Point VI. On the Impediment of Crime

The crime invalidating matrimony ¹ is threefold, namely: 1. adultery; 2. homicide of a spouse; 3. both together, provided that certain conditions concur, which we set forth below.

¹ This is an impediment of ecclesiastical law; whether ignorance excuses from it was said above in the note to no. 788, question 2.

820. • For the impediment under this title to be incurred, it is required:

1. That the adultery be true, formal, and consummated. First, true, that is, that at least one of the fornicators be joined in a matrimony that is not merely putative but legitimate and valid, even if perhaps not consummated. Next, formal, and indeed on both sides, that is, that each know that one of them is married ². Finally, consummated, namely, with perfect carnal intercourse intervening ³. I said formal on both sides, because odious things are to be restricted. - Thus commonly. - St. Ligorius, no. 1036.

² It therefore suffices that someone knowingly approach a married woman, nor is it necessary that the married woman know that the man with whom she commits adultery is also married.

Add with St. Alphonsus (book 6, no. 1036, V) that adultery must not be called formal if, even only from culpable and crass ignorance, the accomplice did not know that the other was married. For every ignorance of fact excuses from penalties unless it is affected ignorance; and, moreover, malice is required for formal adultery, and this is absent where ignorance is present.

³ In the external forum this is always presumed. These statements therefore apply only to the forum of conscience; in which, if the Confessor truly discovers that the act was not consummated even on the woman's part - see what was said above in the note to no. 811, II - he ought not to raise a scruple concerning the impediment, whether there is question of a matrimony already contracted or one to be contracted. Schmalzgrueber, book 4, title 7, no. 50.

2. That there be a promise of matrimony made by one adulterer and accepted by the other at least through some sign ⁴, whether this promise precedes, accompanies, or follows the adultery; but if it precedes, it is required that it not have been retracted before the adultery. More probably, however, a renewed promise is not required ⁵.

⁴ Both the promise and its acceptance must be true, and therefore a fictitious one does not suffice. See St. Alphonsus, book 6, no. 1039, and Schmalzgrueber, book 4, title 7, nos. 22-24, who confirms this from canon Significasti 6, On One Who Has Married, etc. Moreover, a conditional promise or acceptance does not suffice so long as the condition has not been fulfilled. It must be said otherwise if the added condition is fulfilled before the death of the spouse, and much more if before the adultery is perpetrated; for what certain authors say - cited by St. Alphonsus, l.c., no. 1040 at the end - namely, that even after the fulfillment of the condition the promise cannot be called pure, is entirely futile. See

Schmalzgrueber, l.c., nos. 25-28. And precisely the same must be held concerning the opinion of Pontius (On Matrimony, book 7, chapter 45, no. 2), that the silence of one party suffices for the promise of the other. For the acceptance of the promise here takes the place of an offense upon which a penalty is to be imposed; and it is very well known that offenses are not presumed. But in the case an offense would be presumed, because in silence we have merely presumed consent. Therefore the opinion does not stand. What is indeed astonishing is that Pontius, as we shall soon see, is the leader of those who deny that the impediment is incurred by one plotting the death of a spouse unless he outwardly signifies the intention of contracting matrimony; and he principally uses the reason that a merely internal act cannot be punished. But now, forgetful of himself, he contends that a merely internal and even merely presumed acceptance suffices for incurring the penalty! We have already observed elsewhere, however, that a blind fury for contradicting Sanchez has everywhere carried the man into absurdities and contradictions. Moreover, even if it existed, the probability of that opinion would be invoked here in vain. For mere opinion cannot be sufficient to establish a certain impediment. See Schmalzgrueber, book 4, title 7, no. 21.

⁵ Some strength can also accrue to this opinion from canon Significasti 6, On One Who Has Married, etc. Nevertheless, since probability is also not lacking to the opposite opinion - see Schmalzgrueber, book 4, title 7, no. 30 - in a doubt whether a renewed promise occurred, according to the general canon the impediment can be considered merely probable and thus uncertain, which amounts to the same as none.

3. That both the promise of matrimony and the adultery occur while the prior spouse is living, or while the same matrimony endures ⁶. - Thus from several passages of Canon law, for example, from canon Si quis vivente 5, cause 31, question 1; likewise from canon Propositum 1, On One Who Has Married, etc. - St. Ligorius, no. 1037 and following ⁷.

