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In a brochure entitled “Napoleon and His Detractors,” Prince Jerome Napoleon found fault, in 1887, with Prince Metternich for having contended that the Emperor Napoleon had never been sacramentally united to Josephine. The Austrian diplomat went so far as to declare that he had heard from the lips of Cardinal Consalvi that Pius VII., by conferring the imperial consecration on Josephine, an unmarried wife, had sanctioned, as it were, her concubinary status. It was quite natural that Metternich should wish such to have been the case; under no other supposition could he uphold the honor of Maria Louisa and of her family. If Josephine was ever sacramentally united to Napoleon, the proud Hapsburgs had simply handed over one of themselves to be the concubine of the Corsican adventurer; as Catholics, the imperial family of Austria were compelled to acknowledge this degradation of their escutcheon. Now, says Prince Napoleon, the Emperor and Josephine, “who had been only civilly married in the time of the Directory, were united religiously by Cardinal Fesch, in order to satisfy the scruples of Josephine, in the evening preceding the consecration, and in the presence of Talleyrand and Berthier, in the chapel of the Tuileries. I know this from the traditions of my family.”

Whether because they really ignored the circumstances of Napoleon’s marriage and divorce, or because they dared not reveal displeasing details, the memoirists of the First Empire—such as Bourrienne, Marco Saint-Hilaire, Loriquet, Gallois, the Continuator of Anquetil—have given us either travestied information or none at all. Thiers and d’Haussonville afterward narrated a part of the story. But in 1839 M. d’Avannes, vice-president of the tribunal of Evreux, while preparing his “Sketches of Navarre,” and wishing to give some place to Josephine, who had received the ancient kingdom as a kind of appanage, asked permission to consult the documents concerning our subject which were guarded in the archives of the Ministry of Justice. He was allowed to investigate, but not to copy them. In this emergency he had recourse to the friendly offices of the Abbé Rudemare, who had been promoter of the diocese of Paris under the Empire; and who, more liberal than the state authorities, was able to furnish the investigator with even more information than that hidden in the archives. Add to this source the narration of Rudemare himself, as given among the “justificative pieces” in the “History of Cardinal Fesch,” by the Abbé Lyonnet, and you have the means whereby to construct the entire history of the Napoleonic matrimonial complication.

When Napoleon married Josephine de Beauharnais, on March 9, 1796, it was a purely civil ceremony which, in accordance with the spirit and law of the Revolution, united the pair. At that time the most hellish spirit of the Revolution had subsided, and it would not have been difficult to find a priest to bless their nuptials; indeed, during the worst days of the Terror few good Catholics entered the matrimonial life under the sole auspices of the State, dangerous though their fidelity generally proved. Josephine passed for a virtuous woman, and even showed a certain amount of religious devotion; on her part, therefore, this neglect may have been a mere worldly weakness. But there is good reason for supposing that Bonaparte was actuated, if not from the very day of his betrothal, at least from a period shortly posterior to it, by a design to provide himself with a loophole for escape from what might possibly become an inconvenient burden. In vain did Josephine beg for a religious authorization of their union; this proved to be one of the few matters in which her influence over Napoleon was null. Eight years passed, and the time came for the coronation of Bonaparte as Emperor of the French. Pope Pius VII. came to Paris for the great ceremony, and Josephine succumbed to the influence of that mysterious prestige which ever surrounds the Vicar of Christ. Her soul was in agony. Could she bear to submit her head to the blessing of the Supreme Pontiff of that Church whose laws she was defying? Could she dare to receive an almost sacramental consecration while living in the bonds of sin? And then there flashed into her mind the prospect of being able to finally dissipate the cloud which had so long hung over her otherwise happy life. Her purely civil marriage might be annulled by the powerful wish of that ambitious husband, whose dearest hopes her continued childlessness so terribly thwarted; but would even Bonaparte succeed, where Philip Augustus had failed, in procuring the dissolution of a Christian matrimony? She had already told Bourrienne that from the day when Napoleon commenced to plot for the imperial crown, she had felt herself lost; but now she could put an end to this anguish. She would avow her trouble to the Pontiff himself.

