Moral Theology / A Complete Course Based on St. Thomas Aquinas and the Best Modern Authorities

by John A. McHugh; Charles J. Callan

(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.

1951. When Evidence Is Contrary to Personal Knowledge of Judge.—(a) In a civil case, the judge should follow the public evidence rather than his private knowledge; for he acts as a public, not as a private, person. Moreover, the State has the power to transfer property from one to another, when the common good requires this, and the common good requires that civil decisions be based on public evidence rather than on private information. Some moralists deny this conclusion on the ground that it is intrinsically wrong to force a person to pay who does not owe, even though the evidence is against him.

(b) In a criminal case, the judge should follow the evidence rather than his own knowledge, if the evidence calls for acquittal of the accused; for it is better for the public welfare that a guilty man escape than that the judicial order be neglected and a rule admitted that might convict the innocent as well as the guilty.

(c) In a criminal case in which the evidence points to guilt while the judge’s private knowledge assures him of the innocence of the accused, the judge must not condemn, if there is any legal way to avoid it. But if the evidence stands and the judge has to pronounce sentence, it is not easy to determine the course that should be followed. According to St. Thomas, the judge should condemn, since he is a public official and must therefore be guided by the allegations and proofs offered during the trial, especially since public order and respect for law depend on the good reputation of the courts. If judges could disregard at will the evidence offered on account of private knowledge they claimed to have, the confidence of the public in the integrity of courts would be shaken, men would take the law into their own hands, and peace and order on which the happiness of the community depend would be at an end. Moreover, the judge is not guilty in sentencing in this case, since he does not intend evil and acts according to the principle of double effect (see 103 sqq.). According to a second opinion attributed to St. Bonaventure, the judge should acquit, since it is intrinsically wrong to condemn to death a person about whose innocence one is certain. According to a third opinion, which St. Alphonsus considers as probable, the judge should condemn in minor criminal cases in which only pecuniary penalties are imposed (for the State has the right to exercise eminent domain in order to safeguard an important public good like that of respect for the law and the courts); but he should acquit in major cases in which personal punishments are inflicted, for society has no right to deprive an innocent person of life or liberty.

1952. When the Judge Is the Unjust Cause of Damaging Evidence.—In some cases the judge may be the unjust cause of the evidence that convicts an innocent man, as when the judge has committed a crime and thrown suspicion on the accused (Dan, xiii), or when the judge has moved others to testify falsely against a man he knows to be innocent.

(a) One opinion holds that the judge would be obliged to condemn, on account of the reasons just given for the opinion of St. Thomas, if the judge were unable to overcome the evidence. But those who hold this add that this is purely speculative, for in a concrete case there would be many ways by which the judge could extricate both himself and the accused from the difficulty.

(b) Another opinion says that in no case could the judge of the present hypothesis condemn. Those who favor this opinion declare that St. Thomas is to be understood only of the case in which the judge is not the cause of the unjust accusation; for one who has culpably placed a cause of damage is bound to remove that cause before it acts, if this is possible, and in the present instance it is possible for the judge, if all other things have failed, to free the innocent person by testifying for him, or even by acknowledging his own guilt.

1953. Practical Conclusions about the Three Controverted Opinions Given Above in 1951.—(a) In a case tried according to Canon Law, it seems that the opinion of St. Thomas should be followed, since Canon 1869, n. 2, declares that the ecclesiastical judge must not give sentence unless he is certain about the matter of the sentence, and that his certainty must be derived from the acts and proofs of the trial.