All this, however, was merely local action. The Gallican church had not yet been reunited to Rome. In reconstructing a system of social order, Napoleon speedily recognized the necessity of religion in the state, and, despite the opposition of those who still believed in the Republic, the Concordat of 1801 restored France to its place in the hierarchy of Latin Christianity. There is nothing in the Concordat interfering with the right of the priest, as a citizen, to contract marriage; but as, in all affairs purely ecclesiastical, the internal regulation and discipline of the church were necessarily left to itself, the rights of the priest, as a priest, became of course subject to the received rules of the church, which could thus refuse the nuptial benediction, and suspend the functions of any one contravening its canons. In consequence of the power thus restored, when the question soon after arose as to the legality of sacerdotal marriages contracted during the troubles, the Cardinal-legate Caprara issued rescripts to those whose unions were anterior to the Concordat, depriving them of their priestly character, reducing them to the rank of laymen, and empowering the proper officials to absolve them and remarry them to the wives whom they had so irregularly wedded. This created a strong feeling of indignation among the prelates who had carried the tabernacle through the wilderness, and who, while opposing such marriages most strenuously, regarded this intervention of papal authority as a direct assault upon the liberties of the Gallican church. Their time was past, however, and their denunciations of this duplication of the sacrament were of no avail. Yet the legality of such marriages, and the unimpaired right of priests to contract them, were asserted and proved by Portalis, in his masterly speech of April 15th, 1802, before the Corps Législatif, advocating the adoption of the Concordat as a law, although he admitted that the duties of the priesthood and the feeling of the people rendered sacerdotal celibacy desirable.[1572]

Notwithstanding the authority thus restored to the church, and the certainty of ecclesiastical penalties following such infraction of the Tridentine articles of faith, the practice which had been introduced could not be immediately eradicated. Priests were constantly contracting marriage, and the question gave considerable trouble to the government, which hesitated for some time as to the policy to be pursued. Portalis, in 1802, as we have seen, declared the full legality of such marriages, and the unimpaired right of ecclesiastics to contract them; and the provisions of the code respecting marriage, adopted in 1803, make no allusions to vows or religious engagements as causing incapacity.[1573] Yet in 1805, when Daviaux, Archbishop of Bordeaux, opposed the application of a priest named Boisset to the civil authorities for a marriage contract, Portalis, then minister of religious affairs, on being appealed to, replied that the government would not allow its officers to register such contracts. The local administrations sometimes assented to such applications and sometimes referred them to the central authority, until at length, in 1807, a definite conclusion was promulgated. This was to the effect that although the civil law was silent as regards such marriages, yet they were condemned by public opinion. The government considered them fraught with danger to the peace of families, as the powerful influence of the pastor could be perverted to evil purposes, and, if seduction could be followed by marriage, that influence would be liable to great abuse. The emperor therefore declared that he could not tolerate marriage on the part of those who had exercised priestly functions since the date of the Concordat. As for those who had abandoned the ministry previous to that period and had not since resumed it, he left them to their own consciences. Thus, in practice, although marriage was regarded as purely a civil institution, a limitation was introduced which was not authorized by the code, which rested solely upon the authority of the emperor, and which, far from indicating respect to the church, was a flagrant insult. As Napoleon withdrew himself more and more from the principles of the new order of things, we find him disposed to take even stronger ground in opposition to the civil privileges accorded to the priesthood by the Concordat. The question of sacerdotal marriage continued to present itself under perplexing shapes, and at length the emperor, on the eve of his downfall, perhaps with a view to propitiate the sacerdotal power, proposed to apply to married priests the penalty imposed by the law on bigamy.[1574] It was too late, however; the empire was rapidly vanishing, and these suggestions were soon forgotten in the hurrying march of events.[1575]

[XXXI.]
THE CHURCH OF TO-DAY.

