Hostname: page-component-78c5997874-t5tsf Total loading time: 0 Render date: 2024-11-10T05:50:03.402Z Has data issue: false hasContentIssue false
  • English
  • Français

“The Jurisprudence of the Arrêts”: Marital Union, Civil Society, and State Formation in France, 1550–1650

Published online by Cambridge University Press:  28 October 2011

Sarah Hanley
Get access Rights & Permissions [Opens in a new window]

Extract

During the 1500s and 1600s when state building in France depended on the government's ability to staff administrative and judicial offices, prime candidates emerged from the famous law schools. Steeped in new research methods favoring a documentary base, Jurists focused legal studies on the French past, rather than a Roman one, and fostered historical and comparative views of society, law, and nation. Searching in archives for customs and laws, they wrote histories tracing the development of French institutions, including the Parlement of Paris, and devised civic rituals to articulate French constitutional precepts in that court. Practicing law as well, they collected “notable arrêts” (judicial decisions) on questions of law, advanced legal theories and legislative projects, and facilitated the circulation of legal knowledge within a general public caught up in judicial activism born of social change and political necessity. By challenging operative facets of two great legal systems in the western world, Roman law and Canon law, and by amending French Customary law, they developed a system of “French jurisprudence” and legally framed a “civil society” that underwrote the claim to political sovereignty as a nation.

Type
Articles
Information
Law and History Review , Volume 21 , Issue 1 , Spring 2003 , pp. 1 - 40
Copyright
Copyright © the American Society for Legal History, Inc. 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. On legal studies, see Kelley, Donald R., The Foundations of Modern Historical Scholarship: Language, Law, and History in the French Renaissance (New York: Columbia University Press, 1970), chaps. 5–8Google Scholar, and The Human Measure: Social Thought in the Western Legal Tradition (Cambridge: Harvard University Press, 1990), chap. 10–11, contrasting this approach with the more static English view of common law origins. On institutions, see Hanley, Sarah, The Lit de Justice of the Kings of France: Constitutional Ideology in Legend, Ritual, and Discourse (Princeton: Princeton University Press, 1983; French ed. 1991), chaps. 1⁁4CrossRefGoogle Scholar, table 1, tracing the creation of that constitutional assembly in 1527.

2. Sarah Hanley, The Social Sites of Political Practice in France: Law, Litigation, and Local Knowledge, 1500–1800 (in progress), locates a law-centered public space and formation of public opinion in the 1600s anchored in lawsuits and the demand for legal information by an active public audience in the streets. This is a thesis contrary to that of Habermas, Jürgen, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. Burger, Thomas with Lawrence, Frederick (Cambridge: M.I.T. Press, 1989), chaps. 2–3Google Scholar, positing for France a passive audience, 1500s-1600s, positioning a restricted “bourgeois public sphere” (space for publicity) only later in the 1750s, and narrowly confining that sphere to elite Enlightenment salon culture, “the realm of letters.”

3. The product of lobbying by jurists, the Edict of 1604 (droit annuel) assured inheritance rights for a yearly fee (one sixtieth of the value); see Fontanon, Antoine, Les Edicts et ordonnances des roys de France… (Paris, 1611), 2:575.Google Scholar On the surcharge, or forced loan of 5 percent, added in 1621 and offices doubling in value by 1664, see Mousnier, Roland, La Vénalité des offices sous Henry IV et Louis XIII (Pans: Presses Universitaires de France, 1971), 355–60.Google Scholar In theory kings could repurchase offices; in fact they rarely could afford to do soby the 1600s.

4. Jurists such as Loyseau, Charles (1564–1627), Cinq livres du droit des offices. Les Oeuvres de Loyseau [1610] (Paris, 1666)Google Scholar, defined title to offices as a male right but later allowed transformation of offices (as immoveables) into propres (see note 24 below) treated as inalienable (and therefore inherited by men and women); see Louis-Lucas, Paul, Étude sur la vénalité des charges et fonctions publiques… (Paris: Challemel aîné, 1883), 1: chap. 2.Google Scholar For some later family tactics, see Giesey, Ralph E., “Rules of Inheritance and Strategies of Mobility in Prerevolutionary France,” American Historical Review 82 (1977): 271–89.CrossRefGoogle Scholar When offices became heritable property (1604), women owned and inherited them, brought offices as dowries, invested in them, and nominated incumbents (as owner or tutor for the owner); therefore, Venality was a family affair.

5. Descimon, Robert, “The Birth of the Nobility of the Robe: Dignity versus Privilege in the Parlement of Paris, 1500–1700,” in Changing Identities in Early Modern France, ed. Wolfe, Michael (Durham: Duke University Press, 1997), 95–123Google Scholar, contrasts this “civil nobility,” made noble through a legal fiction (imitating nature), with the sword nobility (cast in natural law terms).

6. Studying financial offices, Dessert, Daniel, Argent, pouvoir, et société au grand siècle (Paris: Fayard, 1984)Google Scholar, demonstrates the importance of women's assets in supporting office-holding (477–88), as well as female networking through grandmothers, mothers, and aunts who provided offices, capital, and patronage (517–703); Lougee, Carolyn C., Le Paradis des Femmes: Women, Salons, and Social Stratification in Seventeenth-Century France (Princeton: Princeton University Press, 1976)Google Scholar, traces the way female hypergamy aided the rise of this officeholding elite; and Hamscher, Albert N., The Parlement of Paris after the Fronde, 1653–1673 (Pittsburgh: University of Pittsburgh Press, 1976)Google Scholar, discusses judicial family networks.

7. Across ranks people with sufficient capital rushed to purchase, including critics like Charles Loyseau who parodied “Archomania” (office mania) in Cinq livres du droit des offices.

