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Contested Paternity Constructing Families in Modern
France 1st Edition Rachel G. Fuchs Digital Instant
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Author(s): Rachel G. Fuchs
ISBN(s): 9780801898167, 0801898161
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Year: 2008
Language: english
Contested Paternity
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Contested Paternity
Constructing Families in Modern France
rache l g. fuc hs
The Johns Hopkins University Press

Baltimore
© 2008 The Johns Hopkins University Press
All rights reserved. Published 2008
Printed in the United States of America on acid-free paper
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www.press.jhu.edu
Library of Congress Cataloging-in-Publication Data

Fuchs, Rachel Ginnis, 1939–
Contested paternity : constructing families in modern France /
Rachel G. Fuchs.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-8018-8832-8 (hardcover : alk. paper)
ISBN-10: 0-8018-8832-8 (hardcover : alk. paper)
1. Paternity—France—History. 2. Parent and child (Law)—France—History.
3. Domestic relations courts—France—History. I. Title.
KJV894.F83 2008
346.4401'75—dc22 2007040084
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Special discounts are available for bulk purchases of this book. For more infor-
mation, please contact Special Sales at 410-516-6936 or
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and our jackets and covers are printed on paper with recycled content.
For Norman
c on t en t s
Acknowledgments ix
Introduction 1
1 Families and the Social Order from the Old Regime
to the Civil Code 16
2 Seduction and Courtroom Encounters in the
Nineteenth Century 59
3 Find the Fathers, Save the Children, 1870–1912 109
4 Courts Attribute Paternity, 1912–1940 160
5 Families Dismantled and Reconstituted, 1880–1940 200
6 Paternity and the Family, 1940 to the Present 240
Epilogue 278
Notes 289
Works Cited 325
Index 345
ac k n ow l edg m e n t s
My work on this book began a long time ago, and one of the pleasures at the
end is the opportunity to thank those who gave unstintingly of their time
and energy to provide encouragement and assistance along the way. I am
profoundly grateful to so many.
Institutional support has been invaluable. The National Endowment for
the Humanities supported this project with a year-long Fellowship for Uni-
versity Professors. The Camargo Foundation provided a semester to write.
Summer Research Grants from Arizona State University College of Liberal
Arts and Sciences for 1996, 1998, and 2000 greatly facilitated my research
trips to France.
This book would not have been possible without the services of the staff
at various archives and libraries in Paris. I owe an especially warm thanks
and much appreciation to Brigitte Lainé, Philippe Grand, and Alain Grassie
at the Archives de Paris, not only for helping find invaluable archives for me,
but also for their good cheer and dedication to the patrimoine, as well as to
history and historians. At the Bibliothèque historique de la Ville de Paris,
Geneviève Madore’s kindness has made working in that exquisite building
even more pleasant. When Mary Lynn Stewart first introduced me to the
Bibliothèque Marguerite Durand decades ago, she described it as a “feminist
haven for historians.” It remains so, and I warmly thank Annie Metz and her
staff for creating such an accommodating environment in which to work. I
also thank the staffs at the Archives nationales de France and the Biblio-
thèque nationale de France for their assistance.
From this project’s inception, I have presented drafts of chapters at confer-
ences, and I welcome the opportunity to express my gratitude to receptive au-
diences and other panelists at meetings of the Social Science History
Association, the Western Society for French History, the Society for French
x Acknowledgments
Historical Studies, at the International Congress of Historical Sciences in

Oslo, and at the George Rudé conference in Melbourne. I have also presented
portions of this work at the following institutions, and I thank them here (in
reverse chronological order of my presentations): Symposium on Reproduc-
tion in the Nineteenth Century at the Center for Humanities at Temple
University; the Department of History of the University of Washington;
Northwestern University’s French Interdisciplinary Group’s Institute on
Family, Sexuality, and the Law; the European History Colloquium at UCLA;
the Department of History at the University of Southern California; the Eu-
ropean History Seminar in the Department of History at Cornell University;
Universidade de Lisboa / University of Lisbon; Universidade Aberta, Lisbon,
Portugal; Histoire des femmes, Centre de recherches historiques, École des
hautes études en sciences sociales, Paris; and the University of Chicago Work-
shop on Inter-disciplinary Approaches to Modern France.
I am indebted to a great many people for invaluable feedback on my work.
I greatly appreciate the invitations, constructive comments, important ques-
tions, conversations, and friendship of Linda Clark, Anne Cova, Dena Good-
man, Sandra Ginnis, Jan Goldstein, Nancy Green, Steve Hause, Ray Jonas,
Steven Kaplan, Sara Kimble, Cheryl Koos, Cynthia Koepp, Peter Logan,
Michael Lucey, Pat Mainardi, Judith Miller, Jean Pedersen, David Sabean,
Vanessa Schwartz, Chips Sowerwine, and Elizabeth Veron. My warm thanks to
Suzanne Desan and Martha Hanna for stimulating conversations and for their
reading of penultimate drafts of particular chapters; I have benefited from
their expertise. Karen Offen, whom I first met in 1978, has helped me under-
stand French feminism and women’s history. I have deeply appreciated her in-
cisive comments and intellectual rigor since then, most recently when she read
Chapter 3. A portion of Chapter 3 appeared in a somewhat different form as
“Seduction, Paternity, and the Law in Fin-de-Siècle France,” in the Journal of
Modern History 72 (December 2000): 944–989, and is used here with permis-
sion from the University of Chicago Press.
I am fortunate to have colleagues who have also been good friends for
almost thirty years, and it is with profound pleasure that I can now pub-
licly thank these very special people who have read this entire book man-
uscript. They have so graciously and generously given of their time and
shared their sensitivities to French history. They have shown me how to
live our lives as historians without losing sight of our humanity to others.
They have read and offered expert critiques of almost every article and
book I’ve ever tried to publish and offered insightful suggestions with
Acknowledgments xi
style and grace on this manuscript, helping to save me and my readers

from what we have good-naturedly called my “wretched excess” and
“repetitive redundancy.” Ever since I met Lenard Berlanstein in 1977, he
has been an inspiration to me. He has shown by example what it means to
be an exemplary scholar, friend, and colleague. His reading of this manu-
script for the Johns Hopkins University Press provided affirmation of the
project and encouragement. Just a few years later, I met Elinor Accampo,
Leslie Moch, and Mary Lynn Stewart. They have become not only firm
friends and colleagues but also collaborators and comrades. I met Bob Nye
about a decade later. He also has read all my work with kindness and gen-
erosity. His own pathbreaking work has influenced me and many other
historians to think in new ways. I am very grateful to all these scholars for
their keen intellectual insights, friendship and understanding; they have
enriched my work and life in countless ways. Uncharacteristically, les mots
me manquent.
The History Department at Arizona State University has been enor-
mously enriched by hiring Kent Wright and Victoria Thompson. Kent has
spent numerous hours over lunch with me sharing his knowledge of eigh-
teenth-century intellectual history and discussing natural law. I first met
Victoria Thompson in Paris when she was a graduate student. I am de-
lighted that she has since become my colleague, friend, and collaborator. She
read this entire book manuscript and offered kind words along the way. The
History Department and I have significantly benefited from having Richard
S. Hopkins as a graduate student. I greatly appreciate the opportunity to
work with him, and I cannot imagine a better young scholar and research as-
sistant. He found newspaper articles, verified footnotes, and worked with me
on many aspects of this manuscript, including the index—all with incredi-
ble research skills and good spirits.
At the Johns Hopkins University Press, Henry Tom had confidence in me
and the patience to tolerate my missed deadlines for this manuscript as I
wrote other books that took longer than I had anticipated and assumed ad-
ministrative positions that involved an unexpected amount of time and en-
ergy, all further delaying completion of this book, and I sincerely thank him.
I have enjoyed his wit and good humor since working with him on an earlier
book. My thanks to Claire McCabe Tamberino and Julie McCarthy for their
welcome advice and calm as they worked with me in the final stages of man-
uscript preparation, and to Peter Dreyer, copy editor extraordinaire, for his
meticulous assistance.
xii Acknowledgments
I am deeply appreciative of my family and friends for their forbearance

and understanding when I neglected them during the last year of writing
this book. My love, admiration, and gratitude go especially to my two chil-
dren, Daniel Fuchs and Mindy Fuchs Lokshin, and their families, and to my
husband, Norman Fuchs. I would like to promise them all that I won’t neg-
lect them again for another book, but I’m not sure I could keep that promise.
I will try.
Contested Paternity
Introduction
“Why are you writing a book on paternity?” some friends have asked—
often adding, somewhat suspiciously: “But I thought you worked on women’s
history?” This book owes its conception to an earlier one I wrote on the poor
and pregnant of Paris. As I was editing that manuscript, I eliminated ten
pages on paternity searches and decided to write an article based on the ma-
terial from the cutting-room floor. I soon realized, however, that it would take
more than one article to understand why the Code Napoléon—the French
Civil Code of 1804—expressly forbade paternity searches (recherche de pater-
nité), and why that law remained unchanged until 1912.1 Studying legislative
discussions of recherche de paternité at the end of the nineteenth century, I
found references, not only to judicial decisions of the preceding one hundred
years, but to debates about the subject under the ancien régime of the late
eighteenth century. Upon finding the judicial archives for civil suits, I quickly
realized that they would be significant for understanding how women and
men thought about their relationships and about paternity during the twenti-
eth century. Exploring the question further led me to archives on paternity
denials, deprivation of paternity, and adoption, inspiring me to place pater-
nity in the context of reconstituted families.
Those ten pages from the cutting-room floor are now somewhere in the
third chapter of this book. My response to the second question reflects how I
view certain aspects of women’s history. I do not see paternity as indepen-
dent from women’s history, nor do I envision women’s lives as separate from
the world in which they lived. That world included men—as part of a fam-
ily, as the “author of the pregnancy,” as fathers, as members of the state
apparatus—either as part of women’s intimate lives or as outsiders mak-
ing decisions about women’s lives or commenting on them. I also situate
women’s history within gender history, looking at gender as the culturally,
2 Contested Paternity
socially, and politically negotiated roles of men and women in society and in
relationship to each other. Gender relationships within families and the in-
teraction of families with the state are critical to understanding history, so-
cieties, and culture.
I have chosen to study the French family by concentrating on those who
fell outside the conjugal unit. Two of my earlier books focused on abandoned
children and single mothers. In this book, I turn my attention to fathers and
to paternity outside legal marriage. Conjugal families, sometimes referred to
as traditional families, or more appropriately as heterosexual reproductive
families, however, are not entirely absent from this study. They are present
mainly as a referent, because until late in the twentieth century, the domi-
nant French culture regarded these idealized families as the social core and
sought to protect them from intrusion and competition by other family
forms and outside individuals. I pay attention to families that did not follow
an idealized model, revealing society’s increasing acceptance of other family
forms by the end of the nineteenth century. I examine the complex notions
of paternity and fatherhood, placing paternity within the nexus of changing
notions of the family. Paternity is not a fixed entity; it is a historically con-
tingent one—one that is constructed by men, women, their social milieu,
the courts, and the state.
Focusing on paternity as a category of family history reveals the impor-
tance of fatherhood, the family, and the law within the greater context of
changing attitudes toward parental responsibility, the development of state
welfare, constructions of the family, the rights of children, and women’s
agency. At the intersection of the social and political, of the public and the pri-
vate, issues of paternity and the family have broad implications for an under-
standing of how private acts were matters governed by laws of the state and
adjudicated by civil tribunals. I examine the development of the modern idea
of paternity and the family in France. Defining paternity was not, and is not,
a simple matter. As one French legislator said in 1883, “paternity is as myste-
rious as the source of the Nile.”2 Neither is now as shrouded in mystery as in
1883, but paternity remains problematic. Paternity was long based on the bio-
logical, but it was also socially constructed on the basis of behavior. Medical
science could not determine paternity by blood types until after the mid twen-
tieth century, and genetic testing came even later. Biological paternity was
therefore difficult to prove or disprove, although people tried. Behavior con-
strued as paternal included providing for the child’s food and education, par-
ticipating in child rearing, and expressing concern for the child.
Introduction 3
In this book, I seek to address the contested definitions of paternity and of

acceptable families, how public policy toward paternity and the family shifted,
and what individuals did to facilitate or hinder their personal and familial
ideals and goals. The issue of paternity is at the core of the controversial ter-
rain of the construction of a family as an entity formed by a legal marriage be-
tween a man and a woman, and entails competing cultural, social, and political
values about gender, class, and the family. Moreover, paternal responsibility
involved different, and often contested, notions concerning male sexual domi-
nation and female sexual vulnerability, bourgeois respectability and working-
class companionship, and gendered notions of sexual honor—all exhibited in
the public arena. I explore the debates, tensions, and changes in how individu-
als, communities, society, and the law constructed families, but my focus is out-
side the idealized model of the heterosexual reproductive family. The
historical literature on the family is vast, although much of it tends to focus on
women and children, placing paternity primarily within the context of the
conjugal family.3 Scholarly works that feature fathers and paternity in France,
with two recent notable exceptions, are general surveys covering the history
from early medieval times to the present in one volume, and only marginally
treat those issues of paternity and the family on which I focus.4
Throughout much of French history, the vast body of laws, literature, reli-
gious writings, and official state pronouncements defended the French het-
erosexual reproductive legally married and usually patriarchal family as the
basis of French social and cultural life. Transformations in the family took
place privately and informally. Although people lived in a variety of family
arrangements, such as mother-child, consensual unions, same-sex, and adop-
tive, these arrangements did not always receive legal sanction; nor did family
members always live under the same roof. As Michael Lucey has described,
“numerous conflicting family forms exist in uneasy proximity to one another.
Different social groups, different classes, different regions are all likely to
think differently about what a family is, or, one might better say, they are
likely to enact the concept of the family in different ways. . . . Within and be-
tween different social groups, attitudes toward the evolution of family forms
will be different and often in conflict.”5 Throughout most of the nineteenth
century, change in the cultural and legal acceptance of a variety of family
forms was slow and unsteady. Fathers long held authority within the conjugal
family and served as intermediaries between the family and the state. Al-
though many in positions of authority viewed the legally married conjugal
family as the guarantor of social stability, I argue that influential men in
politics and law began to accept heterosexual consensual unions as early as

