November, 1927 THE BUILDER

The Roman Church and Marriage in Quebec
By BRO. F.G. VIAL, Canada

THE Old World tone to be found in New Orleans and in certain
corners of the state of Louisiana represents a slight approximation
to what is found in Quebec. Whatever of the romantic and bizarre
survives on the lowest reaches of the Mississippi is overlaid by
Americanism and can only be discovered by the curious in by-paths
and out-of-the-way places. In Quebec, however, the life and manners
of the people are obviously of a different kind from that which
prevails in the rest of North America. It is a difference which, as
it were, hits the traveler in the face. The inhabitants are for the
most part French-speaking and very jealous for the preservation of
their mother tongue, while their religion, an aggressive Romanism,
is of the very texture of their individual and social life.

To appreciate this divergence from North American type it is
necessary to study the history of the Province, and indeed the
history of Canada. Quebec is virtually the survival of a Franco-
American Empire. The sixteenth, seventeenth and eighteenth
centuries witnessed a great colonial expansion from Europe. Spain,
France (and in a measure, Holland) struggled with England to
establish their own settlement and absorb those of their rivals.
The remnants of the Spanish Dominions are found in the Republics of
Central and South America. The English are found north of the Rio
Grande. Where are the French? The answer is, in the Province of
Quebec.

OLD FRANCE IN THE NEW WORLD

During the seventeenth century through the efforts of intrepid
voyageurs, coureurs du bois, and missionaries, the French Empire
extended in a vast and wavering semi-circle from the rocky shores
of Cape Breton to the mouth of the Mississippi. But the vital part
of this immense territory was on the banks of the St. Lawrence.
Here was the heart of New France; the rest were sprouting limbs.

It was New France; just as the settlements on the northern Atlantic
coasts were New England. Not new in the sense of a connection with
modern France but new as an extension of Old Royal France, France
of the pre-Revolutionary days. Thus by a paradox New France is Old
France, a survival. In Canadian history the French period is
described as the Ancien Regime, and the Ancien Regime in all
essentials is with us now in the Province of Quebec. And it is
maintained and fostered by the Roman Church. Consequently, it has
no sympathy with modern Republican France. The France of today is
the enemy of much that the French Canadian holds dear--his faith,
his sacred traditions, his family life. This partly explains the
French Canadian reluctance to fly to the succor of France in the
Great War. Even the emigres priests from Old France are not
popular. A recent writer says (1): "I have heard a French Canadian
priest say in broken English to a Protestant from the Province of
Ontario, 'I feel that I have more in common with you than I have
with the French priests who are flocking into this country.' "
There is a difference of spirit and of atmosphere.

Certainly the culture of Quebec is unique. French in speech--the
speech of Racine and Bossuet; Roman Catholic in faith, half-feudal
in organization: all this exists in a land, British in allegiance
and with the outward apparatus of twentieth century civilization.
The effect is picturesque--in the extreme. And what is it which has
caused the persistence of a type which otherwise flourished only in
the days of Richelieu and Colbert ? It is above all the influence
of the Roman Church in the Province of Quebec. Nowhere perhaps in
the world is that influence either more prevalent or on the whole
more beneficent than in French Canada.

THE ROMAN CHURCH ESTABLISHED

And the Roman Church maintains its influence chiefly by guarding
with jealous care the home Iife of the faithful. As far as possible
the French Canadian is segregated from the social life of British
Canadian fellow-citizens. Association with Protestants is reduced
to a minimum. Inter-marriage is strongly deprecated and when it
occurs its effects, inimical to the faith, are overcome by a
consistent and sedulous policy. The Church is ever vigilant in
protecting its children from the poisons of heresy and secularism.
This can best be done by the prevention of mixed marriage; when
this is impossible, or inexpedient, by nullifying its ill eflfects.

For the danger is a real one. There is a powerful minority in the
Province of Quebec, mainly in the south and west which is British
in origin, English in speech and reformed in faith. Nor does it
stand alone; it is united by kinship, faith and manners with the
rest of English speaking Canada. At the time of the conquest there
was a dream of converting the French Canadian to the Church of
England, and if priests of that communion in sufficient numbers and
with special gifts had been available, no one can say what might
have been the result. But the Quebec Act, passed by the British
Parliament in 1774 A.D., blasted all hopes of Anglicizing the
habitants. True indeed, the British criminal law was introduced but
the civil law of the Ancien Regime was left unchanged. The Bill
gave the Church the same privileged position it had enjoyed under
French sovereigns. The whole ecclesiastical system which had
irritated Frontenac was smiled upon and strengthened by the English
administration.

Thus, fortified by the civil power the Church took measures to
strengthen and safeguard its authority over its children. For a
considerable time these measures were defensive. Aggression was
inexpedient. In the case of "mixed" marriages, i.e., marriages
between Roman Catholics and those of other faiths, the Roman clergy
were generally acquiescent to a "fifty-fifty" arrangement. A
marriage would be solemnized according to the rites of the bride
concerned, there being "a gentleman's agreement," though sometimes
in writing, that the male issue of the marriage should follow the
father's faith; the female the mother's faith. Among the friends of
the writer's boyhood there were several who came under the
operation of such an understanding and from the social point of
view it seemed to work very well.

