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Revolution in the House
Family, Class, and Inheritance in Southern France, 1775â"1825
By Margaret H. Darrow PRINCETON UNIVERSITY PRESS
Copyright © 1989 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05562-6
CHAPTER 1
The Revolution in French Inheritance Law
I do not know, Gentlemen, how one can reconcile the new French constitution, which in all aspects follows from the great principles of political equality, with a law which permits a father, a mother to forget these sacred principles of natural equality with regard to their own children. ... There are no longer eldest sons, no longer privileged persons in the great national family; there must be none in the small families of which it is composed.
So wrote Mirabeau, the great politician and legislator of the French Revolution's early years. In the spring of 1791 he was to introduce a bill into the National Assembly that would change French civil law to provide for the equal inheritance rights of all children. Although not Mirabeau's best effort, the speech bore the mark of the master orator, lucidly stripping the question to its essentials and forcefully applying Enlightenment doctrines to answer it. To the equality of individuals in the family as in the state, he fused a second theme: the family as the school of virtue and citizenship.
A system of perfect equality within families [would produce] uncountable domestic advantages ... the natural bonds which would unite fathers to their children, children to their fathers, ... the tender and sincere expressions of that natural penchant for love, respect and gratitude.
Equal inheritance, he argued, would reform the family and thereby reform the individual and the state.
Mirabeau's speech resolved two currents of Enlightenment thought about the family into a single, sweeping reform. One was a critique of hierarchical relationships in the family on the bases of natural law and individual rights, and the other was an attack on authority from the perspective of love and personal happiness. According to Mirabeau's argument, equal inheritance would promote the growth of equality and of mutual affection within families.
Historians have identified the eighteenth century as a period of transition in Western European familial relationships. Although the nuclear family, consisting of the married couple and their unmarried children, dates from at least the Middle Ages, the dynamics of this durable institution have changed over time. In early modern Europe, most families were hierarchical and authoritarian. All power rested with the husband/father and duty regulated relationships. Love was supposed to reinforce duty, to make it joyful rather than grudging, but duty, not love, was the glue that held families together. In the eighteenth century, the priorities of duty and love shifted. The family was to be a place where love was not dutiful but passionate and demonstrative, and marriage was to create a lifetime companionship welded by esteem, tenderness, and sexual attraction. Children were accorded rights as well as duties so that fathers were no longer to rule but only to persuade with affection, reason, and good example. Between individuals united by affection and mutual respect, duties became labors of love. With all its psychological benefits and costs, the romantic, egalitarian family was born.
Yet for Mirabeau, the main purpose of equal inheritance was not to assail patriarchal families or to strengthen egalitarian ones; it was to regenerate the body politic. Historian Lawrence Stone has identified three successive philosophies of family in Western Europe since the Middle Ages: the lineage, the patriarchal family, and finally the modern nuclear family. Mirabeau's speech explicitly equated each of these notions of family with a particular political regime. He attacked lineage in the institution of pri-mogeniture as a vestige of feudalism and condemned patriarchy as a form of absolute monarchy. According to his view, a constitutional regime founded on popular sovereignty required a new sort of family, one in which equality took the place of hierarchy and affection replaced authority. Equal inheritance was the means to effect this transformation.
Mirabeau's conviction rested on three assumptions: social structure replicated family structure, family structure was defined by inheritance, and inheritance was governed by law. Linked together, these assumptions appeared to form a chain of necessary causality so that to change inheritance law would inevitably result in social change. In this chain, inheritance law was the first link, the state's entree into the family and the lever with which the rock of society could be moved.
Despite Mirabeau's exclusive focus on it, inheritance was only one of many instruments of the strategies with which families hoped to maintain and reproduce themselves. Family strategies are the implicit rules and principles that inform and direct familial decisions and the behavior of individuals in families. Some may be common to the culture as a whole, encoded in proverbs, law, or religious tenets — for example, that a younger sister may not marry before the elder, that landed property must pass in the male line, and that the marital bond is indissoluble. Some may be unique to a particular family — for example, the need to provide for a blind child or to marry a cousin to join family land. Many strategies fall between these extremes, being common but not universal, conventional but not dictated by law or custom. Historians have studied family decisions about marriage, about having children, about their education, and about retirement. Central to all of these studies is the perception that, having limited resources, families decide how best to make use of them, how to distribute them, and to whom. Family history, to a large degree, is an effort to understand what these decisions were in the past and how they came to change.