The question of sacerdotal marriage was left in France, on the collapse of the empire, in a curiously unsettled condition, giving rise to very remarkable contradictions in the judicial decisions which since then have from time to time been rendered by the tribunals as cases were brought before them.

Under the Restoration, a priest named Martin, an old réfractaire of 1792, committed the imprudence of marrying in 1815. Not long after he died without issue. His relatives contested the succession with the widow, and in 1817 the inferior court decided in her favor. The next year the court of appeals reversed the judgment on the ground that sacerdotal marriage had only been sanctioned indirectly by the legislation of the Revolution, and that the Charter of 1814 (Art. 6) had restored Catholicism as the religion of the state. In 1821, however, the final decision of the court of cassation settled the question in favor of the widow, thus legalizing such unions, for the incontrovertible reason that the code did not recognize vows or holy orders as causes incapacitating for marriage.[1576]

Even yet, however, the matter was not held to be finally disposed of. In 1828, Louis Thérèse Saturnin Dumonteil, a priest of Paris, who desired to contract marriage, failed to obtain from the courts the customary assistance required by the law to set aside the refusal of his parents, who declined their assent to his projected union. The case was argued in all its bearings on civil and ecclesiastical law, and he found the tribunals resolutely opposed to him. When the Revolution of July unsettled the public mind with visions of the revival of the principles of ’89, Dumonteil endeavored to carry out his project. The lower court decided in his favor, March 26, 1831, but the higher courts reversed the decision and pronounced definitely that priests could not contract civil marriage,[1577] and this in spite of the Charter of 1830, which simply affirmed Catholicism to be the religion of the majority of Frenchmen, while that of 1814 had declared it to be the religion of the state.

This curiously vexed question seems incapable of positive solution. The case of Dumonteil apparently discouraged aspirants for clerical marriage during the next thirty years, for I have met with no allusions to any attempt in that direction until 1861. In that year M. de Brou-Laurière, a priest already debarred from his sacred functions, engaged himself in marriage with Mdlle. Elizabeth Fressanges, of Deuville near Périgueux. On calling upon the mayor of the village to perform the ceremony and register the contract, that functionary refused to act. He was supported by the public authorities, and the expectant bridegroom was obliged to appeal to the tribunals to obtain his rights. The question was warmly contested and thoroughly argued, and it was not until a year had elapsed that the court of Périgueux rendered a decision ordering the mayor to perform his functions and to marry the patient couple. The case was then carried to the superior court at Bordeaux, which reversed the previous decision.

Again, in 1864, in the case of the Abbé Chataigneu, the court of Angoulême decided that a priest was, under the law of France, not competent to contract civil marriage.[1578] On the other hand, in 1870, the court of Algiers, in the case of a M. Q——, delivered an elaborate decision to the effect that in France there is no law forbidding the civil marriage of priests.[1579] Yet in 1878 the court of cassation confirmed a decision of the court of Rennes, pronouncing null and void the marriage of a priest, at the instance of his nephew and niece, to whom he had bequeathed his property by a will anterior to the marriage. When M. Loyson (Père Hyacinthe) married Mrs. Merriman, in 1872, the ceremony was performed in London, at the office of the Registrar of Marriages, and M. Loyson gave as the reason of his seeking a foreign land the refusal of the French officials to confirm the civil ceremony. So the Abbé Chavard, vicar at Marseilles, in 1874, went to Geneva for the same purpose, where he continued his priestly functions; and this leads me to regard as exceedingly improbable a recent statement in the daily journals that priestly marriages occur in France at the rate of twenty or thirty a year. In fact, so lately as September, 1883, there was before the courts a case which shows how uncertain is the question still in France. A certain Abbé Junqua was expelled from the church and was condemned to three months’ imprisonment for continuing to wear the priestly robes. He subsequently married and engaged in trade, when he failed, and his wife sought to secure her dowry from the bankrupt assets, but was resisted on the ground that her marriage was illegal under the Concordat, although the church had itself deprived the husband of his ecclesiastical character.