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Making Marriage a Favorable Act: How the French Nobility Used Custom Under the Ancien Régime
Making Marriage a Favorable Act: How the French Nobility Used Custom Under the Ancien Régime
Elie Haddad2011, Revue d'histoire moderne et contemporaine
This paper analyses the way how the noble families living partly in Paris but having properties in different provinces made use of the different customs to organize the transmission of their estate in their marriage contracts. It points out the reasons why most of them chose the custom of Paris. It shows that marriage, as a ‘favourable act’, gave the families some opportunities to depart from the customary laws which ruled their estate, or to depart from some articles of the customary law they chose to rule their marriage contract. But the ability to make use of this latitude was socially unequal and did not mean that noble families were able anyway to build the norms by themselves. Besides, the preferential use of the custom of Paris covers up the evolution of the clauses of the marriage contracts, which are the consequences of the socio-political transformation of nobility.
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MAKING MARRIAGE A FAVORABLE ACT: HOW THE FRENCH
NOBILITY USED CUSTOM UNDER THE ANCIEN RÉGIME
Élie Haddad
Belin | Revue d'histoire moderne et contemporaine
2011/2 - No 58-2
pages 72-95
ISSN 0048-8003
This document is a translation of:
-------------------------------------------------------------------------------------------------------------------Régime »,
Revue d'histoire moderne et contemporaine, 2011/2 No 58-2, p. 72-95.
-------------------------------------------------------------------------------------------------------------------Translated from the French by Cadenza Academic Translations, revised by Cécile Soudan
Available online at:
-------------------------------------------------------------------------------------------------------------------http://www.cairn-int.info/journal-d-histoire-moderne-et-contemporaine-2011-2-page-72.htm
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How to cite this article:
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Revue d'histoire moderne et contemporaine, 2011/2 No 58-2, p. 72-95.
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Élie Haddad, « Faire du mariage un acte favorable. L'utilisation des coutumes dans la noblesse française d'Ancien
The Strength of Ties
Making Marriage a Favorable Act:
How the French Nobility Used Custom
under the Ancien Régime
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Until the French Revolution, the reproduction of social domination,1 especially
among the nobility, was ensured by a body of social and legal mechanisms,
which if they did not enable all elite families to maintain their positions – a
complex and costly operation2 – nevertheless assured the preeminence of these
elites and the aristocracy as groups. The transmission of property and position
in a hierarchical society attached to the permanence of titles3 was thus one of
the foundations of the social order, guaranteed as much by the conceptions of
family as by law and social practices. But we cannot overlook the fact that behind
the affirmation of an immutable order, important changes were taking place in
society during the modern era that must constantly be taken into consideration
when we study transmission as point where law and society collide.4 To this
end, the significance of the legal framework, something formal by definition,
cannot be reduced to that of its actual scope: the logic of the actors is to be
found on another level, and the relationship between the two produces both
1. Part of this study was presented at the conference “Family Models and Political Culture. Atelier
I. The Economy of Marriage,” organized by Anna Bellavitis (Centre d’Histoire sociale et culturelle de
l’Occident) and Jean-François Chauvard (École Française de Rome) at Université Paris Ouest Nanterre
on November 28, 2008. Other aspects of the question are examined in the article to appear in the
conference proceedings. My special thanks go to Anna Bellavitis for her invitation.
2. Rudolf Braun, “‘Rester au sommet’: Modes de reproduction socioculturelle des élites du pouvoir européennes,” in Les élites du pouvoir et la construction de l’État en Europe, ed. Wolfgang Reinhard
(Paris: PUF, 1996), 323-354.
3. Fanny Cosandey, ed., Dire et vivre l’ordre social sous l’Ancien Régime (Paris: Éditions de l’École
des hautes études en sciences sociales, 2005).
4. “In any case one must beware of notions of transmission and inheritance precisely because they
take no account of notions of structure and evolution: an observable phenomenon never has meaning
in itself, but becomes significant with the whole of the relations that it maintains with the elements
that are built around it in the same structure; comparison with elements that are formally alike says
nothing therefore about their worth if they belong to different structures.” Anita Guerreau-Jalabert,
“Rome et l’Occident médiéval: Quelques propositions pour une comparaison de deux sociétés à système de parenté complexe,” in Rome et l’État moderne européen, ed. Jean-Philippe Genet (Rome: École
Française de Rome, 2007), 198.
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Élie Haddad
II
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
social and legal dynamics. The purpose of this article is precisely to study these
dynamics by determining how customary law affected transmission among
elites in the modern era. This controversial question is important for analyzing the mechanisms of transmission, since, as is well known, in countries that
observe customary law, marriage is to a great extent essential for determining
succession and inheritance.5 This is even truer in the case of the middle and
upper echelons of Parisian aristocracy (d’épée or de la robe – respectively, the
older and the more recent nobles), since its members were often both Parisian
and provincial, owned land subject to different customs, and lived at least part
of the year in Paris, where they executed numerous notarized acts.
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The noted article of Emmanuel Le Roy Ladurie published in Annales in 19726
attracted historians’ attention to the work of Jean Yver, who, in line with Henri
Klimrath but also in opposition to him,7 examined the geography of customs
of Ancien Régime-era France and characterized the various dominant forms
of transmission in some of the larger geographical areas.8 The direction of
this work was connected to the introduction of historical research on questions of kinship derived from Lévi-Strauss’s anthropology. To quote Louis
Assier-Andrieu, geography of custom is “subsumed in a structural and functional perspective: customs are ‘cultural traits’ forming a system with other
cultural components of which they reveal diverse expressions and a common
framework.”9 If the history of law was invoked, tools of the anthropology of
kinship, on the other hand, were hardly used, research being directed largely
toward the history of the family as social history or as a history of mentalities.10
Later research refined the study of customs and practices of transmission,
5. Georges Augustin, Comment se perpétuer? Devenir des lignées et destins des patrimoines dans les
paysanneries européennes, (Nanterre: Société d’ethnologie, 1989); Georges Augustin, “Division égalitaire des patrimoines et institution de l’héritier,” Archives Européennes de Sociologie 20 (1979): 127-141;
Bernard Derouet, “Dot et héritage: Les enjeux de la chronologie de la transmission,” in L’Histoire grande
ouverte. Hommages à Emmanuel Le Roy Ladurie, ed. André Burguière, Joseph Goy, and Marie-Jeanne
Tits-Dieuaide (Paris: Fayard, 1997), 284-292.
6. Emmanuel Le Roy Ladurie, “Système de la coutume: Structures familiales et coutume d’héritage
en France au XVIe siècle,” Annales: Économies, Sociétés, Civilisations 27, no. 4-5 (1972): 825-846.
7. On H. Klimrath, see Frédéric Audren, “Écrire l’histoire du droit français: Science du politique,
histoire et géographie chez Henri Klimrath (1807-1837),” in, Histoire de l’histoire du droit, ed. Jacques
Poumarède, Études d’histoire du droit et des idées politiques 10 (Toulouse: Presses de l’Université des
sciences sociales de Toulouse 2006), 113-131.
8. Jean Yver, Égalité entre héritiers et exclusion des enfants dotés. Essai de géographie coutumière
(Paris: Sirey, 1966).
9. Louis Assier-Andrieu, “Penser le temps culturel du droit: Le destin anthropologique du concept de coutume,” L’Homme 160 (2001): 81-82. On “structural functionalism” of the anthropology of
kinship developed by Claude Lévi-Strauss, see Gildas Salmon, “Logique concrète et transformations
dans l’anthropologie structurale de Claude Lévi-Strauss” (PhD diss., Université de Paris I, 2009).