THE OBJECTION TO MIXED MARRIAGES

But it was not satisfactory to the hierarchy of the dominant
Church. Part of the issue of such unions was avowedly heretical;
the other part was perniciously, though subconsciously, relaxed in
its allegiance to the Holy Faith. .The results of such marriages
were inimical to the authority of the Church. What was to be done?
The answer in effect was, let such unions be tabu. When such
marriages are contemplated let the parties concerned know well that
they shall not have the blessing of the Church unless the non-Roman
makes his (or her) peace and becomes a convert. If still
recalcitrant insist that while the marriage cannot receive the full
blessing of the Mother Church it may yet be solemnized in a hole-
and-corner fashion by the priest in the sacristy or vestry, on the
express stipulation that the issue of the union, whether male or
female, is to be brought up in the Roman Church. Should the parties
to the proposed contract be so rebellious as to have their union
solemnized by some non-Roman minister then shall it be null and
void. The parties to it are living in mortal sin; the issue of it
is illegitimate--in the view of the Roman Catholic Church.

Now this attitude, which to many seems repulsively uncompromising,
is quite logical and constitutional. It is the glory of British
rule to give sects, orders and communities within its sovereignty
full liberty to regulate their internal affairs and maintain their
own discipline. Furthermore, the Roman Church in the Province of
Quebec was given special recognition by the Quebec Act, and
subsequent legislation, reaching down to the Act of British North
America (1867). No civil authority, no powerful and clamorous
faction, can take away rights and privileges so amply guaranteed
and repeatedly re-enacted.

THE LIMITS OF ECCLESIASTICAL AUTHORITY

Yes, indeed, the Roman Church has the right to regulate and
discipline the life and conduct of its own members. Nor can any
pressure from without affect this right. It is inalienable. Even
when the Church, to take an example germane to our subject,
declares null and void in its ecclesiastical courts a marriage of
one of its members to a non-Roman solemnized by a minister of
another faith, can anyone legitimately protest the procedure. It
may be deplored; it may be viewed as intransigent and uncharitable,
but it is a matter of internal discipline. True, the rights and
liberties of a non-Roman are involved in this case, but it is
unnecessary for him to be affected by it. Provided he stands by his
guns the ecclesiastical decision does not affect his civil status.
He is still in the eyes of the state a married man. If he can
secure the complacence of his partner contracted to him by a
process recognized as valid by the civil authority he may live
happily ever after. The hierarchy may thunder in vain. The decision
of ecclesiastical courts do not affect the civil status of
citizens. They may, however, and generally do, lead to domestic
infelicity, the breaking up of homes and final separation.

But here's the rub! So strong is the influence of the Church in the
Province that its decisions gradually came to acquire quasi-civil
authority. Fortified by the Ne temere Decree, the Roman hierarchy
succeeded, or almost succeeded, in converting the civil courts into
a rubber stamp for the registration of ecclesiastical verdicts. The
judiciary of the Province of Quebec is a body of high-minded and
learned jurists but most of them belong to and are sincere
supporters of the dominant faith. Those who deal with matrimonial
causes are almost invariably so. Under various acts passed by the
highest legislature of the Empire, the rights and privileges,
somewhat indeterminate yet vast, of the Church in French Canada had
been restored and confirmed (2). It would require a lengthy and
expensive legal process to define and de-limit such powers even in
the matrimonial field. Until such definition and de-limitation can
be secured, it were wise and expedient to adjudicate according to
the well-known convictions, sometimes the recorded findings, of the
ecclesiastical authorities. In making this commentary the writer is
not attempting to read the motives of our learned judges; he is
rather recording the impression conveyed by their verdicts.

The situation has caused a general feeling of uneasiness even among
enlightened French Canadians, and naturally much more among English
non-Romans. It did not seem right that the civil law of any part of
His Majesty's Dominions should be over-ridden by the law of a
foreign power (for that is what it amounted to) no matter how
august it might be. The Law of the Roman Church in the Province of
Quebec is with slight local and immaterial modifications the Canon
Law of that vast international polity which has its seat, not in
the Parliament House of Westminster, but in the Vatican at Rome.
Was it equitable that the status conferred on a citizen by the law
of the land should be abrogated at the behest of an authority which
claimed to be independent of, and superior to, the state? According
to British jurisprudence the subject is at liberty to contract a
marriage with another provided he complies with the law, which is
easily ascertainable and largely tolerant. The marriage thus
contracted may be annulled for certain cogent reasons. There is no
marriage if it can be proved that there was not mutual consent,
that it fell within the prohibited degrees of consanguinity, that
it was bigamous, that there was inability to consummate the union
in either party. This is annulment of marriage, not dissolution of
it, not divorce. It is necessary to keep the distinction clear
although the effects are practically the same. In the case of
annulment the courts declare that the union does not, and never
did, exist in law. There has been no marriage. In the case of
divorce the courts recognize that the union did exist but on
grounds which are sufficient to them they set aside the union which
previously existed. In Canada, at least in Eastern Canada, there is
only one ground on which divorce is granted, and that is adultery.
The instrument by which a divorce may be obtained--I am speaking of
Ontario and Quebec--is a Committee of the Federal Senate; the
Provincial judiciaries do not deal with divorce although it is
possible that Ontario will ultimately possess her own divorce
courts. At present in both Provinces if relief is sought recourse
must be had to this Committee of the Federal Senate, and I
understand that the procedure is both awkward and expensive.