8. The tendency to bypass patterns of law practice and to focus on the 1700s has hampered many fine studies: for example, Ourliac, Paul and de Malafosse, J., Histoire du droit privé (Paris: Presses Universitaires de France, 1968), vol. 3Google Scholar, Le Droit familiale, forefronting legislation; Habermas, Structural Transformation, privileging the Enlightenment; Glendon, Mary Ann, “Legal Concepts of Marriage and the Family,” in Loving, Parenting, and Dying: The Family Cycle in England and America, Past and Present, ed. Fox, Vivian C. and Quitt, Martin H. (New York: Psychohistory Press, 1980), 103–4Google Scholar, adopting for Europe a misleading Anglo-American model; Traer, James F., Marriage and the Family in Eighteenth-Century France (Ithaca: Psychohistory Press, 1980)Google Scholar, chaps. 1–2, assuming reform was initiated by royal legislation (46) and challenges to church doctrine were the product of Enlightenment thought in the 1700s (78); De Jean, Joan, “Notorious Women: Marriage and the Novel in Crisis in France (1690–1715),” The Yale Journal of Criticism 4 (1991): 67–85Google Scholar, DeJean, and, Tender Geographies: Women and the Origins of the Novel in France (New York: Columbia University Press, 1991), chaps. 4–5Google Scholar, holding (with Traer) that the contract theory of marriage emerged only around 1690–1715 and relying on the much later work of Joseph Pothier (Traite du contrat de mariage, 1768) to sustain that Judgment; and Bell, David A., The Cult of the Nation of France: Inventing Nationalism, 1680–1800 (Cambridge: Harvard University Press, 2001)Google Scholar, chap. 1, denying “nation-building” before the 1700s.

9. See Olivier-Martin, François, Histoire de la coutume de la prévôté et vicomte de Paris (Paris: Presses Universitaires de France, 1930), 1:86–88, 99–101Google Scholar, on compilations of regional customs (a fusion of Salic, Roman, and Feudal laws) ordered by kings in 1454, 1494, and 1509; and Petot, Pierre, “Le Droit Commun selon les coutumiers,” Nouvelle revue historique du droit français et étranger 28 (1960): 412–29Google Scholar, on the way customs came to be treated as “French common laws.” For the national redaction of customs, Coutume de Paris (1510, revised 1580), see Olivier-Martin, Histoire de la coutume, 1: chap. 2, pts. 1–3; and chap. 2, pt. 4.

10. This “Marital Law Compact” produced by “family-state negotiations” was first identified in Hanley, Sarah, “Engendering the State: Family Formation and State Building in Early Modern France,” French Historical Studies 16:1 (1989): 4–27CrossRefGoogle Scholar, and “Engendrer l'État: Formation familiale et construction de l'État dans la France du début de l'époque moderne,” Politix 32 (1995): 46–65. For the way these negotiations satisfying family and state interests contribute to his “theory of action,” consult Bourdieu, Pierre, Practical Reason: On the Theory of Action (Stanford: Stanford University Press, 1998; French ed. 1994)Google Scholar, chap. 3, “Rethinking the State,” 49.

11. Formulated for a century this early Juridical concept of a French “nation,” part and parcel of evolving language, customs, and law, established the necessary base for all later extensions of the notion, such as that posited by Bell, The Cultof the Nation of France, chap. 1, who argues to the contrary that “the very idea of nation-building,” rooted in language, law, and custom (the crux of nationalism), did not exist before the 1700s (22).

12. Hanley, The Lit de Justice of the Kings of France, chap. 8, also 226–27, stresses negotiations between Jurists and kings and repeated royal failure to practice “absolutism” as unevenly propagated in royal ideology; Beik, William, Absolutism and Society in Seventeenth-Century France: State Power and Provincial Aristocracy (New York: Cambridge University Press, 1985)CrossRefGoogle Scholar, points to negotiations between center and periphery; and Mettam, Roger, Power and Faction in Louis XIV's France (New York: Basil Blackwell, 1988)Google Scholar, chap. 1, categorically denies “absolutist” rule, as does Henshall, Nicholas, The Myth of Absolutism: Change and Continuity in Early Modern European Monarchy (New York: Longman Publishing, 1992).Google Scholar

13. Ordinance 1539 [Villers-Cotterêts] (art. 111): Isambert, François-André et al., eds., Recueil general des anciennes lois françaises depuis l'an 410 Jusqu'à la révolution de 1789 (Paris: Belin-Le-Prieur, 1821–1833), 12:622–23Google Scholar, states: “…all legal decisions (arresti) and all procedures pertaining either to the highest courts or to the lower or inferior ones…should be pronounced, registered, and delivered to the litigants in the French vernacular language [langage maternel françois] and in no other way.” Drafted by a famous jurist, Guillaume Poyet (c. 1474–1568), this edict officially replaced Latin, already marginalized, as the language of law.

14. Glendon, “Legal Concepts of Marriage and the Family,” 103⁁1, argues that in western Europe state Jurisdiction of marriage was assumed by default (as the Catholic Church lost control) and that legal notions on marriage did not really depart from Catholic tradition until the Enlightenment [1700s]. But that Anglo-American thesis (presumed valid for western Europe by other writers as well) does not fit the French case.

15. Maistre, Gilles Le (1499–1562), Décisions notables de feu messire Gilles Le Maistre, chevalier et premier président en la court de Parlement à Paris (Paris, 1566)Google Scholar [a rare tract in precarious condition], Treatise Five, chaps. 1–12, fol. 94r–107v. After a stunning career as an avocat at the Parisian bar, Le Maistre became avocat général (attorney general, 1540), président à mortier (Judge, Parlement of Paris, 1550), and premier président (chief Judge, Parlement of Paris, 1551). In his valuable lectures on law practice, Dawson, John P., The Oracles of the Law (Ann Arbor: University of Michigan Law School, 1968)Google Scholar, chap. 4, detects the emergence of a “French way” sidestepping secrecy.

16. See Treggiari, Susan, Roman Marriage: Iusti coniuges from the Time of Cicero to the Time of Ulpian (New York: Oxford University Press, 1991), 83–124, 170–71Google Scholar, on this shift.