1900 because they resembled marriage, and indeed were a type of marriage
for many. In the interwar years of the twentieth century, fathers’ authority
and power in the family diminished, only to have a brief recrudescence in the
1940s and then decrease again after the 1960s. By the end of the twentieth
century, those dominant views about the preferred conjugal family adapted,
although not without resistance, to include a more open system of family life
and a multiplicity of families. Examination of recherche de paternité from
1804 to 1993 sheds light on how paternity was defined and how it functioned
in the culture and experiences of individual men and women.
An investigation of the fluctuating and controversial concepts of paternal
responsibility and of the legalization of paternity searches that delineates
the complex and multilayered interrelationships of gender expectations, the
family, law, politics, and the state goes beyond the important issue of pater-
nity, I suggest. In the courts, the legislature, the popular literature, and the
press, the debates over the rights and responsibilities of parents for each
other and for their extranuptial children indicate gradually changing atti-
tudes and policies toward the family, property, seduction, and paternity, and
the role of the state in these private matters. They reflect social and cultural
shifts in assumptions about how to safeguard the legal family, while at the
same time protecting children born outside of marriage. As reformers and
politicians debated the issue of paternity outside of marriage, they main-
tained the centrality of the legal conjugal family to the well-ordered state.
Yet as they (re)negotiated the social construction of the French family, they
faced the fact that extranuptial children required material support. Further-
more, although conjugal families may have been the ideal, the reality was
that men and women lived their lives in common—eating, drinking, and
sleeping together—outside a marriage established in law. Realizing that
parental responsibility existed within and outside legal marriage, judges and
legislators focused on the degree of the father’s accountability external to
marriage.
Law validates the existing power structure and communicates established
ideas about proper behavior; it embraces widely shared social assumptions
designed to reflect and protect the values of the polity, even when the polity
consists of a small elite to the exclusion of others. According to the legal his-
torian André-Jean Arnaud, the aim of the Civil Code in 1804 was to sanction
social order as conceived by the bourgeoisie.6 By the twentieth century, that
perception of the social order had changed. Law, nevertheless, is culturally
Introduction 5
bound, created according to certain rationales, and it has only a limited ca-
pacity to reconstruct social and intimate lives according to certain general
norms and principles. Law lagged behind social and cultural change, be-
cause people found their personal and intimate lives too important to be left
to the dictates of the written law. Given this discordance of the law with
how people lived their lives, and with society and culture, individuals and
judges ignored or transgressed the letter of the law until the law eventually
changed. Modification of law results from the interaction of ruling groups
attempting to legislate their desires and of popular movements altering atti-
tudes to effect legal change. I argue that jurisprudence, defined as a body of
judicial decisions, revealed a greater diversity of attitudes toward paternity
and the family and kept pace with the changing society and culture better
than did the law.
Paternity, jurisprudence, and family law in modern France revealed cul-
tural shifts that reflected multiple renegotiations of relationships between
the family and the individual, the individual and the state, women and men,
and parent and child. Those cultural shifts involved redefinitions of the
family, adjustments in the balance between individual rights and the social
good, as well as expanded applications of individual rights to women and
children. Although men and women probably did not think of the law as
they lived their private lives, law made its presence felt, with all its tensions.
As Michel de Certeau has argued, everyday life and the law were mutually
defining and “mutually constitutive processes.” Certeau’s “investigation of
the ways in which users—commonly assumed to be passive and guided by
established rules—operate” is particularly relevant as a framework for un-
derstanding civil litigation involving family matters. By initiating paternity
suits, women, who are usually considered to have been among the powerless,
used the law and courts as tactics of resistance to “reappropriate” space,
power, and resources. Those women who initiated civil suits were habitually
“consumers” rather than producers of the cultural forms that law and the
powerful imposed upon them. Nevertheless, by filing suits they engaged in a
“combat” to “invent” or deal with everyday life “by poaching in countless
ways on the property of others.” In doing so, they made the “rituals, repre-
sentations and laws [that had been] imposed on them something quite dif-
ferent from what their [originators] had in mind.” Their narratives began a
series of “contingent social actions,” resulting in legal decisions about their
families and personal lives.7 Men and women may not have been conscious
of the law, but the law in some ways circumscribed aspects of their lives. It
had the inherent capacity to structure power relationships, relationships that

were sometimes disputed and disrupted. I am well aware, however, of the
limitations of law in people’s lives, agreeing with Pierre Bourdieu: “Law
does no more than symbolically consecrate—by recording it in a form that
renders it both eternal and universal—the structure of power relations
among the groups and the classes that is produced and guaranteed practi-
cally by the functioning of these mechanisms.” 8 As men and women tried to
negotiate the law, they drew on it tactically and differently from each other
and from the intentions of the legislators and judges.
The courtroom served as the arena for the struggle between laws and pri-
vate behavior and between men and women. In adjudicating family matters
such as paternity searches, judges interpreted and enforced a body of laws,
but those laws left them much leeway as they weighed the evidence from
men, women, and their lawyers. Michel Foucault called doctors the new con-
fessors in a secular age. While not denying that doctors perform that func-
tion, I would suggest that judges and lawyers also served as confessors.9
When men and women went before lawyers and judges to seek approval and
win their cases, they likely minimized their sins and transgressions and em-
phasized their virtues, hoping to give their lawyers and judges the informa-
tion necessary to win their cases. Judges could not grant the men or women
spiritual absolution, but they could absolve men of paternal responsibility;
they could likewise grant or deny women what they had requested. Women
held power in presenting their legal cases; men held the power to bring
countercharges, usually alleging the women’s lack of virtue.
Judicial archives provide the major sources for this book. They contain le-
gal decisions that illuminate the dark recesses of private lives, allowing us to
discern the intimate relations of men and women who themselves left no
written records. Judgments in civil suits also allow us to see how judges in-
terpreted the law, and how the law affected private lives, moving the law out
of the realm of public political discourse and into that of private practice.
These court records depict the interaction between the state and the individ-
ual, but the voices of the men and women are mediated and heard only in-
directly through the judicial decisions, unless letters are included in the files,
which was infrequent. The letters, moreover, are only those that the men
and women chose to submit to their lawyers and judges, and that those
judges chose to include in the files. Men and women tell their stories with
gender-specific language, which I call “creative nonfiction,” according to
what they thought their lawyers and judges wanted to hear. They built their
Introduction 7
narrative strategies, however creative they might have been, using concepts
of morality and rights. To initiate a legal suit demanding one’s rights in
court is one of the rights of citizenship in a democracy—an active citizen-
ship that women did not officially have in France until 1944. Individual au-
tonomy is also an aspect of active citizenship, a trait normally associated
with masculinity.10 I suggest, however, that women were also exercising a
type of autonomy and citizenship when they filed legal suits, despite the in-
terdiction against paternity suits during the nineteenth century and the
complications and delays in these proceedings during the twentieth. Since
women could not exercise their autonomy based on their rights as individu-
als or citizens, they went to court as innocent victims and good mothers—
one or the other, preferably both.
Gender was performative in legal suits involving sexual behavior and pa-
ternity.11 Before their lawyers and judges, women created their identities to
fit their particular personal needs, but also, by necessity, according to the
moral and cultural imperatives of their time. The Rousseauist feminine
ideal of women as virtuous, faithful, self-sacrificing, modest mothers per-
sisted into the twentieth century, but not without some changes. In the nine-
teenth century (see Chapter 2), women appeared as young, innocent,
vulnerable, seduced and abandoned good mothers. In the twentieth century
(Chapter 4), because it would help them win their suits, they frequently con-
tinued to present themselves as young, innocent, and vulnerable; but they
also appeared as more independent, engaging in voluntary heterosexual re-
lationships, either living with a person without marriage or having a more
fleeting love affair. Nevertheless, they still had to demonstrate that they
were good mothers according to the standards of the time. In no case could
they present even a hint of sexual promiscuity. Writers, politicians, and
magistrates of the Third Republic lauded bourgeois reproductive conjugal
families and held up marriage as the ideal, but they inconsistently and hyp-
ocritically acknowledged and often accepted voluntary heterosexual rela-
tionships outside of marriage. Women, their lawyers, and empathetic judges
challenged and helped change laws and definitions of proper behavior. Poor
young women, as well as those with property, “rebelling against conven-
tional womanhood,” challenged their traditional roles.12 They rebelled by
their sexual behavior and in pursuing paternity suits in court. At the same
time, they presented themselves as having conventional behavior as good
mothers in order to have their somewhat unconventional nonmarital sexual-
ity accepted.
Men based their successful performances as defendants in paternity suits on