⁶ Namely, both the adultery and the promise of matrimony must tend to the injury of one and the same spouse. This would not occur if Berta, for example, while her first husband was living, promised matrimony to Titius, but committed adultery with Titius when, after the death of the first husband, she had married Caius.

⁷ Adultery invalidates matrimony by law not only when a promise of future matrimony is added, namely, of matrimony to be contracted after the death of the spouse - for if matrimony to be contracted while the other spouse was still living were promised, the reason for the impediment would cease, as Schmalzgrueber observes with the Doctors, book 4, title 7, no. 9 - but also if the adulterer, while the spouse is still living, contracts or rather attempts matrimony de praesenti with the adulteress. This is evident from canon Cum haberet 5, On One Who Has Married, etc. Nor does it matter whether he attempts to contract matrimony before the pastor and witnesses or clandestinely. For in establishing this impediment, regard is paid not to the validity of the matrimony or of the betrothals, if only a promise intervenes, which are contracted invalidly, as is evident, but to the reason of the crime. But if the accomplice was ignorant of the other's legitimate marriage when entering matrimony with that person, distinguish two hypotheses. Either, upon learning of the other's marriage, the accomplice commits adultery without retracting the matrimony, and thus the impediment will be introduced; for if the accomplice perseveres in the matrimony after acquiring knowledge, it is deservedly regarded as knowingly contracted, and, when joined with adultery, no less provokes the seeking of the other's death than if it had been knowingly contracted from the beginning. Or the accomplice retracts the matrimony before the adultery, or even ceases from the adultery, which previously had been material and not formal, immediately upon learning of the other's marriage, and thus the reason for the impediment is absent. Compare Schmalzgrueber, l.c., nos. 12 and 15.

821. • Three conditions are required for an impediment to arise from this:

1. Mutual conspiracy. Hence it does not suffice that a spouse kill his or her own spouse if the person with whom the killer intends to enter matrimony is ignorant of or opposes this action. - Thus more commonly from canon Laudabilem 4, On the Conversion of Unbelievers. - St. Ligorius, no. 1033 ⁸.

⁸ It is likewise the common doctrine that it does not suffice that someone, hearing of the killing of the spouse, approve and ratify it. Schmalzgrueber, book 4, title 7, nos. 56-57.

2. The intention of matrimony. - Thus commonly, although it is not expressed in the law. The reason is that the end of the law is that no one should kill his own or another's spouse in the hope of matrimony. Some with Pontius require that this intention have been manifested in some manner to the other party. St. Ligorius, no. 1034, says that it suffices that certain indications of this intention preceded, for example, familiar relations, love letters, etc. ⁹.

⁹ As Schmalzgrueber says after Sanchez and others (book 4, title 7, no. 55; Sanchez, book 7, disputation 78, no. 19), this appears to be of little importance in practice. For in the external forum it is always presumed that the plotting of another's death was done with the intention of entering matrimony with another, if a woman and a man not her husband concur by common action toward the death of the innocent spouse, or when adultery preceded.

Observe further that these authors require this external manifestation of the intention only because, as they say, the Church does not punish merely internal acts. For this end, it certainly makes no difference whether this intention is manifested to the accomplice or to another person, and likewise whether it is signified in some manner before or after the crime. Moreover, while St. Alphonsus, no. 1034, merely requires that familiar relations, gifts, or love letters have intervened, it is plainly evident that it suffices that one signify that an intention of contracting matrimony is present to him, but it is not required that he signify that precisely for this reason he plots or has plotted the death. But if the matter is so, when can this manifestation of the intention ever be absent? For can matrimony be celebrated if one who is to contract it does not at some time disclose this will of his?

3. Death actually following from the physical or moral action of either accomplice. This is evident from Canon law. - Thus commonly.

822. • When the crimes of adultery and killing a spouse are found joined together, mutual conspiracy for killing the spouse is not required, nor a promise of matrimony, but these three things suffice:

1. Adultery, such as was explained above. Hence it must precede the killing of the spouse ¹⁰; it is not necessary, however, that it precede the plotting of the death.

¹⁰ The reason is easily understood; for if the death of the spouse precedes, adultery, which consists in intercourse with the spouse of another, who is certainly living, can no longer have place.

2. A plotting of the death by one of the adulterers from the intention of matrimony; it suffices, however, that this intention be held by one of them. - Thus Gousset, no. 824; Carriere, no. 739; Collet, etc. - St. Ligorius further requires, as more probable, that this intention be manifested to the other party ¹¹.

