During the Old Regime, marriage was both a religious act and a contract bound by the rules of royal law. To the Catholic Church marriage was a permanent state and a sacrament. It was ordained by Christ and was a means of obtaining divine grace and salvation. Overlaying the doctrines, formulas and administrative rules of the Catholic Church were the rules imposed by the French state, such as on issues of parental consent, record keeping, property and inheritance. For the vast majority of the French population, marriage was a matter of family interest, not of personal affection (‘marriage is the tomb of love’, observed Casanova); and that family interest was decided by the husband and father. It was he who had power over the property of the family. It was he who had the power to discipline his wife and children, either through imprisonment or physical punishment. And it was he, based upon an assessment of the economic and social benefits any marriage might bring to the family, who decided who his children might marry. Within the absolute monarchy of the French state, the husband and father was the absolute monarch in his own family kingdom.
So how did this conception and practise of marriage come about and how, in the course of the eighteenth century, did it change?
An early influence upon Christian tradition was Roman law, particularly in southern France. In the Early Republic, marriage witnessed the authority over a young woman being transferred from her father to her husband. Later, a greater degree of equality developed between husband and wife. Under classical Roman Law (approximately 27 BC to 250 AD) marriage was based on free consent and divorce did not require any judicial involvement, although early Christian Emperors tried to restrict divorce by requiring certain specified grounds. Marriage was therefore characterised by liberty and equality. Northern Europeans, in contrast, regarded consummation as key to a legally binding marriage while the consent of the bride’s father was more important than the consent of the couple.
Central to Christian belief, of course, was the Bible where woman was created as a companion to man thereby elevating the authority of the husband over the wife. Within the Holy Scriptures, however, the issue of divorce was less clear cut. Mark and Luke taught that marriage was indissoluble whereas Matthew permitted a man divorce on grounds of adultery (spiritually, adultery could also encompass apostasy and other sins). To complicate matters further, the teaching of Jesus and Paul that marriage was an absolute and permanent state ran counter to law and practise in the Roman Empire and beyond and theologians struggled to reconcile these different positions. From the tenth to twelfth centuries, reflecting the customs of Rome and Northern Europe, two competing conceptions of marriage emerged: one emphasized the importance of consent; the other that a valid marriage required consummation. This was eventually resolved in the thirteenth century by the formula that ‘marriage existed as a sacrament when formed by simple consent alone, but it might be dissolved by the Pope so long as it had not been consummated’ (James Traer, ‘Marriage and Family in Eighteenth Century France’). Failure to consummate a marriage thus became one of the grounds by which unhappy spouses could circumvent the doctrine of indissolubility. Otherwise the possibility remained that a marriage might be declared invalid. This could be for various reasons, for example if one of the partners was found to have already been married or had taken holy vows or was a near relative.
It was at the Council of Trent (1545 to 1563) that the Catholic doctrine on marriage and divorce was finally put to bed and marriage reaffirmed as one of the seven sacraments. One political issue that had to be addressed, however, was celebration. A valid marriage simply required consent. However, the French monarchy in particular were sensitive to the possibility of secret marriages that violated parental authority. While the Church was not prepared for this challenge to parental authority to invalidate a marriage under canon law, they did establish a formal procedure by which any marriage was to be publicised: an announcement on three occasions of an intention to marry; the presence of witnesses; a warning to priests not to celebrate the marriage of people not from their parish. This was also useful for the Church itself as it ensured Church oversight and control.
Meanwhile, as the Church was extending its ownership of this fundamental social relationship the French monarchy was expanding its own claims. There were a couple of reasons for this. Under feudalism the king had exercised authority over the marriage of his vassals; understandably so as marriage was intertwined with control of, and succession to, political domains. Questions of property and inheritance were thus generally settled in civil courts. Moreover, the crown was looking to support husbands and fathers, who fulfilled the role of the head of the family in a way that paralleled the role of the monarch as father of the country. Increasingly from the perspective of the monarchy, the family was seen as one of the foundations of the state and thus a legitimate object of royal concern.
In 1556 Henry II established the right of parents to disinherit children who married without their consent. This edict ‘intertwined three strands of moral authority: civil law, divine ordinance and the natural law of respect for parents. It marked the first intervention of the French state in what had previously been considered a purely sacramental concern, subject to the regulation of Church authorities’ (Barbara Diefendorf, ‘Paris City Councillors in the Sixteenth Century: The Politics of Patrimony’). In 1579 (Edict of Melun) and 1580 (Ordinance of Blois) Henry III endorsed the Council of Trent’s ruling on marriage but with some changes. The edict required four witnesses and forbade any dispensing of the three announcements to marry. Priests were to inquire carefully into the status of the bride and groom, and they could not celebrate the marriage of minors without the agreement of a parent or guardian. Anyone who married a minor (defined as someone under twenty-five years old) without family consent was guilty of rape and subject to the death penalty.
