Adultery

Fornication is the act of carnal intercourse between persons of different sex who are not married but who are free to marry.

Holy Scripture teaches us that fornication is a grave sin, for “fornicators shall not possess the kingdom of God.”¹ “No fornicator hath inheritance in the kingdom of Christ and of God.”² It is a grave sin not merely because it is forbidden by positive law, but because it is intrinsically wrong and contrary to the law of nature. Innocent XI condemned the following proposition: ‘‘ It seems so clear that fornication in itself is not wrong, and is only evil because it is forbidden, that the contrary is altogether against reason.”³ This truth is sufficiently clear to unaided reason, for the human offspring requires for long years the constant care not only of the mother, but of the father as well, and so nature requires that the father should be certain, otherwise so great a burden could not be laid upon him. But the fact of paternity would be very uncertain if fornication were allowed, and so we must conclude that it is wrong in the nature of things. As St Thomas observes,⁴ the fact that in particular cases the paternity of a child born out of wedlock is sufficiently clear, and the child’s education can be provided for, does not militate against the force of the general argument, for in striving to lay down general rules of conduct we must have regard to what would happen ordinarily if such an action were lawful, not to what takes place in special circumstances.

¹ 1 Cor. vi 9; cf. Gal. v 19.

² Eph. v 5.

³ Prop. 48, condemned by Innocent XI, March 2, 1679.

⁴ Summa, 2-2, q. 154, a. 2.

Adultery is the act of carnal intercourse between persons of different sex of whom one at least is married to someone else. Besides being a grave sin against chastity, adultery is also a serious violation of justice, which prescribes fidelity to the marriage vows as long as they exist. Even if the other party whose marriage rights were violated by adultery should - have given his consent to the sin, it still is against justice, for, like the right to life, marriage rights are inalienable, and cannot be renounced by those who own them. If both parties who sin together are married to someone else, there will be a double sin against justice committed by both of them, and the circumstance should be mentioned in order to secure the integrity of confession. This is clear, and it is confirmed by the condemnation of Proposition 50 by Innocent XI.

By ecclesiastical law certain crimes committed by married people which are specially opposed to the sanctity of marriage constitute a diriment impediment of a second marriage. These crimes are: adultery together with a promise of marriage or attempted marriage with the adulterer, murder of a spouse with the machination of the other party, adultery and murder of a spouse. In order that these crimes may constitute a diriment impediment of another marriage, certain conditions explicitly or implicitly contained in canon law must be fulfilled. These will be described in the following sections (Can. 1075).

I. Damages to be restored with respect to goods of fortune are distinguished into damages inflicted:

1. On the legitimate husband. They consist in this: that offspring belonging to another is supposed to be fed and educated by the husband. These do not have to be restored if the husband consented to the adultery; otherwise, they do.

2. On legitimate children or other heirs. They consist: 1° in this, that the illegitimate child will share the inheritance of the putative father with the legitimate children; these likewise do not have to be restored if the husband consented to the adultery. Yet if the legitimate portion is injured, the legitimate children can appeal to the law; 2° in this, that the illegitimate child will divide the inheritance of the mother with the legitimate children; these things per se are not to be restored, since the mother can freely dispose of her own goods. Yet if the legitimate portion of the legitimate children is injured, they enjoy the right of appealing to the law; 3° in this, that through error about their condition, testamentary dispositions, inheritances ab intestato, or donations come to illegitimate children, which otherwise would have come to legitimate children or others. Moreover, since these things rest on error, they are invalid, and therefore must be restored by the illegitimate child if he has been convicted of his illegitimacy. I have said: if he has been convicted of his illegitimacy; wherefore note that the spurious child is not held to give credence to his mother, unless proving indications are present (St. Alphonsus, III, 654). The adulterers must restore these things to the legitimate children insofar as their adultery must be called a cause per se; but this must be said of testamentary dispositions and inheritances ab intestato, not always of donations.

I. Notion. Adultery is intercourse which injures the fidelity of the marriage bed, whether one's own, or another's, or both at the same time.

Adultery is had even if the other spouse consents. This follows from proposition 50 condemned by Innocent XI: "Intercourse with a married woman, with her husband consenting, is not adultery, and therefore it is enough in confession to say that one has fornicated." The reason, however, is that the said consent does not prevent a sin of injustice from being added to the sin against chastity, as will be more fully explained below.

II. Division. Adultery is distinguished into simple and double, according as one or both are married.

III. Morality. 1. Adultery contains a twofold sin, namely of lust and of injustice (St. Thomas, II-II, q. 154, a. 1, ad 2). It contains a sin of lust because, equally with fornication, it involves the use of venereal things which, as performed by persons not bound by an indissoluble bond, is not perfectly ordered to the education of offspring (n. 33). It contains a sin of injustice because it injures the right either of one's own consort, or of another's consort, or of both. I said or of both, namely if both are married; in that case there are two sins of injustice, because two distinct rights are injured (St. Alphonsus III, 445).

But if one spouse consents to the intercourse of his or her consort with another, there is indeed, as we said above, adultery, and therefore besides lust there is added a sin of another species, and indeed, according to the almost common opinion, of injustice. But it is disputed with respect to whom injustice is committed in this case. Some¹ judge that injustice is not committed against the husband, because no injury is done to one who knows and wills; but it is committed with respect to the conjugal state. But it seems that one should say that action is unjustly taken against the husband himself. For the matter concerns a right of the husband which he cannot renounce except as to his own exercise of it; and therefore that right, notwithstanding the consent, persists. But if the right of the husband persists, it is not seen why injustice is not had with respect to the husband, just as if the consent had not taken place. Add that the conjugal state is not a moral person which enjoys strict rights, so that strict injustice cannot be committed against it (cf. St. Alphonsus, Homo Apostolicus, tr. 9, n. 16).

2. Concerning the relative gravity of adulteries, note: If the adulterating woman is married, the sin is held graver than if the man is, because of graver inconveniences, for example damage to the true heir,² uncertainty of offspring,³ and so forth.⁴ But if both are married, it is still graver, because there are two injustices against each spouse, to be expressed in confession (St. Alphonsus III, 445).

Note 1. The pollution of a married person in some way takes on the nature of adultery, because it injures the right of the consort, who alone has the right to the use of the body of the consort, according to these words of the Apostle: The woman does not have power over her own body, but the man. Likewise also the man does not have power over his own body, but the woman⁵ (n. 104).