ANNULMENT FOR DIVORCE

In the civil court of the Province of Quebec appeals for divorce
are never heard and therefore never granted. However, a practice
has grown up of declaring marriage null and void ab initio; and
that on a number of grounds other than those which are recognized
in the rest of the Dominion and other parts of the Empire. These
are based on Roman Canon Law and include differences of religion.
Hinc illae lacrimae ! To many it seemed intolerable that in a
British commonwealth a system of law should function which not only
claimed independence of the civil law but on occasion controlled
it.

Accordingly, some years ago a case of annulled marriage was carried
from Canadian Courts to the Highest Court of Appeal in the Empire,
the Privy Council. The annulment had been granted originally
because the persons involved, nominally at least, Roman Catholics,
had been joined together before some Protestant minister. The bond
growing irksome to one of the contracting parties, conscience
awoke. The claims and discipline of Mother Church, for a long time
stilled, began to exercise the spirit of her erring son, and he at
length took steps to terminate his life of sin. Under the influence
of the ecclesiastical law above mentioned the civil courts of the
Province declared the marriage null and void on the ground that,
both parties being Roman Catholic, the marriage had been solemnized
by other than a Roman priest. The case was clear-cut and definite
in its challenge to the law of the state and, in the opinion of
opponents to the growing practice of deference on the part of the
Civil Courts to the ecclesiastical law, formed a proper subject of
appeal. The ruling of the Privy Council, when it was finally
delivered in a weighty and carefully worded report, was to the
efect that a marriage solemnized before a duly appointed official
and performed in a manner recognized as valid by the Civil Law was
a true marriage. Its validity did not depend on the religious
status of the parties contracting the union, nor of the
ecclesiastical affiliations of the official performing the
ceremony. Since the parties involved in the test case had complied
in every way with the laws of the land, and were, under their
regulation, united, theirs was a true marriage. The previous
annulment was quashed.

It were interesting to follow the further development of this
domestic tragedy, but the personal, the intimate human touch has
been lost in the cloud of legal controversy out of which, on the
farther side, has issued clearly a vindication of the civil law in
its relation to one of its most important functions, that of
marriage. And that was, and is, the danger point.

For although the principle of the independence and paramountcy of
the Civil Law in relation to marriage has been theoretically
vindicated, the courts of the Province still occasionally grant
annulments of marriage for reasons other than those recognized by
the state. In the background of the court's handling of such cases
looms up the Canon Law of the dominant Church. However, all care is
taken, since the decision of the Privy Council in the test case
aforementioned, to avoid overt collision with the Civil Law. There
is evasion, not open defiance. The decisions, or the influence, of
the ecclesiastical courts are never in evidence. For instance,
annulments of unions unsatisfactory to the Church are frequently
obtained by a rigid interpretation of the regulation (in the case
of minors) which calls for parental acquiescence; or by a liberal
interpretation of what constitutes "undue influence," "duress," and
lack of consent.

Therefore, in spite of the Privy Council's decision, the situation
is by no means clear and unequivocal. The Provincial judiciary
tries to apply the law of the land with scrupulous justice but its
hands are tied and its imagination hypnotized by the mighty
influence of the Roman Church which by the Quebec Act secured for
itself the full enjoyment of its religious law, and the privilege
which had been accorded to it under the Ancien Regime. There is the
dilemma. The relation of civil and canon law within the Province of
Quebec has yet to be thoroughly thrashed out and until it is, the
possibility of dangerous collision is never absent. The only
feasible method of clearing the ground is for each aggrieved party
to appeal, and yet appeal, until every debatable detail has been
settled. Few aggrieved parties have the patience, the courage, the
public spirit, and the financial resources for such undertakings.
The Church has. So there you are!

NOTES

(1) A Canadian Manor, George M. Wrong, p. 194.
(2) After the conquest.


So long as the people of a country or a state are all of the same
religion the distinction between civil and religious law does not
become clearly apparent. The civil rulers will give religious
requirements the force of law. It is not until different religions
are strongly represented in the same political unit that the
distinction will appear. The first method attempted is to recognize
one religion and permit others under restrictions. But in the fact
of the democratic ideal of freedom and self-government this
position is anomalous, and eventually all religions have to be put
on the same basis.

Marriage, in our present form of society, has a well defined legal
aspect concerned with the rights of women and children, which is
quite distinct from any religious requirements and is purely a
matter of public policy. The tendency is to equate it with other
forms of contract and to make it voidable by mutual consent. The
churches have a perfect right to impose their own rules on their
own members under the sanction of suspension or termination of
membership, but such rules are additional to those of the state and
not substitutes. No religious body can claim that its private rules
shall have legal effect without claiming in effect a favored
position. And to grant such a claim is to nullify the basis upon
which democratic government rests.
