commentary — Bucceroni, Moral Enchiridion
Third Commentary: On a Sentence of Divorce as to the Bond of Matrimony to Be Given by a Lay Judge. Cf. n. 2
1.
- That this sentence is altogether illicit is plain from several Decisions of the S. Penitentiary and of the S. U. Inquisition concerning this matter. It is asked whether it is intrinsically illicit? It must altogether be responded affirmatively.
2.
- For first, if there is any law which contains something against natural and divine law, it is certainly the law of divorce as to the bond itself of matrimony. But "if the writing of a law contains something against natural law, it is unjust and does not have the force of obliging.... And therefore one must not judge according to such laws," St. Thomas, 2.2, q. 60, a. 6, ad 1; otherwise judgment would be made according to injustice and against natural and divine law, which certainly is intrinsically illicit. Nor certainly is it less intrinsically illicit in this matter of matrimony than in any other matter of temporal good and property for a judge to give sentence against natural and divine law.
3.
- It is intrinsically illicit for the parties to seek a sentence against natural and divine law. Consequently it is intrinsically illicit for an advocate to seek and patronize this same sentence; for the advocate holds himself on the part of the client and represents the client. Therefore much more is it intrinsically illicit to give a sentence against natural and divine law. But again, a sentence of divorce against the bond of matrimony, indissoluble by natural and divine law, is a sentence against the same natural and divine law.
4.
- The law itself of divorce is intrinsically illicit and iniquitous. Therefore the sentence of divorce is still more intrinsically illicit and iniquitous. Surely law is of itself quasi speculative-practical. Insofar as it is considered speculatively, the enunciation of a law that is illicit and iniquitous is not illicit, but false and absurd. But insofar as it is inspected practically, then indeed it is illicit and evil. Moreover the sentence of the judge is what constitutes it de facto practical, or practical-practical. "The sentence of a judge is, as it were, a certain particular law in some particular fact." St. Thomas, 2.2, q. 67, a. 1, c.
5.
- This intrinsic malice is evidently confirmed from various Decisions of the S. U. Inquisition; for such a sentence is said to deflect from the principles of natural law and to be repugnant to divine law.
6.
- Nor indeed do the reasons of the adversaries prove anything. They say first that that sentence is not intrinsically evil if it is considered in itself and by reason of itself, namely by reason of the act itself: because the judge does nothing other than declare the law in a particular case. But it is not intrinsically evil to declare that which an iniquitous law contains. But this reason has no force at all. For the judge does not declare the law in just any way, but declares it authentically and authoritatively, defining or determining the just, or the right, in a particular case. St. Thomas, 2.2, q. 60, a. 1, c. It is intrinsically evil authoritatively and juridically to declare, not indeed speculatively, but altogether practically, that that is just which in itself is unjust, that that is right which in itself is injury. Men, Aristotle says, and after Aristotle St. Thomas, l.c., flee to the judge as to a certain animated justice. In the present case the judge is nothing except animated injustice. By this reason brought forward by the adversaries, it would also be proved that judges under the Roman Emperors could licitly have condemned Christians, because in reality they were doing nothing other than merely declaring, in a particular case, the edicts of the Emperors.
7.
- Hence another reason is dissolved, namely that in the case about which there is question, the cooperation of the judge with sin is only material and by no means of itself efficacious, which, a grave cause intervening, is lawful. The new matrimony to be entered depends only on the will of the parties, who can abuse that sentence. Although the cooperation of the judge is only material, nevertheless the yielding of his own office, which is brought forward as an excusing cause, is certainly not a sufficient cause for giving honorable color to so great a damage, which comes both upon families and upon society itself from that most impious law of divorce, as is established by experience itself. But the cooperation of the judge is by its nature formal and of itself efficacious, although the second act of the new matrimony, or adultery, depends on the free will itself of the parties. It is by its nature formal, because all that it is tends toward making a faculty on the part of the law of flying to other nuptials, which thing is certainly most iniquitous in itself. It is by its nature efficacious, because the aforesaid faculty of marrying on the part of the law, in a particular case and in a determined person, is only the effect of the sentence of the judge. And if, the sentence of divorce having been pronounced, one spouse flies de facto to other nuptials, the other spouse objecting and pleading exception, the latter objects and pleads exception in vain; by the law itself and by the very sentence of the judge the other spouse is protected and fortified in his adultery. "Judgment," says the Angelic Doctor, 2.2, q. 60, a. 6, ad 1, "imports a certain impulsion, and therefore it is unjust that someone be judged by him who does not have public authority." And the same Angelic Doctor, l.c., q. 67, a. 1, says: "The sentence of a judge is, as it were, a certain particular law in some particular fact. And therefore, just as a general law ought to have coercive force..., so also the sentence of a judge ought to have coercive force, through which each party is constrained to observe the sentence of the judge; otherwise the judgment would not be efficacious." It matters little or nothing that adultery de facto depends on the free will of the parties. If a judge were to make a faculty for iniquitous and impious men of killing Clerics and despoiling Churches, would he not cooperate formally and efficaciously, although in act and de facto, because the judge does not command and compel to that killing and despoiling, the aforesaid killing and despoiling would depend on the free choice of those criminal men? Finally, in our case it is so true that by the law and the sentence of the judge there is made a faculty and civil right of flying to other nuptials, that, when these have been contracted, that right is now acquired by the new spouse; so that, during that new marriage, return to one's own and true spouse is prohibited; and the new spouse will always be able juridically to invoke the favor of the law conceded to himself.