17. Noonan, John T., “Marriage in the Middle Ages: Power to Choose,” Viator A (1973): 419–34CrossRefGoogle Scholar, discusses Gratian's innovative rubric on marriage (c. 1140). It was confirmed in Alexander III's papal decretal, Veniens ad nos (c. 1175) designating “words of consent” (present or future tense) and consummation for a proper marriage; see also Turlan, Juliette M., “Recherches sur le mariage dans la pratique coutumière (XIIe-XVIe siècles),” Revue historique de droit français et étranger 35 (1957): 477–528Google Scholar; and Esmein, Adhémar, Le Mariage en droit canonique (Paris: Librairie du Recueil Sirey, 1929, 1935), 1:100–101.Google Scholar These “marriage promises” regulated by Canon law required no formal ritual, public pronouncement, paternal or parental consent; and the age of majority (taken from Roman Law) was fourteen for boys, twelve for girls (changed by French Customary law to twenty and seventeen).

18. In France the legal disputes in ecclesiastical courts over vague “marriage promises” from 1455 to 1494 are discussed by Gottlieb, Beatrice, “The Meaning of Clandestine Marriage,” in Family and Sexuality in French History, ed. Wheaton, Robert and Hareven, Tamara K. (Philadelphia: University of Pennsylvania Press, 1980), 49–80.Google Scholar

19. While many writers and reformers (such as Rabelais, Erasmus, and Luther) called for parental consent, Le Maistre proposed a civil law solution, not one merely suggested, or left to church ordinances (Catholic or Protestant).

20. Grubbs, Judith Evans, Law and Family in Late Antiquity: The Emperor Constantine's Marriage Legislation (New York: Oxford University Press, 1995)Google Scholar, argues that Constantine decreed strict penalties for the crime of forcible abduction and marriage (raptus) in response to social demands, not Christian influence.

21. See Le Maistre, Notable Decisions, Treatise Five, chap. 3, fol. 96v–98v, on the French rapt charge. Note “parental consent” includes father and mother (and/or tutors or curators). Long applied to clerical cases, this appeal procedure was adapted for use in marital affairs; consult Génestal, Robert, Les Origines de l'appel comme d'abus (Paris: Presses Universitaires de France, 1950).Google Scholar

22. Le Maistre, Notable Decisions, Treatise Five, chap. 3, fol. 96v–98v: arrêt 9 March 1541 (Françoise de Lizian and Pierre de Tinteniac [the couple]—René d'Orvaux (parental complaint against Pierre, the son), followed by Le Maistre's quote. For the arrêt of 1555, pronounced by Le Maistre and later reported by Papon, see note 35 below. In legal affairs married women used the natal family name.

23. Brodeau, Julien, La Vie de maistre Charles Du Molin, advocat au Parlement de Paris… (Paris, 1654)Google Scholar, “Avis de lecteur” (4 unnumbered pages); he speaks oî arrêts “noticed by all the A rre sto graphes, ancient and modern, that have Judged a very celebrated Question of law….” (61–62).

24. Neither spouse could alienate propres of the other, and 4/5 was reserved for legitimate successors. (See note 36 below on this French inheritance custom.) In general, see Renusson, Philippe de (1632–1649), Traité de la communauté de biens, entre l'homme et la femme conjoints par mariage… (Paris, 1692).Google Scholar

25. Coras, Jean de (1513–1572), Arrest mémorable du Parlement de Toloze, contenant une histoire prodigieuse de nostre temps,… (Lyon, 1561)Google Scholar, wrote a commentary on the Martin Guerre—Arnaud du Tilh decision (1560). The erudite Coras, a law professor, taught at universities in Toulouse, Angers, Orléans, Valence, and Paris, and also at Padua and Ferrara in Italy, before becoming a Judge in the Parlement of Toulouse, where he was assassinated during the religious wars. On the imposture case, see the classic account of Natalie Davis, Zemon, The Return of Martin Guerre (Cambridge: Harvard University Press, 1983).Google Scholar

26. The task was accomplished in 1610 by the avocat Jacques Baron, who edited and translated the Latin work and also added “ordinances, edicts, and arrêts from the Parlement of Paris.” See (Coras [and Baron]), Resolutions de droict, contenons cent questions notables de matières… traictées et décidées au Parlement de Tholose… (Paris, 1610).

27. Coras, Jean de, Des Mariages clandestinement, et irrévérement contracté par les enfans de famille, au deçeu, ou contre le gré, vouloir, & consentement de leurs pères et mères… (Toulouse, 1557)Google Scholar; and Coras, Arrest mémorable.

28. Coras, Clandestine Marriages, 1–7 and 51. For edicts dated old style (o.s.), I provide new-style (n.s.) dating, which began January 1566; and for arrêts and books lacking the month, the year as printed is given.

29. Coras, Arrest mémorable, lists clandestinity and rapt among crimes committed by the imposter.

30. Papon, Jean (1505–1590), Recueil d'arrests notables des courts souveraines de France… (Paris, 2d ed. 1565 [1st ed. not located])Google Scholar, fol. 1r–532r, earned repute for his consultations.

31. Ibid., “Prologue of Jean Papon to the Reader” (12 unnumbered folios), noting “if [the decision is] pronounced in only one chamber, others sometimes do not follow it,” so assembling all chambers solves that problem, which “the reader can see by looking at the title propre and noting decisions [;alleged as law]”; see also the Epistre (8 unnumbered folios) on “interpretation of law.”

32. Ibid., Prologue: “reading the law” meant the texts (Roman law, Canon law, Feudal law, also Customary law redacted in 1510).

33. Ibid., bk. 15 (fol. 336r–361v); see tit. 1, fol. 336r–340r, and the margin note on negative Canon law intervention, fol. 336v–337r. See also, bk. 19, quest. 1–2, arrêts 1–16, on the appeal procedure, appel comme d'abus.

