Adultery and Murder

When a man and a woman commit adultery and one of them murders his consort in order to marry his accomplice in adultery, the third impediment of crime arises between them and hinders the marriage. In this case there need be no promise of future marriage, nor any attempt at marriage, nor need the death be the result of the plotting of both of the parties. It will be sufficient if the adultery have the qualifications mentioned above in the first section, and murder really be committed with the intention of marriage manifested in some way, as by presents or by love letters to the other party.

If to adultery and murder as just described there be joined the promise of future marriage, and the plotting of the death of the consort of one of the parties with the conditions laid down in the previous sections, there will be not one but three impediments, and if marriage were actually attempted during the murdered consort’s life, there will be four. The impediment is purely of ecclesiastical law, and therefore it does not bind those who are not baptized. If, however, one of the parties is baptized, it will indirectly affect the other.

Since the issue of the new Code ignorance of this impediment is no reason why it should not be incurred (Can, 16).

Canon 1075, 2° states: "They cannot validly contract who, likewise while the same legitimate marriage endures, have consummated adultery between themselves and one of them has perpetrated spouse-murder." Therefore there are required:

I. Adultery. But this must not only be, as was set forth in n. 787, true, consummated, formal on both sides, and formally injurious to the same spouse; it must also be such with respect to precisely that spouse who is killed. In other words, here it does not suffice that the matrimonial state of one or the other be known to each, but moreover it is required that the matrimonial state of that one whose spouse is killed be known to each. For, with the end of the law considered,¹ it seems to be required that adultery, and indeed the adultery of each party, influence the killing of the spouse. But this does not have place if one or the other party is ignorant of the matrimonial state of the spouse killed. There is added that the ancient law speaks of adultery injurious with respect to the spouse killed (St. Alphonsus, Homo Apostolicus, tract 18, n. 63, where he requires "that each adulterer be conscious of the prior marriage," that is, of the marriage which was dissolved by the killing of one spouse).

II. Spouse-murder; concerning which it must be observed:

1. Plotting of death perpetrated by one or the other accomplice in adultery suffices, whether physically or morally.

2. Death must truly have followed, and from that plotting.

3. The plotting must have proceeded from the intention of marrying the accomplice in adultery. "Hence it is inferred that if a man kills his wife so that he may enjoy the adulteress more freely, or for another cause, even if that woman consented to the homicide but without intention of marriage, the impediment is not contracted" (St. Alphonsus VI, 1036). For the rest, here it is certainly not necessary that that intention be present in both adulterers, since the plotting of both is not required. But it is disputed whether the stated intention must be manifested to the accomplice in adultery. Now this seems to be denied, because in this case the law does not require mutual conspiracy. Nevertheless the intention seems to have to be externalized, as they say, because the Church cannot, or at least is not accustomed to, make laws concerning merely internal acts (St. Alphonsus VI, 1034).

III. Joining between adultery and spouse-murder. 1. Adultery and spouse-murder must be committed while the same legitimate marriage stands.

2. It is disputed whether adultery must have preceded not only the death of the spouse, but also the physical plotting of death, for example the administering of poison or the infliction of a wound. Now this is affirmed with sufficient probability, because, with the end of the law considered, the impediment seems to have been established lest the adultery of each should influence the killing of the innocent spouse (p. 634). Once this is posited, it is necessary that the adultery precede the physical plotting of death itself (St. Alphonsus VI, 1036, 2°). I said, however, "physical plotting," because the impediment arises even if the adultery follows the moral plotting, provided that it precedes the physical.

¹ The end of the law is lest adultery give occasion for preparing the death of the innocent spouse.

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.

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.

899. Principle III. Those cannot validly contract matrimony who, while the same legitimate matrimony likewise endures, have consummated adultery between themselves and one of them has perpetrated spouse-murder. - Thus can. 1075, 2°.

The conditions required for contracting the impediment are:

A. On the part of adultery, that it be true, formal, consummated, as was said in the preceding number.

No promise or attempted matrimony is required.

B. On the part of spouse-murder, that from the plotting of either of the adulterers death has followed, whether one's own spouse is killed or the spouse of the accomplice.

Therefore it is necessary: 1° That the death of the spouse be plotted by either of the adulterers, by physical or moral action, and indeed from the intention of contracting matrimony with the accomplice of adultery, probably also, according to several, manifested to that accomplice; which intention, however, is presumed in the external forum; but not that both conspire in the killing.

2° That death really follows from the action; not from another cause, even if it is approved or ratified.

3° That adultery precede the act which is the cause of death.

C. On the part of the circumstances, that they be done while the same legitimate matrimony endures.

Namely, the spouse upon whom death is inflicted must be the same one who was the spouse at the time of the adultery committed.

XVII. That homicide with adultery may induce a diriment impediment, the following conditions are required: 1. That death in fact followed by force of such an action; 2. The matrimony antecedent to the killing of the spouse ought to be valid; 3. The adultery ought to be consummated; 4. The adultery must needs precede the killing; 5. The adulterer and the adulteress ought to be conscious of the matrimony of each. There is always required a mind of future matrimony, as authors commonly teach, although some teach that homicide with adultery suffices.

In Canon 1075 of the new Code we read:

" 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."*