26 March, 2012Issue 18.6History

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What’s In A Name?

Will Pooley

BritishMatthew Gerber
Bastards: Politics, Family, and Law in Early Modern France
Oxford University Press, 2012
256 pages
ISBN 978-0199755370


Matthew Gerber’s monograph on illegitimacy in early modern France sets out to answer a basic question, inspired by the words of that most famous of early modern bastards, Shakespeare’s Edmund: “Why bastard? Wherefore base?” What was the legal purpose and meaning of illegitimacy? The hierarchical society of an absolute monarchy, such as France, depended on the civil, legal, and religious institution of marriage as the basis of a system of inheritance, which allowed not only aristocratic families, but also merchants, peasants, and artisans to promote their families from generation to generation. Bastardy was the unpleasant underside of protecting public morals and the lineage. At stake were not only the titles and possessions of private individuals, but the very social order of the absolute monarchy.

Gerber’s book thus belongs in a healthy tradition of emphasizing the reciprocity between private law and the political foundations of absolute monarchy. The book’s fine-grained attention to illegitimacy provides excellent evidence for this well-established but important narrative. Gerber notes, for instance, that the “intensified stigmatization and subsequent destigmatization of extramarital offspring coincided with the initial success and ultimate failure of absolute monarchy” itself and speculates that the breakdown of an early modern system of adjudicatory law must have been at least a contributing factor to the outbreak of the revolution in 1789. Gerber’s strengths are in his understanding of legal history, but at his best moments, he deftly combines a legal argument like this about the failure of the early modern system of law to meet the needs of the French public by 1789, with more cultural insights such as the idea that the actions of the monarchy concerning royal bastards played at least some role in the transformation of public opinion that made the revolution possible.

The early modern period, according to Gerber, witnessed an intensification of anguish surrounding illegitimacy and discrimination against natural children, followed by a gradual and uneven destigmatization of illegitimacy. If the argument is straightforward, the details of this “complex, fluid, and heterogenous legal environment” certainly are not, and the book may be difficult reading material for non-specialists. Did all bastards belong to one category, as their legal detractors stressed in order to prevent them inheriting, or were there, as their defenders suggested, several categories of illegitimate children, some of which had more rights to inherit than others? The main distinction legal authorities drew was between parents who were free to marry or had even contracted marriage when the child was conceived, and adulterous or incestuous parents, who could not marry when they conceived the child. Jean Bacquet’s Traité de droit de b√¢tardise (1577), for instance, was an example of the harsher attitude to illegitimacy. Bacquet stressed the punitive nature of the legal proscription of inheritance by illegitimate children: no legal measure could be allowed to award illegitimate children inheritance because the foundations of marriage and the lineage would crumble.

To address these complicated questions, Gerber remains closely tied to legal sources. He returns periodically to a few particularly telling examples, such as the case of Marguerite de Manse, which opens the book, or Jean-Jacques Rousseau’s abandonment of his natural children in the 1750s, and the Affair of the Princes at the start of the 18th century. The big claims of his book stand or fail on its ability to convince readers that legal history is as important as he suggests. Gerber argues that legal debates not only shaped social practices, but also reflected them. In the absence of other sources about illegitimacy the small number of petitions to legitimate natural children, for instance, are a “rare and precious source”. Gerber recognizes that such a source could be said to only reflect the concerns of an elite minority. In fact, this is a bit of an understatement. The petitions he bases an entire chapter on only numbered between six and nine a year at their most popular. As he recognizes, a “strategy of silence” was probably much more common than legal legitimation. But if Gerber really wanted to follow this lead into the social relevance of cultural attitudes, he would have had to have developed a much more careful analysis of different types of silence and subterfuge concerning legitimacy, an analysis to which his legal sources do not lend themselves. The petitions do reveal interesting things about legitimated children. They confirm that bastardy tended to knock individuals further down the socio-economic ladder, or reveal the geographic distribution of legitimation by royal rescript.

A chapter on foundling hospitals offers a striking juxtaposition. If royal rescript to legitimate children was only ever used by a handful of individuals each year, by contrast, in the 1770s in Paris alone over 7,000 children were taken in every year by the H√¥pital des Enfans trouvés. The petitions for legitimation make a much richer source for analyzing the motivations and concerns of aristocratic families dealing with illegitimacy, but the foundling hospitals clearly reflected a much deeper, more widespread social problem. Gerber argues that an institution originally designed to relieve the nobility of the embarrassment of bastard children gradually became a solution to entirely unrelated problems of poverty and illegitimacy. The result was the creation, as if by accident, of state responsibility for foundlings, a profoundly modern and secular development. More broadly, Gerber’s book argues for a progression from the fluidity of the early modern system, where rights and responsibilities between private individuals, the state, and the church were not always clear and were open to renegotiation, to the eventual triumph of the written law code and the secularized state after 1804.

Bastards is an attention-grabbing title, chiefly because illegitimacy remains a subject of anguish and uncertainty today. Gerber does not play down the emotional significance of the topic of extramarital children, but he does rather dodge the implications, along with the term “bastard” itself, which he rejects for being too crude. Readers expecting insights into the history of emotions and particularly shame might be disappointed to find that the book mainly relies on the standard narrative of the emergence of sentimental family relations. Along with other supposedly “modern” inventions such as “privacy” and “selfhood”, the time has probably come to recognize that in the case of the family sentiments, reports of their “birth” have been greatly exaggerated.

This does not matter for narrowly defined legal history, but Gerber’s book is an attempt to get beyond such a separation of specialities, to demonstrate the interest and relevance of legal history as part of larger political, social, and cultural trends. It is disappointing, then, to register the failure of Gerber’s project to do what it claims, which is to understand the family through the eyes of those excluded from it. By concentrating on legal sources and jurisprudential change, at the expense of studying emotional dynamics, or popular sources, of which only the most obvious would be folk-songs about bastards and infanticide, Gerber has produced a book whose relevance depends on whether readers believe that legal disputes and theories refract and reshape social and cultural attitudes to the extent that he claims. The tiny number of socially unrepresentative individuals he focuses on, and the undeniable importance of more widespread, but harder to trace practices of silence, crime, or simple deceit, do not speak in favour of this theory.

The contemporary and global resonances of legal, religious, and moral definitions of marriage and sexuality in this context go unmentioned in Bastards. A worrying result is that much of the sting is taken out of this tradition of research. There is too little discussion of the significance of rapt, rape, consent, and domestic relations, and too little to remind readers of the fundamental scholarship this topic derives from: gender criticism and feminism. At one point, Gerber discusses the fading of a cultural model that suggested “seducers” should marry the women whose honour they had stained to repair the balance in the community and ensure that the child did not become a burden on charity. To not mention rapt and the burgeoning, sensitive historiography of rape in this context suggests a regrettable lack of interest in the real emotional, psychological, and physical tolls taken on women by the patriarchal system of marriage and inheritance. Judicial precedence, case law analysis, litigation, and acts of royal rescript are sources that encourage an administrative view of illegitimacy as a legal problem, but readers might feel disappointed not to hear more about the history of the tangled knots of love and hate, pride and shame, that tied families and kin to bastards.

Will Pooley is reading for a DPhil in History at New College, Oxford.