Chapter — Slater, Morals of To-Day
Chapter IV: The New Code and the “impedimentum Criminis”
BOTH Canon Law and Moral Theology give rules for the leading of a good life and attaining salvation. The two sciences depend on each other and assist each other. Antecedently to the commission of crime they both seek to prevent it. But consequently to crime being committed a slight divergence of aim sometimes makes its appearance. Canon Law seeks to discover the crime and bring it home to the criminal with a view to his punishment, the restoration of public order, and the prevention of the repetition of the crime for the public good. Moral Theology seeks to bring the culprit to repentance, to forgive the sin, and to put the sinner in the way of leading a good life for the future. Occasionally the public interest conflicts with the private good of the delinquent, and because there is a difference of aim, a difference of opinion will begin to appear between the Canonist and the Moralist. If this tendency is recognized by men of broad views, no great harm will follow; but if it is not recognized, there may be an occasion of quarrelling. Sometimes bishops and even the authorities in Rome are blamed for action which seems harsh to the individual, while in reality the public good left them no choice in the matter.
These general principles are important and I will try to illustrate them from the diriment impediment of marriage which is called " crime," and then inquire whether any change has been made in the matter by the new Code of Canon Law.
" Those cannot contract marriage validly who, during the existence of the same lawful marriage have committed adultery with each other and promised each other to marry, or have attempted marriage even though only civil marriage." The object of this law is thus described by Cardinal Gasparri in his book on Marriage:
" The Church has made the guilty parties incapable of marrying each other as a penalty for committing the crime, as a protection for the innocent spouse, and because such a marriage would be publicly scandalous and harmful. Doctors disagree as to which was the primary, which the secondary object of the Church; we are of opinion that the Church intended and obtained all those objects at one and the same time by this incapacity. What some say, viz., that this impediment is rather an incapacity than a penalty, or vice versa, is without meaning if the matter be examined more closely; for this impediment, like all the other diriment impediments, is an incapacity purely and simply; and yet the Church made it both as a penalty for crime and on account of the other objects indicated above, and so in truth this incapacity is a penalty."*
* De matrimonio, n. 642.
A difference between the canonist's and the moral theologian's point of view emerges in the question whether ignorance of this impediment of crime excuses guilty parties from incurring it. Such differences are frequently referred to as differences between the external and the internal forum.
Cardinal Gasparri tells us that the question whether ignorance excuses guilty parties from contracting this impediment does not concern the external forum, but only the internal.* Wernz agrees. He writes:
" Ignorance cannot successfully be alleged in the external forum of the Church as a cause excusing the guilty from this annulling law. For the ecclesiastical laws by which the impediment of crime has been made never mention such an excuse. The rule of law is—Ignorance of fact but not ignorance of law excuses (R. J. 13 in VI°.). Besides, the Datary, the Penitentiary, and the Bishops' Courts never take into consideration knowledge or ignorance of this impediment, but in particular cases grant their dispensations absolutely, and not as a measure of precaution in the impediment of crime. Finally, although the impediment of crime secondarily has the character of an extraordinary vindictive penalty, yet principally it is a sort of condition or an incapacity on account of the unbecomingness inherent in such a marriage; but ignorance does not excuse from laws by which incapacity is established on account of public
* De matrimonio, n. 657.
indecency, although it may excuse from a medicinal penalty, and from an extraordinary vindictive penalty alone annexed to crime."* It is then only a question of the internal forum and the distinction illustrates the difference between the points of view of the canonist and of the moral theologian. But even with regard to the forum internum Doctors do not agree in their answers to the question. De Angelis, Marc, Gury, Giovine, Feije, Schmalzgrüber, Reiffenstuel, Sporer, Suarez, Diana, and most other authorities on the subject are quoted by Cardinal Gasparri as maintaining that ignorance of the impediment of crime does not excuse the guilty from incurring it. On the other hand, Ballerini, D'Annibale, Lehmkuhl, Krimer, Navarrus, Pichler, and others maintain the opposite opinion. Cardinal Gasparri himself before the issue of the new Code thought that the latter opinion was both extrinsically and intrinsically probable. But although the impediment was doubtful and could not be urged, yet it was better to ask for a dispensation or a sanatio in radice as a precautionary measure.†
It will be instructive to examine how the moralists established their probable opinion, and we cannot take a better example than the method followed by Ballerini. He first of all shows that this impediment is a penalty, and then gives authority for holding that ignorance even of a penalty alone excuses from incurring it even in the case of an annulling law. Moreover, the
* Jus Decretalium, IV., n. 522.