Note 2. Intercourse with another's betrothed man or betrothed woman quite probably does not take on the nature of adultery, or quite probably is not opposed to justice, since the arguments of the adversaries prove nothing at all. They argue from the fact that fornication renders the thing promised, that is, the body, notably worse in order to marriage. But first, that which the adversaries suppose is rightly called into doubt, namely that by betrothal there is introduced an obligation of justice to hand over the body such as it was at the time of the promise. If the question is about another promise, this will sometimes be clear from the circumstances; but in the present case the matter seems doubtful. Next, it is by no means clear that the body is rendered notably worse by intercourse in order to marriage (St. Alphonsus VI, 847).⁶

¹ Billuart, De temperantia, dissert. 6, a. 5; Merkelbach, cited work, p. 40.

² Namely, if the woman is married and commits adultery at the time when she conceives, there is danger lest foreign offspring be supposed by the husband and share the inheritance with legitimate children.

³ Namely, it will be doubtful whose offspring it is.

⁴ It is added, namely, that a woman easily becomes sterile from mingling with several men.

⁵ 1 Cor. 7:4.

⁶ Cf. our little work De forma promissionis et celebrationis matrimonii, ed. 5, pp. 10-11.

II. Acts committed with a third party constitute adultery (n. 35), or take on its character, as was explained (n. 71).

Adultery.—Adultery is also a distinct species of lust.—(a) Definition.—Adultery is sexual intercourse with the husband or wife of another. If the sin is committed only in desire, there is mental adultery; if the paramours allow themselves unlawful familiarities without intercourse, or if a married person is guilty of solitary lust, there is imperfect adultery.

(b) Sinfulness of Adultery.—Adultery is a grave sin, since it is an act of impurity and is expressly forbidden in the sixth commandment (Exod., xx. 14), and is classed among the sins that exclude from the kingdom of heaven (I Cor., vi. 9, 10). It is a special sin, because it is a violation of the faith pledged in the contract and Sacrament of Matrimony, and an injury to the right of one’s spouse and of the conjugal state (Matt., xix. 5; Rom., vii. 3; I Cor., vii. 39). Even though a husband gives his wife permission to commit adultery or vice versa, the injustice remains, for though the individual is not formally injured, the married state is injured, since no married person has the right to give a permission opposed to the sacredness of the marriage vows (Denzinger, n. 1200).

(c) Degrees of Malice.—There are three degrees of malice in adultery. The first is that in which a married man sins with a single woman; the second that in which a married woman sins with a single man; the third that in which a married man sins with another man’s wife. The second is worse than the first, on account of its consequences (e.g., sterility, uncertainty of paternity, rearing of an illegitimate child in the family); the third is worse than the second, because in addition to the consequences just mentioned, it contains a double injustice (viz., unfaithfulness to an innocent wife and unfaithfulness to an innocent husband), and it multiplies the sin. If an adulterer’s husband or wife is also unfaithful, the injustice is lessened, but not removed; for not merely the two married persons are to be considered, but also the children, the family, society, and God; and the wrong done by one of the parties does not take away the right to fidelity pledged absolutely to all of these in marriage.

(d) Effects.—The party whose marriage rights have been injured by adultery was permitted under some former civil codes to kill a wife taken in adultery. But such laws were against justice and charity: against justice since no guilty person should be put to death unheard, and no injured person should be judge and accuser in his own case; against charity, since by such summary vengeance the adulteress would be sent to death in the midst of sin and without opportunity for repentance. The remedies of Canon Law for the innocent spouse will be noted below (2542).

Note: If someone married sins with a married woman, or one having a vow of chastity sins with one also having a vow of chastity, he admits a double sin, by reason of marriage and vow. "For the prior malice is against the fidelity which he owes to his wife.... But the latter is insofar as he is the cause, by his cooperation, that his accomplice violates the laws of marriage." Likewise "one species of malice is contracted from the violation of one's own vow; but another from cooperation in the violation of the vow of someone to whose observance I am not held by vow, as is established." Lugo, l. c., n. 140, 141; L. l. 2, n. 46; l. 3, n. 456.

What about legitimate and illegitimate, natural and adoptive children? - Some children are legitimate and natural, others natural, others legitimate. Legitimate and natural children are those who are born from a man and his wife. Those are presumed by law legitimate and natural who are born from a mother joined in lawful marriage, unless it is juridically certain that their origin is from another than the husband of the mother. For he is held as father whom marriage points out. The mother indeed is certain; but the father is presumed. And this presumption also has force in the forum of conscience. C. B. 1591, 1717, 1720; C. L. 101 seqq.; C. He. 252.

The fetus is usually brought forth in the ninth month from the time it was conceived, sometimes at the beginning of the seventh, sometimes at the full tenth, namely not before 180 days, nor after 300 days. C. I. 161 seqq.; C. G. 315; C. H. 108; C. A. 138, 163; C. B. 1592, 1717; C. L. 101; C. He. 252, 254.

Hence, of him who is born either after the seventh month from the marriage entered, or before the tenth month from the marriage dissolved, he is the father whom marriage points out, unless something else is most evident. C. L. 103; C. He. 254, 255. Nor indeed does it at all stand in the way that the mother was adulterous, C. I. 165; C. G. 313; C. H. 109; C. A. 158, or that she herself has declared the son adulterine, C. A. 158, unless she brings forward such indications as would suffice in the external forum, Lugo, de Iust., d. 12, n. 26, although she be most worthy of faith, and sworn, and assert this while dying; for no one deserves belief when alleging his own baseness. C. Inter 8, § ult., de Donat.; L. 654, 924.

A fetus brought forth before the seventh month from the marriage entered is held legitimate only if the husband either married the woman knowingly and willingly while she was pregnant, or, since he was present, did not altogether repudiate the child born. C. I. 161; C. G. 314; C. H. 110; C. L. 102. A fetus brought forth later after the tenth month from the dissolution of marriage is held as illegitimate, unless the health and morals of the mother and the circumstances of things suggest otherwise. C. I. 169; C. G. 315; C. H. 111; C. L. 102 seqq.

Natural or illegitimate children are those who are born outside marriage. These by canon law are irregular; by civil law they are distinguished from legitimate children chiefly as to succession to paternal inheritance. C. A. 155, 165; C. H. 114, 127, 134, 139. These natural children, if they were born from a man and woman between whom marriage could not have been entered, whether by natural law or by divine and canon law, by the same canon law are called spurious, or born from condemned intercourse. C. 3, 10, Qui fil. sint legit. And they are adulterine, sacrilegious, incestuous, and nefarious, if they were born from ascendants and descendants. But by civil law all are called illegitimate, and if they are adulterine or incestuous, they cannot be recognized. C. I. 180; C. G. 335; C. He. 304.