Social scientists have agreed with Mirabeau that inheritance laws and customs are a fundamental part of family strategies. Jack Goody has written:
Yet transmission mortes causa is not only the means by which the reproduction of the social system is carried out (in so far as that system is linked to property, including the ownership of the means by which man obtains his livelihood); it is also the way in which interpersonal relationships are structured. ... Consequently a different quality of relationships, varying family structures and alternative social arrangements ... will be linked to differing modes of transmission.
According to Emmanuel LeRoy Ladurie, French inheritance custom furnishes the historian with a kind of grid of Old Regime society, which simultaneously organizes and brings to the light of analysis the "underpinnings of family life."
Within the spectrum of decisions facing French families in the eighteenth and nineteenth centuries, inheritance emerged for many as the definitive distribution of resources and the ultimate instrument of decision-making power. Decisions about inheritance reveal much about the structure of families: who was reckoned to be "family" and who was a "stranger," who had power and who did not, and what were the relative strengths of various claims, all neatly measured in livres and sous. Apparent as well are familial dynamics — how power was used, transmitted, balanced, and challenged. In short, inheritance was a main terrain of family governance.
In his speech, Mirabeau linked family governance to national governance and thus inheritance law to national law. Until his speech, the Revolutionaries had not perceived inheritance law as a constitutional issue. There had been no previous ground swell of criticism of Old Regime family law. A few cahiers de doléances and petitions to the National Assembly had condemned primogeniture as an abusive privilege but had not questioned the faculte de tester, the right of the individual to leave his property as he chose by written testament. The issue of inheritance was first raised in the National Assembly in November 1790 in a joint report by the Constitution Committee and the Committee on the Alienation of National Lands. The following month, two articles in the Moniteur Universel linked "a truly free constitution" with equal inheritance. The National Assembly ordered its Constitution Committee to investigate the question in more detail; Mirabeau was to be their spokesman. His response, presented posthumously to the Assembly by Talleyrand, placed inheritance law at the center of the Revolutionary task and there it remained. Each constitutional revision — 1793, 1795, 1799, 1804, 1815 — led to a reexamination of inheritance law. April 4, 1791, was only the first of many occasions on which successive legislatures hotly debated the rights of the individual, the role of the family, and the prerogatives of the state in inheritance.
In the debates, first Mirabeau, then Robespierre and others argued in favor of equal inheritance on the basis of natural right, individual liberty, and equality. Other delegates replied with arguments based on a view of the family as a naturally hierarchical unit and of the patriarch as its natural head. They defended the right of the patriarch to do what he chose with his property and to bequeath it in whatever way he willed. To restrict this right, they argued, was to prevent the patriarch from exercising his authority to reward virtue and punish vice. Saint Martin, one of the first speakers against equal inheritance in April 1791, stated that it was necessary to maintain testators' rights in the interests of social justice. Suppose, he argued, there is "a child who has stayed in the paternal home in order to farm his invalid father's land and thus support his family; wouldn't it be an injustice to divide the fruits of this virtuous son's labors among his brothers who never shared his toil?"
Opponents in the National Assembly conjured up two competing models of familial relations, one supposedly typical of the north and one typical of the south and each representing an ideal form of government. The family from northern France, where equal inheritance was customary, was a republic in miniature, whereas the southern family, in which Roman law established the faculté de tester, doubled as a benevolent monarchy. Cazalès, a monarchist delegate from Rivière-Verdun, a country town near Toulouse, and son of a magistrate in the Toulouse Parlement, described the social benefits of the right to make a will.
The faculté de tester given by Roman law to patriarchs is a necessary consequence of paternal authority. ... It is by this right that they govern their families and obtain respect from them. This is essentially a system of education, and it is by education, says J-J Rousseau, that the Athenians did such great things. Each house was a school and the patriarch was more feared in his family than the magistrate. If anyone doubts the happy influence of this education, he should come to those happy southern provinces where the patriarch never dies. He who succeeds him succeeds to his affectionate attachments as well as to his rights. There is not one case where the house of the eldest son is not the common house of the whole family, and, if there were one, it would be viewed with horror. Compare these customs with those of this region [Paris had a legal custom of equal inheritance] whose courts resound with scandalous disputes between fathers and children; these latter have neither respect nor regard for their parents. ... The arrogance of a foolish independence has destroyed the most tender of natural sentiments between them.