8.
- Nor indeed does it have force to insist by saying that the judge can privately warn the parties concerning natural and divine law; indeed that in the Consideranda preceding the Sentence he can very well assert the Catholic doctrine concerning this matter. Whence it is that his Sentence in reality will be nothing except a mere exterior ceremony, and a certain solemnity, or rather a mere formality without any force and strength. A prior admonition privately made by the judge, even an expression of the doctrine of the Church in the Consideranda preceding the Sentence, does not change the intrinsic nature of the sentence; indeed it shows more the iniquity of this, against which the judge wishes to protest. That protest and admonition privately made is of a private person. The sentence is of a juridical and public person. In a judge of this sort there is had a true practical contradiction. For as judge he sanctions by his sentence that very thing which as a Christian faithful person he affirms to be against natural and divine law. The contradiction grows, as is plain, if that protest and admonition is placed in the very Consideranda preceding the sentence, which always remains an authentic, juridical, authoritative definition or determination not of the just or of right, but of the unjust and of injury. By this very sentence of his the judge openly confesses that he is not an interpreter of justice, but an interpreter of injustice by public authority. St. Thomas, 2.2, q. 60, aa. 5, 6; q. 67, aa. 1-2. And this certainly is intrinsically illicit.
9.
- Nor again does it have force to insist that that Sentence of the Judge is nothing except a mere permission. And as liberty of cults is permitted, so also Divorce can be permitted. This reasoning, if it proves anything, proves also that the Law itself of Divorce is not intrinsically evil. Indeed this is what it properly and directly proves. For the judge, as the adversaries themselves assert, does nothing other than merely declare and apply the law in a particular case. Therefore either they must say that that Law, as it is de facto, is not intrinsically evil, or they must confess that the Sentence of the judge also is intrinsically evil. Besides, if the action of the Syndic who pronounces the dissolution of the bond of true matrimony, or the validity of a second marriage, notwithstanding the first true and legitimate matrimony, is intrinsically evil, as even the adversaries themselves affirm, how is the Sentence of the judge not intrinsically evil, which gives that faculty to the Syndic, and to the parties the right of demanding that declaration from the Syndic? Can the execution of some action be intrinsically illicit without either the ratification, or the mandate, or the right conferred for that action being intrinsically illicit? Then the parity of liberty of worship would have force, when, as for liberty of cults, so for divorce the law would be a mere permission, i.e., a negative permission, namely insofar as, although the Legislator held divorce as a crime, he nevertheless tolerated it and did not punish it in certain determined circumstances, lest graver damage in detriment of the Republic should thence follow. Cf. St. Thomas, 2.2, q. 10, a. 11. But the law of divorce, as it is had de facto, is indeed a permission of divorce, but a positive permission, authorizing divorce, giving a civil right of divorce, and making power of flying to other nuptials before the civil magistrate himself, who holds the new marriage as ratified.
10.
