Introduction
The annulment of the civil marriage of Napoleon and Josephine on 15 December, 1809, was the first stage in the process that has become known as the “divorce”. The second stage, which was to prove far more complicated, involved ensuring the religious annulment of the bond. This in turn required two religious tribunals assembled to pronounce on the validity of the marriage ceremony performed by Cardinal Fesch on 1 December, 1804. The following text is the decision of Abbé Rudemare, the Diocesan promoter, who sat on the Diocesan tribunal.
This text forms part of our close-up on: Napoleon’s “divorce”.
Abbé Rudemare’s decision
“Three witnesses are in agreement, regarding the two rulers, that the marriage blessing, if it indeed took place between Their Majesties, took place without any actual consent on the part of H.M. the Emperor, without an official priest, without witnesses and without an official document to prove its existence.
And yet an act of which there exists no deed, nor witness, has no reality in the eyes of the judge: it does not exist; and if it does not exist, there is no reason to declare the marriage properly or improperly concluded, with or without the required consent; it is void. What happens in the secrecy of a private apartment, between two persons, with no legal trace, is in the eyes of the Law akin to that which takes place within the depths of the soul, and has no judge but God.
[…] But the testimony of His Eminent Highness, Monseigneur the Cardinal Fesch does not allow us to consider the affair in this light. Here is a witness and the very minister who delivered the marriage blessing. His declaration is a memorial that establishes incontestably [the event]. He delivered a certificate of it to Her Majesty the Empress. The question thus arises, and we have to examine:
1. If the celebration was carried out according to the correct formalities, under threat of annulment, of the Holy Canons and Ordonances.
2. If the alleged lack of consent is such that it may prompt a decision of annulment.
With regards to the first point, the Laws of the Church require, under threat of annulment of the conjugal bond, that the celebration take place before an official priest and in the presence of two witnesses, according to the Council of Trent, and four [witnesses], according to the Ordonance of Blois.
In the current case, there is an absence of witnesses, which is attested to by the annexed testimonies. There is an absence of official priest. In essence, it was H.I.E. Monseigneur the Cardinal Grand Aumonier who delivered the marriage blessing, without the presence of a priest. This fact is equally consistent. What is equally true is that these two absences cannot be covered by the dispensations obtained from the Head of the Universal Church. H.I.E., having requested only the dispensations which would occasionally be essential for him to fulfill his duties as Grand Aumonier, and having failed to specify and notably specialise the extraordinary and clerical role he would go on to fulfill for H.M., could not have received and did not receive neither the exemption of witnesses as demanded by the Laws, both civil and canonical, nor the power to take the place of the priest or the official whose participation is deemed essential by the Council and the declaration of 1639, despite any privilege or custom to the contrary. Thus declared Gregory 13. It is also an unanimously held belief in France that in the event of marriage, the Bishop is the sole official [capable of giving the marriage blessing]. Louis 13, in his Edict of 1629, and Louis 14, in his [Edict] of 1697, clearly implied as such, in using not the term of ‘official’ but that of ‘Bishop’ or of ‘Diocesan Bishop’. That is all for the first point of the investigation.
For the second point, relating to the absence of consent, the question arises shrouded in obscurity. In truth, H.M. the Emperor gave himself to the celebration only with great reluctance and then only to cede to the insistence of Her Majesty the Empress. In truth, he did not wish to be tied by an indissoluble bond; but it is difficult to establish sufficiently whether there was an absence of consent necessary in the establishment of the bond. The question can thus be reduced to discerning if the clear intention to not be tied irrevocably, an intention contrary to the nature of the conjugal bond, was an inviolable obstacle to the establishment of the bond, or whether the consent given in the celebration is sufficient enough to produce the essential effects, notwithstanding any intention to the contrary. A question which is very difficult to resolve, in law as in reality. Thus, if the examination of this question was not necessary, it would seem prudent to avoid considering it.
Yet is the simple absence of witnesses not a defect that entails with it annulment? Yes, in all likelihood. The sole difficulty that presents itself, and it is a serious one, is that an absence of formalities cannot work in favour of those who freely created it. Thus it is the custom of tribunals to judge, in similar cases, that the marriage was improperly carried out in absence of an essential condition and is null and void, but to enjoin at the same time the parties to compensate for this absence in legally renewing their consent.
In this judgement there are thus two distinct parts: one which declares this marriage annulled quoad foedus; the other which obliges [the involved parties] to rehabilitate it. And it is felt that this last [point] is required for the most serious reasons of equity and public order.
However, it is nonetheless true that, for greater reasons concerning the common order, reasons of State, for example, it could be possible that there be no need to insist on rehabilitation. It is up to M. the Official to consider, in his wisdom, if the present circumstances do not authorise him to diverge from the rules on this point in his tribunal.”
Quoted in Louis Grégoire, Le « Divorce » de Napoléon et de l’Impératrice Joséphine, Paris: Letouzey & Ané, 1957 (tr. H.D.W.)