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?