Other illegitimate children can be acknowledged and legitimated. C. I. 179, 195; C. G. 331, 334. They are acknowledged by the confession of parents, in civil law, authentic, C. I. 181; C. G. 334; C. H. 131; C. He. 503; in canon law, simple and bare, C. 10, de Probat.; and after they have been acknowledged they follow the condition of the one acknowledging, whether of the mother, or of the father, or of both. C. I. 185. But those acknowledged are legitimated by subsequent marriage by the law itself, C. I. 194; C. G. 331; C. H. 120, 121; C. He. 258 seqq.; C. A. 161; C. B. 1719; and they can also be acknowledged after the marriage has already been contracted. C. I. 197; C. H. 121; C. L. 119. Cf. C. G. 331.

By Canon Law, C. 1, 6, Qui filii sint legitimi, and C. H. 119, by marriage only children are legitimated from parents who freely could contract marriage between themselves. But whether those legitimated by dispensation of the Supreme Pontiff, as to canonical effects, are also legitimated as to civil effects, some affirm, others deny.

But from the time when they have been legitimated, they are held as if they had been born from lawful marriage. C. 6, Qui fil. sint leg.; C. I. 194; C. G. 333; C. H. 122; C. A. 161; C. He. 263. Cf. Benedict XIV, de Syn., l. 13, c. 24, n. 16. But one merely acknowledged is understood as the child only of him who acknowledged him. C. I. 182; C. G. 336; C. H. 129, 134. From C. B. 1589, 1705, a natural child and father are not reputed blood-relatives; and on the contrary, in his relations with the mother and the mother's blood-relatives he has the juridical condition of a legitimate child. But the same code admits investigation of the natural father and obligations, arts. 1708, 1717. Almost the same is had from C. He. 302 seqq., which also admits investigation of the natural father and obligations. C. H. 135 and C. L. 130 admit investigation of the father in a limited way, and the same codes admit investigation of the mother in the following articles. C. I. 189, 190, 193 admits investigation of maternity. But investigation of paternity is limited to the case of abduction and seduction. C. G. 340, 341, 342 likewise admits investigation of maternity, but investigation of paternity is restricted to the case of abduction. But by each Code and by C. L. 132, investigation of paternity and maternity is forbidden to adulterine and incestuous children whose recognition is prohibited; and by C. H. 141 investigation of paternity is prohibited to children in whom the legal condition of natural children does not concur. In doubt whether someone was born from legitimate marriage, he is to be presumed legitimate. C. I. 120; L. l. 3, n. 951.

Legitimate children are natural children legitimated, and adoptive children. C. I. 737. Adoption is an act by which one is taken into the place of a child who is not such by nature. From more recent laws, the adopted person is held as the legitimate and natural child only of him who adopted him, and he acquires the right of succession to him. C. I. 202, 204, 210, 737; C. G. 343, 344, 350; C. B. 1741, 1757; C. L. 124, 129; C. He. 268. But he is not withdrawn from the power of his natural father, nor does he pass into the power and family of the adopting father. C. I. 210, 212; C. G. 348, 349. But it is otherwise from C. A. 183; C. H. 177; C. B. 1765. This adoption is perpetual and is not dissolved even by mutual consent. C. I. 217. And so also the French Jurists. It is otherwise from C. A. 185; C. B. 1768; C. He. 269.

Legitimate and natural children, as to receiving donations and as to the right of succession, are held such from the time when they were truly conceived, provided they are afterwards born viable. C. I. 724; C. G. 725; C. A. 138. He is born viable who is born after the 180th day from conception, C. I. 160, 162; C. G. 312, 314; C. A. 138, and is perfectly born. In doubt, one who was brought forth alive is presumed to have been born viable. C. I. 724. Abortive children, if they do not survive, are held as born dead.

Natural children only, whether legitimated or acknowledged, acquire the right of succession from the marriage entered by the parents, or from that later time when they have been acknowledged. C. I. 197; C. H. 124. Merely legitimate children acquire the right of succession from the time when they were adopted, as if they had then first been conceived. C. I. 210, 217; C. B. 1754, 1757. From C. H. 177, an adopted person acquires no right of succession except from a testament, or from a previous agreement. From C. B. 1767, the right of succession can be excluded in the contract of adoption. To spurious, incestuous, and adulterine children the laws concede only support, namely when their filiation is duly established. C. L. 134, 135, 136; C. G. 762; C. I. 193, 752; C. H. 139, 140, 141.

What is adultery? - Adultery is intercourse with another's spouse. It is a grave sin, distinct in species from others, Heb. 13:4. Besides the sin against chastity, it includes another against justice. For it violates in a grave matter the inalienable right of the other spouse; hence such malice does not cease, although that spouse consents. L. 445; S. Th. 2. 2, q. 154, a. 8.

The degrees of gravity of this sin are: 1. Grave, when an unmarried person sins with a married person, because besides fornication he sins against the right of a third party only by cooperating. 2. More grave, when a married person sins with an unmarried person, because besides cooperation in fornication he sins against the fidelity given by himself to his own spouse, and violates the right acquired by the spouse in his body. 3. Most grave, when a married person sins with a married person, because he himself sins against justice, violating the right of his own spouse, and cooperates in the sin against justice of his accomplice, likewise violating the right of his own spouse. Hence the state of each is altogether to be declared in Confession. The adultery of a wife is more grave than the adultery of a husband, because of the most grave damage to the family and to the legitimate heirs, willed in the cause, which circumstance introduces another species of malice. Sporer 529; L. 445; C. I. Poen. 353 seqq.; C. G. 336 seqq.; C. B. 823, 821.

"Adultery is committed by a married person in every species whatsoever of lust, at least external, not only natural, with an unmarried person, a married person, a relative, a sacred person, etc.; but also against nature, by bestiality, sodomy, softness, and likewise by kisses and touches even with unmarried persons; and therefore a married man or married woman doing such things is bound to explain the state of his or her marriage. Most common of the doctors: Sanchez l. 9, d. 18, n. 4; Lugo, Tamburini. The reason is because in all these things an injury is always done to the spouse, according to the Apostle: The husband does not have power over his own body, etc. And conversely." Sporer 529.

Spouses also contract the malice of adultery or quasi-adultery when sinning against nature by sodomy or softness, when mutually or separately they pollute themselves. For thus their flesh is most truly divided against the fidelity of marriage. But they must necessarily explain that that sin was committed with their own spouse; otherwise they will never explain the sin committed by themselves. Sporer 526; L. 446; Diana tr. 6 de Matr. r. 186, n. 4; E. M.