Trembling with emotion and shame, she made her avowal on December 1, the day before that appointed for the coronation. The Pontiff was thunderstruck. In common with all of Josephine’s friends—nay, with all France—he had believed her marriage to have been sanctioned by the Church. His answer, says M. d’Haussonville, was full of tenderness for the weeping woman, and of consideration for the unscrupulous man who would have deceived him, while it manifested the tact of the priest and the Pontiff. “Canonically, the situation of the Emperor did not concern him; that was an affair to be arranged between the potentate’s conscience and himself. But now that he, the Pontiff, knew the true state of affairs, he could not, much as he lamented the fact, admit the Empress to a share in the consecration, unless she were first united to Napoleon before a priest.” When Napoleon was informed of Josephine’s action and of the Pontifical decision, his rage was terrific; but what could he do? Proceed with his own consecration, and ignore the rights of Josephine? The scandal was not to be thought of; and the displeasure of the Pontiff, whose friendship he sadly needed, was not to be unnecessarily incurred. But one course was open to the schemer: to consent to the proposed nuptial benediction, and to devise some means for its nullification. According to the Canon Law, no Christian matrimony was valid unless performed in the presence of the pastor of one of the contracting parties; clandestine matrimony, such as, although illicit, is valid in most of the States of the American Union, and in those lands where the Tridentine decree on matrimony was never promulgated, was not recognized by the Church in France. Here, then, the astute Bonaparte imagined that his security was found. His union with Josephine should be contracted without the presence of the parish-priest or of witnesses; there was no time for the one, and necessary secrecy precluded the attendance of the others, as he told his uncle, Cardinal Fesch, on whose assistance and devotion he relied in his dilemma. At first Fesch refused to countenance what he rightly asserted would be a mere mockery of a religious solemnization, and of no validity; but he yielded sufficiently to propose recurring to the Pope for the powers necessary for his own assumption of the office of the curé of the Tuileries, and for the dispensation with witnesses. Can it be possible that Napoleon did not perceive that this action of his uncle promised to destroy his own hopes? Did he not realize that by recurring to the Pontiff, the source of Canon Law, for a dispensation from the provisions of that Law, he was cutting from under his feet the only ground on which he could securely stand, and on occupying which he had just resolved? The comedy which he had been enacting from the day of his marriage, which he was now developing for the illusion of Josephine, of the Church of France, of his future Empress, of the august house of Hapsburg, was certainly threatened with collapse. At any rate, the Cardinal proceeded to the apartments of Pius VII., and at once broached the subject of his quandary. “Most Holy Father, it may be that in the exercise of my duties in this matter, I shall need all the powers of your Holiness.” “Very well,” replied the Pontiff; “I accord them all.”

Here, then, is the solution of the entire question as to the religious marriage of Napoleon and Josephine, and consequently of the question of the validity of the pretended divorce by an incompetent ecclesiastical tribunal. With the action of the civil tribunals we, of course, have nothing to do. The sole ground for the acquiescence of the diocesan tribunal of Paris in the imperial demands was the non-fulfillment, at the religious marriage, of the conditions prescribed as essential by the Canon Law. But the Roman Pontiff had dispensed with these conditions in this particular case; he had derogated, in favor of Napoleon and Josephine, from the obligatory force of those conditions, just as he does in every case of clandestine matrimony, not otherwise illegitimate, celebrated in these United States and in other countries where the Tridentine decree was not promulgated.

As soon as he had received full power to act in the premises, Cardinal Fesch betook himself to the apartments of the Empress, and there married the imperial couple. Whether there were any witnesses or not to the ceremony appears to be doubtful. Capefigue, following Portalis, names that personage and Duroc. Thiers at first mentioned Talleyrand and Berthier; and then, on the testimony of certain original documents, denied their presence. The depositions of Talleyrand and Berthier before the “officiality” say nothing of their presence; but of course it was to the interest of their master that they should hide whatever would strengthen the validity of the religious ceremony. Just before the coronation Pope Pius asked Cardinal Fesch whether he had conferred the nuptial benediction. “Yes,” was the laconic reply. Two days afterward Josephine asked the Cardinal to give her a certificate of the marriage; and although he at first demurred, for fear of offending the Emperor, he yielded to her entreaties so far as to hand her a paper, the exact contents of which have never been made known.