34. Ibid., bk. 15, quest. 3; also quest. 4, arrêt of 1553, Parlement of Toulouse (Jehan [son]—Odet [father]), fol. 336v–337v (no surnames). Although he attempts to allege French decisions back to 1387, citations before the 1520s (few and weak) are not reliable.

35. Ibid., bk. 15, quest. 12: Arrêt 1555 (parties not identified), pronounced by Le Maistre. Trying to reclaim the wife's dowry (dot) after the father's death, the couple cited Roman law to argue that since the father had received both of them in his house for fourteen years, he tacitly approved the marriage and therewith negated the rapt charge. Papon holds this French arrêt correctly ruled against the clandestine marriage even though it contradicted the medieval Roman law opinion of Bartolus and others, who held that a father was constrained to pay the dowry if the husband was worthy of the daughter and her house. To the contrary, Papon explains, in France today that Roman law precept applies only in cases where fathers are at fault (i.e., wrongly impede a child's marriage), not in those where daughters or sons are at fault, as in this case (fol. 351v–352r).

36. Ibid., bk. 16, quest. 13, arrêt 1545, fol. 369v–370v: “In the Parlement of Paris one holds [a decision] for a perpetual maxim…,” when “the reasons are notable [and] written in some preceding (presuppose) arrêts …as the above arrêts show.” He explains how the “interpretation” given in notable decisions on inheritance in France bypasses Roman law precepts and confirms French ones; see bk. 16, quest. 14 and quest. 15, fol. 370r–371v; and he demonstrates this legal change by using the example of propres, fol. 461r–t62r, and by citing French arrêts observing Customary law on propres [contrary to Roman law on inheritance], bk. 16, quest. 17–20, fol. 462r–466v.

37. Ibid., bk. 15, fol. 336v–337r, on Canon law; and bk. 16 (fol. 364r–466v), fol. 364r, on Roman law not binding in France and the “spirit” over the letter (“formal and necessary law”).

38. Ibid., bk. 15, under quest. 3; and bk. 15, quest. 4, fol. 336v–337r, stating “the king by express Edict [1557] published and verified by an arrêt of the Parlement of Paris” intervened (giving precedent statutory form).

39. These factors—the notable arrêts requiring parental consent given prior to 1557, the intense lobbying by Jurists, and the admission that deliberations on the Edict of 1557 were lengthy (see note 40 below)—undermine the assertion that Henry II issued the Edict of 1557 because the pope delayed annulling the clandestine marriage of François de Montmorency (to whom the king wished to marry his illegitimate daughter) set forth in Ourliac and Malafosse, Histoire du droit privé, vol. 3, pt. 2, chap. 2, sec. 3, 204–5, and repeated by many historians, including Traer, Marriage and Family, 33, and Burguière, André, “The Formation of the Couple,” Journal of Family History 12 (1987): 39–53.CrossRefGoogle Scholar

40. Edict 1557 [o.s. 1556 February] (art. 1–5): Isambert, Recueil, 13:469–71. The preamble states that this applies to “enfans de famille” (legitimate issue) and “parents” includes “fathers and mothers”; art. 1 notes that deliberations took a “long time” and speaks of “public integrity” and “[public] utility”; art. 4 states the new provisions are not retroactive.

41. Barnabe Le Vest (son, n.d.) published his father's notes, CCXXXVII Arrêts célèbres et mémorables du Parlement de Paris. Recueillis par M. Barnabe Le Vest…, publiés par Barnabe Le Vest, son fils, conseiller du roy,… avocat en la cour [de Parlement] (Paris, 1612). As Le Vest (son) tells readers, most of these decisions were “pronounced solemnly in Red Robes” in that Parlement; see “Avertissement… aux Lecteurs” (2 unnumbered pages). On rapt, see the arrêt 1554, no. 61, pp. 284–86 (26 March 1554, Catherine de Constara—Fleury Liguier [minor son]; fines and imprisonment until paid. He also cites an early clandestinity case punishing accomplices; arrêt 1535, no. 195, pp. 955–58 (3 June 1535, Nicolas d'Anjou [a minor, 15]—Catherine de Mareuil, widow of Guy de Clermont, married 15 December 1533), fines against the accomplices, her mother, the notaries who issued a marriage contract based on “promises” (paroles de present), and the priest who married them. Le Vest (father, n.d.), avocat in the Parlement of Paris, conseiller (Judge), maître des requêtes, also served as avocat for the queen mother, Catherine de Medicis.

42. See Tallon, Alain, La France et le Concile de Trente (1518–1563) (Rome: École Française de Rome, 1997), chap. 3, pts. 4–5Google Scholar, for debates and French complaints in 1563; and Jedin, Hubert, Crisis and Closure at the Council of Trent (London: Sheed and Ward, 1967), 142⁁13Google Scholar, on the marriage decree Tametsi (1563).

43. Dumoulin, Charles (1500–1566), Conseil sur lefaict du concile de Trente (Lyon, 1564)Google Scholar, was revered for his knowledge of French Customary law and for his efforts to unify French laws; see Brodeau, La Vie de maistre Charles Du Molin.

44. For Barnabe Brisson (c. 1530–1591), see Bibliothèque Nationale de France (hereafter BNF), Département des Manuscrits, Collection Dupuy 115, fol. 235r–236v. A well-known Jurisconsult, Brisson was attorney-general (1573), then judge, Parlement of Paris (1580); earlier he wrote a Latin treatise on marriage law, De ritu nuptiarum (1564).

45. Brisson's arguments and the arrêt of 11 December 1576 (Françoise Le Loup and Pierre Morel [the couple]—Jean Nagaret [tutor of Morel] and Morel's relatives) was published by Louis Servin, Arrest de la Cour de Parlement donné en l'audience de la Grand Chambre le 12 Juillet 1601, suivant l'ordonnance du Roy Henry Illfaicte à Paris au mois de May 1579… (Paris, 1602), 53–68; and 61–65 on the illegal church-court ruling and need for a “severe [French] law.”