If a spouse only is morosely delighted concerning imagined intercourse with another, does he also contract the malice of mental adultery, necessarily to be explained in confession? "Vasquez 2. p. tom. 1, d. 112 with others affirms. The reason is that the faith of marriage obliges not only the body, but also the mind not to place itself upon another base object; and therefore one so morosely delighting sins not only by the sin of lust, but also of mental adultery, just as by the consent of all a religious, priest, or another bound by a vow of chastity is bound in Confession of morose venereal pleasure to explain the circumstance of his vow or state, because he sins not only against chastity, but also truly against the vow and the virtue of religion. A probable opinion, and without doubt the safer. But Hurtado apud Tambur. l. 15 Decalogi n. 6 denies, not improbably, in these words: 'Vasquez teaches that a married man who is venereally delighted concerning fornication with one not his own sins not only by the sin of lust against chastity, but also by the sin of adultery against the faith of marriage. Yet this is proved with difficulty and without sufficient foundation, because it is said with difficulty and without foundation that in marriage faith is furnished to the spouse of not placing the mind in another. These things Hurtado says sufficiently probably. Certainly, without sufficient foundation and urgent necessity or reason, the sacrament of penance is not to be burdened. The reason is different concerning one bound by a vow of chastity. For one vowing chastity to God, the inspector of hearts, without doubt principally vows and obliges himself to internal chastity also, without which external chastity is worth nothing; but one contracting marriage with a human person is asserted without foundation also to oblige his mind to that person, lest it tend lustfully to another object.'" Sporer n. 523.

To what is the damager bound because of adultery? - Whatever has come to an illegitimate son, as though legitimate, from a false cause must be restored. Hence "there must be restored for the expenses which the husband makes in the food of another's offspring. Likewise what for that cause he gives to him, or leaves after death, which indeed must be rendered to the other sons or coheirs. Likewise if the consanguineous relatives of the husband, thinking the son to be legitimate, give or leave something to him with that in view. For all these things they do and spend from a false cause, and the unjust deceit of the adulterer." Lugo d. 13, n. 2, 34 ff.

On the contrary, what comes in any way to the adulterine son from the mother and maternal consanguineous relatives, by donation, legacy, testament, must not be restored. But both the adulterine son himself and his adulterous parents must restore. The adulterine son must restore from the thing unjustly accepted, and therefore he must restore those things which he still has, or their equivalent in which he has been unjustly made richer. - The parents must restore from unjust damaging, and therefore they must compensate the damage which follows per se and as it were necessarily from the adulterine son being held as legitimate, namely the expenses made by the husband, or by his ascendants, for feeding, sustaining, and educating the adulterine son; and those things which the adulterine son received from them, not from other consanguineous relatives, by gift, testament, succession.

What he received from other consanguineous relatives as brother or nephew is accidental. - Lugo d. 13, nn. 37, 40; L. 659. But the parents must restore, namely 1. the adulteress, unless she was unwillingly oppressed, by leaving more to the legitimate children, by living more sparingly, by administering the family property more diligently; 2. the adulterer, unless the mother could easily have removed the son. But each is held in solidum, if the crime was voluntary on each side, because the whole must be imputed to each.

If the adulterer extorted the consent of the woman by force or grave fear, he alone is held to repair the whole damage. Lugo d. 13, nn. 9, 13; Less. l. 2, c. 10, dub. 6, 7; L. 659; C. B. 826, 847. But the son must restore if it is certain and evident to him that he is adulterine. Likewise his parents must restore if it is certain and evident that he was conceived from adultery. - Lugo d. 10, n. 17.

Restitution must be made to those who expended or gave, and, when they are deceased, to their heirs; restitution must likewise be made to the legitimate children injured because of the adulterine son, if the illegitimate son accepted the inheritance together with the legitimate ones. L. 659. A cause justly excusing from the aforesaid restitution is if it cannot be made without grave danger and damage to life, liberty, or reputation. Lugo d. 13, n. 58; L. 653. If the crime has become known to the husband, they must compensate the personal injury by asking pardon, by signs of sorrow and submission, and by other things of this kind. Ithur., Cas. 6. If no offspring followed, no restitution is to be made. For then by adultery no damage is inflicted, but only simple injury to the person.

Is intercourse had with one betrothed by words about the future adultery? - "More probably it is denied with Sanchez, de Matr., l. 1, d.

2, n. 2, Salmanticenses, Roncaglia. But Roncaglia and Salmanticenses judge that if one of the betrothed fornicates with another person, he must disclose in Confession the circumstance of the betrothals, as changing the species by reason of the injury inflicted on the other. But it is sufficiently probable with Trullench, Pontas, Diana, Covarruvias, Lugo, Sanchez, and Laymann that it is only an aggravating circumstance, since the bridegroom by betrothals acquires no right over the body of the other." L. l. 3, n. 447; l. 6, n. 647; Billuart, diss. 6, app. 1, question 3; Ithur., Cas. 6, n. 16; Lugo, de Poenit., d. 16, n. 177, 178.

What is required for adultery alone? For incurring the impediment from this head it is required: 1. That the adultery be true, formal, consummated. True, that is, that at least one of the fornicators be joined by a marriage not merely putative, but legitimate and valid, even if perhaps not consummated. Formal, and indeed on the part of both, that is, that each know that one or the other is married. Therefore it suffices that someone knowingly approach a married woman, nor is it necessary that this married woman know that the one with whom she commits adultery is also married. Formal adultery is not present, even if only from culpable and gross ignorance the accomplice does not know that the other is married, provided that the ignorance was not affected. For malicious fraud is required for formal adultery. L. 44, ad Leg. Iul. de adult. Consummated, namely with perfect carnal copulation per se apt for generation intervening. In the external forum this is always presumed if the man inseminated within the vessel. But in the internal forum it will be difficult to define otherwise in the case; for the consummation of marriage is had through the mingling of seeds. St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 4, ad 2. But seed on the part of the woman is properly the ovum, which even without any sense of lust descends from the ovary into the uterus, almost every month. And this is proper insemination on the part of the woman. But that humor which in the act of copulation is usually secreted by the woman, but not always, is improperly seed; it is indeed very useful for fecundation, but not necessary. And from this there is had insemination improperly so called; the defect of which consequently does not prevent husband and wife from being able truly to become one flesh. Sanchez, book 7, disp. 79, n. 38; De Iustis, book 2, chap. 16, n. 38; Schmalzgrueber, book 4, tit. 7, n. 55; L. 1036.

