In a legal brief published in 1781, a lawyer wrote that “whatever engagement a father might enter into, regarding his estate, he is always free, as master, to withdraw from as he wishes.” This assertion of the authority of fathers to do as they pleased with their belongings, unbounded by any commitments they may have made to their children, sounds perfectly normal in the context of Old Regime law. The law gave fathers, like miniature kings, absolute authority in their families, in theory if not in practice. The statement begins to look different when one considers that the lawyer was writing an appeal, having lost his initial case. His opponents, Pierre-Jean-Baptiste Gerbier and Louis-Eugène Hardoin de la Reynnerie, concluded their own brief by stating magisterially, “the dispositions of man must thus disappear, those of the Law must reign alone, & with them the equality prescribed by nature.”Footnote 1
The lawyers wrote their briefs on behalf of parties to a suit over the succession of François Baudon, a wealthy tax collector with a young wife and children from two marriages. At issue was the widow's claim to a share in the profits of her husband's tax farming contracts and a special bequest that Baudon had made to his younger children. The case was initially argued in the first instance court of the Requêtes du Palais. After Baudon's older set of children won both claims, Baudon's widow appealed to the Parlement of Paris, the leading sovereign court in France. The lawyers for the three different sets of litigants in the case—the widow, her children, and Baudon's children from his first marriage—produced a total of five briefs for the appeal, which unfolded in 1780–81. The appeal resulted in a reversal: the Parlement sided with Baudon's widow and her children, overturning both of the lower court's rulings.
Although it is only a single case, the Baudon suit nonetheless sheds a great deal of light on the relationship between legal practice and the changing intellectual milieu of late eighteenth century France. All the more, perhaps, because it is a single case.Footnote 2 On its own, examined carefully, it can reveal phenomena that are more difficult to see at a larger scale. In many ways it resembles hundreds of other lawsuits, although substantively it stands apart for the level of rhetoric that its lawyers deployed in their briefs, and for the stakes of the legal questions addressed. By presenting a perhaps rather extreme example of the intersection between Enlightenment ideas concerning family life and legal arguments, the case makes apparent underlying assumptions about the relevance of the two fields of thought to each other.
The theory and practice of family life changed dramatically in France in the eighteenth century. Attitudes toward family life changed, with a shift toward affection characterized by an emphasis on love matches over dynastic marriage and a growing interest in childhood and family life.Footnote 3 Changing attitudes were underpinned by demographic changes, particularly a drop in child mortality.Footnote 4 These changes occurred in the context of a broad cultural engagement with sentiment.Footnote 5 Popular and philosophical literature explored love, marriage, and family life, notably Rousseau's blockbuster novel La nouvelle Héloïse and his treatise on education, Emile.Footnote 6 Changing attitudes were also reflected in politics, where the ideal of enlightened despotism portrayed the king as engaged in improving the lives of his subjects, like a good “père de famille.”Footnote 7
Family relations held particular significance in eighteenth-century France, because they were understood to be a metaphor for political relations. In the French absolutist state, the family was “not only the true source and origin of the commonwealth, but also its principal constituent…Thus the well-ordered family is a true image of the commonwealth, and domestic comparable with sovereign authority.”Footnote 8 Disorder within the family suggested the possibility of broader political and social instability. There is, of course, a difference between the legal ideal and the lived reality. Family relations did not function the way they were supposed to, and the authority of fathers was challenged all the time.Footnote 9 Still, the ideal held powerful significance in culture and politics.
There continues to be a frustrating gap between studies of Enlightenment attitudes and the sweeping reforms of the family instituted by the French revolutionaries from 1790 to 1792. Treatments of the causes of the French Revolution focus on cultural attitudes and administrative strife, in the assumption that the law did not keep up with rapid political, social, and cultural change.Footnote 10 And yet, the law was central to the theory and practice of the Revolution: it was the tool by which society was transformed, and an ideal in and of itself.Footnote 11 On the other hand, drawing a straight line from Enlightenment critiques of family relations to revolutionary legal reform presents a deceptively simplistic image of how new attitudes to the family came about. In particular, the idea that revolutionary reform flowed naturally from Enlightenment values of equality, nature, and sentiment elides the legal principles that necessarily underpinned the family and mediated the experience of individuals.Footnote 12 How were abstract cultural values translated into specific legislation that would reshape the legal basis of the family? Recent scholarship that identifies the Enlightenment as a set of cultural practices offers a promising way forward.Footnote 13 Such an approach makes it possible to find new connections across the late eighteenth and early nineteenth centuries. The present article contributes to this area of inquiry by focusing on how a range of new ideas were mobilized in legal practice.
The arguments presented in the Baudon briefs suggest that the legal underpinnings of the family were being challenged in the years before the Revolution. The Baudon case shows that new models of family relations were operationalized in legal argumentation before they were recognized politically. In particular, the lawyers presented strikingly different accounts of the nature of family relations, suggesting that even as Enlightenment ideals of nature and sentiment led to new conceptions of the family, the new ideas allowed for a variety of different practical implications. The lawyers drew from a common pool of ideas about affection, sentiment, and nature, but applied them to strikingly different purposes.
