The judge and unjust laws

The judge is bound to pass sentence according to law, for this is presumed to be just. It may, however, happen that particular laws are unjust, as when the seal of confession is not respected or divorce is permitted. May a Catholic judge pass sentence in accordance with such laws as these ¹ The judge may sometimes obtain permission to pass sentence according to a law which is unjust merely because it is against the laws and rights of the Church. In order to make the position of Catholic judges tenable the Church will sometimes cede her rights in such cases or grant jurisdiction to try a case which of itself belongs to the ecclesiastical courts.

Thus Cardinal Gasparri deduces from a decree of the Holy Office, December 19, 1860, that jurisdiction has been granted to judges in England to try cases where there is question of judicial separation of married people.

If the law commands what is contrary to the natural or divine law—as, for example, to give evidence as to what has been declared in confession—it is intrinsically wrong to obey such a law, and no Catholic judge may apply it.

If the unjust law only imposes a fine or imprisonment, some theologians maintain that even then it may not be applied by a Catholic judge. Others, however, hold that for grave reason—as, for example, if no Catholic could otherwise accept the office of judge—sentence may be passed according to such a law. The person unjustly condemned must patiently submit for the public good, especially as he would not escape even if Catholic judges refused to execute the law.

The unjust sentence of a judge imposes no obligation in conscience, and of course the aggrieved party may have recourse to all available remedies which the law allows for redress. If none is available the public good will usually require patient submission to the wrong. If there is a doubt about the justice of a sentence, presumption favours the judge, and obedience must be yielded, as in the case of a just sentence, which has the force of the law which it applies.

¹ Gasparri, De Matrim. 2, n. 1165.

Sentence Passed under a Law Manifestly Unjust.—(a) If the law is manifestly opposed to divine or natural law and sentence under it would command the commission of an act intrinsically evil (e.g., cohabitation of those who are not really married, “mercy killing” of the physically or mentally incapacitated, eugenic sterilization of defectives or criminals), the judge should resign rather than give such a sentence.

(b) If the law is manifestly opposed to divine or natural law and sentence under it would inflict a grievous penalty (e.g., death or long imprisonment) on the transgressor of the law, sentence would be unlawful. But if only a light penalty would be inflicted (e.g., a small fine or short confinement), it seems that sentence might be tolerated; for the person condemned might be considered to yield his rights in such a case for the sake of the public good, which suffers from the loss of conscientious officials. The act of the judge in giving the sentence would be only material cooperation, which is lawful for grave reasons (see 1515 sqq.).

(c) If the law is manifestly opposed to ecclesiastical law, sentence may be given lawfully, if scandal is avoided and the Church yields her right in the case, as is sometimes done in favor of Catholic judges, lest they be deprived of their positions.

May a Catholic Judge Grant a Decree of Divorce?—-Apart from scandal or a positive ecclesiastical prohibition:

(a) The judge may grant a divorce to a couple not married validly although they have had a marriage ceremony recognized by civil law. This would occur in the case of Catholics married before a civil magistrate or non-Catholic minister. Also, when the Church has pronounced a marriage invalid, civil divorce may be granted for the sake of civil effects.

(b) Divorce may be granted if the judge knows that one of the parties will invoke the Pauline privilege.

(c) If the judge is morally certain that neither party will attempt remarriage and that the divorce is being sought merely for the sake of civil effects, he may grant the divorce. In the case of Catholics the consent of Church authorities would be required for this procedure.

(d) If the marriage is valid and it is known that the parties will attempt a new marriage, some consider that a decree of divorce is intrinsically evil, since it but applies a law that attempts, contrary to divine right, to dissolve the marriage bond. Others (and this is the more common view today) distinguish and think that the decree of divorce does not concern the religious obligation of the petitioners, but is simply an official declaration that the state regards the civil effects of the marriage as no longer existing. Under certain circumstances, (e. g., loss of office for refusal to accept a divorce case, loss of prestige, antagonism, etc.), such a decree, in itself morally indifferent, may be permitted.

(e) If there is question of partial divorce (i.e., separation from bed and board) of Catholic spouses, a decree is lawful, the Church consenting, for a reason recognized by ecclesiastical authority, such as adultery.

"Not without great sorrow of mind, or rather horror, have the Fathers of this Provincial Synod learned that certain legislators of this region have very recently proposed that a Court of divorce be established, whose office would be to pronounce divorce from the bond on account of adultery. For besides the fact that such a law, which may God avert, would be a subversion of the institution of almighty and most wise God and a usurpation of the rights of the Church of Christ, no one is ignorant or can be ignorant how many and how great evils flow from such divorce, which render it most hostile to civil society. For under the hope of future divorce marriages are contracted imprudently, quarrels are provoked, and, what the soul shudders to say, adulteries themselves; the bond of charity between families yields place to irreconcilable hatred; fortunes are placed in danger; the whole of society is scandalized. Finally, what will become of the children whose parents have obtained divorce? But We, whom God has placed as watchmen in this part of His Church, wish our diocesan faithful always to remember that no one can, with conscience safe: 1. cast a vote for such a law; 2. in such a Court of divorce, act the parts of plaintiff, or of judge, or of notary or chancellor, or concur formally or in any other way; nevertheless We do not intend to condemn those who, compelled, would bear testimony concerning the very fact of adultery." Fourth Provincial Council of Quebec, year 1868, Collectio Lacensis, Vol. 3, col. 748.