appearing to have acted honorably, usually by having provided some material
support for the women and children. They justified their having ceased to pro-
vide support by charging that the women had behaved dishonorably. When a
woman named a particular man as the putative father of her child, his best de-
fense was a good offense—accusing the woman of having many lovers and
thus casting doubt on his paternity. Men’s acceptable self-representation was
culturally complex and time-dependent. Libertinage may have been accept-
able behavior through the first half of the nineteenth century, but starting at
the end of that century, men were expected to act responsibly. After the devas-
tating loss of the Franco-Prussian war in 1870, French politicians became ob-
sessed with the specter of a smaller and weaker population compared with
Germany. Providing evidence of masculinity by fathering children now came
to demonstrate virility and the performance of a man’s natural duties. When
men behaved irresponsibly by abandoning women with whom they had had a
sexual relationship and failed to provide for the children of that relationship,
they lacked not only a sense of duty but also of honor. Jean-Jacques Rousseau’s
ideas resonated in the twentieth century. If women were still supposed to be
good mothers, à la Rousseau, then according to the same ideology, men were to
be good fathers and provide for their children’s education and material
support—unless they could prove non-paternity. As Robert Nye has magnifi-
cently argued, the bourgeois paterfamilias was a man who aspired to honor
and status, and who developed particular family strategies dependent on mar-
ital fertility and the control of sexuality—not only his but also that of his fam-
ily members. Women’s indiscretions could result in loss of honor, and having
an extranuptial child could create problems of inheritance.13
“[T]he transformation and fragmentation of knowledge and values be-
ginning in the eighteenth century assisted the diffusion of sexuality, and all
of this change was associated with the ascendancy of the bourgeoisie,” Fou-
cault argues. The bourgeois family, he adds, was “an agency of control.”14
The concern with sexuality entailed a bourgeois male’s anxiety about
strengthening his control of the family and, by extension, of the polity.
Men’s discourse on paternity and sexuality therefore involved male protec-
tion of the family and the nation, which centered on men’s property and
concern for the social and moral order—an order that involved attempting
to control women’s sexuality. Although the bourgeoisie, according to Fou-
cault, sought to reform and organize the sexuality among the poor, particu-
larly the poor women, to form them according to the conventional conjugal
Introduction 9
family, these attempts largely failed. Foucault’s analysis may speak to aspects
of nineteenth-century discourse, but after 1918, his analysis breaks down,
because men’s and women’s sexuality is less under the moral microscope of
medical and state authorities and more open and acceptable.
Inherent in histories of heterosexuality are questions of domination and
power. In the nineteenth century, laws and culture gave men dominant sex-
ual power not only within the home but also outside it. A woman could exert
her power in the courtroom by requiring that the magistrates condemn a
man to pay for his sexual actions. To do so, however, took time, money, and
energy; her success was far from guaranteed. Moreover, a woman’s power
was based on her weakness. She had to show that she was a virtuous victim
of a man’s sexual power. In the twentieth century, with consensual unions
accepted as partial proof of paternity, men and women had greater equality
in the sexual arena. Unmarried mothers, although economically and socially
weak, had power over their children that married women lacked. Single
mothers held parental authority, because they recognized those children.
Even when judges ruled that men should be responsible for their sexual acts,
those men did not have paternal authority over the children, a power that
belonged to the mothers in France until the very end of the twentieth cen-
tury. Sexual behavior is usually private and intimate, but going to court for
paternity and child support entailed providing proof of sexual relations,
thereby making one’s love life and sex life public and pushing the bound-
aries of the right to privacy. In particular, the bourgeoisie cherished this
right to family privacy, and fear of having it abridged was one of the obsta-
cles to permitting recherche de paternité. Family relations and sexuality be-
came very public issues when relations between men and women broke
down, in divorce, disavowal of paternity, or paternity searches.
Laws and judicial decisions on standards of parental responsibility were
constituent elements in the growth of state intervention in matters regard-
ing women and children toward the end of the nineteenth century. As “the
provident state” assumed a more active role in the family lives of poor
women and children through various child-centered welfare measures,
legally sanctioned paternity searches became another aspect of public in-
volvement in the family, along with efforts to preserve the lives of babies
and counter depopulation by public assistance and other means of legal and
moral persuasion. French politicians attributed many of their nation’s mili-
tary and social woes to what they perceived as national depopulation. Main-
taining that national depopulation derived from cultural degeneration and
the failure of men and women to do their parental duty, politicians sought
ways to provide for the children; having biological fathers contribute to the
support of their children was one way to do this.

This book explores five themes. The first involves the power of judges, demon-
strating that activist judges are not a recent phenomenon. I had not antici-
pated finding the roles of judges and the courts so important. The judiciary
was closer to the people than the legislature; this was important when at least
half the population did not yet have the right to vote. Decades ahead of the
law, bending and stretching it as they saw necessary, judges reflected local
mores and morals, demonstrating a degree of empathy with the private situa-
tions of both men and women. Judges and civil tribunals also represented the
state, making the courts sites of confrontation between state policies and the
intimate lives of individuals, with judges often functioning as intermediaries.
The second theme is the idea that paternity was divisible in terms of re-
sponsibility. When I began this study, I equated paternity searches with a de-
mand for child support. How wrong I was. During the nineteenth and
twentieth centuries, magistrates, mothers, and putative fathers divided pa-
ternity between a man’s obligation to supply only a subsidy for food and his
obligation to endow the child with full filiation that went beyond material
child support. Filiation required that the father provide his child with his
family surname, a portion of his inheritance, and assimilation into his fam-
ily lineage with all the rights and responsibilities of belonging to that fam-
ily; it could also include adoption. Filiation was not the equivalent of paternity
based on biology, and did not necessarily include social fatherhood. Mar-
riage, however, usually involved full filiation, and a husband was usually the
biological father as well as the social father. For “natural children” (a term I
prefer to “illegitimate children”), filiation tended to be the judicial determi-
nation of paternity that involved placing a child within the father’s family.
Providing full filiation to a natural child had an impact on the cherished
bloodline of the bourgeois family, something men, families, and most legis-
lators sought to avoid. Therefore, filiation of a natural child was the focal
point of debates about paternity and was fundamental to consideration of
the law that prohibited and then permitted recherche de paternité. But in the
practice of everyday lives, filiation was not essential, even to women who filed
paternity suits. Because full filiation was so problematic and controversial,
judges divided paternity between filiation and provision of child support.
Introduction 11
Paying a pittance for child support only until the child’s majority, at which
time all obligations ended, minimally affected a man’s family property. It
did not entail a name, family association, or inheritance, as filiation defined.
Paternity was also divisible between a biological connection and social fa-
therhood. The latter required “acting as a father” by helping rear the child
and providing for the child’s education, in the French sense of upbringing.
The “author of the pregnancy,” or genitor, was not always the social father;
biological paternity did not automatically result in a fatherly relationship
with the child. This was a particular issue when the child was born outside
of a legal marriage and there were no biological tests of paternity. In the
twentieth century, with modern technology, the social father was not always
the genitor. Paternity might be considered a symbolic liaison conferring an
inheritance and lineage, while fatherhood also involved emotional and social
ties. The culture and the courts were redefining paternity and what it meant
to be a good father.
What are the boundaries of acceptable familial and extrafamilial behavior,
and when and why did they change? The third theme traces the idea and
practice of cohabitation, or consensual unions, what the French call concubi-
nage, without any pejorative connotation. Concubinage was not only prac-
ticed among the urban poor throughout the nineteenth century, but the 1912
revision of the article in the Civil Code pertaining to paternity searches ac-
cepted it as a lifestyle providing a possible proof of paternity. At the end of
the nineteenth as well as at the end of the twentieth century, legislators,
judges, and reformers were quoting with approbation the aphorism of An-
toine Loysel (1536–1617): “Boire, manger, coucher ensemble, c’est mariage ce
me semble” (Drink, eat, sleep together, that’s marriage it seems to me), while
blithely ignoring its ironic qualification: “mais il faut que l’Eglise y passe.” At
the end of the nineteenth century and into the twentieth, it was applied to
heterosexual couples; at the end of the twentieth century, it included same-
sex couples as well. Nevertheless, concubinage is not a legal marriage. Hetero-
sexual couples have the right to choose between concubinage and a legal
marriage; homosexual couples do not. To recognize, describe and understand
how, why and under what circumstances the French accepted concubinage as
a family form is part of the third theme.
Fourth, this book studies the change in sexual mores from the assumption
that women who had natural children were immoral to some recognition in
the twentieth century of a woman’s sexual independence, without casting as-
persions on her morality, as long as she had only one sexual partner. Because
barrier contraception was unknown, illegal, or not readily available until

1967, a woman’s sexuality was not separate from reproduction, and if there
was a child, she was expected to behave as a good mother. The representation
of women who had a child outside of legal marriage went from that of se-
ductress to that of one innocently seduced, and from sexual sinner to victim.
At the beginning of the nineteenth century, women had to present them-
selves as innocent victims in order to have judges hear their cases and perhaps
award in their favor. By the twentieth century, that was no longer always the
case. What happened? I suggest that a new and overwhelming concern with
the lives of children, in part out of the national interest, occasioned the
change. This book traces the shift in the moral values that served as the basis
for preserving social order.
Along with a transformation in perceptions and representations of
women’s sexuality came a modification of how men were expected to be-
have, involving new concepts of responsibility and honor. Men’s exercise of
individual freedom in their sexual activity and acknowledgment of pater-
nity came to have some limitations. As its fifth theme, this book analyzes
how paternity came to encompass voluntary social and emotional father-
hood, involuntary judicially declared paternity, and biological paternity in
many variations.
Observing a generally chronological approach, the first chapter details the
debates on seduction, sexuality, paternity, adoption, natural law, and the fam-
ily during the successive stages of the Revolution, culminating with the
Napoleonic Civil Code of 1804. Following the maxim that in order to protect
children, “whoever creates the child must provide for it,” Old Regime custom
and courts permitted the naming of the father for the purposes of obtaining
child support. During the course of the Revolution, legislators abolished pa-
ternity searches. Struggling with a conflict between the natural rights of
children and those of fathers, they argued that paternity searches were
against natural law and would interfere with a man’s liberty. By 1804, the
men who framed the Civil Code sought to guarantee the sanctity, tranquility,
and property of the family under the husband’s authority. They designed a
code to calm men’s fears that a woman (assumed to be working-class) would
seduce a middle-class family man and accuse him of fathering her child in or-
der for her to obtain money or introduce that child into his family’s inheri-
tance line. Legislators declared that all children were fatherless at birth and
“only marriage makes a father.” By forbidding paternity searches, the Code
protected the legally married heterosexual reproductive family and con-
Introduction 13
firmed marriage as a public act, placing family behavior firmly in the public
discourse. This framework provided by the Revolution and the Napoleonic
Civil Code would last for at least the following two centuries.
Chapter 2 examines how men, women, and judges managed to live and
work within the confines of the Civil Code during the nineteenth century.
Politicians upheld the letter of the Code, avoiding decisions that might have
impinged on the honor and power of the male head of household and the
transmission of his family name and property. Since reformers and politi-
cians privileged marriage and the transmission of the family name and
property over paternal responsibility for extranuptial children, they re-
garded permission for a single mother to sue a putative father for paternity
as an endangerment of the conjugal family. The social order depended upon
the family and the containment of woman’s sexuality. Honor and property
were integrally connected and conferred status. Yet a tension existed be-
tween the law and family practices, and during the second half of the cen-
tury, parents and judges attempted to reinterpret, or even bypass the laws to
accord with their lived experiences. Using an article of the Civil Code per-
taining to property damages, judges let unwed mothers demand civil dam-
ages from putative fathers despite the prohibition of paternity searches. This
chapter narrates these stories within their cultural context, demonstrating
how judges considered paternity divisible between full filiation and mere
provision of child support.
Legislative debates from 1878 to 1912 take center stage in the third chap-
ter. The reversal of the 1804 prohibition of paternity searches was less than
absolute; it exempted married men from paternity suits, thereby revealing
legislators’ inclination to preserve the rights and property of married men
and their families, even when the preservation of those rights threatened the
welfare of fatherless children. Nevertheless, the 1912 law demonstrated a cul-
tural shift that involved a limited redefinition of the family, an adjustment of
the balance between individual rights and the social good, as well as an ex-
panded application of individual rights to women and children. The histori-
cal tapestry of thirty years of legislative debates, court decisions, and feminist
positions over the complex topic of paternal responsibility was woven from
contrasting threads of debate. This chapter examines several major develop-
ments leading to the passage of the law.
Chapter 4 recounts how paternity functioned within social and cultural
parameters from 1912 through 1939. Although the legally married two-
parent family remained fundamental to French ideology, in the twentieth
century, acknowledgment of concubinage as a basis for paternal child sup-

port indicated a reconfiguration and expansion of the social construction of
the family. I sampled the hundreds of paternity suits women brought before
the civil courts of Paris between 1912 and 1939 in order to determine the sit-
uation of the women who filed paternity suits, their reasons for doing so, the
nature of proof and evidence, the characteristics of the couple’s relationship,
and the judges’ decisions in declaring paternity with full filiation or just
mandating child support. The court records reveal public attitudes about
good parenting, acceptable sexual behavior, and how men and women fash-
ioned their cases. The courts were sites for generating paternity and father-
hood and for constructing families, as women and men reconceptualized
gender relations and male responsibility.
Chapter 5 breaks with chronology and the focus on recherche de paternité;
it examines different aspects of contested paternity and family constructions
from the last decades of the nineteenth century to 1940, including disavowal
of paternity, deprivation of paternity, and adoption. Although this book does
not engage with paternity issues surrounding divorce, I sampled court records
on divorce in which a father disavowed paternity of his children born within
marriage, as well as all other court cases for disavowal of paternity based on a
woman’s adultery. The judicial dossiers on mothers and fathers whom offi-
cials sought to deprive of parental authority provide the details of how the
critical legislation of 1889 depriving fathers of their puissance paternelle (pa-
ternal authority) functioned. The third, and longest, section of this chapter
discusses families reconstituted by adoption. I loosely define adoption to in-
clude foster parentage and kinship care networks; these were ways of creating
families of choice, even without the law, which did not permit legal child
adoption until 1923. The archives containing confirmations of adoption in
Paris for the 1920s and 1930s provide evidence that paternity and families
based on emotion coexisted with families based on blood and property.
The last chapter functions as a coda, taking the history of paternity and
the social construction of the French family from the Vichy era through
the beginning of the twenty-first century. An analysis of several cases of
family disputes and paternity searches under Vichy demonstrates some
consistencies with the end of the Third Republic and illuminates impor-
tant aspects of the relationships between politics and the family. In the
post-1945 period, new laws regarding paternity and the family rapidly
broadened the grounds for paternity searches and family formation. For
example, after 1972, a man who had a child as a result of his adultery
Introduction 15
could be brought to court on paternity charges; since 1993, DNA tests have
been the legal base for determining paternity, thereby forcing a reconsid-
eration of both its biological and social basis. By 2000, Loysel’s “Boire,
manger, coucher ensemble . . .” still did not define a legal marriage, but it
had come to represent a legal family.
c h a pt e r on e
Families and the Social Order