- Others, who sustain the contrary manner of opinion, bring forward another reason. They say that the aforesaid Sentence is not intrinsically evil if its object is considered; acts are specified from the object. For indeed the object of that sentence is not the bond of matrimony to be dissolved, or simply the civil faculty made of flying to other nuptials, but only the civil advantages and effects which that sentence removes, or of which that sentence deprives the matrimony otherwise indissoluble, by defining the cessation of civil rights. But this is asserted altogether falsely. The intrinsic, immediate Object of the Sentence of the judge, specifying the same Sentence, is the intrinsic, immediate Object itself of the Law. This is established from the very nature of judicial Sentence, from the most manifest doctrine of all Theologians, especially of St. Thomas. For the judge, by his judgment or sentence, does nothing else than authoritatively interpret the law, define and determine the law in a particular case. Wherefore either it must be said that the Law of Divorce itself is not intrinsically illicit; or if that is intrinsically illicit, the Sentence of Divorce also is intrinsically illicit. Let the Angel of the School be heard: "He who brings forth judgment interprets in a certain way the dictum of the law, by applying it to a particular business. But since it belongs to the same authority to interpret the law and to establish the law, just as a law cannot be established except by public authority, so neither can judgment be brought forth except by public authority," etc. 2.2, q. 60, a. 6. The Angel of Our School teaches the same in the preceding article, where he says that judgment is the definition or determination of the just, or of written law, in which natural law or positive law is contained. This same is the mind of the Angelic Doctor, when he says that the sentence of a judge is, as it were, a certain particular law in some particular fact, ibid., q. 67, a. 1. For the sentence of a judge is not the particular law of the judge by simply constituting law, but by applying, defining, and determining in a particular case the law already constituted by the legislator.
11.
- It is insisted and asserted that that Sentence reaches only the civil contract, not the contract-sacrament; namely that contract, or species of contract, which is really distinct from the sacramental Contract and has place before the civil magistrate. The Law, not attending to the Sacrament, has this contract as matrimony; which nevertheless truly is not matrimony. Hence the Sentence of divorce does not have for its object divorce from the bond, but only denial of the protection of civil law. This insistence and assertion affirms in reality the same thing as the preceding assertion; for in other words it establishes that the object of that Sentence is the denial of civil effects and rights. Wherefore this insistence and assertion is altogether false, as was the preceding affirmation. For legislators bringing a law of divorce, although impious men, nevertheless are not so foolish that, leaving matrimony, which is the foundation of those civil rights, untouched, they would nevertheless deny the rights flowing from it; but, dissolving matrimony itself, by civilly making power of flying to other nuptials, they consequently deny the protection of law as to civil rights. Therefore the intrinsic immediate object of that law is the bond itself of matrimony, whence also it receives its name and is called the Law of Divorce. Therefore the object of the Sentence of the judge is the same, since it belongs to the judge not to establish law, but to pronounce judgment according to written law, by applying it to a particular case. Thus indeed the Fathers of the Provincial Council of Quebec understood the matter. For they say: "Not without great sorrow of soul, or rather horror, did the Fathers of this Provincial Synod learn that certain legislators of this region had most recently proposed that a Court of divorce be constituted, whose office would be TO PRONOUNCE DIVORCE FROM THE BOND on account of the cause of adultery." Thus also the Bishop of St. Gallen understood the matter, who proposed the doubt concerning this matter to the Sacred Congregation. For he says that, by that most recent law of the Helvetic Confederation, "marriages even of Catholics under certain very slight reasons can be dissolved perpetually, and DISSOLVED AS TO THE BOND, so that litigating spouses of this sort, after the sentence of divorce of the secular judges has been given, can pass, if they wish, to contracting other marriages." But then the same Most Reverend Bishop of St. Gallen enunciated the sixth Doubt thus: "Whether the same Catholic judges and advocates, according to the recent law of Helvetia, can with safe conscience propose THE BOND OF MATRIMONY AS TO BE DISSOLVED, or declare it AS DISSOLVED, and also declare that spouses of this sort can pass to contracting another marriage," etc. Likewise the Most Reverend Fathers, the Bishops of the Gauls, understood the matter. For, after a Letter had been received from the S. R. and U. I., in which it was said that "it can be tolerated that those who hold magistracies and advocates conduct matrimonial causes, which pertain to Ecclesiastical power, in France... provided that... they never bring forth a sentence, nor defend one to be brought forth, or provoke or excite to one repugnant to divine or ecclesiastical law;" a doubt was proposed by the Most Reverend Bishops: "Whether correct is the interpretation diffused through the Gauls, and also given in print, according to which the judge satisfies the aforesaid condition, who, although some matrimony is valid before the Church, abstracts from that true matrimony with constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that in mind he intends to rupture only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard these alone?" Namely, the Most Reverend Fathers understood very well that the Law of Divorce regards true Matrimony itself, and consequently that the Sentence of Divorce reaches objectively the bond itself of Matrimony. Hence by right and deservedly they doubted concerning satisfaction of that condition of doing nothing against divine or ecclesiastical law, by that subjective abstraction. To this doubt the S. R. and U. I. responded: Negatively. Nor indeed could it respond otherwise, for that subjective abstraction and intention is retracted by the objective action itself, namely by that pronouncement of the Sentence of Divorce. And hence it is plain that the same also was the mind of the Sacred Congregation itself. For it could not deny for any other reason that this interpretation was correct, except insofar as it held as ratified and firm that the Law of Divorce and the Sentence of Divorce objectively reach, intrinsically and immediately, the very bond of Matrimony to be dissolved. This same mind the same Sacred Congregation disclosed to the Bishop of St. Gallen. For saying that it can be tolerated that Catholics act in the civil forum in the parts of advocate and actor in this cause of Divorce, besides other limitations, it added this: provided that "the Sentence of this tribunal has no other effect than the aforesaid separation," namely as to bed and board, just causes standing. Therefore the Sacred Congregation understood that that Sentence of itself can have also another effect, namely Divorce from the very bond of Matrimony, which, besides, is established from the whole tenor of that Response. Finally the aforesaid Congregation of the Holy Inquisition, in the Letter to the Bishops of France, says that judges ought to be so disposed in soul "both concerning the validity and nullity of marriage, and concerning the separation of bodies... that they never bring forth a Sentence... repugnant to divine or ecclesiastical law." Therefore the Most Eminent Fathers openly suppose that the object of that Sentence in the case is no other than both the very validity and nullity of marriage, and the separation of bodies.
