Question VIII: Whether it is lawful for a husband to kill a wife caught in adultery, and a father his daughter, and a brother his sister, together with the seducer

Although the decision of this Difficulty does not need further proof, since the Decree of Alexander VII has provided that it should not hereafter be asserted affirmatively by anyone, as has been seen tract. de actibus humanis disp. 17. quaest. 10. sect. 19., yet so that it may become known how excellently the Seraphic Doctor taught this truth, we shall discuss it here.

And indeed first in this case, worthy of compassion, husbands are permitted by civil law to loosen with impunity the reins of anger even to bloodshed; and indeed the expounders of the laws everywhere say that this was permitted on account of the hardness of heart, or even sometimes out of commiseration.

By Caesarian law, however, it was not permitted to kill in adultery an adulterer unless he were vile and infamous. Therefore a husband could kill a vile adulterer in his own house, not elsewhere, Lex, maritus, ff. de adulteriis, and he was bound to admonish the lover in writing, when caught by indications, as Couar. 4. Decret. 2. part. cap. 7. §. 7. teaches. If the husband was vile, and the lover noble, the one killing him was condemned to the mines. But if the husband was an honorable person, killing a noble adulterer, he was banished to an island, Lex, si adulterium cum incestu, §. Imperatores, ff. de adult., or was sent into exile for years, to be fixed at the judge's discretion, Lex Gracchus, Cod. de adulter. See Iulium Clarum §. sent. §. homicidium, num. 49.

By the law of Castile it is permitted absolutely to kill an adulterer and wife caught in adultery, Lib. 3. tit. 20. Lib. 8. novae Recopil.

By Portuguese law the same is permitted, Lib. 5. nova ordin. tit. 38., except that the husband be vile; and the adulterer noble, for then he is banished for a time to Africa.

Indeed by this law a certain husband can kill the adulterer outside the very act, loco cit., and by the same law he can call in helpers, provided they are not otherwise enemies of the adulteress or of the lovers.

Nor can they be killed with impunity only in the act of intercourse with the adulterer, according to all the laws related above, but even if they are caught in the acts immediately disposing to it, for instance embraces, etc., as the Doctors commonly say, cited in Fagundez L. 5. cap. 10. num. 7.

The same is granted to a Father in the case of an adulterous daughter, Leg. Patri, ff. de adulter, provided she is in his power, and he kills her in his own house, and kills the son-in-law together with her, and at the same time the daughter along with the lover: but all others are excluded, whether uncles, or brothers, old women, etc.

Except the ravisher, for in a case of rape caught in flagrant crime all the blood relatives, guardians, patrons, and masters may kill the ravisher, L. 1. §. Ne igitur, Cod. de raptu Virginum.

If, however, the husband is also an adulterer, many say the injury is compensated, and an equal one rendered in return, and consequently he cannot kill his adulterous wife. So Henriquez lib. 11. de matrim. cap. 17. num. 3. litt. F. Couar. 4. Decret. 2. part. §. 7. num. 7. Rodriquez Tom. 1. sum. cap. 206. et alii.

Yet the others still hold that he can, because the injury and the right are not equal, except with regard to divorce. Therefore it is granted to accuse the adulterous wife criminally, but not the husband to the wife, Leg. 1. Cod. ad Leg. Iul. de adult. Whence the Saintly Doctor does not argue from an equal but from a similar injury in tertio argumento.

But our QUESTION is: whether this is licit in conscience.

The FIRST opinion affirms it, provided it be done not from the bitterness of vengeance but from zeal for justice: Gomez leg. 8. Tauri, num. 52., Menchaca Lib. 1. controv. cap. 6., Castello l. 82. Tauri, Ayeued. Lib. 8. recopil. tit. 20. lib. 1. et lib. 4. tit. 10. Lib. 1. num. 21., Sa V. Homicid. num. 15., Iul. Clarus L. S. sent. §. Homicid. num. 50.; and there can also be cited the chapter Admonere, 13. quaest. 2., where: Non manifesti eum, cum alio rem nefariam facientem. Therefore if he had found him, he would have killed him without fault. Lessius lib. 2. cap. 9. dub. 5. num. 16. judges it not improbable, and Basil. Poncius L. 9. de matrim. cap. 11. testifies that in his time many Salmantic theologians subscribed to it.