This article will examine the different sources of cultural values about the family mined by the lawyers for the three parties, exploring how the lawyers connected them to legal principles. Crucially, even though the lawyers put forward strikingly progressive portrayals of family relations, their cases depended on the court accepting these portrayals as established practice. The first section of this article will lay out the facts of the case and contextualize it among other lawsuits and legal practice at the time. The second section will look in detail at the three different portrayals of family relations put forward by the parties. The conclusion will look toward the revolutionary reforms of 1791–92 that remade the family, as well as the Civil Code of 1804.
I.
In the context of late eighteenth-century French legal practice, the Baudon case seems unremarkable. Although the sums of money were quite large and the social connections rarified, there was nothing particularly unusual about the Baudon family's story. Other cases garnered much more public attention than this one. What sets the Baudon case apart are its high-profile venue, the renown of the legal counsel retained by all three parties, and the skill with which the lawyers connected their technical arguments to broader social themes. In all of these points, however, the case is emblematic rather than exceptional.
The facts of Baudon's life compose a familiar tale of financial and social ascent at the end of the Old Regime through royal appointments and advantageous marriage. After working his way up through the royal financial administration, François Baudon obtained a coveted fermier général contract in 1756.Footnote 14 The king sold the right to collect taxes in exchange for a lump sum; tax farming required major capital on the part of the investor, but could bring huge returns if the actual tax receipts exceeded the up-front payout. At the time he signed the contract, Baudon, a widower, was sharing assets with five of his children, Jacques-François, Charles-Guillaume, Elisabeth, Rose-Josephe-Sophie, and Rose-Magdeleine.Footnote 15 This arrangement allowed Baudon to maintain access to the assets of his late wife, Rose de Verneuil. By law, spouses could not inherit from each other; therefore, Verneuil's assets belonged to Baudon's children, not him. Thanks to the asset-sharing arrangement, his five children received half of the enormous profits from the tax farm (a subsequent inventory valued the proceeds from a single month at 8,500 livres).Footnote 16
In June 1759, Baudon finally separated his wealth from his children's in preparation for a second marriage. At age 64, he began negotiating a marriage contract with the family of Anne-Marguerite-Charlotte de Ligneville.Footnote 17 Each spouse contributed 30,000 livres as common assets; in addition, Ligneville received 100,000 livres in dowry from the King of Poland. Because the fermier général contract was issued for a term of 6 years, it continued to bear fruit during the first several years of the marriage, expiring in 1762. Ligneville had two sons during her marriage to Baudon: Jean-François-Charles and Charles-Jacques.Footnote 18
In 1779, Baudon drew up a will bequeathing 400,000 livres to Ligneville's two sons, with the remainder of his estate to be divided equally among all seven children.Footnote 19 Old Regime France was governed by a number of different bodies of law that varied by region. The regions around Paris and Orléans followed a regime that granted equal inheritance to all children, sons and daughters, in the absence of a will stating otherwise. Baudon's bequest was legal, but it modified what would otherwise be the norm for the region of a strictly equal division of his estate among all heirs, male and female. Shortly after drafting his will, at age 84, Baudon died. His five children from his first marriage sued his two youngest children for the 400,000-livre bequest, claiming that it violated the terms of his daughter Rose Cromot's marriage contract. Ligneville sued her five stepchildren for 700,000 livres, the profits of Baudon's tax-farming contract that had accrued during her marriage. Everyone hired lawyers, and the lawyers began writing briefs.
In September 1780, the Requêtes du Palais ruled in favor of the children of Baudon's first marriage.Footnote 20 Baudon's widow and her children, the losing parties, appealed to the Parlement of Paris. The leading sovereign court in France was not the habitual place for family conflicts to be aired; the privilege of appealing to it reflected the extraordinary status and means of the family.Footnote 21 The five surviving briefs, written for the appeal, give little information about the way the case was argued before the lower court. The Gazette des Tribunaux, which later summarized the appeal in great detail, devoted only a page and a half to the initial ruling.Footnote 22
The Parlement of Paris considered two controlling questions in the case. These were, first, the terms of shared spousal property, and, second, the types of promises allowed in a marriage contract. The first issue concerned whether Baudon's widow could claim the revenues of the tax-farming contract or whether they belonged to Baudon as personal assets or propres.Footnote 23 The second issue was whether the promise of equal inheritance made to Baudon's daughter Rose Cromot in her marriage contract applied to all his children or just to her; if it applied to all his children, it would nullify the special bequest of 400,000 livres that Baudon made to his younger children.
