I once met with a reasoner who said: “Induce your subjects to marry as early as possible. Let them be exempt2 from taxes the first year; and let their portion be assessed on those who at the same age are in a state of celibacy3.
“The more married men you have, the fewer crimes there will be. Examine the frightful4 columns of your criminal calendars; you will there find a hundred youths executed for one father of a family.
“Marriage renders men more virtuous5 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 warriors6 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 abhorring7 virginity. If that little nation of superstitious8 jobbers9 had not regarded marriage as the first of the human obligations — if there had been among them convents of nuns10 — they would have been inevitably11 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 accredited12 fathers of the Church. Go through the Theodosian and Justinian codes, and you will find no law proscribing13 the marriages of persons of another creed14, 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 Christian15 women; and that Valentinian, Theodosius, and Arcadius made the same prohibition16, 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 followers17 of the prevailing18 religion.
Consult St. Augustine, and he will tell you that in his time the marriages of believers with unbelievers were not considered illicit19, because no gospel text had condemned20 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 conversion21 of the unbelieving party. He cites the example of his own father, who embraced the Christian religion because his wife, Manica, professed22 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, transgressing24 the enactment25 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 valid23, 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 profanation26 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 perverting28 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 pretext29 whatsoever30, contract marriage with those of the pretended reformed religion, declaring such marriages to be invalid31, and the issue of them illegitimate.”
It is singular enough, that the laws of the Church should have been made the foundation for annulling32 marriages which the Church never annulled33. 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 spouse34 would convert the other; and Louis XIV. condemns35 them, lest the heterodox should pervert27 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 confiscation36 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 contradictory37 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 rites38, 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, attesting39, 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 Supreme40 Council of Colmar. But these documents appeared to the parson of Villeneuve to be insufficient41. 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 ministry42, 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 decided43 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 abode44 of each of the Protestants desirous of marrying, and at the audience only.”
This decree was not revoked45 by the edict which, three weeks after, suppressed the Edict of Nantes. But after the declaration of May 14, 1724, drawn46 up by Cardinal47 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 interpretation48, such marriages of Protestants as were not solemnized according to the canonical49 forms have been annulled.
Nevertheless, it seems that the marriages of Protestants having been authorized50 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 garb51 of confessors?
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1
sect
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| n.派别，宗教，学派，派系 | |
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exempt
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| adj.免除的；v.使免除；n.免税者，被免除义务者 | |
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3
celibacy
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| n.独身(主义) | |
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frightful
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| adj.可怕的；讨厌的 | |
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virtuous
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| adj.有品德的，善良的，贞洁的，有效力的 | |
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warriors
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| 武士，勇士，战士( warrior的名词复数 ) | |
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7
abhorring
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| v.憎恶( abhor的现在分词 )；（厌恶地）回避；拒绝；淘汰 | |
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8
superstitious
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| adj.迷信的 | |
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jobbers
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| n.做零活的人( jobber的名词复数 )；营私舞弊者；股票经纪人；证券交易商 | |
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nuns
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| n.（通常指基督教的）修女， （佛教的）尼姑( nun的名词复数 ) | |
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inevitably
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| adv.不可避免地；必然发生地 | |
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accredited
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| adj.可接受的；可信任的；公认的；质量合格的v.相信( accredit的过去式和过去分词 )；委托；委任；把…归结于 | |
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13
proscribing
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| v.正式宣布（某事物）有危险或被禁止( proscribe的现在分词 ) | |
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creed
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| n.信条；信念，纲领 | |
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Christian
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| adj.基督教徒的；n.基督教徒 | |
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prohibition
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| n.禁止；禁令，禁律 | |
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followers
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| 追随者( follower的名词复数 )； 用户； 契据的附面； 从动件 | |
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prevailing
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| adj.盛行的；占优势的；主要的 | |
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illicit
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| adj.非法的，禁止的，不正当的 | |
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condemned
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| adj. 被责难的, 被宣告有罪的 动词condemn的过去式和过去分词 | |
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conversion
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| n.转化，转换，转变 | |
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professed
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| 公开声称的，伪称的，已立誓信教的 | |
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valid
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| adj.有确实根据的；有效的；正当的，合法的 | |
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transgressing
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| v.超越( transgress的现在分词 )；越过；违反；违背 | |
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enactment
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| n.演出，担任…角色；制订，通过 | |
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profanation
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| n.亵渎 | |
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pervert
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| n.堕落者，反常者；vt.误用，滥用；使人堕落，使入邪路 | |
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perverting
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| v.滥用( pervert的现在分词 )；腐蚀；败坏；使堕落 | |
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pretext
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| n.借口，托词 | |
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30
whatsoever
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| adv.（用于否定句中以加强语气）任何；pron.无论什么 | |
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invalid
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| n.病人，伤残人；adj.有病的，伤残的；无效的 | |
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annulling
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| v.宣告无效( annul的现在分词 )；取消；使消失；抹去 | |
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annulled
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| v.宣告无效( annul的过去式和过去分词 )；取消；使消失；抹去 | |
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spouse
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| n.配偶(指夫或妻) | |
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35
condemns
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| v.（通常因道义上的原因而）谴责( condemn的第三人称单数 )；宣判；宣布…不能使用；迫使…陷于不幸的境地 | |
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confiscation
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| n. 没收, 充公, 征收 | |
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contradictory
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| adj.反驳的，反对的，抗辩的；n.正反对，矛盾对立 | |
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rites
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| 仪式，典礼( rite的名词复数 ) | |
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attesting
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| v.证明( attest的现在分词 )；证实；声称…属实；使宣誓 | |
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supreme
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| adj.极度的，最重要的；至高的，最高的 | |
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41
insufficient
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| adj.(for，of)不足的，不够的 | |
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42
ministry
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| n.(政府的)部；牧师 | |
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43
decided
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| adj.决定了的，坚决的；明显的，明确的 | |
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44
abode
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| n.住处，住所 | |
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45
revoked
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| adj.[法]取消的v.撤销，取消，废除( revoke的过去式和过去分词 ) | |
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drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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47
cardinal
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| n.(天主教的)红衣主教；adj.首要的，基本的 | |
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interpretation
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| n.解释，说明，描述；艺术处理 | |
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49
canonical
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| n.权威的；典型的 | |
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50
authorized
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| a.委任的，许可的 | |
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51
garb
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| n.服装，装束 | |
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