10. André Burguière, Christiane Klapisch-Zuber, Martine Segalen, Françoise Zonabend, eds.,
Histoire de la famille, 3 vols. (Paris: Le Livre de Poche, 1994). On the importance of the relationship
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L AW AND PRACTICE : HISTORIOGRAPHICAL ISSUES
III
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showing the differences that existed in geographical areas that might have been
considered homogeneous,11 or even the multiple strategies at work in transmission practices that differed from customary provisions according to life cycles
and the economic and demographic situation of families, thus undermining
the very idea of structures in kinship and transmission.12
Especially the question of the relationship between customary norm and
practice has been debated. Contrary to the dominant theories of the last two
decades, in his study on Villiers-le-Bel and Écouen in the seventeenth century,
Jérôme-Luther Viret recently defended the idea that the rules of Paris custom
and practice largely corresponded. According to him, the theme of recourse
to law by the actors was both the cause and the symptom of a systematic
underappreciation of the importance of legal regulations and more generally
of norms of conduct.13 In the places he studied, he first perceived the “power
of lineage mentalities,” which conferred such importance on private property
that “handing it down is not left to the judgment of individuals. It is custom
that decides for them on the principles of lineage contained in articles 302 and
326.”14 The force of a desire for equality is seen among merchants as well as
peasants who never depart from custom, and strictly respect it although not
going so far as to allow the full range of benefits it confers upon an heir. There
is great freedom in contracts, but it is used only when an imperative of survival
makes it a necessity. Viret concludes that the “spirit of custom” may be based
on hostility to the exercise of discretionary power by the head of the family,
which characterizes Roman law. What counts is the nature of the authority
exercised by the head of the family, which was not the same everywhere and
would have been based on values that we find in custom. In this way, Viret
rejects Bernard Derouet’s idea that different legal systems arrive at similar
mechanisms of transmission, an idea justified by the fact that a system of
“houses” could arise from different laws, customary or written, and that the
same phenomenon could be found even in countries that use Roman law.15
The exercise of authority by the head of the household would be very different
depending on whether it was up to him or to custom to choose a single heir.16
between social history and history of mentalities by the great proponent of this historiographical trend,
see André Burguière, L’École des Annales: Une histoire intellectuelle (Paris: Odile Jacob, 2006).
11. For example, Anne Zink, L’Héritier de la maison: Géographie coutumière du Sud-Ouest de la
France sous l’Ancien Régime (Paris: Éditions de l’École des hautes études en sciences sociales, 1993).
12. Laurence Fontaine, “Droit et stratégies: La reproduction des systèmes familiaux dans le HautDauphiné (XVIIe -XVIIIe siècles),” Annales: Économies, Sociétés, Civilisations 47, no. 6 (1992): 1259-1277.
13. Jérôme-Luther Viret, “La reproduction familiale et sociale en France sous l’Ancien Régime.
Le rapport au droit et aux valeurs,” Histoire et Sociétés Rurales 29 (2008): 165-188.
14. Jérôme-Luther Viret, Valeurs et pouvoir: La reproduction familiale et sociale en Île-de-France. Écouen
et Villiers-le-Bel (1560-1685) (Paris: Presses Universitaires de Paris-Sorbonne, 2004) 160 and 166-167.
15. Bernard Derouet, “Territoire et parenté. Pour une mise en perspective de la communauté
rurale et des formes de reproduction familiale,” Annales: Histoire, Sciences sociales 50, no. 3 (1995):
645-686, and “Les pratiques familiales, le droit et la construction des différences (15e -19e siècles),”
Annales: Histoire, Sciences sociales 52, no. 2 (1997): 369-391.
16. Viret, Valeurs et pouvoirs, 380-381.
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MAKING MARRIAGE A FAVORABLE ACT
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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The strong criticism that Viret formulates is based on a conception of custom
and law that also presents problems. By identifying custom with shared values, as
legal historians have identified it with the spirit of the locality or the spontaneity
of common practice,17 Viret clearly takes the view that customs are born of the
daily social practices of country dwellers and goes as far as to describe them as the
“natural law” of peasants, as opposed to positive law.18 The work of Jean Hilaire
has shown, however, that contrary to what was long thought, the formulation of
customs did not register peasant practices, but mostly those of town dwellers.19
Legal pluralism in monarchical France was coupled with socially differentiated
practices that must therefore be integrated into study of the use of customs.20
To this was also added local logic, as seen in Normandy, where notary
practice redrew the geography of custom despite the seemingly imperative
character of Normandy marriage customs.21 Hence there is a great risk, thinking above all in terms of values, in artificially uniting practices even more
diverse than those found in Écouen and Villiers-le-Bel. For that matter, what
about the diversity observed in transmission practices at the family level, but
frequently also from one parish to another? How can these levels be linked to
the dominant trends detected at the provincial level that yet do not necessarily
indicate uniformity of practices?22 It would also be necessary to understand
on what this shared set of values was based, and especially the way power was
exercised and transmitted – and we do not see why such power would have
been detached from social and economic constraints.
17. Sometimes even with lineage, for example in Jacqueline Musset, Le Régime des biens entre
époux en droit normand du XVIe siècle à la Révolution (Caen: Presses Universitaires de Caen, 1997), 8.
18. Viret, “La reproduction familiale et sociale,” 166, and Valeurs et pouvoir, 379.
19. Jean Hilaire, La vie du droit: Coutumes et droit écrit (Paris: PUF, 1994), particularly chapter 2 in
part 2, entitled “La vie ‘aux champs’ après la rédaction des coutumes (Angoumois, Aunis, Saintonge)”
where he writes: “Not only are our customs certainly not codes, but they incorporate – if the practice
is considered as a whole – elements of law in terraces, with compartments for the subjects according to
social groups; juxtaposition of outcrops, all stratifications probably not having attained in the same way
or to the same degree the written stage. Even more, a major ambiguity remains concerning commoners
as soon as actual variations between urban and rural practices do not appear, or to put it another way,
that this last stratification does not really appear” (142).
20. Ibid., 294, in the conclusion: “Pluralism then results from social groups, with distinct interests
corresponding to their lifestyles, managing to preserve these interests in the permanence of family
institutions, from generation to generation, following special practices; these practices then might
constitute very diverse structures within the legal system. Notaries became the first driving force when
they adopted different strategies in their clients’ interest.”
21. Virginie Lemonnier-Lesage, Le statut de la femme mariée dans la Normandie coutumière: Droit
et pratique dans la généralité de Rouen (Clermont-Ferrand: Presses Universitaires de la Faculté de Droit
de Clermont-Ferrand, 2005).
22. See Gérard Bouchard, Joseph Goy, and Anne-Lise Head-König, eds., Nécessités économiques
et pratiques juridiques : problèmes de la transmission des exploitations agricoles XVIIIe-XXe siècles. Actes de
la session C33 du XIe Congrès de l’Association internationale d’histoire économique (Milan, 11-16 septembre
1994), Mélanges de l’École Française de Rome: Italie et Méditerranée 110, no. 1 (Rome : École française
de Rome, 1998), especially articles by Gérard Béaur, “La transmission des exploitations: Logiques et
stratégies: Quelques réflexions sur un processus obscur,” 109-116; Bernard Derouet and Joseph Goy,
“Transmettre la terre: Les inflexions d’une problématique de la différence,” 117-153, and Francine Rolley, “Comment poser le problème de la diversité des modes de transmission du patrimoine? L’exemple
de la Bourgogne du Nord au XVIIIe siècle,” 169-174.
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IV
V
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In fact, to resolve these difficulties, we would probably do best to distance
ourselves from the ahistoricism conveyed by the legal-anthropological complex
embraced in the notion of custom. Louis Assier-Andrieu has shown how this
complex appeared very early, starting in the eighteenth century, particularly in
the work of Pierre Jean Grosley. The latter was interested in various “means of
transmission” based on the works of jurists who tried to harmonize customs by
supposing they had a “common spirit” capable of leading to French common
law.23 This process, which made custom simultaneously the unifying term of
the objects of scholars’ research, especially from the nineteenth century, the
causal concept behind these objects, and also a legal fiction, took place after the
documentation of customs in the sixteenth century had radically warped their
relation to historicity and brought them into a different conception of law than
was previously the case.24 When this documentation began, 25 the history of
customs was confused in particular with jurisprudence and the modifications
that these customs introduced, dependent on social practice and the political
and ideological choices of judges.26
The “force of law,” to use the title of an article by Pierre Bourdieu, can
seemingly therefore be analyzed more pertinently if we take into account
not only its specific field of application, but also the social relations that
are both its driving force and proving grounds, on which the law acts in
turn. 27 Bourdieu’s analysis, however, also implies that study of the conflict
between legal norms and the practice of actors is not sufficient to understand the legal functioning of a society. 28 Gunther Teubner reminded us,
contrary to the theories on social regulation, that it is not the actors who
produce law as a cultural artifact, but law that builds, through procedures
23. Assier-Andrieu, “Penser le temps culturel du droit.”
24. Martine Grinberg, Écrire les coutumes: Les droits seigneuriaux en France XVIe -XVIIIe siècle.
(Paris: PUF, 2006).
25. That is to say written at the behest of the monarchy. Before, the customary laws that exist are
to be seen at best as “legal guides.” Jean Bart, “Transcrire, rédiger, réformer les coutumes,” in L’Écriture
des juristes, XVIe -XVIIIe siècles, ed. Laurence Giavarini (Paris: Éditions Classiques Garnier, 2010),
35-48. The expression quoted is on page 37. The article also stresses the conflicts, especially between
social groups, produced by writing the customs around the norms themselves. See also René Filhol, Le
premier président Christofle de Thou et la réformation des coutumes (Paris: Sirey, 1937).