Ligneville, her children, and her stepchildren hired some of the most illustrious lawyers in France. The Gazette des Tribunaux effused, “the Parties have left nothing to be desired in their choice of Defenders.”Footnote 24 Ligneville retained Alexandre-Jules Benoît de Bonnières, whose “easy elocution accompanied by external graces” had assured him “a brilliant reputation.”Footnote 25 Ligneville's children, represented by a guardian, chose Louis-Simon Martineau, “called the axe, because he was so concise and so vigorous.”Footnote 26 As for her stepchildren, they hired Gerbier, the undisputed “eagle of the bar, who soared alone in the most elevated sphere.” According to the legal gossip Ambroise Falconnet, “nature has never gifted anyone with as much talent for judicial elegance as Gerbier.”Footnote 27 They also engaged Hardoin de la Reynnerie, a highly respected lawyer who would go on to represent the French East India Company.Footnote 28
The four lawyers on the Baudon case knew each other, and the venue, well. They were part of a new guard of lawyers that had arisen after the dramatic reorganization of the Paris bar in 1770–71.Footnote 29 The group were among the stars of the bar, although Gerbier shone brightest.Footnote 30 The year 1781 was a major year for Gerbier, with at least two cases before the Parlement of Paris on appeal.Footnote 31 He met Bonnières either in collaboration or as an adversary in a total of four cases that year. He also teamed up with Hardoin and Martineau.Footnote 32 The year the Baudon case began, 1780, Gerbier argued against both Bonnières and Hardoin in another case on appeal before the Parlement of Paris.Footnote 33 He worked with Martineau and Bonnières three more times each before his death in 1788.
The Baudon case occurred at a time when legal practice had become highly politicized. Sensational lawsuits that garnered enormous public attention were common, and their themes were understood to have larger implications for the social and political order.Footnote 34 High-profile cases were just one aspect of this politicization. The eighteenth century was punctuated with major skirmishes between Parisian lawyers and the crown; in particular, the magistracy defended its right to limit royal authority as a constitutional matter.Footnote 35 Scholarly research on the history of the French Constitution supported their claims, while political works exploring republicanism attacked the monarchy under the cover of purely abstract political theory.Footnote 36
What sets the Baudon case apart is the rhetorical skill of the briefs. It is possible that the lawyers outdid themselves in their arguments because the facts of the case were so comparatively dull. The people were not as famous and the facts were not as scandalous as in other cases that the lawyers worked on.Footnote 37 In any event, the Baudon case stands out from other similar ones for the lawyers’ relentless engagement with broader themes. In other similar cases, the same lawyers referenced Enlightenment themes of sentiment and nature and invoked the broader stakes for society of the outcome, but not in as involved or sustained a manner as the Baudon case.
The case also stood apart from similar ones for the mark it left in jurisprudence. The arguments from the Baudon case became a part of the jurisprudence of the Empire and Restoration, which revived Old Regime case law.Footnote 38 The case was cited under two different rubrics, joint spousal property (communauté de biens) and contractual investiture (institution contractuelle). The institution contractuelle referred to promises made in the context of a marriage contract, and the communauté de biens referred to the shared wealth of husband and wife.
When considering the tradition of French jurisprudence, it is important to understand the place of customary law in the Old Regime.Footnote 39 The Baudon case was argued within the jurisdiction of Paris custom, one of numerous customary traditions operating in Old Regime France. These traditions were autonomous but cross-pollinating; jurists might turn to other customary traditions when their own was ambiguous or “mute” on a given issue, or they might compare traditions for assistance in interpreting a thorny issue. Customary law could also be supplemented with Roman law, which was itself the controlling regime of southern France. Paris custom, however, enjoyed particular importance.
II.
The lawyers each offered different characterizations of family relations. One can assume that they drew fortuitously on arguments that suited their position; what is notable is the skill with which the lawyers connected the facts of the case to ideals of family relations that would support their case. On the one hand, this highlights the diversity of models that were available. On the other hand, the diversity of the models of family relations presented by the lawyers shows how flexibly ideals such as sentiment or equality could be interpreted in practice. Multiple different models of family life could be constructed from a common pool of Enlightenment themes, and justified within the existing parameters of Old Regime law.
In the brief issued on behalf of the Comtesse de Ligneville, her lawyer, Bonnières, argued that she had a right to share the revenues from her husband's tax farming. The underlying issue was whether Baudon's profits were accrued the moment he signed the contract with the king—before his marriage to Ligneville—or whether they were earned over time through his labor. If they were acquired all at once, as the guaranteed consequence of the contract, they would be considered propres: personal assets. This meant that the revenues were Baudon's own assets that he brought to the marriage and that his wife could not inherit. If, on the other hand, the profits were generated over time, they would be counted as conquêts, communal assets acquired by the couple during marriage that would be divided equally between them on its dissolution.
Bonnières portrayed husband and wife as an economic unit, paying particular attention to the contribution of a wife's labor to the household's revenues. He had the law on his side, as tax farmers’ revenues had always been considered conquêts or shared assets. He pointed this out, but he also argued that Ligneville earned a claim on the revenues through the labor that she contributed to producing them. Countering the claim made by his opponents that a tax farmer's wife, unlike a real farmer's wife, did no concrete labor, he pointed to the various forms of household labor that a wife provided. He asked, “The mother of the family, thrifty, does she have less right to the resources of the couple, which she conserves, than the husband who earned them by his work?” His answer was clear: Ligneville's work “was useful to her husband: she shared his work; it is just that she should participate in its advantages.”Footnote 40 Keeping household accounts was a common and accepted role for wives, as was assisting husbands in their work and managing servants, in addition to other kinds of domestic labor.