"The law of the Swiss Confederation issued concerning civil status and civil marriage sanctioned that all and singular matrimonial causes, ecclesiastical jurisdiction being suppressed from now and henceforth, are to be treated in the tribunals of laymen according to the norm which is established in civil causes, and that sentences are to be pronounced in them according to the prescriptions of common law and of the most recently issued law, by which marriages even of Catholics can, under certain very slight reasons, be perpetually broken and dissolved as regards the bond; so that spouses of this kind litigating, after a sentence of divorce of secular judges has been issued, can pass, if they wish, to contracting other marriages. Therefore it is asked:

Fifth doubt: Whether Catholic judges and advocates in lay tribunals of this kind can with safe conscience undertake and defend matrimonial causes, or know and judge them?

Sixth doubt: Whether the same Catholic judges and advocates, according to the recent law of Switzerland, can with safe conscience propose the bond of marriage as to be dissolved or declare it as dissolved, and also declare that spouses of this kind can pass to contracting another marriage, as the civil law in this case expressly orders and urges the judges to judge and declare?

In discussing this question it must not be forgotten that the secular tribunals, whose office it is to judge civil causes, are the same ones to which by the new law it belongs to know and judge matrimonial causes. Therefore, if it has been forbidden to Catholic judges to take part in tribunals of this kind, we shall experience, to the great harm of citizens, that these tribunals are deprived of those judges who, filled with the fear of God, judge piously and justly.

Resp. To the fifth and sixth. As regards judges, let recourse be had in particular cases. As regards advocates, let the responses already given to the Bishop of Southwark be given, namely: Feria III, place IV, 22 May 1860, to the doubt: Whether a Catholic advocate can defend the causes of the defendant party against the plaintiff seeking dissolution of the bond? The response was: Provided that the Bishop is certain of the uprightness of the advocate, and provided that the advocate does nothing which turns aside from the principles of natural and ecclesiastical law, it can be tolerated. And to another doubt: Whether it is lawful to act the parts of advocate and plaintiff when the end of the suit is a simple separation without any sentence drawing with itself the nullity of marriage? The response was: Provided for in the preceding. And Feria IV, 19 December of the same year: Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as regards bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics in that forum act the parts of plaintiff and advocate; and provided that there are just causes of separation in the judgment of the Bishop. And if he has any doubt besides, let him have recourse, setting forth all circumstances and dispositions of the law." S. I. C. 3 April 1877, to the Bishop of St. Gall. Archiv fur Katholisches Kirchenrecht, etc., edited by Dr. Friedrich H. Vering, Mainz, 1878, p. 294 ff.

"After the divorce laws had recently been restored among the French in the year 1884, several doubts were proposed by some Bishops of France to this Holy Roman and Universal Inquisition: namely, whether it was right for lay judges in causes concerning separation of spouses, whether concerning the bond or only concerning habitation, to pronounce law; whether for advocates and procurators to handle causes of this kind before lay judges; whether for those to whom it belongs by law to appoint official defenders, as they call them; finally, whether for syndics (commonly maires) to pronounce divorce.

The Most Eminent Fathers, General Inquisitors together with me, the matter having been maturely weighed, on Feria V, place IV, on the day 25 June 1885, judged that this must be decreed:

Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office, provided that they openly profess Catholic doctrine concerning marriage and concerning matrimonial causes as pertaining to ecclesiastical judges alone; and provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law; and in doubtful or more difficult cases let each approach his own Ordinary, direct himself by his judgment, and insofar as there is need, have recourse through him to the Apostolic Penitentiary.

The Most Holy Father ratified this decree; and therefore it is made known to all Archbishops and Bishops in France for their norm by these letters, which otherwise are not to be published."

"By certain Bishops of France the following doubts were proposed to the Holy Roman and Universal Inquisition: In the Letter of the Holy Roman and Universal Inquisition of 25 June 1885 to all Ordinaries in the French Dominion concerning the law of civil divorce, it is thus decreed: Attending to the most grave circumstances of things, times, and places, it can be tolerated that those who hold magistracy and advocates handle matrimonial causes in France, without being bound to leave office. It added conditions, of which the second is this: Provided that they are so disposed in mind, both concerning the validity and nullity of marriage and concerning separation of bodies, concerning which causes they are compelled to judge, that they never pronounce a sentence, nor defend for one to be pronounced, nor provoke or excite to it, that is repugnant to divine or ecclesiastical law. It is asked: 1. Whether the interpretation spread through France and even given to print is right, according to which there satisfies the aforesaid condition a judge who, although some marriage is valid before the Church, abstracts from that marriage with a true and constant mind, and, applying the civil law, pronounces that there is place for divorce, provided that he intends in mind to break only the civil effects and only the civil contract, and that the terms of the sentence pronounced regard only those things? In other terms, whether a sentence thus issued can be said not to be repugnant to divine or ecclesiastical law? 2. After the judge has pronounced that there is place for divorce, can the Syndic (in French, le maire), himself also intending only the effects and the civil contract, as is set forth above, pronounce the divorce, although the marriage is valid before the Church? 3. Once divorce has been pronounced, can the same Syndic civilly join with another the spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living? - Resp. To the 1st, 2nd, and 3rd doubt, in the negative." S. I. C. 27 May 1886.