26. The proof is provided for Paris custom by Robert Descimon and Simone Geoffroy-Poisson
in two articles: “Droit et pratique de la transmission des charges publiques à Paris (mi-XVIe -miXVIIe siècle),” in Mobilité et transmission dans les sociétés de l’Europe moderne, ed. Anna Bellavitis,
Laurence Croq, and Monica Marticat (Rennes: Presses Universitaires de Rennes, 2009), 219-234,
and “La construction juridique d’un système patrimonial de l’office: Une affaire de patrilignage et de
genre,” in Épreuves de noblesse. Les expériences nobiliaires de la haute robe parisienne (XVIe -XVIIIe siècle),
ed. Robert Descimon and Élie Haddad (Paris: Les Belles Lettres, 2010), 47-59.
27. Pierre Bourdieu, “La force du droit: Éléments pour une sociologie du champ juridique,” Actes
de la Recherche en Sciences Sociales 64 (1986): 3-19.
28. For fundamental criticism of the opposition between norms and practices, particularly the
idea that the latter manipulate the former, see Simona Cerutti, “Normes et pratiques, ou de la légitimité
de leur opposition,” in Les formes de l’expérience. Une autre histoire sociale, ed. Bernard Lepetit (Paris:
Albin Michel, 1995), 127-149. For a sociological perspective, Cyril Lemieux, Le devoir et la grace
(Paris: Economica, 2009).
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MAKING MARRIAGE A FAVORABLE ACT
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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and a communicative process, actors as legal persons who act according
to legal processes within the world of law. 29 The real problem, then, is to
understand how this world elaborated by the law is related to the social
sphere. Yan Thomas’s work has contributed to moving the problem away
from norms and practices to concentrate on the problem of classifying acts
the courts are petitioned to perform, which try to evaluate things to settle
disputes, with the norms applying to typical situations that are virtually
casus. 30 Law is by essence divisive and operates on society through the conflicts created within it. This means that no norm can give the truth about
practices, since it does not provide a key to understanding them any more
than it exhausts them; this also means that practices are not outside norms,
with the actors knowing full well that they may find themselves confronted
with the legal classification of what they do in case of conflict, and that they
cannot therefore do as they please.
It is from these reflections, fully taking into account the social dimension
of the use of customs, that I wish to study the possibilities for the aristocratic
elite of the Ancien Régime to decide how to apportion the transmission of their
property in relation to the law and how they dealt with legal pluralism. This
necessitates an understanding of the connection postulated by jurists of the
time between customary norms and practices, and for that reason I will first
address the meaning of the legal characterization of the marriage contract as
an act favorable to the application of custom. I will then examine the various
ways that the actors themselves used these customs so that marriage contracts
best served their interests, before trying to understand how the continual
preponderance of Paris custom masks the evolution of practices related to
sociopolitical changes.
THE AREA OF APPLICATION OF CUSTOMS
If we are to believe jurists, the area of application of custom is clear. For
example, here is what Jean-Baptiste Denisart writes in his Collection de décisions nouvelles et de notions relatives à la jurisprudence actuelle under the article
“Custom”:
21. The custom of domicile governs the state & the capacity of persons. See Residence
& Majority.
22. The custom of the area in which property is located determines the manner of its
disposal. See Testament.
And the custom of the place where the acts are drawn up determines the form and the
solemnities. See Acts. . . .
29. Gunther Teubner, “Pour une épistémologie constructiviste du droit,” Annales: Économies,
Sociétés, Civilisations 47, no. 6 (1992): 1149-1169.
30. See Yan Thomas, presentation of the document “Histoire et Droit” published in Annales:
Histoire, Sciences sociales 57, no. 6 (2002): 1425-1428, and his article in the same issue, “La valeur des
choses: Le droit romain hors la religion,” 1431-1462.
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VI
MAKING MARRIAGE A FAVORABLE ACT
VII
45. Custom must always remain inviolable in the points that it expressly provides for;
this is why it is called communis sponso civitatis.31
If we apply these rules to the marriage contract, we must conclude that
the clauses concerning transmission and joint property must have followed
the customs of the place where the property and residence of the couple were
respectively situated. But matrimonial contracts largely ignored these rules
and for two reasons. First because, as Guyot indicates in the article “Custom”
of his Répertoire universel et raisonné de jurisprudence,
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Derogation from custom was therefore a principle accepted by the law
for private contracts in some cases.33 Among these contracts – and this is the
second reason – marriage contracts held a specific position as favorable acts.
It is a platitude among jurists of the time that we again find in Guyot under
the article “Marriage Contracts”:
Marriage contracts are seen with reason as the most important acts of civil society.
They are the foundation of the state and the fortune of citizens; this is why they are seen
with a more favorable eye than any other acts. Our laws have made them subject to all sorts
of stipulations in favor of the spouses and their descendants.34
And again in Denisart:
9. Marriage contracts are society’s most privileged acts; they are subject to all sorts of
agreements, as long as they are in no way contrary to natural honesty, good morals, and
public law. See article 202 of the customs of Orléans and le Brun, bk. I, chap. 3, no. 3 & 4.
10. The agreements themselves, and the provisions that the order of civil laws does not
allow in other acts, are allowed in marriage contracts. This freedom, says the author of the
principles of French jurisprudence, is based on favor for marriage and on the fact that since
marriage cannot “be retracted, it is not fair also that one retracts the conditions without
which it would not have been made.”35
Families thus had real latitude in the organization of the devolution of
a part of their estate. Donations of present and future property, which were
usually prohibited, were allowed in marriage contracts, just as were the refusal
of an inheritance to come and donations on condition of survivorship, or, on
31. Jean-Baptiste Denisart, Collection de décisions nouvelles et de notions relatives à la jurisprudence actuelle. Septiéme édition. Revue et considérablement Augmentée, vol. 1 (Paris: Veuve Desaint, 1771), 745 and 747.
32. Joseph Nicolas Guyot, Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique
et bénéficiale; ouvrage de plusieurs jurisconsultes, vol. 5 (Paris: Visse, 1784-1785), 145.
33. See also François Bourjon, Le droit commun de la France et la coutume de Paris réduits en principes, vol. 1 (Paris: Grangé et Cellot, 1770), 510f.
34. Guyot, Répertoire universel, 4:611.
35. Denisart, Collection de decisions, 1:708.
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Individuals may, by their contracts and other provisions, derogate from, as far as they
are concerned, the provisions of customs, insofar as these provisions are only positive or
negative, and non-prohibitive.
We call positive or negative provision of a custom that which regulates things in a certain way, without prohibiting one to regulate them otherwise; and we call a prohibitive
provision that which refuses to regulate things in a way different from the way custom
regulated them. 32
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the contrary, due to death, otherwise prohibited due to the rule that “giving
or retaining has no worth.” In the same way, it was possible to waive local
custom on some points or adopt another custom to govern all or part of the
clauses of a marriage contract:
In fact, as contracts are subject to all clauses, provided that they are not contrary
to good morals or to laws, spouses may submit the governorship of their community of
property to a specific custom; such an agreement is in their power, since they may even
stipulate an exclusion of community of property, and it has its full execution; thus when
the marriage contract provides that the community property will be governed by a specific
custom, the provision of this custom prevails over that of the placement of joint property,
as well as that of residence.36
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If it is said by custom, as in that of Normandy, that a joint ownership of property is
not possible, it is then prohibited to stipulate it, and in this case one cannot derogate from
the municipal law.
Concerning other statutes on which custom is not explained in prohibitive terms, one
should not believe either that it is possible to derogate from it: those that are, as we said
regarding laws, public-municipal law, such as those concerning donations, retractions, inheritances, are in no way susceptible to derogation. Those from which it is possible to derogate
are those dealing only with the interests of individuals who wish to take advantage of it.37
This normative framework does not, however, correspond in the least to
the clauses that we can observe, most likely because of its late character. There
may have been a desire among the jurists of the eighteenth century to limit
the favor accorded marriage contracts in respect to rules of custom. But it was
very difficult to put such a conception of the customary norm into practice.
