CATHOLICS & MARRIAGE

Dominion, Volume 13, Issue 300, 13 September 1920, Page 6

CATHOLICS & MARRIAGE

LEGAL OPINION ON NEW CLAUSE

I ADDRESS BY ARCHBISHOP O'SHEA

ATTITUDE TOWARDS PROPOSED LAW

I ■ The attitude of tho Roman Catholic ;••:. 'Church to the question of marriage form- ! Ed tho subject of an address delivered by i / Archbishop O'Shea at St. Josoph's Church \ last night, His Grace making particular • reference to the recent proceedings before !. '. the Statutes Revision Committee. :. „. .After giving a short account of the i prgceedings before the committee from ■ the commencement until tho passing of [ the new clause in the Marriage Amendj ment Bill, already published in the ;'•- Press, the Archbishop said that he im- • ; mediately asked for legal advice as to !.'.■' the effect this clause would have upon }.'■ the-lights of the clergy and members '.: of tbei Church to state, disseminate, or advocate the teachings of the Catholic ■Church with regard to marriage. _ Ho ' ' then read the following joint opinion I- given him by Sir John Findlay. K.C., i and Mr. M. Myers:- , ... j The' Legislative Council has inserted ' into this Bill a new clause in the followr. ing words:— ' ''■•■■ 6. (1) Every person commits an ofi'- fence against this Act and is. liable i on nummary conviction to imprison- '•' ment for one year, or a fine: of one hundred poundß, who: (a) alleges, ex-, pressly or by implication that any persons lawfully married are not truly i" and sufficiently married: or lb) allegro i expressly or by implication that the Issue of any lawful marriage is "legitimate or born out of true wedlock. • ; (2) "Alleges" in this section means making any verbal statemont. or publishing or issuing any printed or l \ written statement, or in any manner . . authorising the making of any verbal statement or in any manner authora--1 ins or being party to the publication '"' or issue of any printed or written statement. • ■ (S) A person shall not be deemed to make an alienation contrary to the pr 0.... .... visions of this section by reason only of using in the solemnisation ,of_a marriage a form of marriage service which at the commencement of this " Act was in use by the religious de- • nomination to which, such person belongs or by reason only of the printing or issue of any book containing ; a copy of the form of marriage service in use at the commencement of this Act by any religious denomination. "The Bill 60 amended has been passed by the Council and i 9 now before the House of Representatives. Wo are asked to advise as to the effect of the words of this amendment upon the rights of the clergy of the Catholic Church or of any \ other person to state, disseminate, or advocate tbb teachings of that Church with regard to marriage. 'Tor the purpose of this opinion assuming that tho doctrine and teaching 'of the Church with respect to marriage may be expressed in these words:—

That marriage is a sacrament, and that without that Bacrament, although there can he, and is, a valid civil contract of marriage, such a marriage, while in all resnects lawful, is not spiritually complete, but remains a mere? civil contract, uninvested with spiritual attributes, and no trite marriage at all in the sight of God.

"The question, then, for opinion is, .would a statement,• whether oral or in ' writing, of this doctrine or teaching reu"'derthe person making such statement liable under the amendment we are now considering? It will he observed that the -'offence is-(a) Alleging-, .expressly or by ''implication, that any persons lawfully married are not truly or sufficiently married, (b) Alleging, expressly or by implication that the issue of any lawful marriage is illegitimate or born out of true wedlock. ' "It will be noted that the amendment • nffords no standards of what is meant by .'truly and sufficiently married, or ot ' i'true wedlock.' Are these standards legal standards, and must the words, 'are not „.not trulv and sufficiently married to bo read as if there were inserted after them the words 'according to law, and also "after, the words 'true wedlock' the.words 'according to law'? 'The principle of interpretation is that general words are not .'tb~.be so construed as to alter the com- • mon law or the previous policy-of the law if a sense r meaning can be applied to them consistent with the intention of • preserving tho existing policy untouched.' (Halshury, "Laws of England," Val. 27, paw 132.') "The result of giving the words we havo just mentioned their wide meaning would lie so great a departure of the policy ot ~ the law with, regard to religious freedom in-stating and advocating; religious docJrihes, that the Courts might well limit ''the'words in question to 'truly and sufficiently married' by reading into tho clause after those words the words, 'ac .cording to law,' and the Courts might well do this whatever may have been the purpose and intention of the Legislative Council in passing the amendment in question. But in our opinion, in tho ■'absence of any standards of what is by 'truly and sufficiently married,' .-or-what-is meant by 'true'wedlock,' regard must be had to other parts of the ...amendment.