"A woman, separated from her husband by force of a sentence as regards bed, would wish to undertake a certain public office for sustaining life. But the government does not allow this unless she asks for divorce. She would wish to ask, but, in her intention, always with the bond saved. The Parish Priest, who is also her confessor, asks whether she can be admitted to the sacraments, and for light or counsel concerning the rest, as below. Resp. To the penitent woman, in the case, nothing else is to be advised except that she abstain under grave obligation from seeking divorce." S. Poenit. 5 Jan. 1887, to a Parish Priest of France.

"Most Reverend Monsignor. I have reported to the Most Eminent Major Penitentiary the case of the Syndic of that Diocese, who by force of his office would have to assist at the civil marriage of a certain person who is already bound in the face of the Church, and by command of the praised Eminent one I must signify to you that the named Syndic cannot in any way lend himself to an act so contrary to the sanctity of marriage. Therefore, whatever the circumstances of the case may be, he must absolutely abstain from such assistance, even if it should follow afterwards that he must resign. From the Sacred Penitentiary, 28 Nov. 1883. Luigi Martini, Substitute of the Sacred Penitentiary." To an Italian Bishop.

"14 September 1876. Prince, ... Following my request, His Eminence (the Cardinal Secretary of State) has just informed me, according to the orders of His Holiness, that the Congregation of the Holy Office has declared that the decree of 27 May does not concern Belgium, and that, consequently, nothing is modified in that country in what touches the matter of divorce. + Dominic, Archbishop of Thessalonica, Apostolic Nuncio." To the Minister of Foreign Affairs at Brussels. Cf. Nouvelle Revue Theolog. Vol. 18, p. 73.

“Not without great sorrow of soul—or rather, horror—did the Fathers of this Provincial Synod learn that certain legislators of this region had very recently proposed the establishment of a Court of Divorce, whose office would be to pronounce divorce from the bond on the ground of adultery. For besides the fact that such a law—which God avert—would be a subversion of the institution of almighty and most wise God and a usurpation of the rights of the Church of Christ, no one is ignorant, or can be ignorant, of how many and how great are the evils which flow from such a divorce and render it most hostile to civil society. For under the hope of a future divorce, marriages are contracted imprudently; quarrels—and, what the soul shudders to say, adulteries themselves—are provoked; the bond of charity between families gives way to irreconcilable hatred; fortunes are placed in jeopardy; the whole of society is scandalized. Finally, what shall become of the children whose parents have obtained a divorce? But We, whom God has placed as watchmen over this part of His Church, wish our diocesans always to remember that no one can, with a safe conscience: 1. cast a vote for such a law; 2. act in such a Court of Divorce in the part of the plaintiff, or of the judge, or of the notary or chancellor, or cooperate formally or in any other manner whatever; nevertheless, We do not intend to condemn those who, under compulsion, shall give testimony concerning the fact itself of adultery.” Fourth Provincial Council of Quebec, 1868; Collectio Lacensis, vol. 3, col. 718.

“The enacted law of the Swiss Confederation on civil status and marriage has decreed that all and each matrimonial case, ecclesiastical jurisdiction having henceforth been suppressed, is to be treated in lay tribunals according to the norm established for civil cases, and that sentences in them are to be pronounced according to the prescriptions of the common law and of the most recently enacted law. By the latter, even marriages of Catholics can, on certain very slight grounds, be perpetually severed and dissolved as to the bond, so that litigating spouses of this kind, after a sentence of divorce has been pronounced by secular judges, can pass to the contracting of other marriages if they wish. It is therefore asked:

“Fifth doubt. Can Catholic judges and advocates in lay tribunals of this kind, with a safe conscience, undertake and defend matrimonial cases, or take cognizance of and judge them?

“Sixth doubt. Can the same Catholic judges and advocates, with a safe conscience and according to the recent Swiss law, propose that the marriage bond be dissolved, or declare it dissolved, and also declare that spouses of this kind can pass to the contracting of another marriage, as the civil law in this case expressly commands and urges the judges to judge and declare?

“In discussing this question, it must not be forgotten that the secular tribunals whose office it is to judge civil cases are the same tribunals upon which, by the new law, it is incumbent to take cognizance of and judge matrimonial cases. Therefore, if Catholic judges should be forbidden to take part in tribunals of this kind we shall experience, to the great detriment of citizens, that those tribunals are deprived of the judges who, filled with the fear of God, judge piously and justly.