In fact, except in cases of express prohibitions, customary law tried less to
impose a common norm than to provide for solutions that would apply “in
the absence of contracts between individuals.”38 And it was definitely in this
way that the latter envisaged custom. Thus the notaries of Haute-Normandie
often cobbled together solutions corresponding to families’ expectations. The
don mobil or returnable gift was the principal instrument of such tinkering:
whereas in the beginning it was absent from custom, which specified that
the entire dowry had to return to the wife’s line, its legality was progressively
recognized, thus allowing part of the property brought by the wife, specified
in the marriage contract – usually one third of real property – to pass into the
husband’s estate. According to custom, this gift was considered a contribution
to marriage expenses, and the notaries knew this perfectly well. Nevertheless, this don mobil, most often in cash, was used for something completely
different: usually the sum was set aside until the death of one of the spouses,
when the amount of the dowry was added to it and the whole was given to
36. Bourjon, Le droit commun, 1:506.
37. Guyot, Répertoire universel, 5:508-509.
38. Derouet, “Les pratiques familiales,” 372.
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However, in his article “Derogation,” Guyot presents a more restrictive
approach to the possibilities of waiving custom:
MAKING MARRIAGE A FAVORABLE ACT
IX
the surviving spouse, husband or wife. If the parlement of Normandy was
strict in the application of custom, the law courts showed more flexibility.39
Notarial practice and jurisprudence were the means to complete, to change,
and sometimes to fix regulations.
We must not then interpret customs in the light of the positive law that
was already influencing the compilers of the Enlightenment and creating a
distorting prism that hid the logic of customary law, and thus the possibilities
that were left to families to create their own transmission patterns. Moreover,
the compilers never considered the possibility that the property of one person might be governed by different customs. However, confronted with this
plurality of laws, this is what happened most often in families of the middle
or upper nobility. To learn how they used these laws, we must now examine
marriage contracts in detail.
The following analyses are based on more than 130 marriage contracts
between the third quarter of the sixteenth century and the middle of the
eighteenth century. They show the different ways in which customs were
used by the parties concerned, who belonged to the world of the elite, mainly
the newer or older aristocracy. Their possessions were often not restricted
to Paris custom, and many of them, especially among the older nobility,
spent their lives between Paris and their provincial homes. The number of
contracts on which I base my findings and their partially random nature
do not make it possible to conduct a serial study or to claim the sociological
representativeness guaranteed by methodological sampling. For the most
part, the contracts were made in Paris, and the north of France is overrepresented compared to the southern regions. Quantitative analyses throughout
the realm would surely disprove the overwhelming preponderance of Paris
custom. Nevertheless, what is essential is that examination of the whole
offers a range of options concerning the use of customs that make a few
general conclusions possible. We may in fact find the same logic in places
governed by customs other than those of Paris. Therefore, the sample is
not fundamental for my aim, which is above all to distinguish different
approaches. It is obviously not a question of detailing the contents of all
these contracts, and therefore I have chosen a few representative ones as
examples. These are never isolated cases.
In the great majority of contracts, the matrimonial agreements specify
that they follow Paris custom. The clauses are more or less explicit. They are
usually presented in this way: the future spouses will be united and joined, the
community of property will be divided in half between the surviving spouse
39. This whole argument follows the analysis of Lemonnier-Lesage, Le statut de la femme mariée.
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THE PREPONDERANCE OF PARIS CUSTOM
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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and the heirs of the predeceased according to Paris custom,40 “notwithstanding
all customs contrary to this, which these future spouses have expressly waived
and renounced, and waive and renounce by the present act.”41 Or again: “The
future spouses will be united and joined in all property and real estate according
to Paris custom, waiving to this effect all customs contrary to this, and nevertheless the said future spouses will not be held to debts of one and the other
contracted before the celebration of the said future marriage.”42 A clause on
the separation of debts before marriage is almost universal. Often the parties
reaffirm at the end of the contract that they waive all customs contrary to their
agreements.43 Property brought by the bride is specified as belonging to her side
and line, except for one share, variable depending on the date, which is broken
down and is included in the community of property. In the first decades of the
seventeenth century, the share of property the groom brought to the community of property is rarely mentioned, although this became common later on.
Often marriage contracts brought together persons who owned property in
Paris but also under another custom. This is the case, for example, of Charles
Hubert de Mesgrigny, counselor at the parlement of Paris, on the occasion of
his marriage in 1699 to Espérance Fontaine, daughter of the king’s secretary
who had made a fortune. The groom came from a family that had been living in Paris for more than a century, but owned considerable property in
Champagne, from where the family came. It was specified, however, that the
contract would be governed in all points by Paris custom, “notwithstanding
all other customs, laws and prescriptions contrary to this,” which it waived
independently of the site of their possessions.44 In this way, many families
chose to draft the matrimonial clauses that guided the future transmission
of property exclusively by following Paris custom, and partly circumventing
actual seigneurial law in the process.
Spouses moreover could sign their marriage contract in Paris even without
possessions in the jurisdiction of the provost and without living in the capital.
Thus, in 1571 Françoise de Warty, from a Picard family, married Galliot de
Crussol, a resident of Beaudisné in the Vivarais. The contract then stipulated
that the spouses would follow the custom of the community of Paris, “notwithstanding the fact that they were residing in a place where community of
property in no way existed.”45 Another similar example, the marriage contract
40. On the Paris custom, see the classic work of François Olivier-Martin, Histoire de la coutume
de la prévôté et vicomté de Paris, vol. 2 (Paris: Éditions Cujas, 1972).
41. National Archives, Paris [henceforth NA], Y 142, fol. 60r, April 5, 1603, marriage contract
between Madeleine Clausse, daughter of Henri Clausse, steward and great master of waters and forests
of France, and Charles d’Argouges, baron of Racuse.
42. NA, Central file of Parisian notaries [henceforth CF], stack VI 340, February 15, 1637,
marriage contract of Jacques Hébert, captain of a company of the regiment of Picardie, and Catherine
Pasquier, daughter of an usher at the Chamber of Accounts.
43. For example, NA, CF, stack VI 284, May 12, 1612, marriage contract of Philippe de Guillard, baron of Arcy, and Louise de Mailly, daughter of Thibault de Mailly and Françoise de Soiecourt.
44. NA, T 247-5, Sept. 26, 1699.
45. NA, CF, stack VIII 375, Feb. 25, 1571.
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between Esprit de Raymond, seigneur of Modena, and Marguerite de La Baume,
widow of the marquis de Lavardin, governor of the Maine, specified that the
community of property was to be made according to Paris custom, “whether
they [the spouses] transfer their residence or make acquisitions within other
customs that do not allow community between spouses by marriage, which
customs the future spouse have expressly renounced.”46
In the last possible scenario, the marriage contract could perfectly well
be made in the provinces, by families owning property only in the provinces,
and be governed by Paris custom. This is the case of the contract drawn up
between Jacques d’Humières, chevalier of the order of the king and governor
of Péronne, Mondidier, and Roye, and Renée d’Averton, on December 10,
1564, at the château of Perray, in the Maine (today Bruère-sur-Loir in the
Sarthe). Jacques d’Humières came from a family in Picardy where his main
estates were located, in particular the seigneury of Monchy. Renée d’Averton
was herself heiress of a noble family of the Maine where all her land was
located. Nevertheless, the marriage contract stipulated that the spouses would
share assets and real estate to be divided, after the dissolution of the marriage,
between the surviving spouse and the heirs, notwithstanding any contrary
custom. The bride was given the possibility to renounce the joint ownership
after the death of her husband, in conformity with relevant Paris custom:47
Jacques d’Humières, as a member of the court, frequently went to the capital.
The scenario of this marriage contract is not exceptional among persons of
the same social status.
Ordinarily among these multiple waivers, the only contracts in which we
really find precautions to justify the use of Paris custom are those of couples
possessing property conforming to Normandy custom, which was imperative
in theory. Thus in 1630, when François de Lyée, residing near Lisieux, wed
Madeleine Françoise de Lamet, who lived in Paris, they chose to apply Paris
custom and not that of Normandy, which was very unfavorable to women.48
The contract specified:
according to which [Paris custom] all agreements will be governed even for shared
acquisitions made and set in Normandy and other places [notwithstanding all custom
contrary to this] and for judgment of all said agreements in case of dispute if this occurs on
the part of the said future spouses, their heirs and successors, are the said parties subject
to and submitting to the jurisdiction of the said provost of Paris and to the court of the
parlement of the aforementioned place and renounce all other courts and jurisdictions.49
46. NA, CF, stack VI 325, Jan. 19, 1630.
47. Departmental Archives [DA] of the Sarthe, 111 AC 157/6.
48. Normandy custom provided that two thirds of the dowry remained the bride’s and formed
an annuity mortgage, whereas the other third was given to the husband in the form of a don mobil that
the wife could take back if her husband predeceased and there was no issue. It gave the husband considerable power over the administration of his wife’s property. On this custom, see Charles Lefebvre,
Cours de doctorat sur l’histoire du droit matrimonial français. Le droit des gens mariés en pays de droit écrit
et de Normandie (cours de 1910-1911) (Paris: Sirey, 1912).