" "It would be observed that sub-clauso (3) states what is excepted from tbe gene--ral prohibition of the amendment. Subclause (<!) says: A 'person shall not be deemed to ■ make an allegation contrary to the provisions ot this section, by reason only of using in the solemnisation V.of a marriage a form of marriage service which at'the commencement of . this Act wii(l in use by the religious denomination to which such perßon belongs, or by reason only of the printing or issue ot any book containing a copv of a. form of marriage ' service in use at the commencement ' of this Act by any .religiouß denomination. "It may be reasonably contended, therefore, that this sub-clause (3) not only expresses . the full extent of the exceptions contemplated by the amendment, but may 1)8 invoiced to show that if anyone alleges more than is in sub-clause (3) excepted . from the general prohibition, ho would be liable under the amendment, and if this construction is placed upon subclause (3), then any person alleging that persons lawfully married ore not 'truly and sufficiently married' in the eyes of God,'or according to the doctrines of a Church, will become liable to the penal- - ties imposed by tho amendment, "In our opinion the amendment Icarea the important question submitted to us ■ in very grave doubt, and we would advise that a request be at once made to the Government before tho Bill advances, to its final stages in the House of Representatives to insert after the words 'truly and sufficiently married' the words according to law,' and to delete the word 'true' and insert the word 'legnf before 'he . word 'wedlock' in paragraph (b) of subclause (1) of the amendment "We feel that so great and important provision as thai contained in this amendment should have its interpretation placed beyond all reasonable doubt, and 6uch a request as we have suggested should constrain the Government to make the purpose and intention of this amendment clear and entirely unequivocal." A Threat of Defiance. The Archbishop continued: "That theso gentlemen are correot in their contention 'that, v.nless amended, the clause as it 6tands leaves open to very grave doubt whether we can (each the doctrines of our Church regarding marriage as a sacrament without breaking the law of the land would soem to be confirmed from the fact that a leading member of ' the Statutes Bevision Committee told Kir John Findlay that ho could inform me that 6uch was the intent and purport of the clause. It would seem to lie confirmed, also, from the fact that the Leader of the Council asked that it should •be passed at once without discussion. From this it would seem to mo, at any rate, that the Government hesitated lo avow the real purport and intent of the new amendment, and so had it rushed through quietly beforeexplnnations could be asked. On receiving the opinion of the two learned counsel yesterday, I immediately acted on their advice, and wrote to !he Prime Minister, enclosing it, and formally requesting him, a.s head of the Government, to have made in tho Bill before it advances to its final stages in the House, the changes recommended ' by Sir John Findlav and Mr. Myers; and I asked Mr. Massey to make the matter nrecnt, because in order to remove all i

possible doubt from tho minds of Parliament and peoplo as to what the attitude of the Catholic body will be, should the clause at it stands become law, and have the effect of penalising tho Catholic doctrine on tho Sacrament of Matrimony, to remove all doubt, I said that I intended to make a public statement on tho question to-day, and I informed the Prime Minister in my letter that I intended to say that if this law is passed as it stands, and has the meaning put upon it by the learned counsel whom wo have consulted, then I will take the first opportunity of deliberately breaking it. I will encourage my priests;and peoplo to disobey it on every possible occasion, and as I intend to pay no fines, you will havo to imprison me, and I will state that I know that tho other bishops, priests, and Catholics of the Dominion will take 'up exactly the same atitude towards the law. Last evening I received a telegram from the Prime Minister, which reads:—