46. Ordinance 1579 [Blois] (art. 40–44, 281); Isambert, Recueil, 14:391–92, 443.

47. Ordinance 1561 (o.s. 1560 January) [Orléans] (art. 111): Isambert, Recueil, 14:91, where art. 111 prohibits surreptitious use of lettres de cachet “to sequester girls and marry them… against the wishes and without the consent of fathers, mothers and relatives, tutors or curators…”; Judges directed to charge perpetrators and accomplices with rapt. Ordinance 1579 (art. 44 and 281), Isambert, Recueil, 14:391–92 and 443: see art. 44 on rapt de séduction and art. 281 on rapt [de violence] threatening nobles (chargeable in the Edict of 1561) who force a marriage without consent of parents with loss of nobility.

48. Ordinance 1579 (art. 40–44, 281): Isambert, Recueil, 14:391–392, 443.

49. For cases litigated, see Hanley, “Engendering the State,” 15–21; also Constard—Liguier (1554) at note 41 above.

50. The Marital Law Compact also drew under civil Jurisdiction cases for adultery, separation, dissolution of marriage for impotence, and property issues (including dowries given to convents); for marital separation and adultery, see Hanley, Sarah, “Social Sites of Political Practice in France: Law, Civil Rights, and the Separation of Powers in Domestic and State Government, 1500–1800,” American Historical Review 102.1 (1997): 27–52.CrossRefGoogle Scholar

51. See the informative study of Watt, Jeffrey R., The Making of Modern Marriage: Matrimonial Control and the Rise of Sentiment in Neuchâtel (Ithaca: Cornell University Press, 1992)Google Scholar, chap. 2. However, in this discussion of Protestant Neuchâtel, where the custom of “marriage promises” prevailed through the 1600s, Watt continues to use (as did contemporaries) the terms “promises” and “contracts” interchangeably (60–77). As a result, it is not made clear here that the source of the ongoing legal confusion still lay in the failure to distinguish betrothal from marriage and in the acceptance of parental consent even after unions—that is, the precise practices French civil law aimed to stop. For similar confusion caused by marriage promises in England, see notes 109–11 below.

52. See Matteo Bandello (c. 1485–1561), Nouvelles, Novella 9 (c. 1550s); and Shakespeare (1564–1616), Romeo and Juliet (c. 1594–1595).

53. See Boaistuau, Pierre (c. 1520–1556), Histoires tragiques extraictes des oeuvres italiennes de Bandel, et mises en nostre langue Françoise,… [1559] (based on Bandello), ed. Carr, Richard (Paris: Librairie Honore Champion, 1977)Google Scholar, “Histoire troisième,” 77, re “clandestine marriage,” 91 on punishments for rapt and disobedience, and for cases litigated, see Hanley, “Engendering the State,” 15–21 (and those cited here).

54. Servin (c. 1555–1616), Arrest de la Cour de Parlement (1602), 1–52: (Pierre Houl-bronne [and Houlbronne parents]—Elisabeth Pallier), arrêt 12 July 1601. The arrêt also declared Elisabeth and Pierre free to marry others (a decision usually reserved for church courts). The avocat Servin practiced in the Parlement of Tours (1589), then the Parlement of Paris (1594).

55. Edict 1580 [Edict of Melun] (art. 24–25): Isambert, Recueil, 14:464–77, a response to “remonstrances of the clergy” on appeals.

56. Pithou, Pierre (1539–1596), Traité des libertés de l'eglise gallicane (Paris, 1594)Google Scholar, laid out “Gallican liberties” (83 articles) said (in art. 3) to be derived from “two fundamental [French] maxims”: one being (art. 4) “Our kings are independant of the pope in temporal [matters].” This was reiterated by Loisel, Antoine (1536–1617), Institutes coutumières [1607], ed. Dupin, André and Laboulaye, Edouard (Institutes coutumières d'Antoine Loysel) (Paris: Videcoq père et fils, 1846), vol. 1Google Scholar, maxim 8, and readily confirmed by Jurists, including Bignon, Grandeur (note 82 below).

57. In some Protestant states, such as England (notes 109–11 below), Neuchâtel (note 51 above), Scotland, some German states, and Geneva, the troublesome custom of accepting vague verbal “promises” to constitute a marriage continued; and in some states on the continent, where parental consent was written into new ecclesiastical ordinances, permission still could be obtained after the marriage. In France a special civil court (Chambre de l'Edit) staffed by Judges of both cults was instituted for Protestant marriage cases; see Margolf, Diane, “The Paris Chambre de l'Edit: Protestant, Catholic, and Royal Justice in Early Modern France,” Ph.D. dissertation, Yale University, 1990.Google Scholar

58. Chenu, Jean (1559–1627), Cent notables et singulières questions de droict, décidées par arrests mémorables des cours souveraines de France… (Paris, 2nd ed., 1603 [1st ed. 1602 not located]).Google Scholar An avocat, Chenu was a well-known legal scholar.

59. Ibid., quest. 8, 114–15.

60. Ibid., quest. 12, 127–28.

61. Ibid., quest. 8, 114–15.

62. Ibid., quest. 13, 129–54: arrêt 27 December 1600 (Thomas Blondeau [minor]-Nicole Le Moine [major]—Jacqueline Chastelian [sic] [mother of Blondeau]; Nicole and mother Jacqueline (accomplice) charged with rapt; he also cited Houlbronne—Pallier (1601). Chenu and cohorts provide names of litigants (as do most authors henceforth).

63. Ibid., quest. 11, 121–27: arrêt 16 October 1592 (Heleine Cymard [major 1591] and Jacques Le Coq [major]—Geneviève Le Duc [her mother]); Geneviève argued Jacques pressured Heleine to consent and rushed her to a notary (18 May) to make a marriage contract; parent sues, then appeals 6 July 1592; the marriage (regardless of majority age) ruled illegal; see also, quest. 8, 114–15.