from the Old Regime to the Civil Code
Families are adaptable forms of private and public relationships. As men

and women fashion their families, private passions frequently conflict with
an ideal family form. From the eighteenth century through the formulation
of the Civil Code in 1804, the legally married family remained the political
and social ideal, the bastion of social order. As authorities sought to safe-
guard it from disruption, they had to grapple with the results of private pas-
sions that threatened their ideal.
Seduction and sexual love outside of marriage have been facts of life
from time immemorial, and essentially, women bore the consequences—
pregnancy and the responsibility for childcare. Until the last decades of the
eighteenth century, customs, laws, culture, a sense of duty, and judges’ deci-
sions could compel a number of men to accept some financial liability for
their sexual activity, especially if it resulted in the birth of a child. If a
mother named the putative father or “author of the pregnancy,” magistrates
could order him to pay child support or repair the damage to the woman and
her family, but those same magistrates disallowed introducing the illegiti-
mate child into the legitimate family. The child had no legal inheritance
rights from the father or his family, although people always found ways
around the law. Magistrates, however, decreasingly granted reparations or
child support to the mother, only reluctantly giving credence to a woman’s
sworn testimony designating the putative father. Revolutionary upheavals at
the end of the century, paying heed to the natural, civil, and individual
rights of men, resulted in legal and social modifications to eighteenth-
century practice. Family formation and the nature of paternity became
more inextricably linked to family property—notably that of men, with the
Revolution marking a transition in relationships between the family and the
Families from the Old Regime to the Civil Code 17
state. The 1804 Civil Code set the course for the legal construction of pater-
nity and the French family for over one hundred years. Throughout the
nineteenth and twentieth centuries, scholars, magistrates, laws, culture, and
the individual behavior of men and women hearkened back to eighteenth-
century concepts as they sought to maintain the sanctity of the legally mar-
ried family. How individuals and authorities dealt with seduction and
paternal responsibility underwent subtle, and sometimes drastic, shifts.
Seduction and Paternal Responsibility

in the Eighteenth Century
To protect property transmission along bloodlines and to reinforce male
dominance, men wanted women to be chaste outside of marriage.1 Yet those
very men seduced women outside of marriage, and women succumbed to se-
duction, passion, and love. Eighteenth-century seduction included gifts, sweet
words, promises of marriage, and sexual activity. In addition, it often in-
cluded fraud, rape, and other forms of violence against women. Although
fraud and violence were usually criminal misdemeanors, courts tended to ig-
nore a woman’s complaints and even sometimes blamed her. Magistrates
were more likely to entertain her complaints if she brought evidence that the
violence had been extreme and she could show scars, or if she had visibly and
publicly resisted, or if she were of a higher status than her seducer, or was of
impeccable virtue, or if abduction had accompanied the seduction or rape.2
Age was also important, especially when the woman was a legal minor. If a
man seduced her with a promise of marriage without her father’s consent to
the marriage, authorities might consider it rapt. Although rapt could include
rape, it usually indicated nonviolent seduction against the wishes of a
woman’s father. Writing in 1781, Jean-François Fournel, a leading legal au-
thority, distinguished séduction from rapt de séduction: séduction was against
the woman alone; rapt de séduction involved a man abducting a young woman
from her parental home, usually with the avowed intent to marry her with-
out her father’s permission. Legal authorities considered rapt de séduction an
injury to the authority, honor, and property of her father and a crime against
the family, state, and society.
Laws proscribing rapt de séduction were intended to protect the property and
pedigrees primarily of aristocratic families and to ensure the stability of society
by preventing unworthy marriages and the corruption of social mores.3 With
rapt de séduction, a stranger in effect intruded on a father’s control over his
property, in this case, his daughter and any offspring she might have who could
inherit his material property.4 The Ordinance of Blois in 1730 established the
death penalty for rapt de séduction without a marriage promise, although that
sentence was rarely imposed. In practice, the social status of the perpetrator rel-
ative to the victim’s family determined the severity of punishment. The lower
the station of the person responsible for the seduction and the higher the sta-
tion of the victim, the harsher the punishment. A man could avoid the death
penalty if he and the woman agreed to marry, and, more important, if this
marriage had the consent of her family as well as his. Eighteenth-century liter-
ature and moral codes are inconsistent about whether a man should be allowed
to marry the women he had seduced or abducted, even if her father eventually
consented.5
Valid marriages based on individual will, with the consent of family and
community, formed the foundation of society. Secular law considered mar-
riage as a contract, perpetuating the family for generations; canon law
viewed it as a sacrament. To both secular and ecclesiastical authorities, mar-
riage needed the free and unfettered agreement of all the parties, particu-
larly the parents. Seduction by fraud and violence, especially rapt de
séduction, was against the will and consent of the woman and her family;
therefore, according to legal theorists, she should not be allowed to marry
the seducer or rapist. Even seduction without force or fraud, but without
consent of the families, reaped social disapproval. If the young woman were
a minor, the situation for the man who seduced her, and even married her,
without her father’s permission was particularly grim, constituting an abuse
of her father’s family authority. Law courts could declare such a marriage
null and the man guilty of rapt de séduction. The penalty for seduction was
less severe if a woman who had reached the age of majority (adulthood)
married without parental consent. Then the man was not liable for prosecu-
tion for rapt de séduction, but both the new husband and wife had to leave
their parental property and could be disinherited for failure to do their duty
to their families.6 After rapt, a woman of any age became damaged goods to
her family, especially if she became pregnant. Therefore, both sets of par-
ents might ignore the law and consent to the marriage to save their honor, if
not the life of the young man.
Contradicting the theoretical need for free and unfettered consent to
marriage, judges acting on their own sometimes ordered the seducer to
marry the woman, despite laws and customs proscribing such a marriage.
The law may have said one thing, but families, public opinion, and some
magistrates argued that the mother and father of an out-of-wedlock child

should be allowed, if not actually encouraged, to marry. Progeny sometimes
led to a shift in views. In 1722, the law court of Burgundy “convicted Jean-
Baptiste Bailly de Bailleuville . . . of rapt against Jeanne Caulnier de La
Noue, the underage and seven-month-pregnant daughter of an avocat at
Charolles . . . ordering Bailly to marry the young woman within three
months or pay her father in her name 4,000 livres in damages, plus 400
livres to cover the costs of childbirth expenses, plus unspecified expenses for
raising the child to the age of fourteen, when he was to learn a trade suitable
to his status.” Allowing, or ordering, a seducer or the person guilty of rapt to
marry the woman was “thus subverting the notion that rapt per se was an
impediment to a valid marriage.” Knowing that some courts were ordering
men to marry the women they had seduced, the women may have gone to
court in order to marry a man they loved without their father’s approval and
used rapt de séduction to get their own fathers to allow them to marry the
men who had supposedly kidnapped them.7
A formal engagement created a mutual obligation to marry and consti-
tuted a pact that a person did not break without consequences. In his
monumental and widely accepted treatise on eighteenth-century law,
Robert-Joseph Pothier considered an engagement as a contractual agree-
ment, part of the social and political order.8 In a culture in which marriage
was as much about the community as about the couple, a marital engage-
ment was publicly acknowledged and customarily approved, making private
matters public among the community. To be valid, a marriage promise had
to have been officially executed before official witnesses; sometimes four close
relatives of both parties sufficed. Since marriage was supposedly based on
free consent, if a person ruptured an engagement, parents or judges could
exhort, but not force, that person to marry. Breaking an engagement pre-
vented the greater evil, that of a coerced marriage. Considering a marital
engagement as a contract, a wronged party (most often the woman) could
sue for damages if the other person broke the contract.9 The jilted person
had to appear before a judge in the hometown of the person who broke the
engagement. The judge would then decide on the compensation (dom-
mages-intérêts) the person breaking the promise must pay. The amount
would depend on the cost borne for the upcoming wedding, the affront to the
injured party resulting in loss of material or symbolic capital, and whether
the jilted woman was pregnant. Secular judges determined whether the
rupture would result in reparations to the wronged party, but ecclesiastical
officials could pronounce the dissolution of the engagement and impose

penitence, such as prayers or giving alms. In 1791, as an anticlerical move,
the Legislative Assembly made marriage a civil contract, but this law and
the subsequent Civil Code of 1804 remained silent on the contractual nature
of an engagement. Legislators resisted forcing marriage on a man, but dis-
agreed on whether a pregnancy should increase the reparations a man could
owe a woman for breaking an engagement.10
A person could find several acceptable grounds for breaking an engage-
ment. Most often a man accused his fiancée of having had sexual relations
with another. Although his language emphasized her alleged lack of virtue,
related legal treatises underscored a man’s need to be sure a child was his in
order to secure the family’s lineage. Since the principal goal of marriage was
procreation, other acceptable, but less frequent, grounds for breaking an en-
gagement included his sexual immaturity, impotency, lack of reason, an al-
ready existing marriage to someone else, belonging to a religious profession
requiring celibacy, rapt de séduction, and close degrees of consanguinity.11 A
man’s sexual relations with another woman during the engagement were not
an issue; her relations with another man were. The proven validity of the
marriage promise was of paramount importance to winning the suit.12 If the
woman were pregnant, whether or not she had been engaged to the putative
father, she had some recourse to law and social practice to try to repair her
honor and claim some child support.
From the sixteenth through the eighteenth centuries, an unmarried
woman or widow was supposed to file a declaration of pregnancy (déclaration
de grossesse) informing a local noble, notable, clergyman, or midwife that she
was pregnant and naming the “author of the pregnancy.” By an edict of 1556
(reiterated in 1708), Henri II confirmed this procedure as a means to prevent
abortion and infanticide, based on the supposition that if the woman could ob-
tain monetary assistance from the responsible man, she would not have to re-
sort to these desperate measures. Equally important, the edict was intended to
reduce the economic drain of illegitimate children on the royal, seigniorial,
and community treasuries by affixing responsibility on the author of the preg-
nancy. These déclarations de grossesse had never been obligatory, but if the
baby were to die at birth, having previously publicly declared the pregnancy
was one way for a woman to avoid the charge of infanticide, which could lead
to the death penalty for her. Women also filed a declaration naming the puta-
tive father in order to collect reparations for the material and moral damages
he had caused them. They wanted their seducers to bear the cost of their
lying-in and to provide some sustenance to the child. Neither Henri II’s edict
nor subsequent decrees fixed the form and format of the declarations. With
much variation in regional custom, the déclarations de grossesse provided the
first step in paternity suits, but their usefulness rested on authorities’ confi-
dence in the woman’s word. In some areas of France, they were rare and filed
late in the pregnancy. Women would wait as long as possible, until they were
sure that their seducer would refuse to help or marry them. Marriage had be-
come the woman’s obsession during her pregnancy, but by the time of child-
birth, she had lost hope and would name the father, under oath, in the
presence of a midwife or priest, during her labor pains. Already dishonored,
with little expectation of marriage, she hoped for a miracle by naming the fa-
ther.13
Clandestine liaisons come to light in the déclarations de grossesse. The
women rarely mentioned rape by a person unknown to them; when a
woman did mention that she had been taken by force, she identified some-
one she knew, such as her boyfriend, her sister’s boyfriend, or a neighbor
who had found her alone. If she were a domestic servant, she sometimes
named her master or his son. Declarations by women who were recent mi-
grants to a town or city indicate their naïveté and vulnerability to seduction.
These sexual relationships were of both long and short duration, but the
women making the declarations were young—in their early twenties. The
declarations provide voices to women constructing narratives that would be
credible to the local officials as well as to their relatives and neighbors, who
were also judging them. Rarely did an older woman name a younger man.
Few women named a married man; most named unmarried men who had
promised to marry them. A fourth of the women were domestic servants,
and many of the men were valets. Women tended to specify seducers of the
same social level; they only rarely designated nobles because they feared los-
ing their jobs if they named their employer. Moreover, employers reputedly
expected domestic servants, of a lower social level and away from their fam-
ilies, to give their sons their first sexual experiences.14
Men and women constructed gendered narratives about love and a ritual-
ized set of practices in courtship or seduction. These stories reveal contend-
ing realities, codes of ethics, concepts of self, and what people thought
constituted culturally approved behavior. Women may have been seduced
against their will, but they were also capable of discernment, passion, and
love, which their own personal narratives could not mention without public
opprobrium. Fictional comedies, dramas, and judicial archives are replete
with instances of young couples in love facing parental opposition to their