' Your letter of even date received. I will havo the opinion referred • to therein referred to Crown Law Office prior to the Bill in question being dealt with by tho House.-tSgd. VT. P. Massey. "Now, I want to assure you, my dear brethren, that we mean precisely what we say when we declare that we will defy and disobey any law that will have tho effect of preventing us from teaching the doctrines of our Church. Such a law would be religious persecution, and it would affect not only Catholics, but other denominations who reject State interference with their doctrines. What thev will 'do I do not know, but I know what Catholics will do. Once this principle is admitted that the State can penalise our doctrines on marriage, then they can punish our teaching the doctrine of the Mass and Seal Presence. • And that it might come to this, is no Idle fear, because, the first plank of the membership declaration of the people who have asked for this legislation on marriage, is the rejection of our doctrine, of the Mass as superstitious. The exact"words are, 'I reject as superstitious the Komish doctrine of tho Mass.' Other doctrines of other denominations would in course of time become liable \b bo penalised, and this would be the end of religions liberty. I havo on more than ono occasion during the past couple of years warned you that movements are being fo'stored in certain quarters to rob the people of various civjl liberties. But with the ruin of religious liberty, tyranny would make short work of all civil liberty and more and morn corruption would overshadow the land.

The State and Religious Liberty,

"It will be now for the members of the House or, I suppose, the Government, to make the : -r decision and say whether New Zealand is to be the first place in the British Empire, since the passing- of Catholio Emancipation,'' to introduce penal laws against religions dociirine. I cannot do bettor than conclude by quoting' from the eloquent peroration of our counsel, Sir John Pindlay. before the Statutes Revision Committee. The Catholic body owes a great debt to.Sir John Findlay for his able and whole-hearted defence of our rights before that committee, I commend his words to Government and Parliament. 'If religious teachmgs and doctrines are to be brought here . . . for examination and repression you are establishing a system of State interference with Telisrious liberty fraught with the ufjnost danger to social order and public safety. The past has woved how readily men will shed theV blood in defence of their religious liberties and convictions. The Catholic Church regards its Sacrament of Marriage as of the holiest, its docte'nes of marriage as of Divine origin with a sacred tradition; it would regard—and rightly—any attack by the State on these doctrines as a deadly and tyrannical attack upon one of its most cherished sacraments and institutions. I beseech the committee, therefore, to ponder well the gravity of the step it is really asked to take.here, and to contemplate, if fearlessly yet justly, the consequences of'any interference by law with one of t!<e very bases upon which the Catholic Church rests—upon the doc?rine that "marriage is a snerament, nnd that without that sacrament, although there can be. and is, a valid civil contract," there 'is "no marriage at all in the sight of God.' . . . With all respect to this committee, I say that if I were a Catholic as I am a Protestant I would never lay down my arms against a deliberate State attack on the cherished religious beliefs of my Church. I would seek to maintain them against a, temporal power that sought to crush them to the dust, until I had reached the last ditch: and I earnestly and respectfully beseech you to conduce no more to the great social and political bitterness so rampant at the present hour by adding to those deplorable differences,- the antagonism,' resentment, and revolt of a. determined Church.' These were Sir John Findlay's concluding words and I commend them to Government and Parliament before they decide this question. I will merely add that I do not intend to leave Government or Parliament under any misnpprehension as to wftat the attitude of Catholics will be in regard to a law that attacks our religions doctrines'. We will resist and defy such a law, if it is passed, by every means in our power, and Gcd helping we will, never allow it to, prevail over us." HOW THE CLAUSE WOULD READ

If the amendments suggested by, Sir John Findlay'and Mr. Myers were given effect to, the clause, of (he new Bill would read as follows, the amendment, being shown in block type:Every person . commits an offence against ilhis Act, etc., who (a) Alleges expressly or by implication that any persons lawfully married are not truly a,;d Iw.ully married ACOORDINC TO LAW, or . (bl Alleges expressly or by implication that the issue of any lawful marria.se is illegitimate or born out of LEGAL wedlock. In paragraph (b) th<e• word "legal is proposed in place of "true "making it "legal wedlock", instead of "true wedlock."