152. The Impediment of Crime

1. Franciscus, married, attempts to contract marriage with Francisca, his adulteress. After the death of his wife, he again wishes legitimately to contract marriage with Francisca. - Can he validly contract this marriage?

R. Negatively, from c. Cum haberet 5, de Eo qui duxit, etc.; I. M. 1018.

2. Sempronius, married and faithful, attempts to contract marriage with Sylvia, his adulteress, an infidel. After the death of the wife of Sempronius, he now wishes legitimately to contract marriage with Sylvia, converted to the faith. - Validly?

R. Negatively, from c. Laudabilem de Conv. infid. - I. M. 1021.

3. "1. Can an infidel man who before baptism had copula with the infidel wife of another, to whom, the woman consenting and accepting faith of future marriage, he brought death, after the baptism of both, enter marriage with the said woman? 2. Can they contract this marriage if, when they perpetrated those crimes, one party had been Christian?

"R. To the 1st: Affirmatively. - To the 2nd: Negatively." S. C. de P. F., Aug. 23, 1852; I. M. 1021.

4. Seius committed adultery with Seia. Meanwhile Gneus, the husband of Seia, is seized by a grave illness. Seia, seeing this, rejoices in her mind because of the marriage which she hopes afterward to enter with Seius. But the illness of Gneus, although very grave, is not mortal if Gneus undergoes a surgical operation in time. Seia, making use for herself of so good an occasion, in view of the future marriage, herself draws out delays in calling the surgeon, and Gneus dies. Hence Seia immediately contracts marriage with Seius.

It is asked: 1. What is the impediment of crime? - 2. What is to be said to the case as it is set forth? - 3. What if there had been present in the case a mutual matrimonial intention, reciprocally manifested? - 4. What if there had been present in the case a mutual promise or a mutual conspiracy, or both? - 5. What if the crime in the case had become public?

R. To the 1st. Cf. I. M. n. 1017 seqq. It is only to be noted that, although as regards adultery alone, more probably and more commonly a return-promise is not required for a promise made of future marriage, but the acceptance of that promise suffices, nevertheless in the formulas of dispensations of the Apostolic Datary there is the clause: faith having been given to each other concerning marriage to be contracted after the death of the spouse; which clause imports a return-promise.

To the 2nd. No impediment is present, because the impediment affects both, and therefore, since in the case there is question of the impediment of crime, and this is a penalty for protecting the rights of marriage lest they be violated for the sake of a future marriage, it is necessary that each one, at least in some way, in perpetrating that crime, act in view of a future marriage, and that this intention held by one be at least manifested to the other. Hence it is clear that, in the case, no impediment of adultery is present, because a promise of marriage was lacking, since nothing is said concerning it. Likewise there was no impediment of homicide, because mutual conspiracy was lacking, as appears from the tenor of the case. Finally there was no impediment of both together, because the view toward marriage was held by Seia alone, and Seius perhaps never even thought of the future marriage. Nor is it valid to object that that intention was sufficiently had in the preceding adultery committed. For this can hold at most in the external forum, by reason of presumption; but not in the internal forum, where not presumption, but truth is attended to, namely if in reality Seius did indeed wish to sin with Seia, but in no way to contract marriage, as happens many times. Nevertheless in the external forum that intention is indeed presumed by law, both if the woman and an alien man concur by common work toward the death of the innocent spouse, and if adultery preceded, with only one party bringing death. Schmalzgr., l. 4, tit. 7, n. 55; De Iustis, de Dispensat. matr., l. 2, c. 16, n. 22; Sanchez, l. 7, d. 78, n. 19.