49. NA, CF, stack VI 325, May 20, 1630.
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MAKING MARRIAGE A FAVORABLE ACT
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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The parlement of Paris was a surer guarantee for judging eventual conflicts
concerning this marriage than that of Normandy, which was attached to its custom
and clearly rejected by the bride’s family in the present case. The Lamet family
was in a position to impose its will in the matter, since the bride was obviously
of a higher social standing. Such a clause is often specifically found in the marriage contracts of individuals with property in Normandy. For example, that of
Jean-Baptiste Langlois, councilor at the Greater Council, and Marie Feydeau,
widow of Pierre de Maupeou, president of the Chamber of Accounts, states
that it would be governed by Paris custom “without regard to the Normandy
custom and all other customs contrary to this.” As for its execution, the parties submitted to the custom and jurisdiction of Paris, any appeal having to
be made to the parlement of this city, “declining all other jurisdictions.”50 The
legal precedent of the parlement of Paris was indeed consistent, since a judgment of the court in May 1595 recognizing that the personal status of a married
woman in joint property could be taken outside customary borders. This made
for the development of a certain number of residential tactics designed to force
the judge hearing the case to apply the custom favorable to the community of
property. Drawing up the marriage contract in Paris could be enough to justify
the community of property, even if residence was temporary. Obviously, the
parlement of Rouen did not agree; but the parties only had to decline its jurisdiction, or at least be in a position to threaten a possible trial at the parlement of
Paris, to protect themselves against any challenge to the community.51 In 1645,
the rapporteur [“maître des requêtes”] Jean Courtin and his father-in-law, the
counselor at the Normandy parlement, Adrian Lamy, were sufficiently confident
in this legal precedent to have the marriage contract, established by private
deed in Rouen, merely recognized the following month by two notaries at the
Châtelet in Paris, “their intention being to make in addition the said contract
according to the provisions of the custom of the said Paris.”52
Finally we may note that it was perfectly possible to waive Paris custom
on specific points, particularly regarding community of property. This is,
for example, what Henri de Guénégaud, treasurer of the king’s savings, and
Élizabeth de Choiseul, daughter of Charles, marquis of Praslin, marshal of
France, and Claude de Cazillac, whose contract did not mention the Paris
custom,53 although according to the place of the spouses’ residence and of the
contract’s signature, it would be the one to apply on all points not provided
for in its clauses. No community of property was created by the marriage,
which is understandable when one compares the position of the two families
50. NA, CF, stack LI 207, January 30, 1643.
51. The whole argument is taken from the demonstration of Lemonnier-Lesage, Le statut de la
femme mariée. 319-324.
52. NA, CF, stack LI 216, Nov. 19, 1645, marriage contract of Jean Courtin and Marie Lamy
registered Jan. 31, 1646 before Gallois and Richer. Marie Lamy who lived in Rouen at the time of the
marriage took up residence at Jean Courtin’s home on rue Sainte-Avoye.
53. NA, CF, stack XC 65, Feb. 22, 1642.
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that were making an alliance. Élizabeth de Choiseul brought only a dowry
of fifty-six thousand Tournois pounds [henceforth TP], renouncing all her
rights in favor of her brother François, marquis of Praslin since the death of
their father. Henri Guénégaud for his part entered the marriage as elder son
and principal heir with a dowry of two-hundred thousand TP in anticipation
of the inheritance of his mother, Marie de La Croix. The entire sum was to
be returned to the donor if the bridegroom predeceased, just as the dowry of
fifty-six thousand TP was to be returned to François de Choiseul if Élizabeth
died childless before her husband. The imbalance of the spouses’ contributions was important, compensated by the eminent dignity of the de Choiseul
family. Each banking first on their patrilineage, both parties protected their
estates by multiplying the derogation clauses of Paris custom, thus retaining
the possibility of recovering them in case of the union’s failure.
Cases of marriage following a custom different from Paris are the exception, and most of the time they resulted from special considerations. Thus,
for example, the case of Renée d’Averton, already mentioned, the widow of
Jacques d’Humières, who remarried François de Faudoas, a younger son from
Gascogne: in contrast to her first marriage, the contract stipulated that the
clauses were to be understood according to the customs, that is to say the customs of the place where the property was located.54 The objective was clearly
to use Maine custom to favor the firstborn son of the couple,55 something that
is understandable in light of the fact that three children were born in the first
marriage, one of them a son, who as firstborn according to Paris custom would
inherit from his mother and father. The first son of the next marriage would
be less well off. The use of Maine custom was a way to compensate for this
disadvantage, but it disadvantaged other future children of the second union.
We may remark that families in relative social decline turned to the custom
of the place in which they were rooted, to the detriment of the Paris custom
they had formerly privileged. Thus in 1644, Charles de Vauquelin, baron of
Bazoches, captain of one hundred soldiers, wed Jeanne de La Serre, daughter
of a king’s counsel at the Caen présidial, following Normandy custom, which
the contract nevertheless waived by leaving administration of the property to
the bride and organizing upon her death donation to her husband of all assets
and real estate authorized by the custom. In return, Charles de Vauquelin
waived his and his heirs’ right to any other share of the bride’s property, who
in turn waived any claim on any avant part (previous share) and any dower in
the groom’s property.56 Charles was the son of François de Vauquelin, bailiff
54. NA, CF, stack VIII 111, Aug. 14, 1582.
55. Maine custom effectively obliged nobles to transmit all their property, except a légitime [legal
reserve] to the elder son. On the noble successions in the different customs, see Laurent Bourquin,
“Partage noble et droit d’aînesse dans les coutumes du royaume de France à l’Époque Moderne,” in
L’identité nobiliaire. Dix siècles de métamorphoses (IXe -XIXe siècles), Laboratoire d’histoire anthropologique
du Mans (Le Mans: Université du Maine, 1997), 136-165.
56. DA of Calvados, 1 B 975, Feb. 12, 1644.
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MAKING MARRIAGE A FAVORABLE ACT
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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of Alençon, who died when he was still young, and Françoise d’Averton, whose
wish to become a nun and whose mysticism made her abandon any plan to
perpetuate her line.57 This compliance with Normandy custom, in contrast
with the traditions of his family, is a clue to the limitations on social and patrimonial horizons imposed by his mother’s choice.
In some cases, the parties used Paris custom to make specific agreements and
a different custom to govern other aspects of the contract. Thus, Jean Courtin
and Marie Lamy, both property owners in Normandy, chose to marry according
to Paris custom, but the terms of the agreement were considerably more complex
than this statement might lead us to believe. The waiver of usufruct and pension
rights to which the groom would have been entitled if Normandy custom had
been followed were instead made over to the father and mother of the bride as
well as to the children of the marriage. If they all happened to predecease, use of
the bride’s estate fell to Jean Courtin, according to the terms of the Normandy
contract. Properties were to be divided after the bride’s death according to the
custom of the places where they were located. If the bride’s father and mother
had other children, it was the future husband’s choice, despite the Normandy
custom under which he would have waived his rights on this point, to take a share
of their inheritance or to settle for the sum of one hundred eighty thousand TP
in addition to the dowry of more than one hundred twenty thousand TP brought
by Marie Lamy. This sum was to be subtracted from their inheritances exempt
from expenses before their other children could claim anything at all. This is
an example of the exaggerated use of legal pluralism allowing some families to
cobble together their own rules for the transmission of property.
An absolutely remarkable case breaking with the general terms of use of
Paris custom concerns the daughters of Chancellor Pomponne de Bellièvre. The
latter had nine daughters: three entered convents between 1595 and 1603, and
six others were wed. Aleaume de Buron, notary of Bellièvre, tabellion (justice
of the peace) of Neauphle-le-Château drew up marriage contracts for Louise
and Hélène in 1594. Lusson drew up contracts for Denise, Marguerite, and
Catherine, and Le Noir drew up Marie’s. Both were notaries at the Châtelet in
Paris. All these contracts have been preserved and analyzed by Olivier Poncet
in his book on the chancellor, from which I have borrowed the following facts
and the main conclusions.58
Hélène de Bellièvre married Claude Prévost, maître des requêtes ordinaires
de l’Hôtel (counsel), residing in Paris, on July 16, 1586, bringing a dowry of
ten thousand écus (thirty thousand TP) of which only a third entered the community of property established according to Paris custom.59 Eight years later,
57. Élie Haddad, “Obéissance et Réforme catholique: Le cas de Madame de Sacy (1583-1655),”
Temporalités 2 (2005): 49-69.