¹¹ What we said above in the note to no. 821, that this is not to be understood of the manifestation of the end which someone proposes to himself in killing, is confirmed from the fact that the matter proceeds equally even if the killing occurs without the knowledge of the accomplice in adultery. Finally, observe that, in favor of the opinion which requires the signification of the intention, not only the Salmanticenses and Sanchez but also Vasquez, who has nothing at all concerning this special question, are falsely cited in St. Alphonsus, no. 1036, VI; just as Pontius (book 7, chapter 45, no. 5) wrongly cites St. Thomas for the same point (Supplement, question 60, article 2). For the Holy Doctor indeed speaks of the intention, but he has not even a word concerning the external manifestation of the intention.

The VV. observe here (page 806, in the note) that the Salmanticenses alone are cited by the Holy Doctor directly and most correctly, as they say.... Therefore there is no need for us to inquire whether the authors brought forward by the Salmanticenses in favor of this opinion are rightly cited, nor indeed....

Reply 1. Even this observation of the VV. takes its origin from their preconceived opinion, namely, that when it is indicated in these Notes that certain citations are less pertinent to the matter, this must be attributed to a desire to censure the Holy Doctor Alphonsus and not to a concern to place faithfully before the eyes of the reader the genuine state of the controversy. Is it not intimated in this very little Note that St. Thomas is gratuitously cited by Pontius, concerning which otherwise the Holy Doctor Alphonsus says nothing?

Reply 2. What the VV. say, that the Salmanticenses are most correctly cited by the Holy Doctor, is not altogether true. For the Holy Doctor (l.c.) writes: It is required, VI, that the killing have been done with the intention of marrying the adulteress, at least on the part of the killer, provided that he externally manifested such an intention TO THE OTHER PARTY, that is, to the adulteress. But the Salmanticenses by no means speak of a manifestation of the intention made to the adulteress, but generally of some external sign of the internal intention, as was said in the note to no. 821. Thus they write (Treatise 9, chapter 12, no. 53): It is required, however, that such an intention be manifested externally, because the Church cannot punish except what it can know.

Reply 3. What the VV. then wish to cast back upon the Salmanticenses as an error in the citations, which even in St. Alphonsus do not pertain to the matter, must likewise not altogether be admitted. For St. Alphonsus here also cites Sanchez and Dicastillus, and he had also cited Sanchez in The Apostolic Man, treatise 18, no. 63. But the Salmanticenses cite neither Sanchez nor Dicastillus there. Therefore neither is what the VV. say true, that the Salmanticenses alone are cited directly by the Holy Doctor. For he brings forward these two on his own account and has not borrowed them from the Salmanticenses. But what the VV. add (l.c.), that Sanchez is expressly cited by St. Alphonsus in the preceding no. 1034 in favor of the opposite opinion, merely shows that the things contained in no. 1036 do not cohere with what we see written in no. 1034.

The VV. conclude in these words (l.c.): But whether the doctrine of St. Alphonsus with the Salmanticenses is TO BE SPURNED, namely, that it is more probably required that there be an external signification of the intention, because the Church is not accustomed to punish merely internal acts, let others judge according to their wisdom.

Reply. The question is not about doctrines TO BE SPURNED, because contempt contributes nothing to resolving controversies, but about assigning to reasons their proper weight. Now, of the authors cited by the Holy Doctor, apart from the Salmanticenses, only Pontius and Perez remain after Vasquez, Sanchez, and Dicastillus are removed. But Pontius, as we saw above in the note to no. 820, casts himself by this into open contradiction; and Perez casts himself into precisely the same contradiction, This impediment, which is called both together because of the double crime united, as Perez (disputation 33, section 2, no. 8, and section 5, no. 4), who freely copied from Pontius. Nor perhaps is the argument employed by St. Alphonsus altogether free from an inconvenience of this kind, namely, that the Church is not accustomed to punish merely internal acts. And indeed, where he asks (book 6, no. 1134) whether, when a dispensation is petitioned for matrimony to be contracted between relatives, the incestuous intercourse which indeed occurred between them with the intention of obtaining the dispensation more easily must be expressed, although this evil intention was conceived only in the mind, he contends that it must be expressed in the petition, and indeed under pain of nullity. And certainly, in order that the Holy Doctor may be consistent with himself, he replies to the opposing argument, that the merely internal crime of that depraved intention is not subject to the power of the Church, that there is question here not of a penalty but of a dispensation, which is denied in the case. But is the denial of a dispensation not a penalty? Did he not himself premise that the Pontiff punishes this crime when he imposes both a greater penance and a monetary compensation?