To the 3rd. Certain persons to whom the present case was proposed judge that the impediment is not present, because the wife did not kill the man, but only permitted him to die, since she was certainly not held by justice to call the surgeon; and because besides it is required, as the doctors have, cf. Reiffenst., l. 4, t. 7, n. 22, that death follow from machination and not from the lack of skill or negligence of the physician or surgeon. But they are remarkably deceived. For although the wife does not sin in the case against justice, she certainly sins against charity and piety; and this already suffices so that it can no longer be said that she permits the death of the man, but she wills it, and she is the true cause of it, although indirect, by not acting, that is, by not doing that which she could and ought to do. Then she most truly sins against justice; whence not only by charity and piety, but also by justice, she was held in the case to call the surgeon, and by injury, by not calling the surgeon, she acts against her husband. For first, Seia was held to call the surgeon from the office of wife, and consequently from quasi-contract. For Gneus the husband, as the matter practically happens, and in the case happened from the tenor of the case, trusting his wife, entrusted himself to her judgment, vigilance, and diligence, and did not commit himself either to a servant or to another outside person, so that the surgeon might immediately be called and every work be applied for preserving health. Besides, Seia knew, either from herself or from the opinion of the physician manifested to her and, as usually happens, not explained to the sick man, the lethal danger in which the husband was found, and the urgent and absolute necessity of calling the surgeon. Saying nothing to the husband and omitting to call the surgeon, that most cunning woman used a most notable fraud, thus deceiving the husband, and therefore acting altogether with injury. Nor indeed must that machination of death be a physical cooperation toward death, but a moral one suffices, Reiffenst., l. 4, t. 7, n. 21; and if moral cooperation toward death suffices, as it certainly suffices, by mandate, by counsel, is there not in the case true moral cooperation? Is not Seia the true moral cause of the death of her husband? He surely kills you who shuts you in a room where you perish by hunger, and who does not free you by opening the door of the room, when he can and ought to do that most easily. Nor does the authority of the doctors praised make to the matter. For it is one thing that a physician treating unskillfully, or not applying due diligence, or someone else not applying every due assistance to a sick person, for example, be, contrary to opinion, the cause of death; it is another that one intending death deliberately omits to do, for preventing death, what he is most strictly bound to do. The first is voluntary in the cause, by which one does not properly contract morally the malice of homicide, since he neither wills nor notices it, but contracts only the malice of a defect of skill to be had or of diligence to be applied. The other is voluntary in itself, which most properly brings in the malice of homicide. But the authority of the doctors invoked is beside the matter, which is clear from Reiffenstuel himself, who is cited against himself. For after Reiffenstuel, l. c., n. 21, explaining machination, expressly said that for contracting the impediment it suffices "that one of the spouses be the true physical or moral cause of the death of the innocent spouse," he concludes, n. 22: "The doctors commonly infer that then an impediment does not arise if death indeed follows, or follows not by force of the aforesaid machination, but from negligence or from the lack of knowledge of the physician or surgeon, or from elsewhere." It follows not by force of the aforesaid machination: namely there is no question of an unskillful and negligent physician and of one thus killing by his unskillfulness and negligence, whether namely he himself incurs the impediment of crime; but there is question of the one machinating, whether namely he incurs the impediment of crime if death follows not from the machination itself, for example, from the wound inflicted, but from the lack of knowledge and negligence of the physician. Therefore that authority does not make to the matter, and round things are confounded with square things. Cf. De Iustis, de Dispensation. matrimon., l. 2, c. 16, n. 13; Schmalz., l. c., n. 54.

And the whole assertion can be confirmed from this, that a dispensation is conceded with more difficulty if the petitioners killed the spouse by poison than if they had killed him by sword, because they act more treacherously, and the one killed could defend himself less. Now would not a killing be still more treacherous if someone were to deny food to the sick person, from the intention of his death, when he could and ought to give it, or, as in the case, if he were to omit calling the physician?

To the 4th. If there had been present in the case a mutual promise of marriage as regards adultery, the impediment of adultery would certainly be had, since all the conditions of this impediment would be verified. I. M. 1018. The impediment of homicide would not be present, because mutual conspiracy is lacking. I. M. 1019. But the impediment of both together would be present. For adultery and machination of death are present, with the promise of marriage and return-promise, which suffices, so that it be from one alone with the intention of marriage already manifested to the other. I. M. 1020; Sanchez, l. 7, d. 78, n. 2. And this impediment of both together would absorb in itself the impediment of adultery. For adultery induces the impediment of marriage insofar as it induces the danger of machinating toward the death of the spouse, in hope of entering marriage; which machination would be present in reality in the case. But since with that adultery there is had a promise of marriage, which now of itself suffices for establishing the aforesaid danger, Schmalz., l. 4, t. 7, n. 6, 32, 51, hence in reality rather the impediment of adultery with homicide would be had, and thus it would have to be expressed in asking for dispensation. - But if mutual conspiracy had been present in the case, there would indeed be present the impediment of homicide, if namely it were from the intention of marriage; otherwise, as has already been said to the 2nd, the intention of marriage being removed, even with adultery and homicide from mutual conspiracy, no impediment is had, at least in the forum of conscience; for in the external forum that intention would be presumed. De Iustis, l. c., n. 22. But if the intention of marriage had been present, the impediment of both together would also be present. I. M. 1020; Sanchez, l. 7, d. 78, n. 9, 14. For if this impediment is present when there is adultery and homicide with the intention of marriage without mutual conspiracy, all the more is it present if there is also mutual conspiracy. Whence this impediment of both together absorbs that other one of homicide alone, as in the preceding case. But as regards asking for a dispensation, because this is more difficult, it must be added in the petition that both together were present with the promise of marriage, or with mutual machination; or a dispensation can also be sought from the impediment of adultery with spouse-killing, in the first case, and a dispensation from the impediment of spouse-killing with adultery in the other. - But if finally there were present at the same time mutual promise of marriage and mutual conspiracy, two impediments are had, of adultery and of homicide, since all the proper conditions of each impediment are then present. I. M. 1020.

To the 5th. Benedict XIV says that it is established by no example that the Pontiff dispenses in a public impediment of this sort. I. M. 1021. Hence Clement VIII, although supplication had been made to him by most powerful petitioners for a dispensation upon this impediment, with only one of the two machinating, in no way wished to concede the dispensation. Schmalzgr., l. c., n. 65; Pyrrhus Corradus, Praxis dispens. apostol., l. 8, c. 9, n. 8.