2. That there be a promise of marriage made by one adulterer and accepted by the other at least by some sign, whether this promise precedes, accompanies, or follows the adultery; but if it precedes, it is required that it was not retracted before the adultery. Both the promise and the acceptance must be true, and therefore a feigned one does not suffice. L. 1039; Schmalzgrueber, book 4, tit. 7, nn. 22-24, who confirms this from C. Significasti 6, de Eo qui duxit, etc. Moreover a conditioned promise or acceptance does not suffice so long as the condition does not yet exist. It must be said otherwise if the added condition is fulfilled before the death of the spouse, and much more if before the adultery was perpetrated. Schmalzgrueber, l.c., nn. 25-28. But because injury is needed for incurring the impediment, it is therefore necessary to have knowledge of the marriage of both parties or at least of one or the other; and ignorance excuses provided that it was not gross or supine. C. 2, de Constit., in VI. Therefore both things, adultery and promise, must be understood formally. Hence adultery committed in ignorance does not avail, although afterwards a promise knowingly followed; nor adultery committed knowingly after a promise made in ignorance, so long as the promisor has not ratified it. This is the truer opinion. Sanchez, book 7, disp. 79, n. 34; Schmalzgrueber, book 4, tit. 7, n. 13, and others think otherwise, holding that, just as marriage, of which we must speak immediately, so also a promise entered in ignorance is tacitly confirmed by adultery afterwards knowingly committed. But the same reason does not hold, and just as a shameful promise is not easily presumed, so neither is a shameful ratification. Indeed, not even ratification suffices if it was made while the other was unaware. But more probably a renewed promise is not required. C. 6, 8, de Eo qui duxit.

Nevertheless, since probability is not lacking also for the opposite opinion, Schmalzgrueber, book 4, tit. 7, n. 30, in doubt whether a renewed promise has been added, the impediment can be judged merely probable, and therefore uncertain, which is the same as nothing. This is confirmed from the Praxis of the Apostolic Datary, n. 151, where it is said: "faith having been given to each other."

3. That both the promise of marriage and the adultery be made while the prior spouse is living, or while the same marriage remains. Namely, both the adultery and the promise of marriage must yield to the injury of one and the same spouse; this would not happen if Bertha, for example, while her first husband was living, promised marriage to Titius, but committed adultery with him when, after the death of the first husband, she had married Caius.

Adultery by Law dirimently impedes marriage, not only when a promise of future marriage is added, namely of contracting after the death of the spouse, for if marriage to be contracted while the other spouse was still living were promised, the reason for the impediment would cease, as Schmalzgrueber notes with the doctors, book 4, tit. 7, n. 9; but also if the adulterer, while the spouse is still living, contracts a marriage de praesenti with the adulteress, or rather truly and from the heart, not fictitiously, attempts it. This is clear from C. Cum haberet 5, de Eo qui duxit, etc. Nor does it matter whether they attempt to contract marriage before the pastor and witnesses, or clandestinely, and whether by civil marriage. Holy Office, December 22, 1880; Collectanea S.C. de Propaganda Fide, n. 1544. For in establishing this impediment, attention is not paid to the value of the marriage or of the betrothals, if only a promise intervenes, which are contracted invalidly, as is clear, but to the character of the crime. But if the accomplice did not know the legitimate marriage of the other when he or she entered marriage with that person; or, after learning of the other's marriage, commits adultery without retracting the marriage, then the impediment is introduced, because if after receiving knowledge he perseveres in the marriage and then adds adultery, he ratifies the marriage, which, joined with adultery, provokes no less to seizing upon the death of the other than if it had been contracted knowingly from the beginning. Or if he retracts the marriage before adultery, or also ceases from adultery, which previously had existed as material and not formal, as soon as he learns of the marriage of the other, then the reason for the impediment is absent. Schmalzgrueber, l.c., nn. 12, 15. C. Si quis vivente, c. 31, q. 1; C. 1-8, de Eo qui duxit, etc.; L. 1031 ff.

German Civil Code, 1312, 1328: marriage cannot be contracted by a spouse juridically separated by divorce because of adultery with the person with whom the adultery was committed. A marriage of this kind is null. E.M.

What is required for both together? When the crimes of adultery and spouse-killing are found joined, mutual conspiracy for spouse-killing is not required, nor a promise of marriage, but these things suffice: 1. Adultery, such as was explained above. But it must precede the spouse-killing, although it is not necessary that it precede the machination of death. It must precede the spouse-killing; for if the death of the spouse precedes, adultery, which consists in copulation with the spouse of another, will no longer be able to have place. For it is required that there be adultery both material and formal with respect to the spouse killed. Schmalzgrueber, book 4, tit. 7, nn. 49, 51; Sanchez, book 7, disp. 18, n. 12.

2. Machination of death by one of the adulterers from intention of marriage. But it suffices that this intention be had by one. Gousset, 824; Carriere, 739. St. Alphonsus moreover requires, more probably, that this intention be manifested to the other.

3. Death following from the machination of one of the adulterers, in the same way as was said above concerning homicide alone. L. 1036.

4. Adultery and spouse-killing committed while the same marriage remains. This impediment, which because of the double crime united is called "both together," constitutes one impediment. On the contrary, if both adultery and homicide separately have their own proper conditions, as they have been set forth, they introduce a double impediment. C. 1, 3, 6, de Eo qui duxit; C. 5, c. 31, q. 1; L. 1031 ff.

Note: The impediment of crime is an impediment and a penalty. Insofar as it is an impediment, since it is an impediment of ecclesiastical law, it has no place among unbelievers, even if they afterwards come to the faith. Baptism wipes away all crimes. The same must be said, as regards adultery alone, if either one of the two things, namely adultery or only the promise, was made after baptism, Schmalzgrueber, book 4, tit. 7, n. 3; likewise, if the believer was not a participant in the killing which the unbeliever perpetrated; for then he does not incur the impediment from homicide alone. Or if he himself did not perpetrate the same things, but the unbeliever did, who is free from such an impediment, although he himself committed adultery, because adultery without homicide does not introduce the impediment "both together." Schmalzgrueber, ibid., n. 46. On the contrary, if a believer, having promised marriage, commits adultery with an unbeliever, and likewise if the believer was a participant in the machination or killing, or also perpetrated the killing with adultery, he incurs the impediment, by which consequently, although indirectly, the unbeliever too is bound, not otherwise than happens in the impediment of disparity of cult. Indeed this has place even if the believing wife did this for the reason that the unbelieving husband, after afterwards entering marriage with her, might be converted to the faith, as is expressly contained in C. Laudabilem 1, de Convers. infid., where the Pontiff gives this reason, that the Church does not wish to compensate such loss by such gain. Schmalzgrueber, l.c., nn. 46-48.