64. For one example of many, see Le Vest (son), CCXXXVH Arrêts célèbres (1612), note 41 above.

65. Edict 1606 (art. 2 and 12): Isambert, Recueil, 15:304–5, and 307, on “complaints and remonstrances of the clergy.”

66. For example, Fevret, Charles (1583–1661), Traitté de l'abus et du vrai sujet des appellations qualifées de nom d'abus… (Dijon, 1654)Google Scholar, used “Jurisprudence of the Arrêts” to designate the whole system: notable arrêts, edicts, and the appeal procedure (appel comme d'abus); see also Furetière (n. 108 below).

67. Correctness aside, the thrust of that term (commonly used) also was politically problematic, because it appeared to support Parlement's claim (since the early 1500s) to exercise co-legislative functions with the king and thus to undermine the contrary royal claim that kings alone enjoyed the legislative prerogative. On those conflicting claims, 1500s-1600s, see Hanley, The Lit de Justice of the Kings of France, especially 6–9, 11–14; and for contests in 1667 and 1699 negotiated but not solved, see Hanley, , “The Transmission of Legal Knowledge and the Genesis of Civil Society in Early Modern France,” Historians and Ideologues, ed. Grafton, Anthony and Salmon, J. H. M. (Rochester, N.Y.: University of Rochester Press, 2001), 74–75.Google Scholar

68. Loisel, Institutes. The work (1607) was reprinted twice before Loisel's death (1617), eleven times more in enlarged editions from 1637 to the 1780s. Denying Canon law (vol. 1, maxim 8), Loisel also negates the letter of the Roman law: for example, he explains how the precept puissance paternelle was modified by French law (vol. 1, maxim 122).

69. Loisel, Institutes, vol. 1, pp. xxxv–xxxviii.

70. Le Vest (son), Arrêts célèbres (1612), “Dedication,” fols, ari r–v; and “Avertissement” (2 unnumbered pages).

71. Brodeau, Julien (d. 1653), Recueil d'aucuns notables arrests donnez en la cour de Parlement de Paris. Pris des Memoires de feu Monsieur Me. Georges Louet, conseiller du Royenicelle (Paris 1633)Google Scholar, published six times, 1614–1650, before his death (1653), eight more times augmented by other Jurists, 1655–1742. Brodeau built upon valuable notes of an eminent Judge, Parlement of Paris, Georges Loiiet (1540–1608), printed after Lotiet's death by the Jurisconsult, Gabriel Michel de la Rochemaillet (1561–1642) in 1610; and virtually all the Arrestographes, 1630s–1700s, cited Brodeau.

72. Claude Le Prestre (n.d.), Questions notables de droict, décidées par plusieurs arrests de la cour de Parlement…de Paris (Paris, 1645). In the long treatise, Questions notables, Le Prestre divides sections into “Centuries” (each containing one hundred arrêts followed by a topical index); at each additional “Century,” sections are repaginated. For clandestine marriage cases, see Second Centurie (1–251), chap. 6, 20–28. The shorter work attached, Traicté des mariages clandestins, is separately paginated (1–50).

73. Le Prestre, Questions notables, Second Centurie, chap. 6, 25–28: arrêt 26 July 1603 (Anne d'Estang and Jean de Montalambert [deceased spouses]); the court granted the children (Jean and Louise) 250 livres a year for life from the inheritance diverted (pointing to a compromise often followed in later cases).

74. Ordinance 1629 (Code Michaud) (art. 39–10 and 169): Isambert, Recueil, 16:234–35, 267, and 273–74. For the quote from the preface, see 16:224–25. Gaston d'Orléans, the king's only brother (see note 85 below), sat in the Royal Council when this ordinance was discussed (see preface, 225).

75. Ordinance 1629 (art. 39–40, 169): Isambert, Recueil, 16:234–35, 267, 273–74.

76. Ordinance 1629: Isambert, Recueil, 16:273–74. Art. 169 (quote, 273): “… we wish that all those who commit rapt and abduction of widows, sons, and daughters under the authority of fathers, mothers, tutors, and relatives; or [those who] attempt to seduce them in order to marry; and [those] who have aided and abetted such marriages, without the advice and consent of relatives, tutors, or others so charged, will be punished as violators of the laws and disturbers of public peace.” When “[such] crimes can no longer be excused and hidden,… these enterprises will be stopped.”

77. Ibid., On “violators.”

78. Ibid., On rapt; in the interim couples may not be harbored either in other houses or in other regions; as admitted in passing, however, judicial discretion (within limits) pertains.

79. If all direct heirs (from the “source”) are ruled illegitimate, collateral relatives would inherit (as occurred in D'Estang—Montalambert, 1603); and if no collaterals remained, presumably the state could “confiscate” assets (as was the case for bastards, even those legitimated, if they left no heirs).

80. For a later high-profile instance where collateral relatives sued, see Brun—Saulx-Tavannes (1732) in Hanley, “Engendering the State,” 16–17.

81. See Hanley, “Social Sites,” figs. 1 and 2, and 37–39, for marital separation cases. Circulation of legal information also aided slaves brought to France who sued for freedom from the 1680s on; see Peabody, Sue, “There Are No Slaves in France”: The Political Culture of Race and Slavery in the Ancien Regime (New York: Oxford University Press, 1996).Google Scholar

82. BNF, Collection Thoisy 418, Lettre de M. Séguier… à M. Bignon … à travailler à une ordonnance sur les mariages clandestins…avec la réponse… 1633…,” fol. 242r–254v; and “Pensées de M. Bignon sur le mariage,” fol. 255r–264r. Pierre Séguier (1588–1672), an elegant orator, was president, Parlement of Paris (1624), keeper of seals (1634), and chancellor (1635). Jerome Bignon (1589–1656), attorney general (1625) and royal librarian (1642), wrote La Grandeur de nos roys et de leurs soveraine puissance (Paris, 1615), arguing royal prerogatives are superior to papal ones and citing an assembly of September 1510 limiting papal power (215).