The SECOND opinion, wholly true, denies that a husband can kill his wife. So St. Bonaventure and St. Thomas here, Victoria de matrim. num. 291., Vera-cruz 3. part. speculi, art. 4., Sotus 4. dist. 37. quaest. unic. art. 3. et lib. 5. de Iust. quaest. 1. art. 3. ad 1., Aragon. 2. 2. quaest. 64. art. 3. ad 2., Rodriquez summa Tom. 1. cap. 206., Sa loco cit., Guttier. lib. 2. qq. pract. quaest. 2. num. 22., Petrus Nauar. lib. 2. de restis. cap. 3. part. 2. disp 8. num. 206., Nauar. summa Hisp. cap. 15., Couar. 4. Decret. 2. part. §. 7. num. 9., Fagundez in quintum praeceptum, L. 5. cap. 10. num. 20., Sanchez L. 10. de matrim. disp. 8. num 41., Bannes 2. 2. quaest. 64. art. 3. dub. 2., Parisius cons. 154. n. 12., Socinus lib. 2. cons. 34., Sotus lib. 5. de Iust. quaest. 1. art. 3., Valentia disput. 5. quaest. 8. puncto 3., who say it is the opinion of all the Doctors, on whose authority Barbosa in collect. Tom. 4 part. 2. caussa 33. quaest. 2. cites 48 Doctors, with Poncius loco cit. and Ballaeo hic in 4. Diana part. 2. Tract. 4. resol. 223. says that concerning this opinion there must be no further doubt.

Therefore it must be asserted most absolutely with this opinion, that a Husband cannot so kill his wife.

It is PROVED by D. Bonaventure from cap. Inter haec 33. quaest. 2., where Nicholas I says: Licere secundum leges mundanas, non tamen secundum Ecclesiasticas, uxorem adulteram impune interficere.

It is PROVED second by the Saintly Doctor, because the civil laws permit this only as commiserating, or on account of the hardness of heart; but laws permitting something to be done do not excuse from fault in the forum of heaven, namely of conscience, even if they excuse in the forum of the earth, because the forum of conscience, especially in causes touching sacred contracts, belongs wholly in what is internal to the Church, as I also proved from the Seraphic Doctor in the place cited at the beginning. Indeed in many other cases it is established that the civil laws permit things that are mortal sins in conscience; such as public prostitutes, and other things which Tiraquellus enumerates, lib 9. connubiali, num. 1. But they permit prostitutes in order to avoid greater crimes, adultery, sodomy, etc.

It is PROVED third, because it is most unjust to condemn to death with the party unheard, especially in the New Testament. Wherefore Christ refused to condemn the adulteress at the first accusation of the Pharisees, Ioan. 8., as the Saintly Doctor observes.

Wherefore a Judge would act most unjustly who, before a juridical sentence, would hand over the wife and the lovers to be killed by the husband.

You will OBJECT first, Exodi 22. Maleficos non patieris vivere.

The Saintly Doctor ANSWERS, that it was a Judicial law, whose force vanished in the Gospel. Moreover it addresses Moses, the legitimate Judge, that he might punish the guilty once the case was formally constituted.

You will OBJECT second. Civil laws are just, if granted by the Church. But this Law was granted by the Church, and therefore cap. Inter haec it is not condemned, but it is only said: Sancta Ecclesia mundanis non constringitur legibus, nec gladium habet, nisi spiritualem, as D. Bonaventure notes, fundamento 1.

D. Bonaventure ANSWERS, and with him many, that many civil laws are permitted by the Church in order to remove greater evils, as I said. Therefore they uphold this one to ward off innumerable adulteries by terrors. He adds that this law seems to have been abrogated by the Church when it declared it to be unjust to kill a wife caught in adultery. But that it did not abrogate it expressly, that is, because it seemed enough to declare it unjust according to the laws of the earth, or of the world, not of heaven, and of God.

You will OBJECT third: in can. 33. quaest. 2. it is said: Interfectores suarum coniugum, sine iudicio (when there is not added: adulterarum, or anything of the sort) quid aliud habendi sunt, quam homicidae: therefore, if adulterarum is added, they do not seem to be homicides.

The Saintly Doctor ANSWERS, that he is speaking according to human laws; for such a man, since he kills without cause and outside of judgment, is considered a homicide; but if he does it through a judgment and for cause, he is not judged a homicide according to human laws: but according to canonical law, by which marriages must be governed as by their proper law, they are considered homicides, as Nicholas P. defines in cap. sequenti.