58. Olivier Poncet, Pomponne de Bellièvre (1529-1607): Un homme d’État au temps des Guerres de
Religion, (Paris: École des Chartes, 1998), 331f.
59. NA, CF, stack LXXVIII 135. It is the only contract that is not mentioned by Poncet.
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she remarried Eustache de Refuge, her previous husband’s first cousin on the
father’s side, the only son of the first marriage of a counselor of the parlement
of Paris, and thus his mother’s only heir. She brought her new husband thirty
thousand TP recovered from her first marriage, to which her father added
twelve thousand TP. Here again, the contract followed Paris custom. In 1607,
when her younger sister Catherine wed Jean Aubery, another resident of Paris
from a family of rich merchants, with a dowry of twenty-four thousand TP,
the same custom was applied.60
On the other hand, the four other contracts were made according to the
custom of the places where the spouses were established. Louise de Bellièvre
was joined on April 25, 1594, to Charles de Menuau, son of an ordinary commissioner of wars, “according to the custom of the said county of Monfort
[l’Amaury].” The bride brought twenty-two thousand TP, of which fourteen
thousand remained her own. In 1596, her sister Denise wed Artus Henry,
treasurer-general of France in Riom, son of a protestant family of merchant
bankers from Lyon. The marriage was to be “governed, conducted, and regulated
according to the provisions of the written law that is kept at the said Lyon.” The
dowry was twenty-two thousand TP. There was obviously no community of
property or dower – written law applied – but an increase in dowry of twelve
thousand TP if the marriage was dissolved, in addition to all the clothes, rings,
and jewels of the wife that she could recover, or nine thousand TP, whichever
she chose.61 As for the marriage of Marie de Bellièvre to Robert Le Roux
in 1599, it followed “the Normandy custom.” 62 Its clauses conformed to the
region to which Robert Le Roux was tied, descendant of an old Normandy
family ennobled for service to the monarchy; his father had pursued a career
in the parlement of Rouen, whereas the older branch had established itself in
Paris at the Chamber of Accounts. Finally, in 1604, Marguerite de Bellièvre
wed Laurent Prunier, counselor at the parlement of the Dauphiné and son
of Artus, first president of the same parlement. The contract was governed
“according to the provisions of the written law that is kept and observed in
the city of Grenoble.”63 There was again no community of property, a dowry
of twenty-four thousand TP and an increase in dowry provided for at the
modal value of the dowry, namely twelve thousand TP.
“With this diversity of laws, Pomponne de Bellièvre may have expressed
an attachment to the legal traditions of the different provinces of France in his
personal and private behavior,” writes O. Poncet, who nevertheless sees above
all in it preoccupations of a practical nature.64 The small dowries given by the
chancellor must also be taken into account: the recognition of local law was
60.
61.
62.
63.
64.
NA, CF, stack LXXVIII 182, Mar. 15, 1607.
NA, CF, stack LXXVIII 148, Aug. 11, 1596.
NA, CF, stack XLV 120, Nov. 26, 1599.
Cited by Poncet, Pomponne de Bellièvre, 331.
Poncet, Pomponne de Bellièvre, 331
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MAKING MARRIAGE A FAVORABLE ACT
XVI
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
PARIS CUSTOM AND THE EVOLUTION OF PRACTICES OF TRANSMISSION
How can the preponderance of the Paris custom in aristocratic marriage
contracts be explained over the long term? It seems to have had the advantage
of flexibility, making it possible to create both a real community of property
that worked as a dynamic structure for the couple’s family economics, and to
protect the personal wealth of women.66
In 1577, for example, Charles de Balsac, sire of Clermont d’Entragues, the
favorite of Henri III, captain of the king’s bodyguard, married Hélène Bouve,
widow of Charles de Gondi, master of the king’s wardrobe. The contract was
made according to Paris custom, but of all the property she brought to the marriage, not valued but considerable, the bride added only fifteen thousand TP
to the community of property. Such protection was not so frequent at the
time and resulted from the bride’s status of being both a widow in possession
of her rights and an heiress. These special conditions were further enhanced
by the fact that she was allowed to renounce the community by recovering,
in addition to her property, her dower (twenty thousand TP in capital if there
were no children born from the marriage, fifteen thousand TP otherwise),
an advantage of six thousand TP, and an additional three thousand TP. In
such contracts the customary community was subordinated to the desire to
conserve property belonging to the lineage.
65. NA, CF, stack LIV, 373, Feb. 24, 1680.
66. Robert Descimon, “La fortune des parisiennes: L’Exercice féminin de la transmission (XVIe XVIIe siècle),” in La Famiglia nell’Economia Europea Secc. XIII-XVIII, ed. Simonetta Cavaciocchi
(Florence: Firenze University Press, 2009), 619-634.
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perhaps a concession to sons-in-law who were, however, in a clearly inferior
social position to their wives and their father-in-law. The latter later helped
some of them in their careers. All still remained tied to their respective regions.
They seem to have acted according to their own wishes and above all to the
custom of the places where they lived to accept or refuse the community of
property, make or not make dowers, and provide for advantages.
We note, to close this panorama of traditions and customs, that the Bellièvre
case draws our attention to the possibility of making a marriage contract in
Paris while following another custom. It might not be frequent, but it is the case
for example of Louis François Le Conte de Nonan, first captain of dragoons in
the colonel-general regiment of the king, and Françoise Marie Vipart de Silly,
Normans living in Paris who married according to Normandy custom.65 We
can thus conclude that despite the undeniable bias introduced by the mainly
Parisian sample on which this study is based, a strong domination of Paris
custom among the aristocracy of northern France remains unquestionable.
In any case it does not negate the possibilities of using customs authorized by
the marriage contract as a favorable act.
XVII
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In other cases, however, the share brought to the community of property
was larger and made the couple the core of family economic dynamics. The
wife was a major actor since the clause for reuse of personal possessions of
the community and of the husband’s personal possessions was guaranteed
by a preferred mortgage that made her position relatively strong, even if the
administration was left to the husband. Moreover, it was relatively frequent for
the administration of the community of property to be left to the wife, or even
the personal possessions of her husband, by a temporary or general power of
attorney. Contrary to what has long been thought, the system of transmission
among the nobility gave women a completely central position in the devolution
of property, assets of seigneuries, offices, and rents.67 The flexibility of Paris
custom made it possible for families to organize the devolution of property in
a relatively precise way.
It is difficult to find confirmation of this hypothesis, since the parties
rarely explain the reasons for their choice. It is however the case in the marriage contract of April 28, 1618, between Lancelot de Barat, residing at his
château of Brunelle in the Grand Perche, and Louise Servin, daughter of Louis
Servin, first counsel of the king in the parlement. The community of property
according to Paris custom had to apply even if the couple lived in a province
governed by another custom. The end of the contract is explicit as to the stakes:
And insofar as the said sire future spouse, besides the property he has in the said region
of Perche, has other properties in the region and the county of the Maine, where noble
younger sons are not entitled to have their portion except from their benefactor their whole
life through, has also been agreed in favor of the said marriage, which otherwise would not
have been made, that the children to come from the said future marriage will have their
share and hereditary portion of things located in the said region of Maine and others subrogated or holding their place by inheritance and without reversion notwithstanding the
custom of the said region of the Maine which the said parties have waived in this regard.68
Servin, son of a small financier from Vendôme, but a great jurist himself
and very aware of his own worth, refused the inflexible Maine custom of primogeniture that was to the disadvantage of the younger children for his daughter’s
descendants. Paris custom, even though unequal for the inheritance of noble
estates, still made for a much less unequal transmission between children.
Another point showing the privileged use of Paris custom is the question of dower, which was undoubtedly central in marriage contracts. Some
customs were effectively more restrictive concerning the entitlement to this
“survivorship,” as the jurists called it. Thus, upon her previously mentioned
first marriage with Jacques d’Humières, it was in Renée d’Averton’s interest
that Paris custom applied rather than Maine custom, which stipulated that a
67. Claire Chatelain, Chronique d’une ascension sociale: Exercice de la parenté chez de grands officiers
(XVIe -XVIIe siècles) (Paris: Éditions de l’ École des hautes études en sciences sociales, 2008); Élie Haddad, Fondation et ruine d’une “maison”: Histoire sociale des comtes de Belin (1582-1706) (Limoges: Presses
Universitaires de Limoges, 2009).