marriage.15 Yet they managed to find ways to be together; sexual relations
ensued, based on the desires of both the man and the woman. Sometimes,
through the couple’s cunning or the parents’ love for their children, a father
would acquiesce to the marriage. Perhaps more often, parental approval was
not forthcoming, but pregnancy was, both in life and in fiction. Then the
man might leave the woman, whose dreams of a happy marriage turned
into a nightmare of abandonment and dishonor. When a relationship went
awry, a woman could not admit her willing compliance in a sexual relation-
ship. A woman’s account typically involved tales of courtship, sometimes
with words of love openly spoken in public or in letters. Her family and
neighbors knew of the couple’s relationship, and she always insisted that he
had promised marriage, avowing that she had succumbed to carnal love only
after placing her trust in his verbal expressions of love and promise of mar-
riage. Her narrative was usually one of passivity and being overcome by his
entreaties. Some women insisted that the man had forced himself on her.
The acceptable female narrative reflected a culture that permitted sexual re-
lations between a man and women upon a marriage promise.
The man’s narrative in such cases was, conversely, that the woman seduced
him by her wily ways, seeking to trap him into marriage. He denied having
been interested in marriage; he had just been out for a good time, which he
had thought he was entitled to take from a willing woman, especially one be-
neath his social station. Whether he was engaged in a long-term or short-term
relationship with the woman, he would allege that she had had several sexual
partners. Only rarely did a man deny having had sexual relations with the
woman, or did the woman invoke the sleeping-beauty trope of having been
unconscious when raped.16
Communities sympathized with a woman’s sexual intercourse outside of
marriage as a result of fraud or force, or if she consented after a marriage prom-
ise. Women sought to protect their own honor, as well as that of their virtuous
friends. As women engaged in market activity and neighborhood traffic, going
to and from shops, laundries, and markets, they had a degree of sexual freedom.
Their working and social lives may have provided them freedom from the gaze
of their families, but not from that of others in the community. Many a vulner-
able young woman would believe a man’s professions of love and succumb to
his sexual advances. Some rural cultures condoned sexual activity and preg-
nancy before marriage, but the community enforced marriages, resulting
in frequent prenuptial pregnancies. In urban areas, community enforcement
was reduced, resulting in more children born out of wedlock. With the expan-
sion of the market economy of the later eighteenth century, more men moved
to cities, leaving pregnant women behind to bear the consequences of their se-
duction. Nonmarital cohabitation was regarded as “debauchery contrary to reli-
gion and good morality”; although not sanctioned, it was also not penalized,
unless accompanied by scandal.17
Paternity Suits
Eighteenth-century courts, custom, and law allowed legal recourse to some
women who had been victims of seduction by occasionally awarding repara-
tions to them or to their parents if the seduction resulted in the birth of a
child. A paternity suit almost always included a request for money to help pro-
vide for the child, as well as reparation for the damage the man had done to
the woman’s honor by seducing her. However, bringing a paternity suit was
not a simple procedure.18 A woman could act in her own name for damages to
herself and could act in the name of her baby to claim child support. She could
bring a civil or penal suit. Furthermore, taking a man to court for seduction
and charging him with paternity was a costly remedy, not accessible to all.
The success of paternity suits depended on male authorities’ willingness to
take a woman’s word. Eighteenth-century legal scholars argued that during
the pains of childbirth, as in torture, a woman would reveal the truth. Fur-
thermore, they contended, if she feared dying in childbirth, she would not
want to die with a lie on her lips. “Creditur virgini parturienti”: a young
woman giving birth had to be believed. Furthermore, jurists and magistrates
argued that both mothers and fathers had responsibility for nourishing their
children, even those born of illicit unions.19 “Qui fait l’enfant doit le nourrir”
(He who makes the child must feed it), they held; to save the child, one must
therefore find its father. With variation by locality, some notables who heard
these declarations were inclined to believe the woman and condemn the pu-
tative father to pay, especially early in the eighteenth century. In other areas,
increasingly toward the end of that century, notables would not take the
women’s word without additional evidence. Authorities worried that false
declarations and abuses might arise from believing a woman; they averred
that women did not always tell the truth and would even lie under oath dur-
ing childbirth. Nevertheless, Fournel maintained that it was in the public in-
terest to assign paternity to a man who would then contribute to the child’s
basic needs. But, he insisted, this was only to provide for material sustenance,
not to give an extranuptial child a father. When a woman had sexual relations
with several men, the biological father was in doubt. Yet one of them was the
father, and the child needed support. Fournel therefore enjoined magistrates
to search for the father from among those who were known to have lain with
the mother, and to charge him with paying child support.20
A woman’s moral virtue and elevated standing in the hierarchy of femi-
nine honor were major criteria for the magistrates’ confidence in a woman’s
word. Even if local officials believed witnesses who reported a mother crying
out the father’s name while under oath during the pains of childbirth, they
still required other testimonial proof. Finding that proof was difficult in inti-
mate matters. If a woman could show that the seduction had been aggravated
by fraud, violence, abuse of authority, or kidnapping, and if she were young
and innocent, she had a better chance of winning her paternity suit. Al-
though widows and older women stood little chance, because they were sup-
posedly sexually experienced and lacked innocence, age was not a barrier if
the man were older and more experienced than the woman. A 42-year-old
single mother, Chaubert de Beaugency, filed a paternity suit against Gour-
dineau, a doctor, aged 52. In March 1776, the magistrate condemned him to
pay for the rearing of the child and 2,000 livres in dommages-intérêts to
Chaubert. In effect, the magistrate believed that the pregnancy had come
about after a marriage promise, and that she had had every reason to expect
that the marriage would take place.21
Having a valid marriage promise was usually necessary evidence for the
success of a woman’s paternity suit. This emphasis on a marriage promise de-
rived from ecclesiastical attitudes that condoned sexual relations after an en-
gagement, but at the same time stipulated that the man had to keep his part
of the bargain and marry the woman.22 A woman might insist that she con-
sented to sexual relations only after this promise, but magistrates preferred
the written word from the putative father in which he acknowledged pater-
nity or promised marriage. Such written evidence that would seal his fate was
rarely produced. Magistrates also accepted conjectural evidence in which a
mother presented witnesses who testified to her habitual intimacy with the
alleged father. These witnesses could be friends, relatives, or neighbors—part
of her all-important community connections. Witnesses testified about how
often the couple had been together, whether they had seen another man with
her, and if her sexual conduct was beyond reproach. Rumor and neighbor-
hood gossip was admissible evidence in court. Some courts looked for proof in
physical resemblances between the putative father and the child. If a domes-
tic servant sought reparations for a pregnancy and child, magistrates usually
assumed that her master or his son was responsible.23
It was up to the putative father to prove that the child was not his, which
he usually did by alleging that the woman had engaged in “bad conduct” or
“illicit commerce” with other men. The language was harsh. Using tropes
associated with accusations of prostitution, a man would allege that the
woman was dirty, stayed out all night, dressed indecently, talked to soldiers,
and routinely became drunk. In referring to a woman in these terms, the
man implied that he would never promise marriage to such a person. Some-
times, a man accused a woman of bringing paternity charges only to get his
money and good name for the child, saying it was physically impossible for
him to have been the “author of the pregnancy” because he had been
nowhere near her during the possible time of conception. Proving these al-
legations was another matter. Even when testimony established that a
woman had had sexual relations with several men, if there was sufficient
proof that she had had sexual relations with the man she brought to court,
her bad conduct was not always sufficient to free him from child support; it
only freed him from paying damages.24 Local magistrates needed to recon-
cile the custom of taking the mother’s word with the argument that women
abused their confidence, producing scandals, lies, and blackmail.
If the magistrate decided that a mother had sufficient and valid proof, he
could condemn the father to pay the cost of childbirth and provide for the
child’s sustenance—sometimes up to the child’s legal adulthood. The judge
might also charge the father to provide funds to raise the child in the
Catholic religion and to give the child a trade or a dowry, according to his
means and the mother’s position. But the child had no inheritance rights
from the father’s family, and neither the mother nor child could legally try
to claim them. Aside from paying, the man had no fatherly role in raising
the child, nor was he obliged to marry the mother. If the father could not
provide for his offspring, then the mother was expected to rear the child by
herself or with help from her family. Magistrates also declared that some
women did not have a valid paternity suit because of their immorality, their
willing compliance in the seduction, or the lack of sufficient evidence point-
ing to the putative fathers. Magistrates rarely focused on the child’s rights,
subsuming them under the morality of the mother; hostility toward her re-
dounded on the child.
Courtroom testimonies were as gendered as déclarations de grossesse and
other public discourses. Women constructed sexual narratives in the courtroom
to maintain their honor in front of the magistrates and for their friends and
relatives. They formulated tales of passivity and victimization, unlike male sto-
ries that featured the language of liberty. Men were free to seduce and abandon
women. When women went to court for child support or reparations, they
would not admit to consensual relations based on love or passion; rather, they
insisted that they had been seduced after a promise of marriage. Women had to
prove good conduct and victimization—or at least that they were less guilty
than their seducers. Men would claim that the woman had consented, which
she denied, or else confessed that she had only given in after he promised mar-
riage. In one typical case, a woman attested that she had met a man who de-
clared that he had suddenly “fallen” for her. He had then “obtained her
favors” with forceful caresses and a promise of marriage. When she announced
that she was pregnant, he left, telling her that he was going to obtain parental
consent to marry her. He never returned.25 It is also quite likely that women
freely consented to sexual relationships outside of marriage, and also “fell” for
a man, but they rarely admitted this. Such an admission would subject them to
questions about their virtue.
Women such as prostitutes, actresses, and barmaids could not expect to win
reparations as a result of seduction. Magistrates would not accept a woman’s ar-
gument that she had had a legal marriage promise if they suspected her moral-
ity or if there was a suggestion that she had had sexual relations with several
men. Judges and jurists maintained that she was not an “honest girl,” and no
man would promise marriage to an immoral woman. Judicial attitudes rested
on the assumption that men’s motives in marriage were to wed a sexually pure
woman to protect the male lineage and his status. Servants in cabarets and ho-
tels also suffered a low status and association with prostitution. If one of them
brought a paternity suit, it would be limited to charging the man with the cost
of rearing the child.26 This judicial attitude implies not only that working-class
women, such as servants and barmaids, might be expected to have loose morals,
but also that a man of status and property could freely sexually exploit them
without resorting to a false marriage promise.
Court procedures allowed considerable power to the magistrates. When a
woman first presented her case, the judge ordered an inquiry to establish the
reasonableness of her accusations and to see if there was sufficient evidence
to proceed. If the inquiry warranted, he issued a decree against the alleged se-
ducer, who was often arrested. Then there was another inquiry, with deposi-
tions, interrogations, and testimony under oath from a variety of witnesses on
behalf of the woman and man. If magistrates demanded written evidence, it
is improbable that women received reparations, since not many men would
have admitted their seduction or paternity in writing. Some magistrates em-
phasized the importance of public oral testimony, such as the women naming
the father under oath or in childbirth pains, or if a promise of marriage had
been made before witnesses. Finally, after deliberating in camera, the judges
rendered the sentence. The judicial issue involved a man’s duty to provide for
the mother and child and to redress the wrong he had done; judges did not
declare him the father, with all that fatherhood entailed in terms of responsi-
bility and property transmission.
Toward the end of the eighteenth century, seduced and abandoned
women no longer had broad social support; they increasingly became vic-
tims of social reprobation. Their word was no longer sufficient or necessary
proof of men’s paternity and increasingly had to be supported by other
proof; the idea that a parturient woman must be believed had lapsed. With
some regional variation, both the law and the judges’ opinions were harden-
ing, trusting less in the mother’s word and further restricting conditions of
proof.27 Reasons for the change remain speculative. The déclarations de
grossesse and the maxim “Creditur virgini parturienti” coincided with the
idea that if the mother named the father, he would be financially responsi-
ble for the child, thus removing that burden from the community or local
nobility. With the intensification of capitalistic practices and movement to
the cities, it is possible that local notables no longer feared a drain on their
revenues, and therefore had no reason to believe the women. Extracting con-
fessions under torture, long associated with religious conflicts, may also have
appeared anachronistic in a society that prided itself on being more secular,
tolerant, rational, and enlightened. Reason, however, was gendered male; it
guided men, not women, and therefore men considered it unreasonable to
take women’s word. Furthermore, the notion that women’s words and activ-
ities posed dangers to male authority became part of a new political philos-
ophy, with the corollary that women’s public confessions would disturb the
stability of the body politic. As the bourgeois propertied brotherhood rose to
public power during the Revolution, and as men sought to define themselves
through their public voices, they relegated women’s voices to the private
realm, not to be heard in public—even in declarations during childbirth.
Moreover, in men’s increasing desire to control women’s fidelity and assure
their families’ lineages, they feared that women might soil their own and
their families’ virtue by their words. The view of women as “violators of
family property, as well as sexual transgressors” arose even before the 1794
Thermidorian reaction. “Creditur virgini parturienti” might have been dis-