Moreover, the argument which Pontius, afterward copied by the Salmanticenses, Perez, and St. Alphonsus, derives for the present matter from the fact that the Church cannot punish merely internal acts because it cannot know them is founded upon an equivocation. Indeed, theologians who hold, with whatever degree of probability, that only acts external in some manner are the object of human law do not assert this concerning just any manifestation of an interior act. Let a merely mental or internal heresy be an example. For we all agree that this is not subject to the penalty of excommunication, just as a merely internal sin is not. But I ask: does this sin become external so that it is subject to excommunication because someone manifests that he committed this merely internal sin? Certainly an act of sin is not called exterior because it becomes manifest in any manner whatsoever, but because in the moral order it is one and the same with the interior act, so that it constitutes one total act with it. Now, in the present case, the interior act consists in someone's plotting a killing from the intention of matrimony with the adulteress. It is therefore the mere will, or rather the intention of the end, insofar as in his mind he chooses and directs the killing of his spouse as a means to this end. But what, finally, will be the exterior act in the case by which that interior intention so discloses itself that it constitutes one moral act, and thus can in some manner be called the exterior act of the intention? Not the killing of the spouse, because that spouse could have been killed for another end. Not the contract of matrimony itself with the adulteress, because it has no necessary connection with the will of the chosen means, nor is it of itself the exterior act of that intention. It remains, therefore, that this intention be indicated by some other sign. But whatever sign you devise, it will never be such that it constitutes one total act in the moral order with the interior intention. It will be a signification or confession of the intention extrinsic to the act of intention, but by no means the exterior act of the intention. Therefore, once the equivocation or confusion is removed between the interior and exterior act insofar as these two constitute one and the same moral act, and a manifestation wholly extraneous to the internal act, which consequently contributes nothing to constituting that same act, that argument of Pontius plainly collapses. For when it is said that the Church punishes, for example, an exterior act with censures, what is understood is not the confession or expression of an internal sin, but the exterior act of sin itself, constituting one and the same sin with the interior act.

From these things it can rather be concluded that a new argument arises here against that opinion which denies to the Church power concerning merely internal acts, concerning which see volume I, no. 89. For it is the unanimous opinion of all the Doctors that the impediment of crime is incurred according to the foregoing when it is established that the spouse was killed from the intention of matrimony with the adulteress or accomplice in the killing. But that intention, which assumes the killing as a means for attaining the end of obtaining that matrimony, can indeed be narrated or manifested, but does not of itself have an external act which can be called an external sin corresponding to the depraved act of the internal will. Therefore by the fact itself all unanimously admit and profess the power of the Church over merely internal acts.

3. The death following from the plotting of one of the adulterers, in the same manner as was said above concerning homicide alone. Thus from the same law. - See St. Ligorius, no. 1036. constitutes a single impediment. But if both adultery and homicide separately have their own conditions, as set forth in no. 821 or 822, they introduce a double impediment.

823. • Hold all these things in memory in these fewer words:

1. Adultery with a promise of matrimony accepted by the other party.

2. Homicide from common conspiracy and with the intention of contracting matrimony, held by at least one party and manifested.

3. Both together with a view to matrimony, but without conspiracy and a promise of matrimony ¹².

¹² Since this impediment of crime is of ecclesiastical law, it has no place among unbelievers, as St. Alphonsus also touches upon from the common doctrine (book 6, no. 1037), even if they afterward come to the faith. The same must be said if, as regards the first of the received causes of this impediment, either one of the two, namely, either the adultery or only the promise, was made after Baptism. See Schmalzgrueber, book 4, title 7, no. 3. Likewise, as regards the third cause, if the believer was not a participant in the killing which the unbeliever perpetrated. Schmalzgrueber, ibid., no. 46. But if a believer, after matrimony has been promised, commits adultery with an unbeliever, and likewise if a believer, as regards the third cause, perpetrated the killing, or, as regards the second cause, was a participant in the plotting or killing, the believer incurs the impediment, by which consequently, although indirectly, the unbeliever also is bound, just as happens in the impediment of disparity of worship. Indeed, this has place even if a believing wife did this so that her unbelieving husband, after afterward entering matrimony with her, might be converted to the faith, as is expressly contained in canon Laudabilem 1, On the Conversion of Unbelievers, where the Pontiff gives this reason: that the Church does not wish to compensate such a loss with such a gain. See Schmalzgrueber, l.c., nos. 46-48.