Ligneville also earned a share in her husband's revenues, Bonnières asserted, through the emotional labor performed to support her husband and children. Denying wives a share of household revenue in recognition of this work would mean that, “the care, the work of the husband will be lost for his widow, & she will have to consider herself too happy, after five years of domestic solicitudes, to be able to withdraw the principal of her dowry.”Footnote 41 The idea that “domestic solicitude” earned a wife a claim to her husband's earnings suggested that she was performing real labor that merited more than simple gratitude.
In addition to physical and emotional labor, Ligneville contributed capital to the household. Bonnières maintained that Baudon had benefitted from the capital of his wife's dowry in order to generate his earnings, because her dowry had contributed to the capital of his contract. All these contributions fit into an accepted model of marriage in which the spouses made different but complementary contributions to the success of the household.Footnote 42 The twist for Bonnières was that all the things that Ligneville did were real labor, from “solicitudes” to accounting. She deserved compensation, and further she had earned it, as all her efforts directly contributed to producing revenue on Baudon's tax-farming contract.
Much would have been familiar to contemporary readers in Bonnières’ portrait of spousal cooperation. In accord with a traditional understanding of marriage colored by Christian theology, Bonnières characterized marriage in the language of religion and morality, referring to the marriage contract as the “the most holy of acts” and the wife's care of her family as “the most holy of duties.”Footnote 43 And yet, he advocated earthly compensation for wives. The argument clearly served the interests of his client, but the particular way in which Bonnières chose to present it is significant. There were the familiar duties of a wife, including maintaining the household and caring for its members, but these tasks were not cast as the self-sacrificing duty of someone who gives without expecting in return. Ligneville contributed labor and capital, and could expect remuneration. This was because her contributions, including her affective work, substantively contributed to the prosperity of the household.
Hardoin and Gerbier countered that Baudon's tax-farming revenues were his personal asset, not a common asset of his marriage to Ligneville. By their account, the earnings on the tax-farming contract were entirely acquired by right at the moment that Baudon signed the lease, before his marriage to Ligneville. To make their case, Hardoin and Gerbier suggested that Baudon was not like a real farmer, because his revenues were already guaranteed in advance. The work of a tax farmer “is simply, if one is permitted to speak thus, a work of collection.”Footnote 44 This was a crucial legal point, because it meant Baudon brought the revenues to the marriage as his propre, a personal asset to which Ligneville had no claim.
The lawyers maintained the rather paradoxical claim that tax farming was much more demanding than normal farming, and yet required no actual labor. They acknowledged that tax farming required mathematical work, but suggested that the complex calculations were beyond the power of a simple farmer.Footnote 45 They went on to argue that even though tax farming required a vast network of personnel, the daily management was simple enough to be assured by one or two agents. This portrayal of the daily work of a tax farmer as difficult and yet not seems a bit odd, until one considers the gendered nature of these types of labor. An artisan's wife would normally keep the account books and manage day-to-day operations in her husband's workshop, including oversight of personnel; wealthier women also participated in the management of household affairs and assets.Footnote 46 On the one hand, Baudon's calculations were more complex than those that a farmer or artisan's wife might be expected to undertake in keeping household accounts; on the other hand, management of the operations, which a wife might also be expected to handle, required no oversight. The lawyers’ argument, for all its contortions, perfectly excluded any possibility of female labor from Baudon's activities. What is most striking here is just how difficult it was to achieve such an exclusion, and what extreme lengths the lawyers had to go to in their portrayal of Baudon's work.
The lawyers turned to Ligneville's dowry to suggest that in addition to contributing no work, she had also behaved improperly. Because of her dowry “of 100,000 livres only,” for Baudon to have given her more than he did would “give her an immense advantage, at the expense of his own children.”Footnote 47 Their argument basically followed Bonnières’ own logic: Ligneville should get her due, and having brought such a modest sum to the marriage, she should not expect to come away with a fortune. The implication that Ligneville was a gold digger poses a flip side to the affective ideal of a supportive spouse put forward by Bonnières. By Hardoin and Gerbier's account, Ligneville was unfeeling, scheming to take away her stepchildren's inheritance. She wanted money she had not earned, either by putting up capital or by providing emotional support to her family. This image points to a darker undertone in Bonnières’ own portrayal of feminine labor as supportive and nurturing. Both portrayals measure Ligneville by an ideal of emotiveness with gendered implications.
The arguments of both sides assumed an array of different forms of labor, each of which generated revenue and was worthy of recognition. Bonnières distinguished between a wife's physical labor and her affective labor, as well as the investment of her dowry, as separate activities that yielded profit. Similarly, his adversaries made a distinction between manual labor and intellectual labor. Both approaches echoed Locke's influential idea, put forward in Two Treatises of Government, that labor generates property rights, a concept Rousseau also put forward in the Social Contract. In contrast to these authors, however, who envisioned agricultural labor as generating a claim to the land, the lawyers considered that an array of different activities qualified as labor. They also converged around an idea of gendered labor, although with important differences. For Hardoin and Gerbier, Ligneville's implied failure to show caring and support for her husband and children was further evidence against her. Bonnières’ account is more nuanced, as he connected emotional labor to the gendered labor of a wife, but also argued that it represented an important contribution to the household and should be recognized just like other kinds of labor.