credited as a principle, but judges and other public authorities had never un-
questionably accepted a woman’s word even earlier in the century, and
women continued to name the fathers.28
To gain some compensation from the man, either for the child or for her-
self, a mother increasingly had to show financial need and an inability to pro-
vide for the infant on her own, thereby threatening her community with an
added financial responsibility. She was judged less harshly when the paternity
charges came not from her but from the family and community, who would
likely bear the costs of raising the child. In a form of gift exchange, a woman
and her family could form a veritable parade to the putative father whom she
had named under oath, presenting him with the gift of the baby and welcom-
ing him to the baptism ceremony. He, in turn, could refuse the gift of the baby
but was expected to provide a gift in return in the form of financial help in
rearing the child. His refusal to participate in this exchange could lead to ten-
sion and conflict with the woman’s community. In practice, the number of pa-
ternity suits, never very large, declined. In Cambrai, in the north of France,
the number of women who lost their cases doubled from 1760s to 1780s.29
As a young lawyer, Maximilien Robespierre pled the cases of two unwed
mothers who filed paternity suits in his hometown of Arras in 1782 and
1785. In the spirit of the time, Robespierre argued that “bastards” should
have a right to support from their fathers, but that it would be mistaken to
count on the laws to compel an egotistical man to do his duty. One should ap-
peal instead to a man’s honor and the force of public opinion to make him
support the child of the unfortunate woman whom he abandoned without
pity. Robespierre opposed déclarations de grossesse, contending that to “force
a girl to declare her pregnancy before a magistrate is to force her to publicize
her shame; it is an outrage to modesty and to laws of nature.” It would be
better, Robespierre argued, if young women approached someone of their
own sex, a close friend or relative, to tell them their secret and have them
help raise the child. In 1786, he favored a law that would require the father
to provide monthly child support, and that if the father refused, the courts
should fine him in proportion to his circumstances. To Robespierre, it was a
matter of honor, justice, and humanity for a father to do his duty and help
nourish the child he had helped create. This would help prevent infanticide
and child abandonment.30
In legal procedures, private sexual and family matters came before the pub-
lic, and public authorities, such as magistrates, searched for proof of the most
intimate relations. Canonical and Old Regime culture that endowed the hus-
band/father with power over his wife and children remained the overarching
principle. This was not a public invasion of family privacy brought without the
families’ consent. Rather, individuals and the family exercised the liberty of
bringing their most intimate matters before judges. Families made their pri-
vate lives public when the birth of an illegitimate child had already shamed
their daughters. Going to court and blaming the male seducer was the means
to redeem their honor and reputation, and more than coincidentally receive fi-
nancial assistance for rearing the child.
No suits for damages or paternity were possible if the child was the prod-
uct of an adulterous relationship.31 Adultery for men was accepted, but it
was a crime for women, demonstrating glaring inequalities in private lives.
A husband, as head of the family, dominated his so-called weaker wife in law
and social practice. He had the right to “correct” his wife if she committed
adultery; he could confine her to a convent for two years (upon the agree-
ment of the family council), and then he had the option of taking her back.
If he chose not to, she could remain in a convent for the rest of her life—
shaven, veiled, and dead to the world. Her property would be divided among
her children, her parents, and the convent. These practices were intended to
protect the man’s paternal authority, his property, and his bloodline by elim-
inating any possibility of his wife introducing a child that was not his into
his family. Only with the law of 20–25 September 1792 on civil marriages,
which attempted to achieve some equality between husband and wife, did a
husband lose the right to send his allegedly adulterous wife to a convent and
confiscate her property. Although a man could commit adultery with im-
punity, if his adultery was accompanied by abuse of his wife and a scandal,
it could lead to a marital separation.32 Yet adultery involved shame as well as
male property rights. To some extent, a man valued his property rights more
than the dishonor he would suffer by publicly acknowledging his wife’s
adultery. Quite likely, however, her adultery had already dishonored him be-
cause it had become public knowledge. He had to take action to repossess his
honor, much in the same way a seduced woman brought her private life to
the public courts to salvage her honor by blaming the man.
Unwed mothers, and children whom an adulterous man had fathered, suf-
fered materially and legally. These children could neither assume the adul-
terer’s name nor partake of his property or family inheritance. Their doing
so, lawyers argued, would result in a breakdown of the family. This fear of
the adulteration of a family’s estate became a major obstacle to permitting
paternity searches from the end of the eighteenth century through the nine-
teenth. Children of adulterous women posed problems to society when they
entered the family of a man who was not biologically their father and con-
taminated his bloodline. A husband could renounce paternity if he could
prove his wife’s adultery. Children of an adulterous relationship suffered
more than children born to two parents not married to each other or to any-
one else. Although canon law did not recognize the difference, Roman law
did, referring to those born of adultery as “spurious.” Those born of sexual
relations between consenting adults who were not adulterers were “natural
children,” who had natural rights according to natural law.
Natural children were unequal to legitimate children in inheritance and
social status, but they were not always pariahs. Some legal scholars in the
eighteenth century invoked theories of natural law in which legitimate chil-
dren born within marriage were indistinguishable from natural children.
Natural children had a right to demand sustenance from either or both par-
ents until their majority, but they could not automatically inherit, although
fathers could recognize their illegitimate children and choose to bequeath
something to them. During the Old Regime, grandfathers and other family
members may even have provided something to illegitimate children of legi-
timate sons.33 Yet a continual tension persisted between a desire to provide
for the natural child and the urge to preserve the family blood lineage.
Revolutionary Changes in Paternity and the Family

From the early days of the Revolution to the framing of the Civil Code,
questions about the nature of the family, the rights of man, the rights of
children, natural rights, and paternity rights were enormously complex, as
legislators tried to reshape and stabilize the family, separate the needs of the
child from the rights of the father, define the father’s role under the law and
moral code, and reconfigure power relations. Intense legislative debates on
issues of paternity and the rights of the natural child led to the abolition of
paternity searches before the time the Civil Code was finalized in 1804. Al-
though legislators sought to protect the natural child, they were unwilling to
permit paternity searches; however, they approved of a father voluntarily
and freely legally recognizing his out-of-wedlock child.34 They did not want
the rights of the natural child to impinge on those of the father. Reformers,
all men, jettisoned their belief in the equality of all children when it came
up against their stronger sentiment for men’s authority and their freedom to
Exploring the Variety of Random
Documents with Different Content
six. “Well,” replied Mr. Lincoln, “I have been so busy to-day that I
have not had time to get a lunch. Go in and sit down; I will be back
directly.”
Mr. Ford made the young woman accompany him into the office,
and when they were seated, said to her: “Now, my good girl, I want
you to muster all the courage you have in the world. When the
President comes back he will sit down in that arm-chair. I shall get up
to speak to him, and as I do so you must force yourself between us,
and insist upon his examination of your papers, telling him it is a
case of life and death, and admits of no delay.” These instructions
were carried out to the letter. Mr. Lincoln was at first somewhat
surprised at the apparent forwardness of the young woman, but
observing her distressed appearance, he ceased conversation with
his friend, and commenced an examination of the document she had
placed in his hands. Glancing from it to the face of the petitioner,
whose tears had broken forth afresh, he studied its expression for a
moment, and then his eye fell upon her scanty but neat dress.
Instantly his face lighted up. “My poor girl,” said he, “you have come
here with no governor, or senator, or member of congress, to plead
your cause. You seem honest and truthful; and”—with much
emphasis—“you don’t wear ‘hoops’; and I will be whipped but I will
pardon your brother!”
Among the applicants received on another occasion by the
President, was a woman who had also met with considerable
difficulty and delay in getting admission to him. She said that her
husband had been arrested some months before and sent to the
“Old Capitol” prison; that he had not been “tried,” and could not learn
as he was likely to be; and she appealed to the President as a
husband and father to interfere and order an immediate trial. Mr.
Lincoln said he was sorry this could not be done,—adding that such
cases were much like the different sacks of grain at a country grist-
mill, all “waiting their turn to be ground,” and that it would be unfair
for the “miller” to show any “partiality.” The woman left, but the next
day appeared again before him. Recognizing her, Mr. Lincoln asked
if anything “new” had happened. “No,” replied the woman; “but I have
been thinking, sir, about what you said concerning the ‘grists,’ and I
am afraid mine will get ‘mouldy’ and ‘spoil’ before its turn comes
around, so I have come to ask, Mr. President, that it may be taken to
some other ‘mill’ to be ground.”
Mr. Lincoln was so much amused at the wit and shrewdness of
the request, that he instantly gave the woman an unconditional
discharge for her husband.
LXXIV.
“Good morning, Abe!” was the greeting addressed to the
President, as we sat together in his office one morning,—he
absorbed at his desk, and I with my pencil. I looked up in
astonishment at the unaccustomed familiarity.
“Why, Dennis,” returned Mr. Lincoln, “is this you?”
“Yes, Abe,” was the rejoinder; “I made up my mind I must come
down and see you once while you were President, anyhow. So here I
am, all the way from Sangamon.”
Sitting down, side by side, it would have been difficult for one
unfamiliar with democratic institutions to tell, by the appearance or
conversation, which was the President and which the back-
countryman, save that from time to time I overheard the man
addressed as “Dennis” refer to family trials and hardships, and
intimate that one object of his journey so far, was to see if his old
friend “could not do something for one of his boys?”
The response to this was: “Now, Dennis, sit down and write out
what you want, so that I can have it before me, and I will see what
can be done.”
I have always supposed that this was “Dennis Hanks,” the early
companion and friend of Mr. Lincoln; but my attention at the time
being diverted, the matter passed out of my mind, and I neglected
subsequently to inquire.
About this period—it may have been the following evening—the
house was thrown into an uproar by a performance of little “Tad’s.” I
was sitting in Mr. Nicolay’s room, about ten o’clock when Robert
Lincoln came in with a flushed face. “Well,” said he, “I have just had
a great row with the President of the United States!”
“What?” said I.
“Yes,” he replied, “and very good cause there is for it, too. Do
you know,” he continued, “‘Tad’ went over to the War Department to-
day, and Stanton, for the fun of the thing,—putting him a peg above
the ‘little corporal’ of the French Government,—commissioned him
‘lieutenant.’ On the strength of this, what does ‘Tad’ do but go off and
order a quantity of muskets sent to the house! To-night he had the
audacity to discharge the guard, and he then mustered all the
gardeners and servants, gave them the guns, drilled them, and put
them on duty in their place. I found it out an hour ago,” continued
Robert, “and thinking it a great shame, as the men had been hard at
work all day, I went to father with it; but instead of punishing ‘Tad,’ as
I think he ought, he evidently looks upon it as a good joke, and won’t
do anything about it!”
“Tad,” however, presently went to bed, and then the men were
quietly discharged. And so it happened that the presidential mansion
was unguarded one night, at least, during the war!
The second week in July the whole country, and Washington in
particular, was thrown into a fever of anxiety by the rebel raid upon
that city under Early and Breckinridge. The night of Sunday, the 10th,
I have always believed the city might have been captured had the
enemy followed up his advantage. The defences were weak, and
there were comparatively but few troops in the city or vicinity. All day
Monday the excitement was at the highest pitch. At the White House
the cannonading at Fort Stevens was distinctly heard throughout the
day. During Sunday, Monday, and Tuesday, the President visited the
forts and outworks, part of the time accompanied by Mrs. Lincoln.
While at Fort Stevens on Monday, both were imprudently exposed,—
rifle-balls coming, in several instances, alarmingly near!
The almost defenceless condition of the city was the occasion of
much censure. Some blamed General Halleck; others General
Augur, the commander of the Department; others the Secretary of
War; and still others the President.
Subsequently the rebel force returned to Richmond almost
unharmed. I saw no one who appeared to take this more to heart
than Mrs. Lincoln, who was inclined to lay the responsibility at the
door of the Secretary of War.
Two or three weeks later, when tranquillity was perfectly
restored, it was said that Stanton called upon the President and Mrs.
Lincoln one evening at the “Soldiers’ Home.” In the course of
conversation the Secretary said, playfully, “Mrs. Lincoln, I intend to
have a full-length portrait of you painted, standing on the ramparts at
Fort Stevens overlooking the fight!”
“That is very well,” returned Mrs. Lincoln, very promptly; “and I
can assure you of one thing, Mr. Secretary, if I had had a few ladies
with me the Rebels would not have been permitted to get away as
they did!”
LXXV.
It was not generally known before the publication of Dr. Holland’s
biography of Mr. Lincoln, that he was once engaged in a “duel,”
although a version of the affair had been published previous to his
biographer’s account of it, which, however, the few who saw it were
disposed to regard as a fabrication.
One evening, at the rooms of the Hon. I. N. Arnold, of Illinois, I
met Dr. Henry, of Oregon, an early and intimate friend of Mr.
Lincoln’s. Mr. Arnold asked me in the course of conversation if I had
ever heard of the President’s “duel” with General Shields? I replied
that I might have seen a statement of the kind, but did not suppose it
to be true. “Well,” said Mr. Arnold, “we were all young folks together
at the time in Springfield. In some way a difficulty occurred between
Shields and Lincoln, resulting in a challenge from Shields, which was
at length accepted, Mr. Lincoln naming ‘broadswords’ for weapons,
and the two opposite banks of the Mississippi, where the river was
about a mile wide, for the ‘ground.’”
Dr. Henry, who had listened quietly to this, here broke in, “That
will do for a ‘story,’ Arnold,” said he, “but it will hardly pass with me,
for I happened to be Lincoln’s ‘second’ on the occasion. The facts
are these. You will bear me witness that there was never a more
spirited circle of young folks in one town than lived in Springfield at
that period. Shields, you remember, was a great ‘beau.’ For a bit of
amusement one of the young ladies wrote some verses, taking him
off sarcastically, which were abstracted from her writing-desk by a
mischievous friend, and published in the local newspaper. Shields,
greatly irritated, posted at once to the printing-office and demanded
the name of the author. Much frightened, the editor requested a day
or two to consider the matter, and upon getting rid of Shields went
directly to Mr. Lincoln with his trouble.
“‘Tell Shields,’ was the chivalric rejoinder, ‘that I hold myself
responsible for the verses.’ The next day Mr. Lincoln left for a distant
section to attend court. Shields, boiling over with wrath, followed and
‘challenged’ him. Scarcely knowing what he did, Mr. Lincoln
accepted the challenge, seeing no alternative. The choice of
weapons being left to him, he named ‘broadswords,’ intending to act
only on the defensive, and thinking his long arms would enable him
to keep clear of his antagonist.
“I was then a young surgeon,” continued Dr. Henry, “and Mr.
Lincoln desired me accompany him to the point chosen for the
contest,—‘Bloody Island,’ in the Mississippi, near St. Louis,—as his
‘second.’ To this I at length consented, hoping to prevent bloodshed.
On our way to the ground we met Colonel Hardin, a friend of both
parties, and a cousin of the lady who was the real offender.
Suspecting something wrong, Hardin subsequently followed us,
coming in upon the party just as Lincoln was clearing up the
underbrush which covered the ground. Entering heartily upon an
attempt at pacification, he at length succeeded in mollifying Shields,
and the whole party returned harmoniously to Springfield, and thus
the matter ended.”
This version of the affair coming from an eye-witness is
undoubtedly in all respects correct. It subsequently came in my way
to know that Mr. Lincoln himself regarded the circumstance with
much regret and mortification, and hoped it might be forgotten. In
February preceding his death a distinguished officer of the army
called at the White House, and was entertained by the President and
Mrs. Lincoln for an hour in the parlor. During the conversation the
gentleman said, turning to Mrs. Lincoln, “Is it true, Mr. President, as I
have heard, that you once went out to fight a ‘duel’ for the sake of
the lady by your side?”
“I do not deny it,” replied Mr. Lincoln, with a flushed face; “but if
you desire my friendship you will never mention the circumstance
again!”
LXXVI.
In August following the rebel raid, Judge J. T. Mills, of Wisconsin,
in company with ex-Governor Randall, of that State, called upon the
President at the “Soldiers’ Home.”
Judge Mills subsequently published the following account of the
interview, in the “Grant County (Wisconsin) Herald”:—
* * * * *
“The Governor addressed him: ‘Mr. President, this is my friend