68. NA, CF, stack VI 296.
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MAKING MARRIAGE A FAVORABLE ACT
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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widow was not entitled to a dower greater than one third of the landed property of her deceased husband if she had already inherited from her father and
mother or other members of her lineage. More generally, the counts of Belin
almost always used Paris custom for their marriage contracts, most likely to
benefit their wives, particularly in regard to the question of dower.
Nevertheless we cannot liken the predominant use of Paris custom entirely
to a preferred means of making couples and adjusting transmission. The
changes in the balance between the different clauses specified in the marriage contracts subject to Paris custom from the second half of the sixteenth
century to the end of the seventeenth century are proof of that. The elites
in effect progressively reduced the share of women’s matrimonial property
added to the community during this period. This has been shown for the more
recent nobility, where this modal share reached two-thirds during the Wars
of Religion and the beginning of the reign of Henry IV, before diminishing
in the following decades.69 Among the earlier nobility, variations from one
contract to another seem to have been much greater, but the share of personal
property added to the community rarely exceeded a third and diminished until
it reached about ten to twenty percent. Thus, in 1604, Léonore de Thomassin,
widow of Claude de Vergy, remarried Emmanuel de Savoie, marquis of Villars, bringing one hundred thousand TP in dowry, of which twenty thousand
TP entered the community of property.70 In 1641, for the marriage contract
between Claire Nicey and François Antoine de Lamet, seigneur of Bussy, the
value of real estate was fifteen thousand TP out of a dowry of seventy-two
thousand TP.71 In 1727, among the upper aristocracy, who were even more apt
to limit community of property, Émilie de La Rochefoucauld brought seven
hundred thousand TP upon her marriage to Charles Emmanuel de Crussol, of which forty thousand TP entered the community.72 This willingness
to give more protection to matrimonial property of women is a sign of the
growing importance of patrilineages and the reinforcement of a patrilinear
shift among the aristocracy of the seventeenth century, which sometimes
also went through the use of fideicommissary substitutions.73 This evolution
accompanied more general transformations in the second order in which the
monarchy played an essential role by making appointments bearing titles
69. Chatelain, Chronique, 159-161. Robert Descimon, “Les usages de la coutume de Paris: Valeurs
morales et transmission sociale (XVIe -XVIIe siècle),” talk given at joint seminar at the École des hautes
études en sciences sociales, Jan. 9, 2009.
70. NA, CF, stack LIV 462, Feb. 16, 1604.
71. NA, CF, LI 203, Oct. 4, 1641.
72. NA, CF, stack XCII 443, Jan. 3, 1725.
73. The use of substitutions remained limited in France, including during the seventeenth and
eighteenth centuries: Élie Haddad, “Les substitutions fidéicommissaires dans la France d’Ancien
Régime: Droit et historiographie,” in Fidéicommis et mécanismes de conservation du patrimoine, ed. JeanFrançois Chauvard (Rome: École Française de Rome, forthcoming). On the whole process that made it
possible to get around equality in the Paris custom, see Robert Descimon, “Les chemins de l’inégalité.
Réflexions sur les procédés juridiques qui permettaient de s’émanciper des normes égalitaires dans la
coutume de Paris (16 e -17e siècle),” forthcoming in the same work.
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XVIII
XIX
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available to the elites and by encouraging a strictly patrilinear recognition of
aristocratic transmission.74
Paris custom thus easily accepted practices that subverted the original
function of the community of property. Sociopolitical evolutions related to the
second order thus had an influence on economic exchanges occurring with
marriage. If there were descendants, clauses protecting women’s property
were ultimately unimportant, and the system ensured its transfer, stimulating
the circulation of rents, land, and possessions. But in the absence of children
and in case of death, the husband or his family found themselves obliged to
reimburse a great deal of the property brought by the wife – often used by the
husband while remaining the wife’s own – that returned to her original lineage.
An analysis of the fortune of Charles Hubert de Mesgrigny, discussed earlier, is
a particularly eloquent example of this phenomenon.75 Upon his father’s death
in 1685, he received the essential share of the inheritance, with the seigneuries
alone estimated at one hundred ninety TP, not to mention properties left by
his grandmother, Huberte Renée de Bussy, worth more than seventy thousand
TP. This concentration of property allowed Charles Hubert to make a good
marriage with Espérance Fontaine who brought, we remember, a dowry of two
hundred thousand TP. Later, she received a whole series of very advantageous
inheritances, first from her father, Antoine Fontaine des Montées, secretary
of the king and his finances, from whom she inherited more than one million
three hundred fifty thousand TP in 1716,76 then from her uncle, Jean Lambert
Fontaine des Bordes, dean of councilors of the Grand Council, rich from many
rents and businesses in France and abroad, who died in 1726 and from whom
she received about two hundred ninety thousand TP.77 However, the couple
had no issue and used most of the sums received to allow Charles Hubert to
constitute rents, acquire a house and a domain in Châtillon, not far from Paris,
to buy a seigneury, and to buy back land from their collateral relatives in order
to consolidate the estate that he had only partially inherited. All these properties bought with Espérance Fontaine’s inheritance thus belonged to her, with
only the thirty thousand TP in real estate being put into the community of
74. Robert Descimon, “Élites parisiennes entre XVe et XVIIe siècle. Du bon usage du Cabinet des
Titres,” Bibliothèque de l’École des Chartes 155 (1997): 607-644 and id., “Chercher de nouvelles voies
pour interpréter les phénomènes nobiliaires dans la France moderne: La noblesse, ‘essence’ ou rapport
social?” Revue d’Histoire Moderne & Contemporaine 46, no. 1 (1999): 5-21. Chatelain, Chronique, and
Haddad, Fondation. This shift is not limited to France, but always seems to have been a consequence
of the formation of states and the growing importance of vertical social relations, particularly demands
by the elite for a special right to hold office, corporations, or monopolies. See David W Sabean, Simon
Teuscher, and Jon Mathieu, eds., Kinship in Europe: Approaches to Long-Term Development (1300-1900)
(New York: Berghahn Books, 2007).
75. What follows is excerpted from Élie Haddad, “Les Mesgrigny ou le coût social et moral des
prétentions à l’épée,” in Épreuves de noblesse, ed. Descimon and Haddad, 211-231.
76. NA, CF, LXXXVII 851, July 28, 1731, transaction between the heirs of Espérance Fontaine.
77. NA, CF, LXXXVII 821, Jan. 4, 1726, inventory after the death of Jean Lambert Fontaine
des Bordes. NA, CF, LXXXVII 821, Feb. 25, 1726, succession of rents of Jean Lambert des Bordes
and subdivision between Charles Fontaine de Montée, bishop of Nevers, and the Mesgrignys. NA, CF,
LXXXVII 851, July 28, 1731, transaction between the heirs of Espérance Fontaine.
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MAKING MARRIAGE A FAVORABLE ACT
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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property with the marriage contract. So, when she died, despite the mutual
donation that she and her husband drew up on March 20, 1716,78 and her will
in which she left him everything she could in conformity with Paris custom,79
Charles Hubert inherited only 125,585 TP, whereas 1,660,638 TP returned
to the lineage of his deceased wife.80
The evolution of practices in the use of the community of property in
Paris shows that if it was possible to waive customs, this does not mean that it
was possible for the actors to act freely to realize their strategies or construct
the social and legal world by their actions: these practices responded to social
norms that were not homogeneous with legal ones yet also exercised their
own restrictions. These practices could depart from the rules of custom,
sometimes significantly, but basically, as long as there was no discord between
the two families, there was no reason to contest the clauses of contracts that
applied without recourse to the law. In case of conflict, on the other hand,
the language of the law described the provisions made by the parties, and
judges thus tried to use the law to resolve the problems that arose, sometimes
creating new norms in this process. A case in point, in the 1640s, set Bon
André Broé, seigneur of La Guette, rapporteur [maître des requêtes], against
his sisters Madeleine, Anne, and Jeanne, and his brothers-in-law Alexandre
Petau and Jean LeCoq, counselors at the Parlement of Paris, and Daniel
Voisin, counselor at the Grand Council. Among the many contested issues,
one involved the inheritance of private rents coming from the inheritance of
Bon François Broé, father of Bon André, Madeleine, Anne, and Jeanne. The
seigneur of La Guette claimed that these rents should not be shared with
his sisters according to article 362 of Normandy custom stating that married daughters had no share unless expressly set aside for them. His sisters
and brothers-in-law replied that Normandy custom could not be invoked
in the matter since the rents were mortgaged and had no position. 81 The
Paris custom where the deceased was a resident could thus not be applied.