In their presentation against Ligneville's children, Hardoin and Gerbier took a different approach, portraying family members as equal before the law. They did so as the culmination of an argument that certain kinds of promises in a marriage contract could apply to all children, not just the contracting parties. In spite of the intentions that Baudon expressed in his will, Hardoin and Gerbier considered the previous promise made in his daughter Rose Cromot's marriage contract to take precedence. They argued that the bequest of 400,000 livres was void because Cromot's marriage contract contained a promise that no other child would be advantaged at her expense. Going a step further, they asserted that this promise of equality had to be shared by her siblings. Whereas the law specified that only promises concerning the contracting spouses and their descendants could be made in marriage contracts, the lawyers argued that this only applied to institutions contractuelles proprement dites, which they defined as gifts or promises of gifts. The promise made to Cromot, “to take nothing away from her,” was not the same, because rather than giving something, it simply promised not to take it away.Footnote 48 The lawyers called this promise an institution contractuelle improprement dite and argued that when made in one child's marriage contract, this type of promise applied to all children. The distinction depended on the status of the child receiving such a promise in a marriage contract. If Baudon had made a substantive gift to Cromot in her marriage contract, she would come to her father's succession as a légataire, meaning that she received her inheritance de la main de l'homme, by act of the deceased. Because, however, the marriage contract only promised her an equal portion by law, she took on the quality of héritière, receiving her inheritance de la main de la loi, by benefit of law. The status of héritière put her on the same footing as her siblings, who were also heirs and not legatees.
Normally in Paris custom, gifts handed out by the deceased in life were called back when the succession was opened. Heirs who hoped to receive a portion of the estate had to give back anything they had previously received from the deceased to be reintegrated in the total assets. From this reconstituted mass, all heirs would receive their equal portion. The principle was known as rapport, from the verb rapporter, to carry back or return.Footnote 49
The lawyers argued that Cromot could not practically exercise the provision of equality unless she shared it with her siblings. Cromot had to take the title of heritière, as opposed to légataire, in order to exercise the clause in her marriage contract. However, Paris customary law required that anyone claiming an equal portion as an heritier “bring back” or faire un rapport of any gifts that they received from the deceased in life. Therefore, Cromot could not exercise the promise of equality made to her without taking a legal title that required her to share it with her brothers and sisters. Martineau maintained that Cromot's promise of equality was not subject to rapport, because it was not an asset taken from Baudon's total estate. Hardoin and Gerbier countered that practically, Cromot could not exercise her claim without subjecting it to rapport. By their account, each time she presented her marriage contract to take away a portion of the bequest from her half siblings, she would be forced to “bring back” that portion to her brothers and sisters. Each time this happened, she would be left with less than the total equality promised by the marriage contract, and, therefore, would have to go back and demand anew a portion of the bequest from her half siblings; this process would iterate such that “by this circle of deductions & of returns, the bequest always growing smaller, will necessarily finish by obliterating itself.”Footnote 50
The lawyers’ distinction between two kinds of institution contractuelle was relatively novel. They made it even more so by suggesting that there had been a change in the way these promises were understood, using recent case law to demonstrate the point. Martineau jumped on this claim, accusing his opponents of asserting that “at the beginning of this century…there has been a revolution in ideas.”Footnote 51 Such a charge was damning, as legal argumentation depended on tracing as long a genealogy of interpretation as possible.Footnote 52 It highlights the centrality of this claim to the case, as the court was being asked to rule whether any kind of institution contractuelle could apply to individuals not party to the marriage contract in which it was made. A finding in favor of Hardoin and Gerbier would change the established doctrine.
As their arguments played out, Hardoin and Gerbier placed contract at the center of family life. The binding nature of a marriage contract meant a father could lay the groundwork for his other children's marriages by advertising that they would all be treated with equal generosity. The public nature of the agreement contributed to this function, as “this contract will be known by the two families who appear as witnesses; it will be known by everyone in the two families, it will be known by a portion of the public.”Footnote 53 The engagements made by the parents at the moment of their child's marriage took on greater significance than simple promises, representing an accord reached among the whole family and their new in-laws. The contract, not the parents’ plans and promises per se, was at the center of family life. It drew family members together and bound them to their promises. And yet, the emphasis on contract highlights the individuality of each of the parties. A contract distinguishes people as separate entities with unique interests and claims.
Hardoin and Gerbier's portrayal of family relations as primarily controlled by contract picked up an important theme in political thought. A contract suggests equality, as all parties must agree to the terms of the contract, and be equally bound by its authority. This was the model that Rousseau used to describe an egalitarian society based on rights and consensual power in the Social Contract. An ideal of social relations based on mutual obligation informed the value of equality, which in turn would inform revolutionary politics.Footnote 54 In making contract the basis of familial relationships and society broadly, these approaches notably excluded religion. Hierarchical models of social relationships prevalent in the Old Regime envisioned society as the body of Christ, made up of different but interdependent parts, or as the “great chain of being,” which linked members of society hierarchically to the divine via the king.