12.
- Nor should it be objected that intrinsic illicitness cannot at least be deduced from the Decisions of the Sacred Congregation, since it uses the disjunctive particle or, saying that that Sentence is "repugnant to divine or ecclesiastical law." It is responded, 1st, although in the Letter to the Bishops of France the S. C. uses the disjunctive particle, nevertheless in the response to the Bishop of Southwark and St. Gallen it uses the copulative particle and, saying that nothing in the case ought to be done "which deflects from the principles of natural AND ecclesiastical law." It is responded, 2nd, that there was a reason why the S. C. used in the letter to the Bishops of France the disjunctive particle. For there was question not of the simple object of that Sentence, but of the complex object. There was question not only of divorce from the bond, but also of divorce from cohabitation and bed; wherefore it was well added with the disjunctive particle that the Sentence could be repugnant to divine or ecclesiastical law. This is the whole text: "provided that they be so disposed in soul both concerning the validity and nullity of marriage, and concerning the separation of bodies, concerning which causes they are compelled to judge, that they never bring forth a sentence... repugnant to divine or ecclesiastical law." A sentence against the validity and bond of matrimony is always repugnant to divine law; for by divine law that bond is constituted. But a sentence concerning separation of bodies can sometimes be repugnant to ecclesiastical law only, since many things in this matter have been constituted by the merely positive law of the Church. Nor does the Church, by tolerating that lay judges handle matrimonial causes, also make power for them of altogether putting aside ecclesiastical laws. In the Response, on the contrary, to the Bishop of Southwark and St. Gallen, there was question of the simple object of that Sentence, of the dissolution of the bond, and then the Sacred Congregation employs the copulative particle. For not only by divine law but also by ecclesiastical law does that bond stand. The whole text is of the following tenor: "Whether a Catholic advocate can defend the causes of the defendant party against the plaintiff seeking the dissolution of the bond? The Response was: Provided that the Bishop is assured of the probity of the advocate, and provided that the advocate does nothing which deflects from the principles of natural AND ecclesiastical law, it can be tolerated." But the Letter which also is brought forward against this conclusion, to the Nuncio of the Holy See in Belgium and to the Minister of foreign affairs in the same Belgium, proves nothing. For that letter enunciates the fact only, but has nothing concerning the doctrine itself of the matter.
13.
- Finally it is objected: because otherwise a good judge, to the great detriment of Society, would have to desert his office, and a bad judge certainly would be substituted for him; because if a Catholic judge does not pronounce this sentence, another impious judge will give it; because many Catholic judges now act in this way. It is responded to the 1st: It is not a detriment to Society that judges, in order to defend public justice and honesty, yield even their own office. It is not a detriment to Society that, among so many depraved examples of those who rule and govern Society, there are a few who adorn it by a good and praiseworthy example with so great inconvenience to themselves, others seeking the things that are their own, but they the things that are of Jesus Christ. It is a detriment to Society that by the cooperation of most honorable judges themselves Cities are filled with divorces and families are dissolved. It is responded to the 2nd: That others act badly is certainly not a reason why we also should do the same evil. Rather by our example, our principles and doctrines, let us impede also the evil of others. It is responded to the 3rd: That many Catholic judges also so act in good faith surely does not prove that they act rightly objectively. And as regards them, right prudence and a greater evil to be avoided, in determined circumstances of places and times, can counsel silence at least for a time. On the contrary, many and by far more hold the matter as illicit, and illicit by the natural law itself. Moreover secular judges ought not to teach theologians, but theologians ought to teach secular judges what in this matter is lawful and what is illicit.