“Response. To the fifth and sixth. As regards judges, recourse is to be made in particular cases. As regards advocates, let the responses already given to the Bishop of Southwark be given, namely: Thursday, in the fourth place, 22 May 1860, to the doubt: Can a Catholic advocate defend the case of the respondent against a plaintiff seeking dissolution of the bond? The response was: Provided that the bishop is satisfied concerning the uprightness of the advocate, and provided that the advocate does nothing which departs from the principles of natural and ecclesiastical law, it can be tolerated.—And to another doubt: Is it lawful to act in the part of advocate and plaintiff when the end of the suit is simple separation without any sentence carrying with it the nullity of the marriage itself? The response was: Provision was made in the preceding; and Friday, 19 December of the same year: Provided that the Catholic party can approach no other tribunal from which he may obtain a sentence of separation as to bed and board, and provided that the sentence of this tribunal has no other effect than the aforesaid separation, it can be tolerated that Catholics act in that forum in the part of plaintiff and advocate, and provided that just grounds of separation exist in the judgment of the bishop; and if he has any further doubt, let the petitioner have recourse, setting forth all the circumstances and the dispositions of the law.” Holy Office, 3 April 1877.

“After the laws of divorce were recently restored among the French in the year 1884, several doubts were proposed to this Sacred Roman and Universal Inquisition by certain bishops of France: namely, whether it was lawful for lay judges to administer justice in cases concerning the separation of spouses, whether as to the bond or merely as to habitation; whether it was lawful for advocates and procurators to conduct cases of this kind before lay judges; whether it was lawful for those to whom it belongs by law to appoint defenders appointed by the court, as they call them; and finally, whether it was lawful for mayors (maires, as they are commonly called) to pronounce divorce.

“The Most Eminent Fathers, General Inquisitors together with me, the matter having been maturely considered, judged in the meeting of Thursday, in the fourth place, on 25 June 1885, that the following was to be decreed:

“In view of the most grave circumstances of affairs, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France without being bound to resign their office, provided that they openly profess the Catholic doctrine concerning marriage and concerning matrimonial cases as belonging to ecclesiastical judges alone; and provided that, both concerning the validity and nullity of marriage and concerning the separation of bodies, which cases they are compelled to judge, they are so disposed in mind that they never pronounce a sentence contrary to divine or ecclesiastical law, nor defend a sentence to be pronounced, nor provoke or incite such a sentence; and that in doubtful or more difficult cases each approach his Ordinary, direct himself according to his judgment, and, insofar as there is need, have recourse through him to the Apostolic Penitentiary.

“The Most Holy Father ratified this decree, and therefore it is made known by these letters—which otherwise are not to be published—to all archbishops and bishops in France as their norm.”

“The following doubts were proposed to the Sacred Roman and Universal Inquisition by certain bishops of France. In the letter of the Sacred Roman and Universal Inquisition of 25 June 1885 to all the Ordinaries in the French dominions concerning the law of civil divorce, it was decreed as follows: ‘In view of the most grave circumstances of affairs, times, and places, it can be tolerated that those who hold magistracies and advocates conduct matrimonial cases in France without being bound to resign their office.’ It added conditions, of which the second is this: ‘Provided that, both concerning the validity and nullity of marriage and concerning the separation of bodies, which cases they are compelled to judge, they are so disposed in mind that they never pronounce a sentence contrary to divine or ecclesiastical law, nor defend a sentence to be pronounced, nor provoke or incite such a sentence.’ It is asked: 1. Is the interpretation spread throughout France and also given to print correct, according to which a judge satisfies the aforesaid condition if, although some marriage is valid before the Church, he truly and steadfastly abstracts from that marriage and, applying the civil law, pronounces that there is ground for divorce, provided that in his 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? In other terms, can a sentence so pronounced be said not to be contrary to divine or ecclesiastical law? 2. After a judge has pronounced that there is ground for divorce, can the mayor (le maire in French), himself also intending only the civil effects of the contract, as is explained above, pronounce the divorce, although the marriage is valid before the Church? 3. Once the divorce has been pronounced, can the same mayor civilly join with another a spouse attempting to pass to other nuptials, although the prior marriage is valid before the Church and the other party is living?—Response. To the first, second, and third doubts: Negative.” Holy Office, 27 May 1886.

“14 September 1886. Prince.... Following my request, His Eminence (the Cardinal Secretary of State) has just informed me, by order of His Holiness, that the Congregation of the Holy Office has declared that the decree of 27 May does not concern Belgium and that, consequently, nothing is changed in this country as regards the matter of divorce. † Dominic, Archbishop of Thessalonica, Apostolic Nuncio.” To the Minister of Foreign Affairs at Brussels.