By the lawyers’ logic, the law became a kind of overarching force mediating the relationships among brothers and sisters, children and father. The equality of children in the inheritance of their parents was “that equilibrium which nature and the Law have established in concert,”Footnote 55 As such, its enforcement “is no longer in the hands of the children… it is in the hands of the Law, and it is she who renders it irrevocable in receiving it.”Footnote 56 This personified force overseeing justice in inheritance even placed limits on the freedom of the father, as “it is she who guarantees for all the children, the promise made by their father not to advantage any of them to the detriment of the others,”Footnote 57 A family hierarchy was preserved, but father and children were all beneath the Law (with a capital “L”), which mediated their relationships by demanding equality among children and enforcing the promises of fathers.
The lawyers’ portrayal of law based in nature and ruling over human wills depended on emergent legal thought. Montesquieu and other natural law authors emphasized the natural as opposed to the divine origins of law. Montesquieu in particular pointed out the variability of legal traditions according to differences in culture and historical or geographical context, a move that highlighted their earthly origins.Footnote 58 In addition, Rousseau and Diderot, among others, idealized simple, self-evident laws and highlighted the connection between culture and law.Footnote 59 Well-framed laws would create more harmonious social relations. Hardoin and Gerbier's portrayal of the law as an expression of nature, as opposed to tradition or divine order, reflected a similar approach to the law. It contrasted with established ideas of natural law grounded in Catholic theology, which were based on the idea of a divine order as opposed to malleable human cultures.
Hardoin and Gerbier used a distinctive vocabulary that linked their reasoning particularly to the natural philosophy of Rousseau, further establishing the novelty of their approach. They wrote, “these ideas are simple, sensible, & there is no need to be a Jurist to feel their aptness”; in another passage, they encouraged their reader to “return to the simple and natural ideas the question presents.”Footnote 60 The qualities of “simple” and “sensible” suggested reason and the transparency of nature; they connote authenticity.Footnote 61 The word sensible in particular was part of a vocabulary of the philosophy of communication deeply linked to Enlightenment theorization of sensation and cognition.Footnote 62 The lawyers presented their view of family relations as flowing from nature, and drove the point home by basing their legal arguments on the same authority. This was not an argument that required a tradition of juridical opinion for justification; its truth, they suggested, was apparent to all.
Martineau countered his opponents by defending the supremacy of a father's will. His argument focused on the limited nature of promises made in marriage contracts, undermining the supreme authority that Hardoin and Gerbier had attributed to such engagements. From this legal basis, however, Martineau emphasized a father's affection for his children, rather than his hierarchical position in the family, as the basis of his authority. He took the most traditional line about paternal authority, but justified it in sentiment, rather than the religious and political terms that one might expect.
Martineau presented the marriage contract as highly limited in scope. Promises of succession were irrevocable when made in such a contract, “just like the union of which they are the condition.”Footnote 63 However, these promises only applied to the betrothed couple and their future offspring. Given this important qualification, Baudon could clearly make a promise of equality that applied only to his daughter. On these grounds, the opposition's claim that marriage contracts, as an agreement between two families, were a public forum in which to lay out all of a parent's intentions, was incorrect. “In vain do they observe that these contracts establish the law for the two families that unite,” because the provisions in them could only apply to the spouses.Footnote 64 The marriage contract was a highly individual arrangement between father and child, not the family accord characterized by Hardoin and Gerbier.
Martineau went on to argue that Cromot could exercise the provision in her marriage contract without implicating her siblings. The promise of equality made to her by Baudon made her a héritière contractuelle, so she received her inheritance by bequest rather than as a simple heir. This meant that she did not have to share what she had received, as she would have if she were an heir and under the constraint of equality imposed by Paris custom. This directly contradicted Hardoin and Gerbier's line of reasoning. The pair had distinguished between the promise to give and the promise not to take anything away, defining only the first as an institution contractuelle; Martineau retorted, “isn't that reading too much into the words?”Footnote 65
For Martineau, the sanctity of a father's final wishes flowed from the emotion that inspired them. Having given so many benefits to his older children, on whom he bestowed large dowries and prestigious careers, Baudon “sought to reestablish a kind of equality among children equally dear to him.”Footnote 66 By focusing on Baudon's intentions upon writing his will, Martineau set up the case as an issue of whether a father's final wishes would be followed or not. And yet, even though he would have been on firm legal ground to simply assert the supremacy of paternal authority, Martineau did not take this route. He grounded the legitimacy of Baudon's wishes in the affection he felt for his children and in his desire that they be treated equally.
In focusing on affection as the source of paternal authority, Martineau picked up on a prevalent theme in Enlightenment portrayals of family relations. Literary representations of the family emphasized sentiment and affection as the appropriate bonds between spouses and between parents and children.Footnote 67 Love marriages were idealized over arranged marriages that might ultimately generate love.Footnote 68 Interest in child development and education led to a model of parenting that focused on affection. Like the model of enlightened absolutist royal authority that gained currency in the eighteenth century, fathers would ideally be motivated by love, and would use their authority to improve the lives of their family, rather than wielding their authority harshly.