† De matrimonio, n. 658.
annulling of marriage in punishment of crime is not an ordinary, but an extraordinary penalty, such as no one would expect to be assigned in punishment of crime. But it was a common opinion that ignorance excused from such extraordinary penalties. If some theologians escaped this conclusion by maintaining that the impediment of crime was not a mere penalty, but that its principal object was to make married couples safer, Ballerini refutes them by quoting other theologians, such as Haunoldus, who maintained that it was a pure penalty. In such fashion do the supporters of the opposite opinion destroy each other's arguments. Some of them, says Ballerini, defended their opinion because, otherwise, they would be compelled to admit that ignorance of irregularity arising from crime excuses the guilty from incurring it, and this they were not prepared to admit. But, says Ballerini, it is a probable opinion that ignorance excuses from such an irregularity, and he quotes St. Alphonsus in proof of it. Some of the theologians on the other side defend their opinion by saying that the impediment of crime is rather an incapacity produced by law than a penalty. Ballerini answers that it makes no difference, for the same conditions are required for incurring this incapacity as for incurring a penalty, and what excuses from a penalty excuses from such an incapacity.
The gist of the argument may be put briefly thus: The impediment of crime is a penalty and an extraordinary penalty inflicted by ecclesiastical law. But ignorance excuses from such a penalty. Therefore ignorance excuses from incurring the impediment of crime. We shall presently see that whatever force there is in this argument has been taken out of it by several canons of the new Code. Even apart from the new Code the argument has its weak points. Granting that the impediment of crime is a penalty inflicted on the guilty parties, it is also something more. It is a measure intended to safeguard married life for the common good, and it annuls marriage because such a marriage would be a disgrace to public morality. Although there are good reasons for saying that ignorance should excuse from some penalties, for if the penalty is not known it cannot exercise its deterrent effect, yet it belongs to positive law to determine whether ignorance does excuse or not, and from what penalties. Especially if the penalty is an extraordinary one, such as no one would expect to be annexed to the crime, is there reason for saying that ignorance of it should excuse from incurring it. And yet, as Suarez drily remarks, we should be careful to limit this principle, as it certainly does not apply to the eternity of the punishments of hell in favour of one who is ignorant of that eternity. And after all it is not for the culprit to assess his own punishment. That is the function of the legislator and the judge. It is generally admitted, even by those theologians who use them, that these arguments do not establish the certainty of the opinion that ignorance of it excuses from the impediment of crime.* They only make the opinion more or less probable so as to permit confessors who learn of the impediment from confession to leave penitents in good faith. But most authors taught that it was advisable to procure a dispensation as a precautionary measure. Unless I am mistaken, the new Code has deprived the opinion of whatever degree of probability it possessed.
* Ballerini-Palmieri, Opus morale, VI., n. 1044.
In Canon 2229 rules are given which tell us how far and when ignorance excuses from a penalty inflicted by ecclesiastical law.
Canon 2229. " Affected ignorance, whether of law or of a penalty, excuses from no penalties latæ sententiæ. Ignorance of a law or even of a penalty alone excuses from no penalty latæ sententiæ if it were crass or supine; if it were not crass or supine it excuses from medicinal but not from vindictive penalties latæ sententiæ"
This canon settles the controversy as to whether ignorance of a penalty alone excuses a delinquent from incurring it. It also tells us that ignorance does not excuse from vindictive penalties. The impediment of crime is certainly a vindictive penalty latæ sententiæ, and so we must conclude that ignorance certainly does not excuse from it. Suarez, indeed, is quoted by Ballerini as maintaining that the impediment of crime is not a mere penalty, but that it is also "medicinal (so to say), inasmuch as it removes occasions of committing similar crimes." However, it is clear that Suarez here uses medicinal in a special sense defined by him in the words quoted, and not in the sense in which censures are called medicinal penalties in the Code. Censures are medicinal penalties in the sense that they tend to correct and overcome the contumacy of a delinquent. The Code does not adopt the opinion that ignorance of an extraordinary penalty excuses one from incurring it. But it expressly lays down the new rule that ignorance does not excuse from vindictive penalties like the impediment of crime.
I think then that we may conclude that the new Code destroys all probability which the opinion may previously have had that ignorance excuses from the impediment of crime.