§ 8. Crime

Notion. The impediment of crime is a law constituted by the Church by which persons who have committed either qualified adultery or qualified spouse-killing are barred from valid matrimony.

The end of this law is to protect matrimony against the infidelities of either spouse. The discipline now in force and the extent of this impediment for the whole Church were first established in the Decretals of Gregory IX,¹⁶⁴ in the title "Concerning one who took as wife the woman whom he defiled through adultery"; Benedict XIV explained this discipline excellently in the Constitution Redditae nobis, December 5, 1744.

Division. As appears from the definition given, the impediment of crime arises from a twofold source, namely, either from qualified adultery or from qualified spouse-killing. Furthermore, adultery is qualified or aggravated in three ways, namely, by an added promise of matrimony, by an attempted matrimony added to it, and by spouse-killing committed by either adulterer. Spouse-killing is qualified by the fact that it was done by common counsel. Therefore, there are four cases in which this impediment arises:

1. from adultery with a promise of matrimony;

2. from adultery with an attempted matrimony;

3. from adultery with spouse-killing perpetrated by either adulterer;

4. from spouse-killing alone, but perpetrated by common counsel.¹⁶⁵

Because of their similarity, we treat the first and second cases together, following the Code of Canon Law, can. 1075.

¹⁶⁴ Bk. 4, tit. 7.

¹⁶⁵ Certain authors distinguish only three cases of the impediment of crime, which they briefly state thus: 1. with each plotting (spouse-killing); this is the fourth case indicated above; 2. with one plotting; this is the third case; 3. with neither plotting; this is the first and second cases joined together.

823. First and second cases: Adultery with a promise or attempted matrimony.¹⁶⁶

In order that the impediment of crime truly arise, certain conditions are required both on the part of the adultery, on the part of the promise, and on the part of the attempt.

On the part of the adultery, it is required that it be:

1. True, that is, that a true and valid matrimony be violated. Therefore the impediment does not arise if the matrimony to which the injury is done is null or even putative.

2. Formal on the part of each, that is, each sinner must know that one and the same matrimony (or two marriages) is being violated. Therefore, for example, if a disguised spouse sins with another's spouse who is likewise disguised, each indeed knows that he is violating his own matrimony, but nevertheless the impediment of crime does not arise, because each adulterer does not know that the same matrimony is being violated.¹⁶⁷ Ignorance of the matrimony, therefore, provided that it is not affected, excuses from this impediment; but ignorance of the impediment does not excuse, as will be said below.

3. Consummated, that is, through a copula of itself apt for generation. Therefore an onanistic or sodomitical copula or another immodest act does not suffice.

¹⁶⁶ This is deduced from cc. 1, 6, 7, X, 4, 7. If anyone rightly understood these chapters, it certainly was St. Raymond, who compiled them with the full authority of Gregory IX. Now St. Raymond speaks thus concerning this case: The impediment is present if someone "gives a pledge to an adulteress that he will take her after the death of her legitimate husband, or after the death of the wife of the adulterer himself" (Summa, bk. 4, De impedimento criminis).

¹⁶⁷ Cf. St. Alphonsus, Theol. mor., bk. 6, n. 1036.

824. On the part of the promise, it is required that it be:

1. True and serious. Therefore neither a mere proposal or desire of celebrating matrimony, nor a feigned or jocular promise, suffices.¹⁶⁸

2. Free and not extorted by grave fear or deceit.

3. Manifested and mutually accepted; for the Code requires that there be a "mutually given pledge." But a pledge cannot be mutual unless it is accepted by the other party; this acceptance need not be made in express words, but conclusive acts suffice, for example, a nod of the head or manifested joy at hearing the promise. Yet mere taciturnity does not suffice, because in this case the maxim does not have force: One who is silent is seen to consent. For this maxim cannot be applied in an onerous matter, such as the acceptance of a matrimonial promise, since this is equivalent to a reciprocal promise of matrimony and constitutes an onerous contract. But although authors disputed whether not only an accepted promise but also a mutual or reciprocal promise was required, today it seems that the impediment of crime is not present unless there was a mutual and reciprocal promise of future matrimony.¹⁶⁹ Betrothals entered in legitimate form, however, are by no means required.

4. Absolute and not conditional. Hence, for example, the impediment would not arise if the adulterer said to the adulteress: I promise you matrimony if my parents consent. Therefore he must say absolutely: I promise you matrimony after the death of the other party. More probably, the impediment is also not present if the adulterer says to the adulteress: I promise you matrimony after a civil divorce has been obtained.¹⁷⁰ The reason is that such a promise includes the condition of obtaining a divorce. But if, after a civil divorce has been obtained, matrimony is truly contracted and consummated, then the second case of the impediment of crime is present, as will be said below.