Insofar as it is a penalty, since it certainly is an extraordinary penalty, ignorance of the impediment more probably excuses from the impediment. Yet more commonly they deny this, "but with principles neither certain nor evident." D'Annibale, 3rd ed., part 3, n. 442; Gury-Ballerini, 788; Krimer, in Decretals, book 4, nn. 1011-1029; Sanchez, book 9, disp. 32, nn. 17, 21. Nevertheless it can not without reason be denied that this impediment was constituted, at least more principally, as a penalty for the crime; but rather because, by the public sense of morality, it is indecent and dishonorable that marriage be contracted between these criminal persons. Schmalzgrueber, book 4, tit. 7, n. 61.

This impediment can be multiple, and therefore then it must be set forth in the supplicatory petition for dispensation. It is multiple by reason of adultery, if each party is married; by reason of homicide, if the spouse is killed by each; by reason of both together, if the circumstances just commemorated concur together.

Benedict XIV, Epistle Aestas anni, 1756, says that it is established by no example that the Pontiff dispenses in the public impediment of both together. "If the impediment arises from adultery, with both or one or the other plotting, and is occult, the Major Penitentiary indeed has the faculty of dispensing, but rarely, and always only for the internal forum, with these things also observed: that a grave necessity occur, or a grave danger threaten, and that the case be proposed in the full Congregation or signature of the Penitentiary." But dispensation is regularly given from the crime of adultery alone, whether public or occult. Bishops also have the faculty of dispensing from the occult impediment of crime, provided it is without any machination, by force of the quinquennial faculties; and approved confessors by force of the faculties of the Sacred Penitentiary, which see in the respective Forms. E.M. "It not rarely happens that those who have obtained from the Apostolic See a dispensation from a ratified and non-consummated marriage, or a document of liberty because of the presumed death of a spouse, wish, in order to consult the salvation of their soul, to celebrate a new marriage in the face of the Church with those with whom, while the prior bond remained, they contracted a merely civil marriage, adultery having been committed. "Now since a dispensation from the impediment arising from adultery with attempted marriage, which stands in the way in the case, is for the most part not usually sought, Our Most Holy Lord Pope Pius X, lest marriages be exposed to the danger of nullity, after consultation with the Most Eminent Fathers of this Sacred Congregation concerning the discipline of the Sacraments, has established that in the future dispensation from the said impediment in the case is to be judged granted through the dispensation given by the Holy See either from a ratified and non-consummated marriage, or through the permission of transition to other nuptials. "But as regards the past, the same His Holiness has graciously deigned to revalidate and sanate marriages which perhaps were invalidly entered from this head. "And he ordered this to be promulgated by the present decree of the same Sacred Congregation, all things to the contrary notwithstanding." Sacred Congregation of the Sacraments, June 3, 1912.

Resolutions: One impediment must not be expressed for another, although greater, e.g., consanguinity for affinity.

In a vow it must be expressed whether it is of perpetual chastity, or of not marrying, or of entering religion.

In crime, whether it is adultery, or homicide, or both together. Likewise in adultery, whether a promise of marriage was present, or also whether marriage was in fact entered while the spouse of the other was still living, since dispensation is usually granted far more difficultly. Dispensation is not given unless scandal has been removed. Adulterine offspring is excluded from legitimation of offspring. Forms V, VI of the Sacred Congregation of the Sacraments.

In public honesty, if it is in the first degree, whether from marriage or from betrothals. But whether it is from marriage or from betrothals, the line must be expressed, and if from marriage, the degree. Hence it must be expressed whether public honesty proceeds from betrothals entered by the bridegroom with the mother of the woman to be betrothed, because the difficulty is greater than if there were question of betrothals entered with the sister of the woman to be betrothed, since the dishonesty is greater; for the impediment in the first case is in the direct line, in the other in the oblique line. But in an unequal degree it suffices to express the more remote. C. Vir ult., de Consang. Moreover it must be added that the prior betrothals were dissolved; for otherwise dispensation is not given by the Sacred Congregation of the Sacraments. But it is given by the Sacred Penitentiary, yet under the condition, provided that the prior betrothals were dissolved by mutual consent. Corradus, book 8, chap. 7; Forms for the communication of faculties of the Sacred Congregation of the Sacraments.

In legal kinship it is necessary to express only the line and degree.

In spiritual kinship, previously it had to be expressed whether it was paternity or maternity, or compaternity; and, more safely, whether from baptism or from confirmation. Sanchez, book 8, disp. 24, n. 15; Corradus, book 8, chap. 8, n. 15. But now, from the Constitution Sapienti consilio, spiritual kinship of any kind is numbered among impediments of lesser degree. Nevertheless, in the Forms of faculties which are communicated, dispensation between the one lifting and the one lifted, and between the baptizing person and the baptized person, is excluded. Forms of the Sacred Congregation of the Sacraments.

In natural kinship it must be expressed: 1. whether it is consanguinity or affinity, and if affinity whether from licit or illicit copulation, if it is contained within the second degree; 2. the line and degree must be expressed; and if a nearer degree has been set forth for a more remote one, the dispensation is valid. If the kinship is not simple but mixed from consanguinity and affinity, this also will have to be expressed; and if the degrees are unequal, each must be expressed both in consanguinity and, more truly, in affinity. And if the nearer is the first, the dispensation otherwise is not valid. Likewise, if the kinship is multiple, this too must be expressed for validity. St. Pius V, Const. Sanctissimus, August 20, 1566; Benedict XIV, Const. Etsi matrimonialis, September 27, 1755; Holy Office, December 12, 1748. Cf. Sanchez, book 8, disp. 24, nn. 12, 13; Schmalzgrueber, book 4, tit. 16, nn. 190, 192. "Moreover Tournely rightly notes that in a mixed degree the sex which is in the first degree must be expressed, because it is granted with more difficulty that a nephew marry his paternal aunt than that a paternal uncle marry his niece; for it is a greater perversion of order that a nephew be constituted head of his aunt." L. 1136. Nor indeed for validity must "incestuous copulation, or counsel and intention through it of more easily obtaining dispensation... concerning any prohibited degrees whatever of consanguinity, affinity, spiritual kinship, and also public honesty" be expressed. Leo XIII, June 25, 1885, Circular Letter of the Holy Office. Incestuous copulation, namely had between those blood relatives, relatives by affinity, etc., who wish to contract marriage with each other, and which previously had necessarily to be expressed. Likewise it is not necessary to say in the petition how often copulation was had with a blood relative of the bride, because from various copulations one single affinity arises; nevertheless copulation had with various blood relatives of the bride must be expressed, because from these so many different affinities are contracted; and although these impediments are not different in species, nevertheless they are distinct in number. This is manifest from the Declaration of Benedict XIV; L. 1138. Forms of the Sacred Congregation of the Sacraments.