83. Fig. 1: Engraving, Abraham Bosse, Le Contrat de Mariage (1633), BNF, Cabinet des Estampes, C6943. The main scene (left) depicts the public nature of parental-familial accord as two sets of parents, or relatives (as tutors), negotiate for the couple a legal contract recorded by a notary. The secondary scene (right) suggests the personal nature of couple consent as the two (cast as grown-up versions of the younger children at play) court alone (their consent presumed witnessed by family accord) as they discuss (see the attached verse) male “empire” in the household.

84. Mole, Mathieu (1584–1656), Mémoires de Mathieu Mole, in Société de l'histoire de France, ed. Champollion-Figeac, Aimé (Paris: J. Renouard et eie, 1855–1857), 2:227Google Scholar, and comments on the Ordinance of 1579, 2:225.

85. On the Bourbon—Lorraine case (1634), see BNF, ms. fr. 2750, fol. lr–245r: “Memoire de plusieurs manages traictez par aucune Princes et seigneurs avec des estrangeres et ennemies sans l'adveu et consentement des Roys leurs souverains et des peines ordonnée contre ceux qui les ont contractez” (12 parts, 89 items). Since Louis [XIV] was not born until 1638 (after twenty-five years of marriage), hope for issue was dim in 1634 and Gaston the presumed successor. Gaston (b. 1608) had the king's consent (1626) when forced by Richelieu to marry his first wife, Marie de Bourbon-Montpensier (d. 1627). Present in the Royal Council when the Ordinance of 1629 was discussed (see note 74 above), Gaston was twenty-four in 1632; his comrade, Charles IV, duke of Lorraine, waged campaigns, off and on, against France.

86. BNF, ms. fr. 2750 (opinion against the marriage): “Secular princes by laws and ordinances can make marriages to maintain peace in their states, and the church must confirm them [the marriages].” Orléans cannot marry “without the consent of the king, father of the people and administrator of the kingdom….” At stake is not Just the “ruin of a family” but the ruin “of a great kingdom” (fol. 4r–5r).

87. BNF, ms. fr. 2750 (opinion against): procurer general, Parlement of Paris (fol. 127r–v); Parlement of Paris, 24 March 1634, order for Charles, duke of Lorraine to appear on the rapt charge (fol. 134v–135r).

88. BNF, ms. fr. 2750 (opinion against): French Jurists, 4 January 1634 (fol. 144r–148v); Parlement's decision, arrêt 5 September 1634, and the king's lettres patents against Lorraine alleging “rapt and rebellion” (fol. 137r–142r).

89. BNF, ms. fr. 2750 (opinion against): observations, Assembly of the Clergy, 16 June 1635 and 10 July 1635 (fol. 153r–189v). Question: whether marriages of princes of the blood, particularly a presumptive successor, can be valid without consent and against will of the incumbent king (fol. 154v); conclusions (fol. 210v–215r) and quotes (fol. 216v–218v).

90. BNF, ms. fr. 2750 (opinion against): the church must confirm marriages touching “raison d'état” (fol. 9r–v).

91. BNF, ms. fr. 2750 (opinion for the marriage): letters to cardinals, reputation besmirched (fol. 234r–236r); French “injustice” (fol. 233v–234r); alleging “violation of the rights of the Holy See [by the French]… and ruin of its authority” (fol. 234r–v).

92. BNF, ms. fr. 2750 (opinion for): Trent, Edict 1579, Gallican church (fol. 220v–232r).

93. BNF, ms. fr. 2750 (opinion for): marriage (with couple consent) is valid if celebrated before a priest and witnesses (fol. 240r–241r). Only after nine years of separation and Louis XIII's death was this marriage recognized in France through a “rehabilitation” accorded the couple (slipping around the edicts of 1629 and 1639), then an odd ceremony reenacting marital vows by royal consent (all orchestrated by Queen Regent Marie de Medicis for the minor king, Louis XIV).

94. Declaration 1639 (art. 1–7): Isambert, Recueil, 16:520–24. No doubt Bignon and Séguier (see above note 82) contributed to this formulation. A royal déclaration amended, or clarified, prior edicts and ordinances.

95. Declaration 1639 (art. 1–7): Isambert, Recueil, 16:520–24. This was published in Saint-Domingue through the Code Noir (1685, art. 10), but slaves were exempted from obtaining parental consent (it was said) because consent of the master sufficed.

96. Declaration 1639 (preamble): Isambert, Recueil, 16:520–21.

97. Le Prestre, Questions notables (1645), the advertisement (title page); and the Bosse engraving, La Galerie du Palais (c. 1640), BNF, Département des Estampes, B17771 (version with verse), fig. 2 here.

98. For a full view of the Great Hall (Salle des pas perdus), see Sur, Bernard, Histoire des avocats en France des origines à nos Jours (Paris: Dalloz, 1998), 43.Google Scholar

99. Fig. 2: Bosse, La Galerie, verse quoted.

100. Le Prestre, Questions notables (1645), Second Centurie, chap. 6, 20–25; also Mariages, 3–13, 17–29. In the historical spectrum covered, Manages (3–13)—Hebrews, Greeks, Romans, Christians—France stands out: “But, if ever a nation has forbidden clandestine marriages [successfully], it is the French [nation]… “; and Manages, 17–18, against Trent (1563). He alerts readers to other suspicious “marks of clandestinity,” such as lack of a marriage contract notarized, one person unequal in status, suspicion of prior concubinage, no marital banns posted; Questions notables, Second Centurie, chap. 6, 23–41.