and your friend Mills, from Wisconsin.’
“‘I am glad to see my friends from Wisconsin; they are the
hearty friends of the Union.’
“‘I could not leave the city, Mr. President, without hearing
words of cheer from your own lips. Upon you, as the
representative of the loyal people, depend, as we believe, the
existence of our government and the future of America.’
“‘Mr. President,’ said Governor Randall, ‘why can’t you seek
seclusion, and play hermit for a fort-night? it would reinvigorate
you.’
“‘Aye,’ said the President, ‘two or three weeks would do me
good, but I cannot fly from my thoughts; my solicitude for this great
country follows me wherever I go. I don’t think it is personal vanity
or ambition, though I am not free from these infirmities, but I
cannot but feel that the weal or woe of this great nation will be
decided in November. There is no programme offered by any wing
of the Democratic party but that must result in the permanent
destruction of the Union.’
“‘But Mr. President, General McClellan is in favor of crushing
out the rebellion by force. He will be the Chicago candidate.’
“‘Sir,’ said the President, ‘the slightest knowledge of arithmetic
will prove to any man that the rebel armies cannot be destroyed by
democratic strategy. It would sacrifice all the white men of the
North to do it. There are now in the service of the United States
near two hundred thousand able-bodied colored men, most of
them under arms, defending and acquiring Union territory. The
democratic strategy demands that these forces should be
disbanded, and that the masters be conciliated by restoring them
to slavery. The black men who now assist Union prisoners to
escape are to be converted into our enemies, in the vain hope of
gaining the good-will of their masters. We shall have to fight two
nations instead of one.
“‘You cannot conciliate the South if you guarantee to them
ultimate success; and the experience of the present war proves
their success is inevitable if you fling the compulsory labor of
millions of black men into their side of the scale. Will you give our
enemies such military advantages as insure success, and then
depend on coaxing, flattery, and concession, to get them back into
the Union? Abandon all the posts now garrisoned by black men;
take two hundred thousand men from our side and put them in the
battle-field or cornfield against us, and we would be compelled to
abandon the war in three weeks.
“‘We have to hold territory in inclement and sickly places;
where are the Democrats to do this? It was a free fight, and the
field was open to the War Democrats to put down this rebellion by
fighting against both master and slave long before the present
policy was inaugurated.
“‘There have been men base enough to propose to me to
return to slavery the black warriors of Port Hudson and Olustee,
and thus win the respect of the masters they fought. Should I do
so, I should deserve to be damned in time and eternity. Come
what will, I will keep my faith with friend and foe. My enemies
pretend I am now carrying on this war for the sole purpose of
Abolition. So long as I am President, it shall be carried on for the
sole purpose of restoring the Union. But no human power can
subdue this rebellion without the use of the emancipation policy,
and every other policy calculated to weaken the moral and
physical forces of the rebellion.
“‘Freedom has given us two hundred thousand men raised on
Southern soil. It will give us more yet. Just so much it has
subtracted from the enemy, and instead of alienating the South,
there are now evidences of a fraternal feeling growing up between
our men and the rank and file of the rebel soldiers. Let my
enemies prove to the country that the destruction of slavery is not
necessary to a restoration of the Union. I will abide the issue.’
“I saw that the President was a man of deep convictions, of
abiding faith in justice, truth, and Providence. His voice was
pleasant, his manner earnest and emphatic. As he warmed with
his theme, his mind grew to the magnitude of his body. I felt I was
in the presence of the great guiding intellect of the age, and that
those ‘huge Atlantean shoulders were fit to bear the weight of
mightiest monarchies.’ His transparent honesty, republican
simplicity, his gushing sympathy for those who offered their lives
for their country, his utter forgetfulness of self in his concern for its
welfare, could not but inspire me with confidence that he was
Heaven’s instrument to conduct his people through this sea of
blood to a Canaan of peace and freedom.”
LXXVII.
No reminiscence of the late President has been given to the
public more thoroughly valuable and characteristic than a sketch
which appeared in the New York “Independent” of September 1st,
1864, from the pen of the Rev. J. P. Gulliver, of Norwich,
Connecticut:—
“It was just after his controversy with Douglas, and some months
before the meeting of the Chicago Convention of 1860, that Mr.
Lincoln came to Norwich to make a political speech. It was in
substance the famous speech delivered in New York, commencing
with the noble words: ‘There is but one political question before the
people of this country, which is this, Is slavery right, or is it wrong?’
and ending with the yet nobler words: ‘Gentlemen, it has been said
of the world’s history hitherto that “might makes right;” it is for us and
for our times to reverse the maxim, and to show that right makes
might!’
“The next morning I met him at the railroad station, where he
was conversing with our Mayor, every few minutes looking up the
track and inquiring, half impatiently and half quizzically, ‘Where’s that
‘wagon’ of yours? Why don’t the ‘wagon’ come along?’ On being
introduced to him, he fixed his eyes upon me, and said: ‘I have seen
you before, sir!’ ‘I think not,’ I replied; ‘you must mistake me for some
other person.’ ‘No, I don’t; I saw you at the Town Hall, last evening.’
‘Is it possible, Mr. Lincoln, that you could observe individuals so
closely in such a crowd?’ ‘Oh, yes!’ he replied, laughing; ‘that is my
way. I don’t forget faces. Were you not there?’ ‘I was, sir, and I was
well paid for going;’ adding, somewhat in the vein of pleasantry he
had started, ‘I consider it one of the most extraordinary speeches I
ever heard.’
“As we entered the cars, he beckoned me to take a seat with
him, and said, in a most agreeably frank way, ‘Were you sincere in
what you said about my speech just now?’ ‘I meant every word of it,
Mr. Lincoln. Why, an old dyed-in-the-wool Democrat, who sat near
me, applauded you repeatedly; and, when rallied upon his
conversion to sound principles, answered, “I don’t believe a word he
says, but I can’t help clapping him, he is so pat!” That I call the
triumph of oratory,—
“When you convince a man against his will,