It was in 1809, after the treaty of Vienna, that Napoleon first opened his mind clearly to Cambacérès, arch-chancellor of the Empire, on the matter of the divorce. A senatus-consultus was immediately promulgated (December 16) proclaiming the dissolution of the Emperor’s civil marriage. Napoleon had flattered himself that the religious marriage would give him no trouble whatever; it was a secret among the Cardinal his uncle, Josephine, and himself. But when he learned that Fesch had indiscreetly mentioned the ceremony to Cambacérès, and that he had even given a certificate to Josephine, he found himself compelled to seek from the ecclesiastical authorities a declaration of the nullity of his union. Ignoring the existence of the Pope, the proper judge in the matrimonial causes of sovereigns, recourse was had to the diocesan tribunal of Paris (not to a reunion of bishops, as Thiers says),—a body established to judge of similar causes between private individuals, and one composed of the appellant’s subjects. On December 22, 1809, the Abbé Rudemare, diocesan promoter of Paris; his colleague, M. Corpet; and the two officials, MM. Lejeas and Boisleve, were summoned to a conference with Cambacérès, in the presence of the Minister of Worship.

“The Emperor,” said Cambacérès, “can not abandon the hope of leaving behind him an heir who will assure the tranquility, glory, and integrity of the Empire which he has founded. He intends to marry again, and he desires to espouse a Catholic. Hence his union with the Empress Josephine must be annulled, and he wishes to submit the case to the diocesan tribunal.”

“But, my lord,” returned the Abbé Rudemare, “such a cause as this is reserved, if not by law, at least by custom, to the Sovereign Pontiff.”

“I am not authorized to recur to Rome,” replied the arch-chancellor.

“You need not go to Rome; the Pope is at Savona,” said the promoter.

“I am not told to treat with him,” answered Cambacérès; “and it is impossible to do so under present circumstances.”

“There are several cardinals, my lord, in Paris; why not submit this affair to them?”

“They have no jurisdiction, M. l’Abbé,” returned the imperial confidant.

“But at least,” insisted the promoter, “we have here a commission of cardinals, archbishops, and bishops, assembled for affairs of the Church.”

“They do not constitute a tribunal,” said Cambacérès; “whereas the ‘officiality’ is one formed for the cognizance of these very causes.”

“Yes, prince,” returned the Abbé; “but only for those of private individuals. The dignity of the parties here concerned prevents our tribunal from regarding itself as competent in the premises.”

“What!” exclaimed the arch-chancellor. “Do you mean to say that his Majesty has no right to present himself before a tribunal established for his subjects, and composed of his subjects? Who contests his right?”

“He may present himself,” acknowledged the promoter; “but such a course would be so contrary to custom that we could not assume the responsibility of acting as his judges unless the episcopal commission decided in favor of our competency. Although disposed to prove our devotion to his Majesty in every possible way, we must take every means to shield our own responsibility, and to insure the repose of our consciences. In undertaking this case we become a spectacle for angels and men.”

“But this affair must remain secret,” said Cambacérès; “all the documents shall be deposited in the cabinet of the Emperor. At any rate, the Minister of Worship will see that you receive the approbation that you desire.”

The motives for the nullification of the religious marriage having been submitted to the diocesan tribunal, the promoter exclaimed: “But we all thought, as did indeed the whole Empire, that the marriage of their Majesties had been celebrated in 1796 with all the canonical forms.”

“That is a mistake,” observed Cambacérès. “Foreseeing what has now happened, his Majesty would never receive the nuptial benediction. But on Saturday, December 1, 1804, tired of the entreaties of the Empress, he told Cardinal Fesch to give the nuptial blessing; and he did so in the apartments of the Empress, without any witnesses, and without the presence of the curé.”

“Prince,” asked the Abbé, “where is the record of this marriage?”

“There is none,” replied the arch-chancellor, who knew that Josephine had a certificate of the marriage, if indeed the imperial familiars had not found means to destroy it.

“This affair,” remarked the promoter, “providing, of course, that our competence is assured, must be conducted precisely as though it were the case of one of his Majesty’s subjects.”

“What! Follow mere forms? They take too much time. I have been a lawyer, and I know.”

