family. The child had no legal inheritance rights from the father or his family, although people always found ways around the law. Magistrates, however, decreasingly granted reparations or child support to the mother, only reluctantly giving credence to a woman’s sworn testimony designating the putative father. Revolutionary upheavals at the end of the century, paying heed to the natural, civil, and individual rights of men, resulted in legal and social modifications to eighteenthcentury practice. Family formation and the nature of paternity became more inextricably linked to family property—notably that of men, with the Revolution marking a transition in relationships between the family and the state. The 1804 Civil Code set the course for the legal construction of paternity and the French family for over one hundred years. Throughout the nineteenth and twentieth centuries, scholars, magistrates, laws, culture, and the individual behavior of men and women hearkened back to eighteenthcentury concepts as they sought to maintain the sanctity of the legally married family. How individuals and authorities dealt with seduction and paternal responsibility underwent subtle, and sometimes drastic, shifts. Seduction and Paternal Responsibility in the Eighteenth Century To protect property transmission along bloodlines and to reinforce male dominance, men wanted women to be chaste outside of marriage.1 Yet those very men seduced women outside of marriage, and women succumbed to seduction , passion, and love. Eighteenth-century seduction included gifts, sweet words, promises of marriage, and sexual activity. In addition, it often included fraud, rape, and other forms of violence against women. Although fraud and violence were usually criminal misdemeanors, courts tended to ignore a woman’s complaints and even sometimes blamed her. Magistrates were more likely to entertain her complaints if she brought evidence that the violence had been extreme and she could show scars, or if she had visibly and publicly resisted, or if she were of a higher status than her seducer, or was of impeccable virtue, or if abduction had accompanied the seduction or rape.2 Age was also important, especially when the woman was a legal minor. If a man seduced her with a promise of marriage without her father’s consent to the marriage, authorities might consider it rapt. Although rapt could include rape, it usually indicated nonviolent seduction against the wishes of a woman’s father. Writing in 1781, Jean-François Fournel, a leading legal authority , distinguished séduction from rapt de séduction: séduction was against the woman alone; rapt de séduction involved a man abducting a young woman from her parental home, usually with the avowed intent to marry her without her father’s permission. Legal authorities considered rapt de séduction an injury to the authority, honor, and property of her father and a crime against the family, state, and society. Laws proscribing rapt de séduction were intended to protect the property and pedigrees primarily of aristocratic families and to ensure the stability of society by preventing unworthy marriages and the corruption of social mores.3 With rapt de séduction, a stranger in effect intruded on a father’s control over his Families from the Old Regime to the Civil Code 17 property, in this case, his daughter...