“A certain French judge, formerly a student of theology, approaches his confessor and, after declaring various mortal sins, adds: ‘Concerning the sentences pronounced by me in the matter of civil divorce, there is nothing for me to say, Father. For I am accustomed to declare civil divorce whenever most grave reasons are present, whether on my part or on the part of those who have brought the case before me.’—‘You have acted wrongly,’ the priest replies, ‘and you have not read the decision by which the General Congregation of the Sacred Roman and Universal Inquisition recently (27 May 1886) forbade judges to act in this manner.’—‘Indeed, I know it perfectly well, Father, and nevertheless I do not judge that I have sinned, for the following reasons: 1. You also know, Father, the response given in the name of the Supreme Pontiff to the Government of Belgium by the Apostolic Nuncio. Now, an act tolerated in Belgium can also be tolerated in France when the same circumstances recur, unless a positive prohibition by the Supreme Pontiff is certainly adduced; and this is by no means constituted by the simple approval of a decree of the Holy Office. 2. Theologians do not agree concerning the force of a decision of this kind. 3. Finally—and this is the principal hinge of the matter—in the proposition most justly condemned on various grounds (27 May 1886), not even one word is read concerning the most grave reasons which can arise either on the part of the judge or on the part of the petitioners. Therefore, since it is lawful to use truly probable opinions, and since, as I trust, I have duly disposed myself and declared my mortal sins to you, I humbly ask you, Father, to be willing to impart absolution to me, to which, according to the doctrine of all, I have a right.’ The confessor labors to induce the penitent to abandon such an opinion, but in vain. On the other hand, moved by the reasons which the judge has brought forward, he does not dare to impose his own opinion upon him, and dismisses the absolved penitent in peace.—It is asked: Did the confessor act rightly?—Response. Confessors are bound, concerning the question proposed, to direct judges according to the recent declarations issued by the Holy See.” Sacred Penitentiary, 4 April 1887.

“N.... of Luçon, whose marriage was valid before the Church petitioned for divorce according to the abominable law now in force in France, and the civil judges have already pronounced that there is ground for divorce. The spouse N...., as article 264 of the aforesaid law provides, will soon present himself with the other spouse before the mayor so that the latter may pronounce the divorce. But if the mayor refuses to pronounce it, without doubt he will be deprived of his magistracy; and this will be very dangerous to the Catholic cause, of which that mayor has always shown himself a strenuous defender.—It is asked whether, on account of the most grave circumstances of affairs, times, and places, that mayor can pronounce the civil divorce, provided that: 1. he openly professes the Catholic doctrine concerning marriage and concerning matrimonial cases as belonging to ecclesiastical judges alone; 2. in the sentence itself, and speaking as a magistrate, he publicly declares that he wishes to rupture only the civil effects and only the civil contract, while otherwise the marriage bond remains entirely firm before God and conscience.—The Venerable Sacred Penitentiary responds to the foregoing for the Father in Christ, the Bishop of Luçon: in this particular case, if, after examining all its circumstances, he judges in the Lord that it is expedient, he can tolerate that the aforesaid mayor proceed to the act concerning which the petition was made, with the declarations proposed by him; in such a way, nevertheless, that in place of the words, ‘he wishes to rupture only the civil contract,’ he put, ‘he can regard only the civil contract.’” 24 September 1887.

“Although the oracle of the Holy See has repeatedly declared what is to be thought of the act of a civil judge pronouncing a sentence of divorce between spouses joined by a legitimate marriage contracted before the Church, theologians in France—and even bishops—are not of one mind in interpreting the decrees of the Sacred Congregations. Still greater confusion of minds has arisen since the public periodicals published the response of the Sacred Penitentiary given on 24 September 1887 to the Ordinary Bishop of Luçon, namely, that in the case, the due declarations of course having been made beforehand, it can be tolerated that the mayor pronounce the divorce. In the periodical Le canoniste contemporain, a certain writer interpreted this response as though it were equivalent to a decree permitting a mayor generally, in a similar case and after the due declarations had been made beforehand, to pronounce the divorce. And furthermore, since the same response was made public, the opinion has prevailed more and more that the act of a judge pronouncing a sentence of divorce and that of a mayor pronouncing it, provided that the prescribed declarations are made beforehand, is not contrary to divine law and therefore is not intrinsically evil. Therefore the petitioner—inasmuch as until now he held and taught as alone true the contrary opinion from the decrees issued on this matter by the Sacred Roman and Universal Inquisition—suppliantly requests, so that he may provide for his own conscience in fulfilling his episcopal office, a response concerning the following two doubts: 1. Is it lawful to infer from the aforesaid rescript of the Sacred Penitentiary to the Ordinary Bishop of Luçon that, universally, mayors in France who would otherwise be compelled to resign their office can, after the due declarations have been made beforehand, with a safe conscience pronounce divorce between spouses bound in the sight of the Church? 2. Can the same be said of a civil judge pronouncing a sentence of divorce between similar spouses and under the same declarations?—Response. To the first: In issuing the rescript in question, the Sacred Penitentiary had this alone in mind: to provide for the particular case according to its circumstances and necessities. To the second: Negative.” Sacred Penitentiary, 4 June 1890.

“Most Reverend Monsignor, I have reported to the Most Eminent Major Penitentiary the case of the mayor of that Diocese who, by virtue of his office, would have to assist at the civil marriage of a certain person who is already bound in the sight of the Church; and by command of the said Most Eminent One I must inform you that the named mayor cannot in any way lend himself to an act so contrary to the sanctity of marriage. Therefore, whatever the circumstances of the case may be, he must absolutely abstain from such assistance, even though it should consequently follow that he must resign. From the Sacred Penitentiary, 28 November 1883. Luigi Martini, Substitute of the Sacred Penitentiary.” To the Bishop of Ferentino in Italy.—Cf. no. 933.

