§ i.

i once met with a reasoner who said: “induce your subjects to marry as early as possible. let them be exempt from taxes the first year; and let their portion be assessed on those who at the same age are in a state of celibacy.

“the more married men you have, the fewer crimes there will be. examine the frightful columns of your criminal calendars; you will there find a hundred youths executed for one father of a family.

“marriage renders men more virtuous and more wise. the father of a family is not willing to blush before his children; he is afraid to make shame their inheritance.

“let your soldiers marry, and they will no longer desert. bound to their families, they will be bound to their country. an unmarried soldier is frequently nothing but a vagabond, to whom it matters not whether he serves the king of naples or the king of morocco.”

the roman warriors were married: they fought for their wives and their children; and they made slaves of the wives and the children of other nations.

a great italian politician, who was, besides, learned in the eastern tongues, a thing rare among our politicians, said to me in my youth: “caro figlio,” remember that the jews never had but one good institution — that of abhorring virginity. if that little nation of superstitious jobbers had not regarded marriage as the first of the human obligations — if there had been among them convents of nuns — they would have been inevitably lost.”

the marriage contract.

marriage is a contract in the law of nations, of which the roman catholics have made a sacrament.

but the sacrament and the contract are two very different things; with the one are connected the civil effects, with the other the graces of the church.

so when the contract is conformable to the law of nations, it must produce every civil effect. the absence of the sacrament can operate only in the privation of spiritual graces.

such has been the jurisprudence of all ages, and of all nations, excepting the french. such was the opinion of the most accredited fathers of the church. go through the theodosian and justinian codes, and you will find no law proscribing the marriages of persons of another creed, not even when contracted between them and catholics.

it is true, that constantius — that son of constantine as cruel as his father — forbade the jews, on pain of death, to marry christian women; and that valentinian, theodosius, and arcadius made the same prohibition, under the like penalty, to the jewish women. but under the emperor marcian these laws had ceased to be observed; and justinian rejected them from his code. besides, they were made against the jews only; no one ever thought of applying them to the marriage of pagans or heretics with the followers of the prevailing religion.

consult st. augustine, and he will tell you that in his time the marriages of believers with unbelievers were not considered illicit, because no gospel text had condemned them: “qu? matrimonia cum in fidelibus, nostris temporibus, jam non putantur esse peccata; quoniam in novo testamento nihil inde preceptum est, et ideo aut licere creditum est, aut velut dubium derelictum.”

augustine says, moreover, that these marriages often work the conversion of the unbelieving party. he cites the example of his own father, who embraced the christian religion because his wife, manica, professed christianity. clotilda, by the conversion of clovis, and theolinda, by that of agilulf, king of the lombards, rendered greater service to the church than if they had married orthodox princes.

consult the declaration of pope benedict xiv. of nov. 4, 1741. you will find in it these words: “quod vero spectat ad ea conjugia qu?, absque forma a tridentino statuta, contrahuntur a catholicis cum h?reticis, sive catholicus vir h?riticam feminam ducat, sive catholica f?mina heretico viro nubat; si hujusmodi matrimonium sit contractum aut in posterum contracti contingat, tridentini forma non servata, declarat sanctitas sua, alio non concurrente impedimento, validum habendum esse, sciat conjux catholicus se istius matrimonii vinculo perpetuo ligatum.” —“with respect to such marriages as, transgressing the enactment of the council of trent, are contracted by catholics with heretics; whether by a catholic man with a heretical woman, or by a catholic woman with a heretical man; if such matrimony already is, or hereafter shall be contracted, the rules of the council not being observed, his holiness declares, that if there be no other impediment, it shall be held valid, the catholic man or woman understanding that he or she is by such matrimony bound until death.”

by what astonishing contradiction is it, that the french laws in this matter are more severe than those of the church? the first law by which this severity was established in france was the edict of louis xiv., of november, 1680, which deserves to be repeated.

“louis, . . . . the canons of the councils having forbidden marriages of catholics with heretics, as a public scandal and a profanation of the sacrament, we have deemed it the more necessary to prevent them for the future, as we have found that the toleration of such marriages exposes catholics to the continual temptation of perverting it, etc. for these causes, . . . . it is our will and pleasure, that in future our subjects of the roman catholic and apostolic religion may not, under any pretext whatsoever, contract marriage with those of the pretended reformed religion, declaring such marriages to be invalid, and the issue of them illegitimate.”

it is singular enough, that the laws of the church should have been made the foundation for annulling marriages which the church never annulled. in this edict we find the sacrament confounded with the civil contract; and from this confusion have proceeded the strange laws in france concerning marriage.

st. augustine approved marriages of the orthodox with heretics, for he hoped that the faithful spouse would convert the other; and louis xiv. condemns them, lest the heterodox should pervert the believer.

in franche-comté there exists a yet more cruel law. this is an edict of the archduke albert and his wife isabella, of dec. 20, 1599, which forbids catholics to marry heretics, on pain of confiscation of body and goods.

the same edict pronounces the same penalty on such as shall be convicted of eating mutton on friday or saturday. what laws! and what law-givers! —“a quels ma?tres, grand dieu, livrez-vous l’univers!”