5. While the same matrimony endures.¹⁷¹ Therefore both the adultery and the promise must inflict injury upon the same matrimony. But it makes no difference whether the promise preceded or the perpetration of adultery, provided that each act existed while the same spouse was living, and that the promise was not revoked before the adultery, and indeed by an external act known to the accomplice. Therefore a merely internal revocation does not suffice. The impediment arises even if perhaps the other spouse consents to the adultery or to the promise of the other party, because even in this case a grave injury is inflicted upon the matrimony; for spouses cannot renounce their right in this matter.¹⁷²

¹⁶⁸ A promise of mere concubinage indeed does not suffice, but a promise of civil matrimony seems to suffice.

¹⁶⁹ Thus also Linneborn, Grundriß des Eherechtes, 2nd ed., § 29; Vlaming, Prael. de iure matrim. I, 8th ed., n. 314; De Smet, loc. cit., n. 659.

¹⁷⁰ Cf. Gasparri, De matrim., n. 648; Cappello, De sacr. III, n. 484.

¹⁷¹ Thus it is deduced from c. 8, X, 4, 7, and from the Constitution Redditae nobis.

¹⁷² The opposite opinion defended by De Smet (De sponsal. et matrim., 3rd ed., n. 659) does not seem probable. This author thinks that the impediment of crime was not present in the following case occurring in the Diocese of Bruges: A man had committed adultery with his wife's sister, but did not promise matrimony to his accomplice except before his dying wife, who not only consented to this promise but urgently pressed it for the sake of the offspring born. Marc-Raus, loc. cit. II, n. 2033, approves the same opinion.

825. On the part of the attempted matrimony, the same qualities are required which were enumerated above for the promise of matrimony. By an attempted matrimony is understood an act by which two persons, conscious of the existing impediment of bond, truly and seriously furnish conjugal consent to one another by words or other signs of the present, whether publicly or clandestinely.¹⁷³ Therefore an attempted matrimony is not present a) if the two adulterers intend nothing other than pure concubinage; b) if either of the contracting parties is unaware of the impediment of bond; but if, after becoming aware of the bond of the prior valid matrimony, that person perseveres in concubinage, the impediment of crime immediately arises. - In our times this attempted matrimony is found especially in so-called civil matrimony, to which a spouse hastens after obtaining the civil divorce of the prior matrimony.¹⁷⁴ Therefore, when such a civil matrimony is contracted and consummated in contempt of the prior matrimony, the impediment of crime is present.

Note. All marriages invalidly contracted while this impediment existed (the second case) were sanated by Pius X on June 3, 1912.¹⁷⁵

¹⁷³ Thus Vlaming, Prael. de iure matrim. I, 8th ed., n. 318.

¹⁷⁴ Cf. Sacred Congregation for the Propagation of the Faith, January 14, 1844; Vogt, Das kirchl. Eherecht, § 42; Wernz-Vidal, Ius can. V, n. 329.

¹⁷⁵ Acta Ap. Sed. IV, 403. The same Supreme Pontiff established that thereafter a dispensation from the said impediment in a given case is held to be conceded a) through a dispensation given from a ratified and non-consummated matrimony, b) through permission given for passage to other nuptials because of the presumed death of the spouse. The Code of Canon Law, can. 1053, confirmed this, but with the case of spouse-killing excluded.

826. Third case: Adultery with spouse-killing.

The adultery must have the same conditions which were enumerated above for the first case. But on the part of the spouse-killing it is required:

1. That death actually followed, and indeed from the physical or moral action of one adulterer. Hence the impediment arises whether the adulterer killed the legitimate spouse (whether his own or the accomplice's) by his own hand or with another's aid; on the contrary, the impediment is not present if the legitimate spouse escaped the death attempted against him by the adulterous party.

2. That death was inflicted with the intention of contracting matrimony with the adulterer. Therefore, if death is inflicted from another motive, for example, from vengeance, hatred, a duel,¹⁷⁶ etc., the impediment does not arise. But it is by no means necessary that the intention of contracting matrimony be possessed by each adulterer or that it be manifested to the accomplice.

From what has been said it is evident how atrocious this crime is. For a twofold, most grave injury is inflicted upon the spouse, namely: 1. conjugal fidelity to the spouse is violated through adultery; 2. life is taken from the spouse by either adulterer for the purpose of entering a new matrimony.

