The New Zealand Tablet THURSDAY, OCTOBER 22, 1908. CATHOLIC JURORS AND DIVORCE CASES

New Zealand Tablet, 22 October 1908, Page 21

The New Zealand Tablet THURSDAY, OCTOBER 22, 1908. CATHOLIC JURORS AND DIVORCE CASES

y^i ?**s(

•= ROM an esteemed and thoughtful Catholic reader on the West Coast we have received the" following communication :: — * At the recent sitting of the Supreme Court at Hokitifca there was, as usual, the inevitable divorce case. ' This particular case was somewhat different from the general run, in as much us It was tried before a jury- of twelve good men and true. - Now, as the jury-list is composed of men

of all creeds, it naturally follows that a number of Catholics are summoned to attend, and to serve as jurymen if required. As a matter of fact, three or four Catholics were called, to serve in the case referred to by me. But . the lawyers who were conducting the case paid them (and myself amongst the number) the compliment of challenging us. lam sure I am. correct in saying that Caih olics have no objection to serving their country by acting as jurymen when they are called upon to do so. But when it comes to those filthy divorce cases — or, indeed, to divorce cases of any description — then it becomes a different matter. Now, Rev. Sir,' I shall be very thankful to you it you will advise me and others, through the columns of your "most valuable paper what is the proper thing to dp in ,such a case. I had. intended., in the event of not Jjeing challenged, to object to act before entering the jury-box.'

For the purposes of our esteemed friend's inquiry,, two chief distinctions must be made at Ihe outset. " The first is a distinction in regard to the term 4 divorce '; ~ the second distinguishes between "the two chief classes of divorce cases upon which the Catholic juror may be called to serve. (1) In regax ; d to the term ' divorce ' : It has two widely different meanings, (a) It mean's, divorce a thoro et mensa (from bed and board) — this is known as incomplete divorce, or (more commonly,- in English-speaking countries) as logal or judicial separation ; (b) it also means divorce a vincido — that is, from the bond of marriage itself. This latter, is known as full or complete divorce. ■ (2) For the purposes of this explanation,^ the divorce cases on which a Catholic juror may , be. called to serve. may be classified as follows : (a) , Divorce cases , arising out of irregular unions which, although (for civil purposes) accepted as marriages beforethe civil law, are- nevertheless not true marriages — that is, not marriages before the moral- law" and in the sight of „God, but mere legalised concubinages ;and (b) divorce cases arising between couples who are joined in a true and proper wedded union.^ Such a true wedded union may be a marriage between nonChristians (such as pagan Chinese or pagan Maoris)-r-which is' a true (though not -sacramental) marriage according to .the Natural- Law, of which God is the Author. .The bond of -this marriage is >a life-long one — far Christ restored marriage to its primitive indissolubility (Matt, xix., 6), not alone for -the faithful, but for the human race ; and the bond of even a -pagan marriage can .be broken- only in the circumstances mentioned by the Apostle of the Gentiles, under divine inspiration, in the First Epistle to the Corinthians, and commonly, known as the Pauline privilege. '• Marriage among Christians (baptised persons) is something more than is marriage under the ' Law of

Mature. It is" blessed ; and sanctified in such a manner as to become. a mearis of .-• conferring grace. Described in "Briefest terms, it is a natural contract between one man and one woman,' which, Christ has raised to the dignity of a Sacrament of the New Law. Every valid marriage*. of Christians (baptised persons) is a Sacrament, whether the parties to the contract intend to receive a Sacrament or- not;. whether they wish to receive a Sacrament or not; 'for,' as O'Reilly says in The Relations of the .Church, to Society^ ' they intend a contract which — whether they know it or not, and .whether they like it or not — is a Sacrament: If they don't intend to contract, they don't intend to, marry, and they don't marry r if ' they do intend by all means to contract, they do receive a Sacrament.' Ip Catholic teaching, the Sacrament of matrimony is not something accessory to .the contract and separable from it. On the xtjntrary, between Christians (that is, between baptised persons) the marriage contract and,, the "Sacrament are .one and the same thing. Nothing but the death of one of the .parties can dissolve the bond of a valid;,and complete Christian marriage ; no power on earth, whether in Church or State, .can- sef apart what God hath, in this matter, joined together. _ >

Neither the Catholic juror, nor .the Catholic lawyer, nor the Catholic judge need have a moment's hesitation in promoting, each in his own proper manner and degree, the fullest divorce of couples living in irregular, though legalised, unions which are not marriages according to the moral law and the canons of the Church. Nay, a lawyer who, in such circumstances, ostensibly seeks a divorce for his client may well bo engaged in a laudable effort to free the latter from the civil effects of a union which the Church pronounces null and void from the beginning. Such, for instance, would be tae case of a woman seeking a divorce from the bond of a legalised union with a second partner, while her first and truly wedded husband is still alive. The readei will find a list of other cases of invalid marriage on p. n6 of our publication, Catholic Marriages.

Various decrees of the Holy ©flic<> for England and elsewhere permit us to deduce that the Catholic juryman, the Catholic lawyer, and the Catholic judge may safely deal .with the question of a judicial separation between a truly wedded husband and wife. Even in an action for divorce in a civil court, the Catholic lawyer may defend the action against the plaintiff. For the Catholic advocate and judge, petitions for divorce from the bond of a true marriage present practical difficulties which it is not possible for us to trea.t in anything like an adequate way the -limits of the present editorial The juror's function has but an indirect bearing upon the decree legally dissolving the marriage bond; it has only.a remote bearing upon the use of the legal privilege of subsequent re-marriage by the parties to the suit. The juror's co-operation in the decree is only indirect— he has merely to pronounce, with others, upon a question or questions of fact : whether there was or was not cruelty, or desertion, or such like faults or defaults on the part of the respondent. The juryman, is not directly responsible for the decree of full divorce, much less 'for the later use, by one or both of the parties to the suit, of- the legal license to remarry. The juryman is not a party to the suit that is brought to bar ; his duty is simply to declare a fact, and not even to apply the law, to make pronouncement thereof, or to issue a decree. Provided that there is a • just and sufficient reason for such cooperation as he gives in the case, his function appears not to conflict with the moral law and - with his duty towards the Church. ' A just reason for acting in the case would, we think, be the fact that he was called and bound to serve upon the jury, . under, (say) the customary penalty for refusal to do so. As a matter of actual experience, however, Catholics need hardly ever appear as jurymen in- cases of- petitions for divorce from the bond of- marriage. The plaintiffs' solicitors are bent upon obtaining a decree; they 'take no Chances'; and (as our West Coast correspondent happily phrases it) they pay our co-r^ligionists the compliment of, believing in the strength of their respect for the sacred and inviolable tie of true wedlock, which is the bond of Ghristian society. , Hence Catholics, . when known to be such, are, in - practice,' invariably challenged. It is well that Catholics generally who may be exposed to service in such a capacity, should make their- dislike for "isuch cases, J and their conscientious scruples'in regard to 'them, known in advance to the- plaintiffs'. side or to the .court. -. But if, from legal necessity or from any other- just cause, they find themselves among the twelve good men and. true to decide, jointly With them, the question of fact, their contribution to the verdict should be dictated by a sdipulous" regard • for . the sanctity of their dath and the merits of the issue or" issues placed before them.