Although their views of the family differed markedly, both Mirabeau and Cazalès asserted that the family, as the cradle of citizenship, must reproduce the organization of the state. Because their views of ideal family organization differed, so did their views of the ideal state. In 1791 the National Assembly was in a deep struggle over the constitution of the New Regime. The royal veto and other such issues were revealing unbridgeable gulfs between men all of whom considered themselves revolutionaries. Therefore, it is not surprising that the debate over inheritance law ended in a deadlock. The vote on April 8 sidestepped the issue by providing for equal inheritance only for intestate cases and left individuals free to make wills as they liked.
But Cazalès's benevolent monarchy proved treacherous. Louis XVI was first removed from the constitutional throne and then executed. The choice was made; the New Regime would be a republic. With the end of the constitutional monarchy, the campaign for a revolutionary inheritance law resumed, stronger than before. Equal inheritance came to be seen as a necessary foundation for the Republic of Virtue.
The campaign opened in March 1793, six weeks after the execution of the king. Mailhe, the spokesman for the Committee on Legislation, branded the faculte de tester a privilege and an aristocratic device, invariably used to disinherit worthy patriots.
It is certain that, since the beginning of the Revolution, an infinite number of fathers have shown their hatred of the Revolution in the manner they treat their children who are its partisans.
In response and almost without debate, the Convention passed the law of March 7, 1793, which forbade a parent to favor one child over another. In the fall, the Convention extended equal succession to collateral heirs brothers, sisters, cousins — in the law of 5 brumaire Year 2 (October 26, 1793). The law of 12 nivôse Year 2 (January 1, 1794) plugged the remaining loopholes. Heirs had to return all dowries and other gifts to the succession. Only a small portion of the estate, known as the portion disponible, was left free to be assigned by will, and it could be left only to nonheirs — to charity, for example. Finally, equal inheritance was made retroactive to July 14, 1789, the date on which the New Regime was supposed to have begun.
From January 1794 until March 1800, equal inheritance was the law of the land. Efforts to write a new constitution in 1795 reopened the debate but led to no new conclusions. Although not aspiring to be a Republic of Virtue, the Directory was nonetheless to be a republic and the legislators continued to regard equal inheritance as fundamental to republican government. It was Napoleon's coup that brought the first abridgment; the law of 4 germinal. Year 8 (March 25, 1800) permitted the testator to assign the portion disponible to an heir, thereby increasing his or her share. This was the first step toward the final revision of inheritance law, Napoleon's Civil Code.
Promulgated in 1804, the Napoleonic Code endorsed the ideal of equal inheritance in intestate cases. However, the Code also retained and enlarged the portion disponible, which, as in the law of 4 germinal. Year 8, a person could leave to anyone he or she chose by written will. The portion disponible was an equal share in the succession. If its recipient were not among the legal heirs, he or she shared in the estate equally with them. If an heir, he or she received a double portion (see table 1–1).
Napoleon's Civil Code also reconciled marital settlements with inheritance law, which Revolutionary laws had not attempted. Although the Code defined three alternative marital regimes — community, dowry, and separate property — it restricted the transfer of property between husband and wife. In each regime, the husband administered his wife's property during the marriage and then returned it to her upon his death. A husband could make further provision for his widow only by leaving her the portion disponible or by assigning her the use, but not the property, of his estate. If the couple had no children, the Code permitted a testator to leave the surviving spouse the use of the entire estate. If they had children, the Code reduced the usufruct to one half of the estate. If the spouse was also to receive the portion disponible, usufruct was further reduced to one quarter of the estate. In the absence of such express provisions, the Code recognized no widow's or widower's rights. Only if a person had no kin to the seventh degree and no illegitimate children did the surviving spouse count as an heir.
(Continues...)
Excerpted from Revolution in the House by Margaret H. Darrow. Copyright © 1989 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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