Though he is of the same opinion still.”
Indeed, sir, I learned more of the art of public speaking last evening
than I could from a whole course of lectures on Rhetoric.’
“‘Ah! that reminds me,’ said he, ‘of a most extraordinary
circumstance which occurred in New Haven the other day. They told
me that the Professor of Rhetoric in Yale College,—a very learned
man, isn’t he?’
“‘Yes, sir, and a fine critic too.’
“‘Well, I suppose so; he ought to be, at any rate,—they told me
that he came to hear me, and took notes of my speech, and gave a
lecture on it to his class the next day; and, not satisfied with that, he
followed me up to Meriden the next evening, and heard me again for
the same purpose. Now, if this is so, it is to my mind very
extraordinary. I have been sufficiently astonished at my success in
the West. It has been most unexpected. But I had no thought of any
marked success at the East, and least of all that I should draw out
such commendations from literary and learned men. Now,’ he
continued, ‘I should like very much to know what it was in my speech
you thought so remarkable, and what you suppose interested my
friend, the Professor, so much.’
“‘The clearness of your statements, Mr. Lincoln; the
unanswerable style of your reasoning, and especially your
illustrations, which were romance and pathos, and fun and logic all
welded together. That story about the snakes, for example, which set
the hands and feet of your Democratic hearers in such vigorous
motion, was at once queer and comical, and tragic and
argumentative. It broke through all the barriers of a man’s previous
opinions and prejudices at a crash, and blew up the very citadel of
his false theories before he could know what had hurt him.’
“‘Can you remember any other illustrations,’ said he, ‘of this
peculiarity of my style?’
“I gave him others of the same sort, occupying some half-hour in
the critique, when he said: ‘I am much obliged to you for this. I have
been wishing for a long time to find some one who would make this
analysis for me. It throws light on a subject which has been dark to
me. I can understand very readily how such a power as you have
ascribed to me will account for the effect which seems to be
produced by my speeches. I hope you have not been too flattering in
your estimate. Certainly, I have had a most wonderful success, for a
man of my limited education.’
“‘That suggests, Mr. Lincoln, an inquiry which has several times
been upon my lips during this conversation. I want very much to
know how you got this unusual power of “putting things.” It must
have been a matter of education. No man has it by nature alone.
What has your education been?’
“‘Well, as to education, the newspapers are correct; I never went
to school more than six months in my life. But, as you say, this must
be a product of culture in some form. I have been putting the
question you ask me to myself, while you have been talking. I can
say this, that among my earliest recollections I remember how, when
a mere child, I used to get irritated when any body talked to me in a
way I could not understand. I don’t think I ever got angry at anything
else in my life. But that always disturbed my temper, and has ever
since. I can remember going to my little bedroom, after hearing the
neighbors talk of an evening with my father, and spending no small
part of the night walking up and down, and trying to make out what
was the exact meaning of some of their, to me, dark sayings. I could
not sleep, though I often tried to, when I got on such a hunt after an
idea, until I had caught it; and when I thought I had got it, I was not
satisfied until I had repeated it over and over, until I had put it in
language plain enough, as I thought, for any boy I knew to
comprehend. This was a kind of passion with me, and it has stuck by
me; for I am never easy now, when I am handling a thought, till I
have bounded it North, and bounded it South, and bounded it East,
and bounded it West. Perhaps that accounts for the characteristic
you observe in my speeches, though I never put the two things
together before.’
“‘Mr. Lincoln, I thank you for this. It is the most splendid
educational fact I ever happened upon. This is genius, with all its
impulsive, inspiring, dominating power over the mind of its
possessor, developed by education into talent, with its uniformity, its
permanence, and its disciplined strength,—always ready, always
available, never capricious,—the highest possession of the human
intellect. But, let me ask, did you prepare for your profession?’
“‘Oh, yes! I “read law,” as the phrase is, that is, I became a
lawyer’s clerk in Springfield, and copied tedious documents, and
picked up what I could of law in the intervals of other work. But your
question reminds me of a bit of education I had, which I am bound in
honesty to mention. In the course of my law-reading, I constantly
came upon the word demonstrate. I thought at first that I understood
its meaning, but soon became satisfied that I did not. I said to
myself, “What do I mean when I demonstrate more than when I
reason or prove? How does demonstration differ from any other
proof?” I consulted Webster’s Dictionary. That told of “certain proof,”
“proof beyond the possibility of doubt;” but I could form no idea what
sort of proof that was. I thought a great many things were proved
beyond a possibility of doubt, without recourse to any such
extraordinary process of reasoning as I understood “demonstration”
to be. I consulted all the dictionaries and books of reference I could
find, but with no better results. You might as well have defined blue
to a blind man. At last I said, “Lincoln, you can never make a lawyer
if you do not understand what demonstrate means;” and I left my
situation in Springfield, went home to my father’s house, and stayed
there till I could give any proposition in the six books of Euclid at
sight. I then found out what “demonstrate” means, and went back to
my law-studies.’
“I could not refrain from saying, in my admiration at such a
development of character and genius combined: ‘Mr. Lincoln, your
success is no longer a marvel. It is the legitimate result of adequate
causes. You deserve it all, and a great deal more. If you will permit
me, I would like to use this fact publicly. It will be most valuable in
inciting our young men to that patient classical and mathematical
culture which most minds absolutely require. No man can talk well
unless he is able first of all to define to himself what he is talking
about. Euclid, well studied, would free the world of half its calamities,
by banishing half the nonsense which now deludes and curses it. I
have often thought that Euclid would be one of the best books to put
on the catalogue of the Tract Society, if they could only get people to
read it. It would be a means of grace.’
“‘I think so,’ said he, laughing; ‘I vote for Euclid.’
“Just then a gentleman entered the car who was well known as a
very ardent friend of Douglas. Being a little curious to see how Mr.
Lincoln would meet him, I introduced him after this fashion:—‘Mr.
Lincoln, allow me to introduce Mr. L——, a very particular friend of
your particular friend, Mr. Douglas.’ He at once took his hand in a
most cordial manner, saying: ‘I have no doubt you think you are right,
sir.’ This hearty tribute to the honesty of a political opponent, with the
manner of doing it, struck me as a beautiful exhibition of a large-
hearted charity, of which we see far too little in this debating,
fermenting world.
“As we neared the end of our journey, Mr. Lincoln turned to me
very pleasantly, and said: ‘I want to thank you for this conversation. I
have enjoyed it very much.’ I replied, referring to some stalwart
denunciations he had just been uttering of the demoralizing
influences of Washington upon Northern politicians in respect to the
slavery question, ‘Mr. Lincoln, may I say one thing to you before we
separate?’
“‘Certainly, anything you please.’
“‘You have just spoken of the tendency of political life in
Washington to debase the moral convictions of our representatives
there by the admixture of considerations of mere political
expediency. You have become, by the controversy with Mr. Douglas,
one of our leaders in this great struggle with slavery, which is
undoubtedly the struggle of the nation and the age. What I would like
to say is this, and I say it with a full heart, Be true to your principles
and we will be true to you, and God will be true to us all!’ His homely
face lighted up instantly with a beaming expression, and taking my
hand warmly in both of his, he said: ‘I say Amen to that—Amen to
that!’
“There is a deep excavation in the rock shown to visitors, among
the White Mountains, into which one of the purest of the mountain
streams pours itself, known as ‘The Pool.’ As you stand by its side at
an ordinary time you look down upon a mass of impenetrable green,
lying like a rich emerald in a setting of granite upon the bosom of the
mountain. But occasionally the noon-day sun darts through it a
vertical ray which penetrates to its very bottom, and shows every
configuration of the varied interior. I felt at that moment that a ray
had darted down to the bottom of Abraham Lincoln’s heart, and that I
could see the whole. It seemed to me as beautiful as that emerald
pool, and as pure. I have never forgotten that glimpse. When the
strange revocation came of the most rational and reasonable
proclamation of Fremont,—‘The slaves of Rebels shall be set free,’—
I remembered that hearty ‘Amen,’ and stifled my rising
apprehensions. I remembered it in those dark days when McClellan,
Nero-like, was fiddling on James River, and Pope was being routed
before Washington, and the report came that a prominent Cabinet
Minister had boasted that he had succeeded in preventing the issue
of the Emancipation Proclamation; I said: ‘Abraham Lincoln will
prove true yet.’ And he has! God bless him! he has. Slow, if you
please, but true. Unimpassioned, if you please, but true. Jocose,
trifling, if you please, but true. Reluctant to part with unworthy official
advisers, but true himself—true as steel! I could wish him less a man
of facts, and more a man of ideas. I could wish him more stern and
more vigorous: but every man has his faults, and still I say: Amen to
22
Abraham Lincoln!”
LXXVIII.
The Hon. Orlando Kellogg, of New York, was sitting in his room
at his boarding-house one evening, when one of his constituents
appeared,—a white-headed old man,—who had come to
Washington in great trouble, to seek the aid of his representative in
behalf of his son. His story was this: “The young man had formerly
been very dissipated. During an absence from home a year or two
previous to the war, he enlisted in the regular army, and, after
serving six months, deserted. Returning to his father, who knew
nothing of this, he reformed his habits, and when the war broke out,
entered heart and soul into the object of raising a regiment in his
native county, and was subsequently elected one of its officers. He
had proved an efficient officer, distinguishing himself particularly on
one occasion, in a charge across a bridge, when he was severely
wounded,—his colonel being killed by his side. Shortly after this, he
came in contact with one of his old companions in the ‘regular’
service, who recognized him, and declared his purpose of informing
against him. Overwhelmed with mortification, the young man
procured a furlough and returned home, revealing the matter to his
father, and declaring his purpose never to submit to an arrest,—‘he
would die first.’” In broken tones the old man finished his statement,
saying: “Can you do anything for us, Judge?—it is a hard, hard
case!” “I will see about that,” replied the representative, putting on
his hat; “wait here until I return.” He went immediately to the White
House, and fortunately finding Mr. Lincoln alone, they sat down
together, and he repeated the old man’s story. The President made
no demonstration of particular interest until the Judge reached the
description of the charge across the bridge, and the wound received.
“Do you say,” he interrupted, “that the young man was wounded?”
“Yes,” replied the congressman, “badly.” “Then he has shed his blood
for his country,” responded Mr. Lincoln, musingly. “Kellogg,” he
continued, brightening up, “isn’t there something in Scripture about
the ‘shedding of blood’ being ‘the remission of sins?’” “Guess you
are about right there,” replied the Judge. “It is a good ‘point,’ and
there is no going behind it,” rejoined the President; and taking up his
pen, another “pardon”—this time without “oath,” condition, or reserve
—was added to the records of the War Office.
“Among a large number of persons waiting in the room to speak
with Mr. Lincoln, on a certain day in November, ’64, was a small,
pale, delicate-looking boy about thirteen years old. The President
saw him standing, looking feeble and faint, and said: ‘Come here, my
boy, and tell me what you want.’ The boy advanced, placed his hand
on the arm of the President’s chair, and with bowed head and timid
accents said: ‘Mr. President, I have been a drummer in a regiment
for two years, and my colonel got angry with me and turned me off. I
was taken sick, and have been a long time in hospital. This is the
first time I have been out, and I came to see if you could not do
something for me.’ The President looked at him kindly and tenderly,
and asked him where he lived. ‘I have no home,’ answered the boy.
‘Where is your father?’ ‘He died in the army,’ was the reply. ‘Where is
your mother?’ continued the President. ‘My mother is dead also. I
have no mother, no father, no brothers, no sisters, and,’ bursting into
tears, ‘no friends—nobody cares for me.’ Mr. Lincoln’s eyes filled
with tears, and he said to him, ‘Can’t you sell newspapers?’ ‘No,’
said the boy, ‘I am too weak; and the surgeon of the hospital told me
I must leave, and I have no money, and no place to go to.’ The
scene was wonderfully affecting. The President drew forth a card,
and addressing on it certain officials to whom his request was law,
gave special directions ‘to care for this poor boy.’ The wan face of
the little drummer lit up with a happy smile as he received the paper,
and he went away convinced that he had one good and true friend,
23
at least, in the person of the President.”
No incident of this character related of the late President, is more
profoundly touching in its tenderness and simplicity than that given to
me the last evening I passed at the White House, in the office of the
24
private secretary, by a resident of Washington, who witnessed the
scene.
“I was waiting my turn to speak to the President one day, some
three or four weeks since,” said Mr. M——, “when my attention was
attracted by the sad patient face of a woman advanced in life, who in
a faded hood and shawl was among the applicants for an interview.
“Presently Mr. Lincoln turned to her, saying in his accustomed
manner, ‘Well, my good woman, what can I do for you this morning?’
‘Mr. President,’ said she, ‘my husband and three sons all went into
the army. My husband was killed in the fight at ——. I get along very
badly since then, living all alone, and I thought I would come and ask
you to release to me my oldest son.’ Mr. Lincoln looked into her face
a moment, and in his kindest accents responded, ‘Certainly!
certainly! If you have given us all, and your prop has been taken
away, you are justly entitled to one of your boys!’ He immediately
made out an order discharging the young man, which the woman
took, and thanking him gratefully, went away.
“I had forgotten the circumstance,” continued M——, “till last
week, when happening to be here again, who should come in but the
same woman. It appeared that she had gone herself to the front, with
the President’s order, and found the son she was in search of had
been mortally wounded in a recent engagement, and taken to a
hospital. She found the hospital, but the boy was dead, or died while
she was there. The surgeon in charge made a memorandum of the
facts upon the back of the President’s order, and almost broken-
hearted, the poor woman had found her way again into Mr. Lincoln’s
presence. He was much affected by her appearance and story, and
said: ‘I know what you wish me to do now, and I shall do it without
your asking; I shall release to you your second son.’ Upon this, he
took up his pen and commenced writing the order. While he was
writing the poor woman stood by his side, the tears running down her
face, and passed her hand softly over his head, stroking his rough
hair, as I have seen a fond mother caress a son. By the time he had
finished writing, his own heart and eyes were full. He handed her the
paper: ‘Now,’ said he, ‘you have one and I one of the other two left:

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