§ ii.

if our laws reprove marriages of catholics with persons of a different religion, do they grant the civil effects at least to marriages of french protestants with french persons of the same sect?

there are now in the kingdom a million of protestants; yet the validity of their marriage is still a question in the tribunals.

here again is one of those cases in which our jurisprudence is contradictory to the decisions of the church, and also to itself.

in the papal declaration, quoted in the foregoing section, benedict xiv. decides that marriages of protestants, contracted according to their rites, are no less valid than if they had been performed according to the forms established by the council of trent; and that a husband who turns catholic cannot break this tie and form a new one with a person of his new religion.

barak levi, by birth a jew, and a native of haguenan, had there married mendel cerf, of the same town and the same religion.

this jew came to paris in 1752; and on may 13, 1754, he was baptized. he sent a summons to his wife at haguenan to come and join him at paris. in a second summons he consented that this wife, when she had come to join him, should continue to live in her own jewish sect.

to these summonses mendel cerf replied that she would not return with him, and that she required him to send her, according to the jewish forms, a bill of divorce, in order that she might marry another jew.

levi was not satisfied with this answer; he sent no bill of divorce; but he caused his wife to appear before the official of strasburg, who, by a sentence of sept. 7, 1754, declared that, in the sight of the church, he was at liberty to marry a catholic woman.

furnished with this sentence, the christianized jew came into the diocese of soissons, and there made promise of marriage to a young woman of villeneuve. the clergyman refused to publish the banns. levi communicated to him the summonses he had sent to his wife, the sentence of the official of strasburg, and a certificate from the secretary of the bishopric of that place, attesting, that in that diocese baptized jews had at all times been permitted to contract new marriages with catholics, and that this usage had constantly been recognized by the supreme council of colmar. but these documents appeared to the parson of villeneuve to be insufficient. levi was obliged to summon him before the official of soissons.

this official did not think, like him of strasburg, that the marriage of levi with mendel cerf was null or dissoluble. by his sentence of feb. 5, 1756, he declared the jew’s claim to be inadmissible. the latter appealed from this sentence to the parliament of paris, where he was not only opposed by the public ministry, but, by a decree of jan. 2, 1758, the sentence was confirmed, and levi was again forbidden to contract any marriage during the life of mendel cerf.

here, then, a marriage contracted between french jews, according to the jewish rites, was declared valid by the first court in the kingdom.

but, some years afterwards, the same question was decided differently in another parliament, on the subject of a marriage contracted between two french protestants, who had been married in the presence of their parents by a minister of their own communion. the protestant spouse had, like the jew, changed his religion; and after he had concluded a second marriage with a catholic, the parliament of grenoble confirmed this second marriage, and declared the first to be null.

if we pass from jurisprudence to legislation, we shall find it as obscure on this important matter as on so many others.

a decree of the council, of sept. 15, 1685, says: “protestants may marry, provided, however, that it be in the presence of the principal officer of justice, and that the publication preceding such marriages shall be made at the royal see nearest the place of abode of each of the protestants desirous of marrying, and at the audience only.”

this decree was not revoked by the edict which, three weeks after, suppressed the edict of nantes. but after the declaration of may 14, 1724, drawn up by cardinal fleury, the judges would no longer preside over the marriages of protestants, nor permit their banns to be published in their audiences.

by article xv. of this law, the forms prescribed by the canons are to be observed in marriages, as well of new converts as of all the rest of the king’s subjects.

this general expression, “all the rest of the king’s subjects,” has been thought to comprehend the protestants, as well as the catholics, and on this interpretation, such marriages of protestants as were not solemnized according to the canonical forms have been annulled.

nevertheless, it seems that the marriages of protestants having been authorized by an express law, they cannot now be admitted but by another express law carrying with it this penalty. besides, the term “new converts,” mentioned in the declaration, appears to indicate that the term that follows relates to the catholics only. in short, when the civil law is obscure or ambiguous, ought not the judges to decide according to the natural and the moral law?

does it not result from all this that laws often have need of reformation, and princes of consulting better informed counsellors, rejecting priestly ministers, and distrusting courtiers in the garb of confessors?