3. Augustinus and Dominicus, confessors, without any scruple absolve all judges who render a sentence of divorce, according to the more recent laws, in matrimonial causes. For they say that here there is no question of a thing intrinsically illicit, but only positively prohibited by the Church; and positive laws do not obligate with great inconvenience. Besides, the judge does nothing else except merely declare the law, which is an act indifferent of itself. Wherefore the cooperation of the judge toward the sin of the parties is merely material, which is lawful for a grave cause. Besides, the judge can well admonish the parties either privately, or even in the Considerations of the sentence, concerning the real indissolubility of marriage. Whence the aforesaid sentence will be nothing except a certain mere permission and denial of civil action; and in truth it regards nothing except the civil effects of marriage; and it in no way touches the sacrament of marriage itself, but only the civil contract of marriage.

Q. What as to the Case?

R. Augustinus and Dominicus are deceived. For there is question of a thing intrinsically illicit, by natural and divine right, and not only by ecclesiastical right. For divorce from the bond of matrimony, according to the more recent laws, is opposed to natural and divine right. Besides, the judge rendering sentence does not merely declare the law, but declares authoritatively and practically, so that from that sen- tence civil rights and civil obligations flow, which, speaking per se, have force also in the forum of conscience, namely when that sentence is legitimate and just. Therefore the cooperation of the judge toward the aforesaid divorce in the Case is not merely material, but formal; nor remote, but proximate, since it itself is what gives the parties the faculty of divorce. But that the judge admonishes the parties privately, or even in the Considerations of the following sentence, does not change the intrinsic nature of that sentence, but rather shows its illicitness more. A sentence of this sort is not a mere permission and denial of civil action, since that sentence makes a civil right or civil power, namely according to that iniquitous law of divorce, of contracting other marriages, so that he who is bound by this second marriage must be held by the judge himself, not as an adulterer, but as one legitimately bound by civil marriage. Lastly, it is altogether most false that that sentence regards only the civil effects of marriage, since otherwise the law of divorce would have been altogether useless; for those effects were already governed by the law of civil marriage. Therefore, as that law of divorce regards divorce itself from the bond, so consequently does the sentence of divorce delivered by the judge by force of that law. It is one thing indeed that that sentence regards only civil effects, which is false; another, that the civil effects, where that law now prevails, depend on that sentence, so that unless the sentence of divorce is first obtained, there cannot be had separation of bodies and goods. Lastly, it is plain that, since the aforesaid law and sentence touches divorce from the bond itself, in reality they do not touch only the civil contract of marriage, but most truly the sacrament of marriage itself.

And indeed, if what is asserted were true, namely that that sentence of divorce regards only the civil effects of marriage, then either the Holy Office or the Sacred Penitentiary, from whom it has been sought very often, would have permitted at least spouses to invoke that sentence of civil divorce, in the case of avoiding very grave damage; and, on the contrary, the response has always been: It is not lawful. Cf. Ferraris, Supplementum, v. Divortium, Commentary on the Sentence of Divorce to be rendered by a lay judge as to the bond of matrimony.

154. You ask: Must, or at least can, the judge judge according to laws that are manifestly unjust? e.g., can the judge, according to the unjust law of several regions, punish a pastor who has blessed a Christian marriage before a civil marriage was entered?

This question, which is of the greatest moment especially in ecclesiastical and matrimonial causes, is solved with difficulty by a general response. Rather, in individual cases it is necessary to weigh whether such a sentence of the judge is an act intrinsically evil. The Angelic Doctor²²² teaches absolutely that judgment must not be made according to those positive laws which are opposed to the natural or divine law; therefore cases can occur in which the judge must rather resign his office than violate natural or divine law by a judicial sentence, e.g., a judge can never decree that a Catholic should deny the faith. But since in modern Codes the liberty of the judge is usually greatly limited, so that his office has been reduced almost to the inquiry of the fact and to the application of the law to the fact investigated, perhaps Catholic judges can sometimes be excused who are held to pronounce an unjust sentence, e.g., concerning divorce or concerning ecclesiastical persons and things. For on the one hand a Catholic judge cannot, without the gravest damage, refuse judgment in these cases; but on the other hand he himself commits no free injustice, but only applies an unjust law. Besides, as will appear from the things to be said below, a judge can condemn one whom by private knowledge he knows to be innocent, if juridically he is proved guilty. Therefore in that case the judge condemns an innocent person, because he is compelled to this by the testimony of false witnesses. Why could the judge not do something similar if he is compelled by an unjust legislator? The intrinsic reason of all these things is that the judge, thus most gravely compelled to apply an unjust law, seems only to furnish material cooperation in an evil thing. Now, when a grave cause exists, it is lawful materially to cooperate in evil, as was said above, I, n. 619. - Hence in practice a Catholic judge can be left in good faith if, e.g., he is most gravely compelled to pronounce judgment according to iniquitous laws; e.g., a judge who is held to liquidate the goods of religious according to iniquitous laws in force. The Sacred Penitentiary also seems to imply this, when on Aug. 5, 1907, it responded that "liquidators, insofar as in the name of the government they administer usurped goods and procure their sale, do not incur the censure."