In Martineau's view, Baudon also had the right to dispose of his wealth as he chose because he had earned it himself. Martineau portrayed Baudon as the “artisan of his own fortune.” His success was founded on “assiduous labor… maintained for over 60 years; an uncommon intelligence, a probity even more rare.”Footnote 69 In eighteenth-century France, being a self-made man was not exactly desirable. For Martineau, however, the work that Baudon had done to earn his fortune justified his right to dispose of it as he liked. Much like Bonnières, he understood his client's labor to generate a right to the property that was produced. In the caste society of Old Regime France, the novelty of this argument does not need to be belabored. The radical potential of such an argument had been fully brought to bear in the United States in 1776, and would be again in France in 1789. Here, it is enough to observe the breadth of Martineau's philosophical engagement, as these arguments came from a different tradition than that of sentiment.
Martineau's approach adds another dimension to the arguments about labor and property mentioned previously. It helps eludicate the way that all these arguments tended to valorize labor, even among the elite. As they emphasized the rights that their clients’ labor generated, the lawyers also portrayed labor as a source of identity and purpose, making Baudon and Ligneville worthy of recognition.
Like Bonnières, Martineau presented himself as a guardian of social stability. Contradicting Hardoin and Gerbier's bold claims, Martineau reassured the court, “No, Jurisprudence has not changed at all, and it is important to the stability of families, to the authority of fathers, and to the maintenance of principles that it should undergo no change.”Footnote 70 The locution “stability of families [repos des familles]” was a common one, shorthand for the broader social upheaval feared to be the result of disorderly families.Footnote 71 The lawyers’ insistence on the case's implications for the social order broadly raises the issue of what, exactly, the magistrates were being asked to rule on. Were they expected to consider the rhetorical presentations of the family and the larger stakes that they implied, or to limit themselves to the technical merits of the case? By relentlessly referencing the larger implications of the court's decision, the lawyers made it clear that they believed that the magistrates would be influenced by both. They would not make a technical ruling in a vacuum, but rather would consider the implications of their decision broadly.
Although they vary greatly in their particulars, the lawyers’ portrayals of the family converge around key points. All three sides recognized labor as a source of legal claims and equality as the proper basis of family relationships. First, individuals earned property and social recognition through labor. The diversity of the labor recognized is notable—physical, emotional, or the intellectual labor of investing capital—but all parties considered it to generate claims. Importantly, these claims were not only financial, although they were primarily so. Baudon's labor, coupled with concern and affection for his children, made him a good father and gave him the right to dispose of his fortune as he chose. Ligneville's work, both physical and emotional, made her a good wife and contributed to the household wealth. Further, the family was characterized by a kind of egalitarianism, although the lawyers differed in their understandings of what this meant. For Bonnières, spouses were equal in contributing labor and withdrawing benefits from shared resources. For Hardoin and Gerbier, family members were equal before the law and, accordingly, received their shares of the family fortune equally. For Martineau, it was in terms of the bonds of affection that family members were equal; fathers still retained the final say in distributing family resources.
In contrast to these points of consistency, Bonnières, Hardoin and Gerbier, and Martineau mounted their cases with the help of different forms of legal argumentation. Martineau and Bonnières used well-established strategies: Martineau situated his arguments in a tradition of jurisprudence extending back to Roman law and centuries of legal commentary; Bonnières quoted a provision of Paris custom. In turning to custom and established juridical thought, these lawyers remained well within the bounds of strong legal means. Hardoin and Gerbier, in contrast, took a different strategy, as evidenced by Martineau's accusation that they were arguing that a “revolution in ideas” had occurred. The pair situated their arguments in recent case law, largely eschewing the jurisprudential tradition that underpinned their opponents’ arguments. The oldest authority cited by Hardoin and Gerbier was Robert Joseph Pothier; his was the most recent commentary in Martineau's brief.
The lawyers’ divergent methods of legal argument depended on different approaches to the law itself. The division between the legal strategies of Martineau and Bonnières versus those of Hardoin and Gerbier reflected a changing approach to jurisprudence in French law in the eighteenth century. Since the sixteenth century, case law had begun to play an increasingly important role in jurisprudence.Footnote 72 In the late seventeenth century, case law became a formal part of legal education for young lawyers.Footnote 73 The courts did not systematically publish their opinions, so the major source of case law was collections put together by individuals. Lamoignon, cited by Hardoin and Gerbier, was a particularly old and influential compendium.Footnote 74 By the eighteenth century, compendia of legal decisions proliferated and jurists theorized their proper role.Footnote 75 These compendia responded to the enthusiasm of lawyers and jurists for using existing opinions or arrêts to create analogies and predict the outcome of current cases.Footnote 76 This jurisprudence des arrêts was contentious, because it ran against established legal authority. Magistrates were not required to follow precedent in their opinions, so they were not bound by previous arrêts. Further, they did not explain their reasoning in their opinions, specifically so that previous verdicts could not be used to bind the court's hands. Direct citation of customary law or references to the commentary of established jurists remained more powerful and authoritative types of argument. The use of recent precedent by Hardoin and Gerbier allowed them to claim that some types of institution contractuelle could be shared beyond the parties to a marriage contract. The relative novelty of their claim would not have been missed by the magistrates, who would have felt acutely the stakes of ruling in their favor.
III.