¹⁷⁶ Cf. Linneborn, Grundriß des Eherechtes, § 29.

827. Fourth case: Spouse-killing without adultery.

In order that the impediment of crime arise from this title, the following conditions are required:

1. True spouse-killing, that is, that a true and not a putative spouse is actually killed. Therefore the impediment is not present a) if death does not actually follow from the physical or moral action posited, or b) if the spouse lived with one of the killers not in a true but in a putative matrimony.

2. The mutual plotting or cooperation of the man and woman toward the killing of the spouse. Therefore the impediment of crime does not arise if the man alone or the woman alone kills the spouse without mutual counsel; or even if one kills and the other afterward approves the crime. It is altogether required that each exercise a true and efficacious influence, whether moral or physical, upon the death of the spouse. In one word: both must be true killers of the spouse.

3. Spouse-killing committed with the intention of contracting matrimony with the accomplice. Certain authors deny this condition;¹⁷⁷ certain others deduce it from c. 1, X, 3, 33; but it is taught more truly and more commonly that it is not found in express words in the sources of ecclesiastical law, but is clearly and certainly deduced from the end of the law, which indeed intends to prevent someone from killing his own spouse or the spouse of the accomplice from a desire to enter another matrimony.¹⁷⁸ The impediment is not incurred if the spouse-killing was perpetrated from anger, vengeance, or another motive apart from the intention of matrimony. Authors dispute whether this intention of contracting matrimony must be on the part of each killer or of only one; likewise, whether the intention of contracting matrimony must necessarily have been manifested to the accomplice before the spouse-killing. In practice these controversies are of little utility. For if a man and woman plot and cause the death of the spouse of either, the intention of entering matrimony and the mutual manifestation of this intention are deservedly presumed.

¹⁷⁷ Vogt, loc. cit.

¹⁷⁸ Cf. Feije, De imped. et dispens. matrim., n. 483; Gasparri, De matrim., n. 643.

828. Multiplication of this impediment.

The impediment of crime is multiplied from a twofold cause:

1. According to the number of marriages upon which injury is inflicted.

Hence, for example, the impediment is twofold if Caius, during his matrimony with Anna, commits adultery with the maidservant Paula while at the same time promising matrimony; but afterward, when Anna has died and he has entered a second matrimony with Maevia, he again commits adultery with the maidservant Paula while promising matrimony. Likewise, the impediment is twofold if both adulterers are joined in matrimony and promise matrimony to each other when their respective spouses have died.

2. According to the number of diverse delicts perpetrated against one and the same matrimony.

Hence, for example, if Peter, a married man, commits adultery with Anna while at the same time promising matrimony, one impediment arises; if afterward he attempts matrimony with Anna and finally kills his own wife with the intention of contracting a legitimate matrimony, a threefold impediment of crime is present because of the threefold crime committed. But the impediment is not multiplied if the same delicts are multiplied in number, for example, if promises of matrimony and adulteries are multiplied during the same matrimony. - In seeking a dispensation, the essential circumstances of the case must be set forth, without its being necessary expressly to seek a dispensation from each existing impediment.

829. Cessation of this impediment.

The impediment of crime once contracted is perpetual and does not cease except through a legitimate dispensation. Therefore it does not cease, for example, if after perpetrating adultery the adulterer revokes the promise of matrimony made, or if, after a civil divorce was obtained and a new matrimony attempted, the prior spouse has died. Since this impediment is of ecclesiastical law, the Supreme Pontiff can indeed always dispense; but he is not wont to dispense if there is question of public spouse-killing. The first two cases of this impediment, however, are held to be of the lesser degree.¹⁷⁹ The faculty of dispensing from this impediment is also contained in cann. 1043 and 1044, conceded for danger of death and another urgent case. - It was already said above, n. 651, note 168, that the impediment of crime does not affect the non-baptized if both are non-baptized.

¹⁷⁹ Code of Canon Law, can. 1042, § 1, n. 5.

830. It is asked: Does ignorance excuse from this impediment? Authors disputed much whether this impediment is incurred even if one or each of the contracting parties did not know that it was imposed for the crimes recounted above. - The much more probable opinion taught that ignorance does not excuse from this impediment; today this has become certain and is admitted by all, since the Code of Canon Law, can. 16, § 1, establishes without any restriction: "No ignorance of invalidating or incapacitating laws excuses from them unless something else is expressly stated." But all diriment impediments of matrimony are invalidating laws, and the impediment of crime is not expressly exempted.