Concerning the obligations of the judge in pronouncing civil divorce there will be treatment below, III, 902.

²²² S. theol. 2, 2, q. 60, a. 5 ad 1.

638. Corollaries. 1. A judge who has passed an unjust sentence, whether by condemning an innocent person, or by inflicting a penalty greater than is just, is held to repair the damage inflicted, in the better way in which he can, if he was its efficacious cause;⁷ and indeed a) if he did this culpably, he must revoke the sentence while he can, even with proportionately great inconvenience to himself; otherwise he must warn the innocent person to appeal to a higher tribunal, and repair the damages inflicted under this heading. b) If he did it inculpably, from mere inadvertence, he is held to revoke the sentence if it can be done without great inconvenience, or to suggest an appeal; but he is not strictly held to repair at his own expense damage inculpably inflicted (n. 296, A).

⁷ Cf. art. 118 of the Belgian law of June 18, 1869, and Cod. instr. crim., arts. 352, 363.

2. A judge who should have imposed a fine and did not impose it, although he has sinned against legal justice, is not held to restitution, because there is not a strict right to a fine before it has been inflicted by the judge.

3. A judicial sentence a) certainly just produces an obligation in conscience: for it is an authentic declaration of the law, which has the force of a particular precept as regards the litigants themselves. On the contrary, b) if it is certainly unjust, it has no force in conscience, because it is founded upon a false presumption of a particular fact; but if place is given for appeal, ordinarily it is expedient to use this privilege rather than openly resist authority or use hidden compensation. c) If it is doubtfully just, appeal can be made to a higher judge, but meanwhile the sentence has force even in conscience, because in doubt the presumption stands for the superior (n. 91, C).

Question 4. Is it licit among us for a Catholic judge to render a sentence of divorce, when it is sought according to the civil laws?

Resp. 1st. The question posited generally is much controverted. Those who say that it is not licit argue thus: This law of full divorce is intrinsically evil, because it is repugnant to divine and natural law. But the judge by his sentence of divorce applies an intrinsically evil law; and therefore his sentence is intrinsically evil; his action is the efficient and principal cause of a thing intrinsically evil; he attempts to dissolve an indissoluble bond against divine law, practically and with authority obliging the parties, he applies the law in singular cases. Besides, there is more than one response of the Sacred Congregations favoring the stricter opinion.

But others not improbably affirm that the thing can be licit where, in the course of time, that sentence of the judge is held as an authoritative declaration of immunity from civil penalties, not regarding the conscience of the subjects and their religious obligations. In these places, on account of a grave cause, for example, lest Catholics be compelled never to undertake this office, it is licit for a Catholic judge to render the sentence, because it is not an evil action. The responses of the Sacred Congregations do not contain a General Decree; indeed one or another seems rather to suggest that such a sentence can sometimes be given. Now then, in our region such a law easily admits this interpretation; indeed here and there it has been said by a judge that by his sentence the religious bonds are in no way touched, but a legal formality is placed. Wherefore among us such an action of a judge seems wholly licit when grave causes are present. - Cf. Wernz, Jus Decretalium, v. 4, n. 750, and Bucceroni, v. 2, n. 983. - Lehmkuhl, n. 921, note, 11th ed. - Kenrick, tr. 8, n. 114. - The Pastor, v. 4, pp. 368 et seq. - Nouv. Rev. Théol., v. 18, pp. 376 and 461; v. 19, p. 73; v. 20, p. 6.

2nd. A fortiori civil judges can licitly render a sentence of separation from bed and board when the reason for it, for example adultery, is known to ecclesiastical authority; indeed also a civil sentence of full divorce when the invalidity of the prior contract has already been declared by the Church on account of some diriment impediment, or when the bond of a ratified marriage has been dissolved by the Pontiff, or the Pauline privilege has rightly been employed. In all these cases the spouses themselves also can rightly betake themselves to the civil court so that they may obtain liberty and protection from the officials of the state; indeed in some circumstances this would be wholly necessary for them, lest they be compelled to live with those who are not their spouses. Cf. Wernz, v. 4, n. 750, notes 110 and 111. - Bouvier, Law Dictionary, under the word Divorce.

Titius, a Catholic layman, in order to show how far the efforts of those who passively resist the payment of the tax for schools extend, and because he thinks that unjust burdens are imposed upon Catholics by the school law, refused to pay the school tax as being against conscience. Paul, however, a Catholic magistrate, compelled Titius, when brought before him, to pay the tax under penalty of undergoing imprisonment. Philip, another Catholic, being scandalized by this, thought that either the one or the other must necessarily have done wrong. Hence it is asked:

1. What kind of obligation do English civil laws impose upon subjects?

2. Can or must unjust laws be obeyed?

3. Is it lawful for a Catholic judge to pronounce sentence according to an unjust law?

4. What is to be said concerning the case?

1. See this question answered, p. 90; also see Manual of Moral Theology, p. 127.

2. May one and ought one to obey unjust laws?

We may not obey a law which commands us to do something contrary to the law of God, for “we ought to obey God rather than men.” If the law is unjust because it lays an unjust burden on a particular person or class, it will not be morally wrong, as a rule, to submit to it, for we may, without sin, forego our strict right. Whether we ought to submit to it or not, will depend upon circumstances. If resistance would produce greater harm than good, as is often the case, there will be a duty of submission to prevent greater evil. If the contrary is true, we are not bound to submit.