The magistrates granted victory to Ligneville and her children on March 5, 1781, five months after the parties lost their initial case in the Requêtes du Palais. The widow was allowed to keep the fruits of Baudon's tax-farming contract and her children were granted the bequest of 400,000 livres. Rose Cromot, Baudon's daughter from his first marriage, would receive her inheritance according to her marriage contract, but the benefit would not be shared with her siblings. The Parlement's decision to overturn that of the lower court suggests that all the parties argued convincingly and that the points of law were not obvious. The magistrates of the Parlement appear to have been divided, and the case became a reference for jurists on the two controlling questions. Both of these factors further point to contention and unsettled law.
Hardoin and Gerbier's arguments were not rejected out of hand. The Gazette des Tribunaux, reporting on the decision, emphasized the lengthy deliberations of the court, which went on for “over two hours, after twelve hearings.”Footnote 77 The length of deliberation suggests that opinions were divided among the magistrates, a situation that would have lent added authority to the verdict in the eyes of contemporary observers.Footnote 78 It cannot be exactly known why the courts ruled the way they did, however, because deliberations were a closely guarded secret.
Just 10 years after the conclusion of the Baudon case, revolutionary lawmakers undertook a dramatic reform of family relations. The revolutionary reform of the family implemented in 1790–92 took up the same themes of individualism and equality put forward in the Baudon lawsuits. Revolutionary reforms recognized the family as a group of freely contracting individuals in a way similar to that presented in the Baudon case.Footnote 79 Legislation on divorce and equal inheritance supported the view of the family as “that first republic, which we call the family.”Footnote 80 Freed from the influence that parents could exercise through inheritance, children would have autonomy to make their own choices. Similarly, the legalization of divorce would allow spouses to choose whether they remained married or not. By allowing unhappy families to disband, lawmakers hoped to create families bound by affection rather than the obligation and domination that had, they believed, characterized Old Regime families.Footnote 81 More concretely, the reforms recognized the individualism of family members, in contrast to the Old Regime model in which the family operated as a corps within the larger logic of a corporate society.Footnote 82
The similarities between the arguments in the Baudon case and revolutionary family reforms should not obscure the important points of difference, however. The difference is rather striking between the broad and extensive engagement with Enlightenment cultural ideals in the Baudon briefs and the relatively limited and targeted nature of revolutionary reforms. In spite of their general rhetoric about the supremacy of law, revolutionary reformers characterized family life in terms of sentiment rather than contract. Equal inheritance was a blow to paternal authority, but did not treat family members as freely contracting individuals to the extent that the Baudon lawyers did in their engagement with nature, contract, and equality. Further, revolutionary lawmakers did not pay particular attention to the issue of labor, especially not gendered labor within the household, even though such a step was possible. The ideal of “republican motherhood” valorized the labor that women undertook in the home, but overall revolutionary conceptions of marriage focused on affection and the moral sway that a woman held over her husband.Footnote 83
The Civil Code of 1804 rolled back much that was radical in the revolutionary reforms, granting fathers more authority in family life. And yet, the jurists who framed the Civil Code did not seek to return to the Old Regime, either; they walked a fine line of tradition and modernization.Footnote 84 The Civil Code particularly emphasized marriage as a public contract and the basis of social order. This approach resonates with Hardoin and Gerbier's portrayal of the marriage contract as a public forum for families to clarify their intentions. In addition, the Code envisioned the bonds uniting family members to be primarily those of affection rather than authority.
The most striking way that the Baudon case can change the understanding of family law in the Revolution and Civil Code is to identify deeper sources of continuity. For example, both the Revolution and Civil Code favored the nuclear family over lineage, breaking from the Old Regime by prioritizing individual choice over dynastic concerns in marriage, and durably ending primogeniture. Still, however, the connection that Martineau made between labor and the disposition of assets meant that Baudon could decide how his fortune would be shared among his children. Even in a regime of equality, Baudon's labor gave him a claim that operated much like patriarchal power and yet was grounded in a different logic. Further, the marriage contract retained great significance in determining a child's future. Revolutionary reform limited paternal authority, which the Civil Code did not entirely restore, but as Rose Cromot and her siblings were well aware, disposing of assets in life allowed a parent to rule from beyond the grave.
The Baudon case encourages one to see what the revolutionaries did in a different light, by situating their reforms in the context of a broader range of possibilities. It makes the program of revolutionary reform seem less like the execution of a consensus slate of reforms, and more like a rather ad-hoc set of choices made with an eye to political concerns. The relationship between the Revolution and the Civil Code, generally characterized in terms of reform and reaction, appears instead as an ongoing negotiation.
The deeper issue raised by the Baudon case, however, is the limitations of relying on code alone to determine how legal ideals shaped social practice. Within Old Regime law, there was a wide area of manoeuver in which the lawyers could sketch out idealized portraits of family relations. Although they worked with similar principles—equality, affection, and rights generated by labor—the parties to the case mobilized them in significantly different ways. The issues of family relations raised by the Baudon case continued to be points of contention through the nineteenth century. Successive regimes considered the family to be the basic building block of society, both an incubator of moral life and a unit of production. Accordingly, the family continued to be a central site of social and political contestation. The underlying issues of authority, equality, and distribution addressed in the Baudon case remained open. The enduring significance of family law and portrayals of the family should be an argument for situating the legal life of the late Old Regime in longer continuity.