“That may be,” returned Rudemare; “but forms often lead us to a knowledge of the truth; and, besides, we can not ignore them without risk of nullifying our proceedings. However, there is no reason why this second question should not also be submitted to the episcopal commission.”

On January 1, Napoleon obtained from seven prelates, who had no authority whatever in the premises, a declaration that the diocesan tribunal was competent to decide his matrimonial cause. These prelates were the very same who afterward pronounced the excommunication of Bonaparte null, “because it had been launched in defence of temporal interests”; and who added to the sufferings of the august prisoner of Savona by threatening, in the name of the church of France, to provide for its necessities if he did not yield to the schismatic demands of Bonaparte. They were the Cardinal Maury; the Cardinal Caselli, bishop of Parma; de Barral, archbishop of Tours; Canaveri, bishop of Vercelli; Bourlier of Evreux, Manet of Treves, and Duvoisin of Nantes. In accordance with the views of this declaration, the tribunal of Paris listened, on January 6, to the attestations, signed and sealed, of Cardinal Fesch, Talleyrand, Berthier, and Duroc, to the effect that the canonical conditions had not been observed in the religious marriage of the Emperor, and that his Majesty had intentionally arranged this neglect; for he could not dream, they said, of binding himself irrevocably in this matter at the moment when he was founding a new empire. On January 9, the tribunal heard a development of the further motive for dissolution which had been hinted in this last clause. Napoleon, the master of Europe, had been constrained in the exercise of his free will. He had not consented to the marriage. The official Peter Boisleve then delivered judgment in favor of the imperial postulant, but with the important reservation that the decision was pronounced by him because of the difficulty of recurring to the Supreme Pontiff, to whom such a case should by right have been referred. The promoter having appealed to the metropolitan “officiality,” its members confirmed the decision already given, but referred the affair for final adjudication to the primatial tribunal of Lyons. However, it was an easy matter to ignore the responsibility thus thrust upon this higher court. The Archbishop of Lyons was Cardinal Fesch.

Such is the history of one of the most solemn burlesques of justice ever perpetrated by a human tribunal. An incompetent court, listening to testimony evidently false as well as interested, and ignoring the manifest suppression of what would have given another aspect to the cause, slavishly bent to the will of an autocrat, and passed over as never having occurred a marriage sanctioned by the Vicar of Christ; and, turning to the civil union which the church had never recognized, pronounced the contracting parties free to enter upon new nuptials. Had Josephine resisted the imperial will—had she performed her duty as wife and woman, and carried her case before its proper judge,—her rights would have been proclaimed, even though the brute force of her husband might have forced her to yield her place to another. But she never appealed; sure of her husband’s invincible determination to repudiate her, she perforce found consolation in an empty title and in a magnificent establishment. It has been asserted that Josephine was cognizant of reasons for preservation of silence; it has been declared that there was a real, though secret, impediment, which invalidated her union with Napoleon, and of which the Viennese court was informed during the negotiations for the hand of Maria Louisa. So say Thiers and Rohrbacher. But this impediment could not have subsisted. The existence of Eugene and Hortense, taken in conjunction with Josephine’s own frequent anticipations, as evidenced by her letters to her husband and her friends, forbid such a supposition.

We would remark in conclusion that the term “divorce” should not be used in treating of this case. When concubinaries are separated, they are not divorced; they are simply declared not bound to each other. Here a sycophant tribunal denied the existence of the religious marriage, and of course it could not recognize the civil union. In this state of affairs it pronounced the parties free from matrimonial obligations. A divorce properly so called—that is, the dissolution of an existing tie (quoad vinculum)—can not and never has been granted by the Catholic Church in the case of consummated Christian matrimony; and we know of no tribunal calling itself Catholic, in the Western Patriarchate, whether competent or incompetent, legitimate or illegitimate, ever having pretended to accord such a separation. As to the contrary course of the Oriental Uniates, even the judicious Perrone can only remark, “ipsi viderint.” For an instance of the inflexibility of the Holy See in this regard, even in the case of the mighty ones of the earth, the mind of Josephine had not to travel back many centuries, or to search outside the annals of her husband’s family. The case of Jerome Bonaparte and his Baltimorean Protestant spouse was of a recent date.