Besides the affinity arising from licit copulation with one's own spouse, there need not be set forth in affinity the affinity also contracted from illicit prematrimonial copulation with the same spouse. Sacred Penitentiary, March 29 and June 7, 1842; December 10, 1874.

Dispensation is not usually given in a doubtful impediment of consanguinity in the first degree, both of the direct line and of the collateral line.

If someone labors under a double impediment, he must set forth together in the supplicatory petition each impediment, if they are not disparate, but several in number in the same species, or of diverse lowest species related among themselves, e.g., double consanguinity, both on the part of the father and on the part of the mother, double affinity, consanguinity and affinity, the vow of chastity and of entering Religion. And if one is public and the other occult, dispensation from the former must be sought from the Sacred Congregation of the Sacraments; but dispensation from both together must then be obtained from the Sacred Penitentiary, since the prior dispensation contains subreption and therefore must be revalidated. Benedict XIV, Const. Pastor bonus, § 41; Collectanea S.C. de Propaganda Fide, n. 1470; Suarez, de Leg., book 6, chap. 24; Sanchez, book 8, disp. 23, n. 1; Lugo, Responsa Moralia, book 1, disp. 43; L. 1139.

If someone has previously obtained another dispensation and used it, he must mention it when there is question either of the same vow of chastity, because the later dispensation is as it were an extension of the prior one, or of the same crime, because crimes do not have remission of pardon unless committed once. Suarez, de Leg., book 9, chap. 23; Sanchez, book 8, disp. 22, nn. 2, 20. Likewise it must be made manifest if the man abducted the woman, although he has already purged the abduction. Rule 49 of the Apostolic Chancery; De Iustis, book 2, chap. 15, n. 30 ff.

If a dispensation was to be granted for entering marriage because of illicit intercourse, it had to be expressed whether that intercourse was had by one or both under hope of more easily obtaining the dispensation. If a dispensation was to be granted after marriage had been entered, it likewise had to be expressed whether a null marriage had been contracted knowingly, and in bad faith at least on the part of one party, whether clandestinely, and whether afterwards it had been consummated; whether on the contrary it had been contracted in ignorance, and in good faith at least on the part of one party, whether the denunciations were neglected, and whether it had then again been consummated after the nullity became known; whether these things had been done under hope of obtaining the dispensation more easily. Trent, sess. 24, chap. 5, de R. M.; Paul IV, Const. Ab ea ipso die; Clement, un., de Consang.; Sacred Congregation de Propaganda Fide, May 9, 1877. But in the present Forms of the Sacred Congregation of the Sacraments these things are altogether passed over in silence. Sanchez, book 8, disp. 25, n. 21; book 3, disp. 42, n. 7; Schmalzgrueber, book 4, tit. 3, n. 85; Kenrick, n. 216.

If revalidation was sought of a dispensation null because of an occult vice of subreption in the first and second degrees or only in the second, it had to be expressed whether the dispensation had been issued in the form for the poor; otherwise either a composition of 50 ducats of gold of the Camera must be made, or a tax to be defined by the Major Penitentiary must be paid, according to the various cases expressed in the Constitution of Benedict XIV, Pastor bonus, §§ 41, 42. These things too are altogether passed over in silence in the present Forms of the Sacred Congregation of the Sacraments. L. 1131 ff.; Practice of Apostolic Dispensations of the Apostolic Datary; E.M.

How is a dispensation to be expedited? Dispensation is usually granted in commissory form, namely the dispensation is not given, but the power of dispensing is committed to the Ordinary of the petitioners, or to the Ordinary of the place, in the external forum, Trent, sess. 22, chap. 5, de R., or to a confessor approved by the Bishop, in the internal forum.

As regards a dispensation of the Sacred Penitentiary, let it be made after absolution with these or similar words: By apostolic authority I dispense with you from the impediment N. which you incurred, so that you may be able to enter marriage, or perfect the marriage entered, and I render legitimate the offspring received, or to be received. In the name of the Father, etc. But if the dispensation is from a vow of chastity, it is said: Moreover, by dispensing I commute for you the vow of chastity which you emitted, so that you may be able to contract marriage and use it, into the works which I have prescribed for you. In the name, etc. No formula is prescribed under penalty of nullity, indeed not even under precept; for none is contained in the Roman Ritual. If the confessor had omitted to legitimate the offspring, he could repair this omission; for then he would continue the cause committed to him and not yet completed.

If the impediment is known to both contracting parties and is common, each must be dispensed by his or her respective confessor. Sacred Penitentiary, November 15, 1748. The same Rescript can serve two confessors, and it is to be torn up by the one who later executes it with his penitent. But if the impediment is known to only one, one execution is required.

As regards a dispensation of the Sacred Congregation of the Sacraments, only after the Rescript has been received must: 1. the delegate for dispensing observe carefully that no error has crept in concerning the name and surname of the petitioners, in the name of the diocese or place; he must observe the various clauses inserted into the dispensation; and he must inquire concerning the truth of the causes. Nevertheless, more probably, this information is not required for validity. For from the Holy Office, August 28, 1885, in place of the words, "if through information you find that the prayers rest upon truth," which formerly were placed in the Rescript, the words to be placed are: "if the things set forth are true," and now other equivalent words are placed in the Forms of the Sacred Congregation of the Sacraments, with the cause kept before the eyes which is chiefly brought forward for obtaining the desired grace. Cf. vol. 1, n. 285. It suffices that the pastor or another be delegated for the verification of the causes; but "the dispensation and legitimation of offspring can be effected only by the executor himself." Sacred Penitentiary, April 27, 1886.

2. He must declare before the parties and witnesses that the impediment of marriage is removed, and command that attestation of this dispensation be written in the registers of the diocese.

3. He must transmit the Rescript to the pastor of one or the other party with permission that he may assist at the marriage.