In the seventeenth century four more edicts reiterated and extended royal authority, underpinned by the work of legal scholars such as Hennequin, Launoy and Gerbais who argued that the governance of marriage had been a divine right gifted by God to princes before Jesus Christ had raised it to the status of a sacrament. They claimed, for example, that members of the royal family could only marry with the express permission of the king, a claim which was upheld in 1634 by the national assembly of the clergy and the Parlement of Paris in the case of Gaston of Orléans and Margaret of Lorraine. More and more, royal law took precedent and was expected to be enforced in matrimonial disputes involving bigamy, impediments to marriage, broken engagements, property and so on, whether or not the cases were heard in a Church or secular court. In the eighteenth century jurists such as Pierre le Ridant contended that marriage was primarily a secular contract and thus ‘the state was the sole authority with the right to regulate the validity of marriage’ (James Traer, ‘Marriage and Family in Eighteenth Century France’). In contrast to the Church, royal courts discriminated against women with regards to standards of conduct. A wife’s adultery was grounds for separation but not a husband’s. Furthermore, a wife could be imprisoned in a convent indefinitely. Even if a wife did achieve a separation, her rights to property and income were far more limited.
Increasingly, however, the orthodoxy established by theology and royal jurisprudence was questioned, most notably by French Enlightenment thinkers. According to James Traer this critique was based upon three elements: diversity, utility and sentiment.
First of all diversity. Writers in the seventeenth and eighteenth centuries and earlier, such as Samuel Pufendorf, Pierre Charron, Montesquieu and Jean-Charles de Lavie, explored the social practices of other societies, ancient and modern. These supplied different models of living which could be contrasted, sometimes favourably, against contemporary France, in particular on the matter of divorce. Jean-Charles de Lavie, for example, pointed out that divorce had not had a detrimental effect upon the morals of Ancient Romans or the up-bringing of children. Lavie also argued that divorce in Protestant states led to happier relationships and, consequentially, population growth and improved prosperity. Montesquieu observed that in societies where divorce was available couples were more likely to persevere to make a marriage successful in the knowledge that either partner could end it if they so wished, whereas in a Christian marriage unhappy spouses were more likely to have illicit affairs and illegitimate offspring.
Secondly, utility. Enlightenment thinkers were particularly concerned with improving society through rational means. They generally accepted the view of the English philosopher John Locke that man was conditioned by his environment and therefore they looked to the law as one of the mechanisms by which human behaviour could be shaped and improved. They argued that laws which enabled divorce and re-marriage would encourage population growth, which in turn would underpin economic growth and military power. Some, such as Morelly in his ‘Code de la nature’, pushed the idea of legal regulation in the interests of the state to an authoritarian extreme. According to Morelly’s code, ‘All young men and women were to be married after reaching the age of puberty; youths might select partners during the course of an annual public festival’ (James Traer, ‘Marriage and Family in Eighteenth Century France’). After ten years they would be allowed to divorce and remarry but only to someone of their own age or older. Claude Helvétius argued that different social groups should be regulated according to different laws. Soldiers, for instance, shouldn’t marry at all as this might undermine their fighting spirit but should have casual relationships and the male off-spring of such unions should themselves be trained to become soldiers. Others argued for toleration of the marriage arrangements of groups such as Jews and Protestants as they were useful and productive members of the community and should be encouraged to stay in France.
Thirdly, sentiment. This was the idea that marriage could be a free choice, based on personal affection alone, regardless of social and economic family interests. It was a theme pursued in particular by novelists and dramatists. Previously it had been believed, by writers such as Montaigne, that love and marriage were incompatible. Passionate love existed only in a state of longing and once that longing was fulfilled then love would subside. Love that disregarded social and economic considerations, therefore, would be an inadequate foundation for a marriage. In the eighteenth century, however, Enlightenment thinkers argued that human happiness was a legitimate goal. A modern conception of marriage thus arose which prioritised the marital happiness of spouses above other considerations. The conflict between love and broader social, economic and family interests became a popular theme for writers such as Marivaux, Voltaire, Diderot and Rousseau.
By the time of the French Revolution and the destruction of the Old Regime these ideas and currents of thought had laid the groundwork for a radical departure from the traditional conception of marriage. The intense and febrile atmosphere of the Revolution that jettisoned privilege and inequality drove the new law-makers to radically reform the legal framework surrounding marriage and the family to end ‘marital despotism’. In March 1790 the National Assembly abolished primogeniture and stripped the father of his power to imprison his wife or children. Between 1791 and 1794 laws were passed preventing parents writing wills that favoured one child over another. In September 1792, the Legislative Assembly passed a divorce law based upon mutual consent, incompatibility or one of a number of grounds such as insanity, abuse or absence. Divorcees were allowed to remarry. On the same day a second law was passed allowing anyone under twenty-one to marry without parental consent.