3. May a Catholic judge pass sentence according to an unjust law?

Here we must distinguish. If the law prescribes the doing of something that is against the law of God, as idolatry, for example, a judge may not give sentence according to such a law. To command any one to commit idolatry is, and must be, always wrong. Sometimes civil laws are unjust because they are against the rights of the Church. In such cases, if the Church can forego her right, she sometimes does so. Thus, although the civil laws about judicial separation of Catholic married couples are a usurpation of ecclesiastical jurisdiction, yet the Church permits such cases to be tried in the civil courts in England with due precautions.¹

1 Holy Office, Jan. 23, 1886.

If the law is unjust because it is against the rights of the subject, we must distinguish again. Some rights, as that to life, are inalienable; and a judge can not pass sentence according to a law which unjustly imposes the death penalty. If the law merely imposes a fine or imprisonment, such a penalty may be submitted to without sin, and if the judge can not escape the obligation of imposing the penalty without forfeiting his position, it is a probable opinion that he may impose it, and the subject should then submit to it for the common good, at any rate, when resistance would be useless, or would cause greater harm.²

2 Bucceroni, vol. ii, no. 19.

4. The case. Titius, a Catholic, refused to pay the school rate in order to give an object-lesson to the passive resisters, and because he thought it unjust to Catholics. Titius can be excused from sin on the general principle that English law does not bind under pain of sin, and because of his good faith, and also because his assertion is well grounded that Catholics are unduly burdened, inasmuch as they do not get a fair share of the public money contributed to education. Nor does this doctrine excuse the passive resisters, whose case is quite different. For they combine together to resist the law without justification, seeing that they get more than their share of public money for education. Whether they are in good faith or not can be known only to God.

Titius was brought up before Paul, a Catholic magistrate, who sentenced him to go to prison or to pay the tax. Paul acted rightly in passing sentence according to law, as is clear from what was said above. Nor need Philip be scandalized, for neither Titius nor Paul need necessarily have committed any sin in acting as they did.

Titius, a good Catholic, recently deceased, had left in his will one hundred pounds to be expended on Masses to be celebrated for his soul; Caius, the executor, intended to pay this legacy according to the will of the deceased. Julius, however, a Catholic and the residuary legatee of Titius’s goods, opposed this and brought the case before Marcus, a judge who was also a Catholic. Marcus, however, in accordance with English laws, declared the legacy of one hundred pounds invalid as having been assigned to superstitious uses, whence the whole sum accrued to Julius’s residue. Finally Philip, the priest upon whom devolved the spiritual care of all those who have been mentioned, asks about their obligations that have been violated or perhaps still remain to be fulfilled. Hence it is asked:

1. What is a will for pious causes, and what is required for its validity?

2. Can a Catholic judge render judgment according to the unjust laws of his country?

3. What is to be said of the case?

1. What is a will in favor of pious causes and what is required for its validity?

Pious causes, or objects, are such as belong to the service of God and religion. Alms left for the support of religion or for charitable purposes, if the main object was the honor of God, are considered as left for pious causes. Such pious causes are subject to the legislation of the Church, which lays down that no special formalities are required for the validity of wills and legacies to pious objects; all that is requisite is that there should be moral certainty resting on the evidence of two or more witnesses about the intention of the testator.¹

1 Ballerini-Palmieri, Opus Morale, tract, viii, pt. iii, c. iii, n. 703.

2. May a Catholic judge give sentence according to an unjust law?

If the law commands what is contrary to the law of God, no Catholic judge may pass sentence according to it. If the unjust law only affects the liberty of the subject or property rights, many theologians hold that a Catholic judge, like any other, may pass sentence according to such a law. His refusal to do so would not ordinarily benefit the accused, and the only effect would be to compel the judge to resign his office, and make it impossible for Catholics to hold such offices. Hence the accused may reasonably be presumed to submit to the action of the judge as long as the unjust law remains in force.²

2 Manual of Moral Theology, vol. i, p. 587.

3. The case. The legacy was void according to English law. Julius, however, was not justified in invoking the law to get the legacy declared void. He is a Catholic and is bound by the law of the Church, and for him, subjectively as well as objectively, the legacy is valid. Mark could not help doing as he did and so he may be excused. Philip, the parish priest, should admonish

Julius, if the admonition will do any good, and tell him that he is bound in conscience to pay over the £100 for Masses to be said for the soul of the testator according to the testator’s intention. It is a case where he can not have the benefit of the law.¹

1 Manual of Moral Theology, vol. i, p. 506.