Bavarian Marriage Customs, Laws, and Trends of Illegitimacy
German peasants never enjoyed freedom of choice in marriage decisions. Technically, the nobility always had the right to grant or deny a peasant’s request to marry, a right they rarely exercised.  The community councils, on the other hand, frequently wielded their power over marriage choice. The village councils prided themselves on knowing everyone in town and in giving preference in marriage decisions to established families. They were cautious about admitting newcomers and felt they had a responsibility to ensure a couple had the means to provide for a family before they could be allowed to wed. Often the sons of farmers and craftsmen alike waited until the death or retirement of their father (or father-in-law), at which time getting approval for marriage for one of the sons was often just a formality. This system worked well if you were the oldest son, or if your future father-in-law was near retirement age when you wanted to marry. For those who were second sons, or who were too poor to wed, or who did not have the potential resources to support a family, it was expected that they would remain single and moderately celibate. The common belief among those in power was that allowing the poor to marry was a threat to the viability of the community at large.
By the end of the eighteenth century, this ancient feudal marriage system was showing signs of strain. The increase in the number of young men without land put pressure on the communities to allow them to wed. The culture in rural areas had always been marginally tolerant of premarital relations (as long as it was done discreetly), even though sexual behavior out of wedlock was a violation of the law. Despite the laws, illegitimacy was on the rise and was gaining social acceptance among the poorer people. These changes were not unique to Bavaria. About 1750, in every European nation for which we have statistics, rates of illegitimacy began to rise. The increase was initially slow, but by the early decades of the nineteenth century the rise was dramatic. By 1850 in some regions, the number of out-of-wedlock births outnumbered births in wedlock. The number of pre-nuptial conceptions also increased sharply during the period.
Changes were also being wrought on the legal front. Enlightened intellectuals wrote thousands of tracts and pamphlets during the age urging the Absolutist rulers to adopt civil laws that treated all men equally and eliminated the fiat of noble whim. After the Reformation, most German states had enacted laws with strict punishments for sexual offenses, although in rural areas these draconian punishments were rarely enforced. In the eighteenth century, Enlightened political theorists began speaking out against the harsh rules of the Absolutist regimes that on paper demanded such things as chaining the mothers of illegitimate children to pillories in the public markets, beating, or banishment. A main focus of the intellectual flurry in the late eighteenth century centered on finding appropriate responses to illegitimacy and other sexual misdeeds.
Throughout the period, the educated jurists pled for more lenient statutes, and when they were in judicial office themselves, usually meted out lighter sentences than the laws dictated.
More than fifty years after this heated debate began, Maximillian, the king of the newly expanded Bavaria, made a revolutionary decree; on 10 September 1808, he decriminalized both premarital sex and illegitimacy. During the next decade, the floodgates of illegitimacy in Bavaria burst open, and in every rural village out-of-wedlock births among the poorer people became ubiquitous.
The new Bavaria encompassed a hodgepodge of jurisdictions that only a few years previously had been literally hundreds of independent and semi-independent estates of imperial and Teutonic knights, small duchies, and large bishoprics, margravates, and principalities. Each of these had had their own laws, courts, judges, traditions, and ways of ordering society. In 1808, King Maximilian, attempted to unify his greatly expanded kingdom by taking away the right to self-government held by the local communities. He set out to create a uniform set of laws applicable throughout the kingdom. Among the administrative changes he made was taking away the right of the village councils to determine who could marry. In theory, this made it easier for a peasant man or woman to marry a person of their choosing. But in practice this was not always the case. Instead, in 1813 the king established a civil code and sent out a cadre of new royal district judges who were well versed in new political theories, to set up royal district courts in every corner of the kingdom to administer the new civil laws.
The town councils and the Bürgermeisters no longer had unfettered control over affairs in their own villages. These men thoroughly resented the new judges sent from distant Munich who took away their traditional roles. The points of contention that the councils resented above all else was the loss of choice of who could wed, the decriminalization of illicit sex, and loss of choice of who could live in a village. The new university-trained judges, on the other hand, sometimes even allowed common day laborers with scant savings to marry and granted them residency in the villages – over strong objections from the community councils. The new jurists also gave little deference to established families or to the traditional village leaders.
One area this new civil code did not change was the authority of the local village constabulary; the police could still arrest those guilty of fornication, concubinage, or illicit sex. This power that remained in the communities became a powerful tool as the councils fought to regain their rights of self governance. Under this loophole, fornicators continued to be harassed and jailed.
As a result of decisions made by the new judges, the town councils inundated the king’s offices with lurid examples of the poor choices the jurists made in who was allowed to marry. One community after another petitioned the king to restore the right of choice to the villages. In 1818, the king compromised and restored the rights of the community to make marriage decisions; however, the royal district judges would remain in place with the right to review village actions and to veto village decisions. This was a marked improvement, but resentments and jealousies remained high on both sides. For the next thirty years, the town councils waged a constant battle focused primarily on regaining complete control over the marriage decision.
Couples who wanted to marry, but who had little savings, found themselves the targets of bureaucratic vitriol.
- Thomas Robisheaux, Rural Society and the Search for Order in Early Modern Germany (Cambridge: Cambridge University Press, 1989), 34–5.