101. Le Prestre, Mariages, 17–18 (quote); for the term “civil society,” see note 106 below.

102. Ibid., 19–22, including “notorious,” or “famous,” arrêts of 1602 and 1605 nullifying clandestine marriages illegally enacted “against the Ordinance of 1579”: that is, 3 August 1602 (Berthelemie de la Chesnaye-Hierosme de la Planche [for son]), charging Chesnaye with the crime of rapt; and 19 July 1605 (Gabriel Durand [for Marguerite Durand, daughter]—Charlotte Lamoignon [for Henry de Bullion, son]); also 15 May 1601 (Jean du Bois and Nicole Huet—Magdeleine Trimolot).

103. Ibid., 19–22, “celebrated” arrêts given in the Grand Chambre, including 7 September 1600 (Sieur de Beauharnais and Jeanne Feal); 1607 (Countess de Chaligny—Sieur de Villebon); and 2 June 1609 (Dame Carré—Thibaut Desportes) “notorious in society.” Also cited in several places are the famous precedents, Le Loup-Morel—Nagaret (1576) and Houlbronne—Pallier (1601); see Questions notables, Second Centurie, chap. 6, 24–25; First Centurie, chap. 53, 144–46; and Manages, 19–22. On marriages “against the Ordinance of 1579 and the arrêts of the court” nullified, see Le Prestre, Questions notables, Second Centurie, chap. 6, 25–28: arrêt 16 October 1602 (Henry Joubert and Anne du Chastelet), marriage nullified, Henry banished for nine years. Arrêt 8 July 1605 (Robert Baudesson and Anne d'Innal [couple]—Baudesson [parents]), Robert forbidden to approach Anne afterward.

104. Le Prestre, in Questions notables, marginal notes throughout; and in Manages (at the end), “Extracts” (42–46) include Edicts of 1556, 1561 (art. 3), 1579 (art. 40–44), 1606 (art. 12), 1629 (art. 39), and 1639 (art. 1–7); and relevant arrêts, 1564 to 1642 (found in 11 unnumbered pages), as well as in another section, “Celebrated arrêts” (1–32).

105. See Hanley, Sarah, “The Monarchic State in Early Modern France: Marital Regime Government and Male Right,” Politics, Ideology, and Law in Early Modern Europe, ed. Bakos, Adrianna E. (Rochester, N. Y.: University of Rochester Press, 1995), 107–26.Google Scholar

106. Le Prestre, Mariages, 1: “The effects of marriage [families] are… most admirable, since from it derives the source of civil society (société civil); it [marriage] is the foundation for families which compose Republics, and so [marriage] is the seed-bed (séminaire) for states (estais).” Although he invokes classical authority (alleging Cicero, Offices, 1–3), a reading of that very different Ciceronian passage (bk. 1, chap. 17) points to Le Prestre's ingenuity in refashioning the message to fit modern France.

107. Declaration 1639: Isambert, Recueil, 16:520: (preamble) “… marriages are the seedbed (séminaire) for states (états), the source and the origin of civil society (société civile), and the foundation for families which compose republics. [From families]… come principles that serve to form… governing regulations [polices],… and … [in families] the natural reverence of children towards their parents is the [exemplary] bond for the legitimate obedience of subjects [in the state] towards their sovereign….” Here, in addition, obligations of obedience are spelled out: wives obey husbands (in marriages), children the parents (in families), and subjects obey kings (in the state). Le Prestre may have been the source (compare with note 106). In Ourliac and Malafosse, Histoire du droit privé, 3:204–5, this passage is mistakenly thought to originate in an Edict of 1697.

108. See Hanley, “The Transmission of Legal Knowledge,” on the popular Dictionaire universel… (1690), composed from 1648 to 1680 by Antoine Furetière (1619–1688), who defined and added to the famous trio of legal systems—Roman, Canon, and Feudal law—this fourth French system just as eminent.

109. [Factum]: “Conclusions civiles, pour la Dame de Grosvenor accusatrice. Contre Ludovic Fenwick, moine Anglois son Aumônier, Edouard Fenwick son frère, & leurs complices … en supposant un faux mariage” (1702), 1–17; quote, 17.

110. [Factum]: “Conclusions civiles…Grosvenor…,” 1–17; summary of grounds printed at the end (16), including excerpts from the Ordinance 1579 (Blois), art. 42, on rapt of a minor (widow, twenty-five years) and art. 281, crime of rapt for abduction and forced marriage; also from the Ordinance 1629, art. 169 (the tough provision cast in angry tones discussed above, notes 76–79, renewing the rapt charge).

111. Consult Stone, Lawrence, Road to Divorce: England 1530–1987 (Oxford: Oxford University Press, 1992), chap. 4Google Scholar, on proliferation of clandestine marriages; scandals involving incest, bigamy, bastardy; squalid marriages in the Fleet; and corruption of the clergy; chap. 5 on the Hardwicke Marriage Act (1753) requiring banns, church nuptials by regular clergy, and parental consent. In short, says Stone, “marriage law… in practice in England… from the fourteenth to the nineteenth centuries was a mess” resulting in “moral and legal confusion,” 135–36. Outhwaite, R. B., Clandestine Marriage in England, 1588–1850 (Rio Grande, Oh.: Hambledon Press, 1995)Google Scholar, traces bills advanced in Parliament to outlaw clan-destinity that failed up to 1753.

112. For example, the phenomenon labeled “counterfeit culture” devised by women to stave off risk by appearing to follow the rules but actually subverting them; see Hanley, “Engendering the State,” 15–21.

113. See Hanley, The Social Sites of Political Practice in France (in progress). On the way events by the later decades of the 1600s influenced women's demands for a “separation of powers” in the household, a domestic precept on governance picked up and applied to the state during the French Revolution, see Hanley, “Social Sites”; and for separation cases from the 1770s to the 1790s, now rhetorically clothed in melodramatic literary wrappings, see Maza, Sarah, Private Lives and Public Affairs: The Causes Célebres of Prerevolutionary France (Berkeley: University of California Press, 1993).Google Scholar