From the doctrine of this argument gather that for adultery unto the punishment of blood only the secular judge is competent, as Nicholas declares above. But as to other punishments, it is of mixed forum; and therefore the place of prevention is given. In the cause of divorce, however, only the Ecclesiastical Judge is competent to pass judgment upon adultery. So Ioan. de Heuia in curia Philip. part. 5. §. num. 20. de spons. part. 2. cap. 7. §. 7. num. 12., Pereira in L. si curatorem, ver. laesis, num. 22., Suarez de Paz in praxi, tract. 2. prael. 2. num. 31., Miranda in ord. iud. tract. 1. quaest. 1. art. 5. concl. 6. et 7., Martha de iurisdict. part. 2. cap. 19., Vincentius de Franco decis. 312., Ceuallos de cognit. per viam violent. part. 2. quaest. 8., Riccius part. 5. collect. 2076., Farinac. num. 53. quaest. 2., Diana part. 1. Tract. de immunitate Ecclesiae, resol. 86., Germon. de sacrorum immun. lib. 3. cap. 12. num. 58., Sanchez de matrim. tract. 3. lib. 10. disput. 8. num. 15. Wherefore Decius consil. 212. is mistaken in believing that if divorce and loss of dowry are treated at the same time, it is of mixed forum.

Indeed, even if only the separation of spouses for a time is at issue, as on account of leprosy, etc., it belongs to the sole Judge of the Church, against Rupellan. forens. instit. Galliae, lib. 1. cap. 25. And if at any time divorce is treated before an ecclesiastical judge, the question of alimony and of the dowry to be lost, as accessory, pertains to the same forum. See Barbosa de potest. Episcopi, part. 3. allegat. 84.

GATHER second, as the Saintly Doctor says in corpore, that it is against even the civil laws to kill a wife outside the flagrant crime of intercourse; but it has been added by the Doctors that those laws are not violated if she is killed amid kisses, for the Laws speak expressly of adultery alone, in which the Doctors judge that even acts nearest to the last are comprehended. So Barbosa L. 2. initio part. 1. num. 7. ff. soluto matrim., Molina de Iust. Tom. 4. tract. 3. disput. 91. num. 8., Suarez de censur. disp. 1. sect. 1. num. 37., Sylvester V. Excommunicatio, 6. num. 6. §. 10., Angel. ibi §. num. 19.

If, however, it is a blood relative of the wife kissing or embracing her, he is not considered as toward evil, as Farinac. notes, tract. 4. quaest. 121., Fagundez num. 7.

GATHER third, that husbands are not prohibited by ecclesiastical law from accusing their adulterous wives, as I said above; for secular power was instituted for this, which carries the sword not without cause, as the Saintly Doctor notes here, and especially sermone 6. in Decalogum, from the Apostle, Rom. 13: Non enim sine causa gladium portat, that is, jurisdiction, as Fagundez also says, num. 16.

GATHER fourth, that a Judge cannot, before a juridically rendered sentence, hand over to the husband the wife to be killed; but if he hands her over afterward: let the husband beware of the appetite of vengeance, which is nevertheless arduous; then it is unseemly to play the executioner.

NOTE, however, that in the cases in which a man is permitted to kill his adulterous wife with the lover, and a father his married adulterous daughter, the canonical law spares the malediction, so that the killer is not marked with excommunication if the lover be a cleric, nor with irregularity, cap. si vero, de sent. excom., and thus, although they sin mortally, they do not incur the censures, so Suarez de censur. disp. 22. sect. 1., Sylvester V. excom. 6. num. 6. et alii.

I add as a crowning point, that many speak most falsely, saying that a father can kill a daughter, or a husband a pregnant wife, according to the laws: for they do not permit the same against the innocent, as Baiardus notes, in addit ad Clarum, § homic. num. 167., Farinac. in praxi, tract. 4. quaest. 121. num. 5.

But the reasoning of Fagundez num. 32. is ridiculous, because the offspring in the womb is considered one thing with the mother. For first the soul of the infant perishes eternally, which does not pertain to the mother.

Then the laws also distinguish very much the one who kills a pregnant woman, because although the fetus is materially one thing, nevertheless there are two things distinct in judgment; otherwise, if the mother died in grace, the infant also would be saved without baptism. Nor in this can human law be buried, so as to concede the death and damnation of an innocent little boy, not subject to its laws, outside the moral state. Alas, how many paths to impiety are opened from this!

Finally, Fagundez himself, L. 5. cap. 12. num. 27. Therefore he denies that it is not licit for a pregnant mother to kill the fetus in order to save her own life.