The two marriage contracts of Bon François, the first with Madeleine de
Hacqueville, 82 the second with Denise Brisson, 83 were drawn up according to
Paris custom, waiving all contrary customs, an additional argument against
Bon André. Such cases could create a legal precedent, unless the parties
came to an amicable agreement, as was most frequently the case, and this
was so for the Broés. 84
78. Mentioned in the inventory after the death of Espérance Fontaine, NA, CF, LXXXVII 848,
Nov. 21, 1730.
79. NA, CF, LXXXVII 848, July 12, 1726, will of Espérance Fontaine registered on Nov. 18, 1730.
80. NA, CF, LXXXVII 857, June 30, 1732, receipt signed by the heirs of Espérance Fontaine.
81. BNF, 4-Fm-18425, factum for Mr. Le Coq and others against Sire Bon André Broé.
82. NA, MC, LXXIII 31, Aug. 9, 1597.
83. NA, MC, CXXII 406, Apr. 28, 1616.
84. NA, MC, stack VI 240, May 6, 1647, agreement of Jeanne and Madeleine Broé, as well as
Jean Le Coq for his son Jean François, to the arbitral decision of the preceding April 22.
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Marriage, as a favorable act, largely allowed future spouses to choose the
custom that would govern their matrimonial agreements and make specific
provisions for inheritances. This simple fact certainly leads us to qualify the
usual view of the opposition between norms and practices to take into account
the perception of men of the modern age and the options that were left to them
in order to harmonize the two.85 But this perception and these options varied
according to the types of norms in play and the legal forms involved. As soon
as it was written down, the customary norm acquired a degree of exteriority and constraint in relation to the practices of the social actors that make it
impossible to think of the latter as the creators of the norm, according to the
Turin model of summary justice.86 These legal constraints were only partial
because customary law functioned only in the absence of explicit clauses, or
to settle litigation and court cases. The capacity of men of the time to create
norms was, however, limited to the autopoietical capacity of magistrates that
allowed them to direct the law to the benefit of their interests.87 There were,
moreover, evolutions in this conception of customary law, increasingly perceived
in the form of positive law that was to evolve into French common law; these
evolutions need to be evaluated to see if they resulted in less complaisance
towards the practices of the actors.88
This did not prevent the elite from using legal pluralism until the end of
the monarchy, mostly using Paris custom. There was certainly an element of
oversimplified convenience in this choice for nobles who had their acts drawn
up in the capital and who often came from different customary backgrounds.
Moreover, as in England, the concentration of well-trained lawyers was an
incentive to settle business in Paris.89 Perhaps it was also partly to reduce the
possibility of conflicts by giving preference to matrimonial clauses under this
single custom. It also had the advantage of allowing women to participate in
the community of property, which could form a structure of accumulation, the
utility of which was felt especially by merchants; and it could even also be used
in aristocratic milieus where women played an essential role in the transmission
of property. At the same time, the possibility of keeping property in the family
offered a guarantee for the woman’s lineage to recover or keep this property if
85. Thus following the strong proposal of Cerutti, “Normes et pratiques.”
86. Simona Cerutti, Giustizia sommaria. Pratiche e ideali di giustizia in una società di Ancien Régime
(Torino, XVIII secolo) (Milan: Feltrinelli Editore, 2003).
87. Gunther Teubner, Le droit, un système autopoïétique (Paris: PUF, 1993); Robert Descimon,
“L’invention de la noblesse de robe: La jurisprudence du Parlement de Paris aux XVIe et XVIIe siècles,”
in Les parlements de province. Pouvoir, justice et société du XVe au XVIIIe siècle, ed. in Jacques Poumarède
and Yan Thomas (Toulouse: FRAMESPA, 1996), 677-690.
88. In the same way that summary justice progressively lost its legitimacy in the eighteenth
century through a transformation of the native conception of the relationship between norms and
practices: Simona Cerutti, “Faits et ‘faits judiciaires.’ Changements dans le statut de la preuve à Turin
au XVIIIe siècle,” Cahiers du Centre de Recherches Historiques 45 (2010), 151-180.
89. On the importance of the concentration of the best-trained solicitors in London leading the
gentry and aristocracy to settle their affairs in the capital, see James M. Rosenheim, The Emergence of
a Ruling Order. English Landed Society 1650-1750 (London: Longman, 1998), 228-236.
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MAKING MARRIAGE A FAVORABLE ACT
REVUE D’HISTOIRE MODERNE & CONTEMPORAINE
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the alliance did not produce children. The flexibility of custom was an asset
furthering the projects of transmission in the best of the families’ interests.
But these arrangements and the derogations from the actual law of customs
or their rules depended upon good relations among the heirs: conflicts were
always capable of annulling clauses that were removed too far from social and
legal norms. The discrepancy between practices and law thus really resides
in the difference in the level on which they are placed: the practices retained
by the law are qualified according to reasons that are not homogeneous with
those of the actors.90
The constructions of aristocratic families designed to perpetuate and
transmit their property constantly confronted them with the pursuit of their
jura,91 the settling of estates and inheritances always being complicated by
the sheer number of properties and rights involved. For this reason, arrangements made in marriage contracts most often anticipated conflicts and were
partially standardized, each one acting in the legal space according to common qualifications of rights and individuals. Put simply, the legal pluralism
of the Ancien Régime and the conception of marriage as a favorable act gave
the social actors, and particularly those who had the capacity through their
possessions and social power, leeway to decide on what means to use to further a “house” or a lineage. The capacity for action at this level was therefore
socially determined.
Expanding on these remarks would necessitate a vast comparative survey
to determine precisely whether the use of one custom rather than another really
had an important effect on the devolution of property and if so, what effect.92
Only a future study of different families, the clauses of their marriage contracts,
and the inheritance of their property can lead to a better understanding of the
legal choices made by the actors.
Élie H ADDAD
90. Derouet. “Les pratiques familiales.”
91. Patrice Alex, “Succéder par raccroc: La résistible perpétuation des Hurault de L’Hospital,”in
Épreuves de noblesse, ed. Descimon and Haddad, 107-123.
92. Viret, for example, has recently questioned the idea of extreme inequality of Norman custom
concerning the devolution of fiefs: “La noblesse bas normande entre aspirations égalitaires et volonté
de distinction: Argences et Camembert du XVIe au XVIIIe siècle,” in Distinction et supériorité sociale
(Moyen Âge et époque moderne), ed. Laurence Jean-Marie and Christophe Maneuvrier (Caen: Publications du CRAHM, 2010), 147-171.
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XXII
MAKING MARRIAGE A FAVORABLE ACT
XXIII
Abstract/Résumé
Élie Haddad
Making Marriage a Favorable Act: How the French Nobility Used Custom under the Ancien
Régime
This paper analyses the way how the noble families living partly in Paris but having properties in different provinces made use of the different customs to organize the transmission of
their estate in their marriage contracts. It points out the reasons why most of them chose the
custom of Paris. It shows that marriage, as a ‘favourable act’, gave the families some opportunities
to depart from the customary laws which ruled their estate, or to depart from some articles of
the customary law they chose to rule their marriage contract. But the ability to make use of this
latitude was socially unequal and did not mean that noble families were able anyway to build the
norms by themselves. Besides, the preferential use of the custom of Paris covers up the evolution of the clauses of the marriage contracts, which are the consequences of the socio-political
transformation of nobility.
K EYWORDS : Nobility, Old Regime, Customary Law, France, Paris, Marriage n
Faire du mariage un acte favorable. L’utilisation des coutumes dans la noblesse française
d’Ancien Régime
Cet article s’interroge sur la manière dont les familles nobles possessionnées dans différentes provinces
et vivant en partie à Paris usèrent des coutumes pour organiser la transmission de leurs biens dans leurs
contrats de mariage, et sur les raisons pour lesquelles elles choisirent majoritairement la coutume de
Paris. Il montre que le mariage, comme acte favorable, octroyait une grande latitude aux familles pour
déroger aux coutumes des lieux où se trouvaient leurs biens, ou encore à certains articles de la coutume
choisie pour régir le contrat. Mais la capacité à user de cette latitude était socialement inégale et n’allait
de toute façon pas jusqu’à placer les familles nobiliaires en position de construire la norme. L’utilisation
préférentielle de la coutume de Paris masque en outre une évolution dans les clauses des contrats de
mariage, qui renvoie aux transformations sociopolitiques de la noblesse.
Mots-Clés : Noblesse, Ancien Régime, Coutume, France, Paris, Mariage n
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Élie Haddad
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