4. It is altogether expedient to give the dispensation in express words, "We dispense," in writing, and "by Apostolic Authority," and "we declare the offspring legitimate." It should be noted that for this legitimation a special Indult is needed; and adulterine and sacrilegious offspring is excluded. And the dispensation is then perfected and the impediment is removed when the Ordinary declares this will of his to dispense, or when he signs and issues the written document. If it has been given, and the spouses, with their plan changed, have entered another marriage, after they have become widowed, they can still use it.

5. Although no censure is foreseen to have been contracted by the petitioners, nevertheless the Ordinary or confessor who, by force of Indult, grants a matrimonial dispensation "laudably premises absolution from censures." Sacred Penitentiary, July 2, 1891. But if the petitioners are bound by a censure, absolution must altogether be premised for the validity of the dispensation. Holy Office, December 18, 1872; A.S.S., vol. 26, p. 517. But from the Constitution Sapienti consilio, today censure does not stand in the way of the validity of a grace of the Holy See, unless there is question of those excommunicated by name or suspended from divine things by name by the Holy See. Order to be observed in the Roman Curia, Particular Norms, chap. 3, art. 1, n. 6. Pyrrhus Corradus, de Disp., book 1, chap. 4; De Iustis, book 1, chap. 6; L. book 1, n. 197 at the end, 1131, 1146; Benedict XIV, Instruction 87, n. 34.

The dispensation must be put into execution by the Ordinary, that is, the Bishop, Administrator or Vicar Apostolic, Prelate or Prefect having jurisdiction with a separate territory, and their Officials or Vicars General in spiritual matters, and, when the See is vacant, the Capitular Vicar or legitimate administrator.

If the dispensation is granted in gracious form, that is, if the Supreme Pontiff directly dispenses and mere execution of communicating the dispensation is committed to a delegate, the delegate can execute the Apostolic Letters if the Supreme Pontiff dies in the meantime, because it is a grace already made. And the grace is then understood as granted, and the impediment removed, when the Rescript is signed and issued furnished with seal. But if the dispensation is granted in commissory form, and the Supreme Pontiff dies in the meantime, the delegate can still execute the Apostolic Letters if he is a necessary executor, for it is also a grace already made. For the Supreme Pontiff then, granting the petition, gives a mandate to the delegate of dispensing, or of executing the dispensation. For then he himself does not dispense, but after knowledge of certain conditions executes the dispensation of the Holy See, which, previously conditional, then becomes absolute while remaining the same. But he cannot execute it if he is a voluntary executor, for it is a grace to be made. For the Supreme Pontiff then simply confers on him the power of dispensing; and therefore the dispensation is not really had directly except from the delegate to whom such power has been given, and when it is dispensed by the delegate. Cf. vol. 1, nn. 251, 255, 283; Practice of Apostolic Dispensations, nn. 226, 229; E.M. 1044, 1045.

66. Adultery is intercourse with another's spouse. It is a grave sin distinct in species from others; for besides sin against chastity it includes another against justice: for it violates in a grave matter the inalienable right of the other spouse; whence such malice does not cease, even if that spouse consents. This is clear from proposition 50 condemned by Innocent XI: "Intercourse with a married woman with her husband consenting is not adultery; and therefore it suffices in confession to say that one has fornicated." Billuart, Diss. 6, art. 5; St. Thomas, 2.2, q. 154, a. 8; L. 445.

67. The degrees of gravity of this sin are these: 1. Grave, when an unmarried person sins with one bound; besides fornication, by cooperating only, this one sins against the right of a third party. 2. Graver, when a bound person sins with an unmarried one, because besides fornication he sins against the fidelity given by himself to his own spouse, and because he violates the right acquired by the spouse in his body. 3. Gravest, when a bound person sins with one bound, because besides fornication he himself sins against justice, violating the right of his own spouse, and cooperates in a sin against justice of his accomplice, who likewise violates the right of the spouse of the accomplice. Whence the state of each must altogether be declared in confession, as the most common opinion of the doctors has it. 4. Adultery of the wife is graver than adultery of the husband, on account of the most grave harm of the family and of legitimate heirs, willed in the cause, which circumstance introduces another species of malice. - Sporer, 259; L. 445; Lugo, de Poenit., d. 16, n. 258.

68. "Adultery is committed by a married person in every species whatever of at least external lust, not only natural, with an unmarried, bound, related, sacred person, etc., but also against nature, by bestiality, sodomy, softness, and likewise by immodest kisses and touches even with unmarried persons; and therefore a married man or married woman doing such things is bound to explain the state of his or her marriage. This is most common among the doctors: Sanchez, lib. 9, disp. 18, n. 4; Lugo, l. c.; Tamburini, cited c. 3, Sect. 1. The reason is that in all these things injury is always done to the spouse, according to the cited Apostle: The wife does not have power over her own body, etc. And conversely." Sporer, 259. But Billuart, diss. 6, art. 9, has these things: "If someone knows the wife of another in the preposterous vessel, the malice of adultery is joined... Yet it is not strictly and properly adultery, because another's marriage bed, or conjugal vessel, is not properly violated... For which reason if adultery were reserved, these things would not be reserved."

69. Spouses also contract the malice of adultery, or quasi-adultery, when sinning against nature by sodomy or softness, when mutually or separately they pollute themselves. For thus their flesh is most truly divided against the fidelity of marriage, which prohibits every use of the flesh outside the limits of marriage, and obliges that each preserve his or her body for the other. But they must necessarily explain that sin was committed with their own spouse; otherwise they will never explain the sin committed by themselves. Sporer, 497, 526; L. 446; Diana, tr. 6, de Matr., R. 186, n. 4; Billuart, de Matr., diss. 4, art. 3, at the beginning.

70. If a spouse only delights lingeringly in thought about intercourse with another, does he or she also contract the malice of mental adultery, necessarily to be explained in confession? - R. "Vasquez, 2 p., tom. 1, disp. 112, with others, affirms. The reason is that the fidelity of marriage obliges not only the body, but also the mind, not to place itself upon another base object; and therefore one lingeringly delighting in this way sins not only by a sin of lust, but also of mental adultery, just as by the consent of all a religious, priest, or another bound by a vow of chastity is bound in confession of morose venereal delectation to explain the circumstance of his vow or state, because he offends not only against chastity, but also truly against the vow and the virtue of religion. A probable and without doubt safer opinion. But Hurtado apud Tamburini, l. 10 Decalogi, n. 6, denies not improbably in these words: Vasquez teaches that a married person who is venereally delighted about fornication with one not his own sins not only by a sin of lust against chastity, but also by a sin of adultery against the fidelity of marriage. Yet this is proved with difficulty and without sufficient foundation, because with difficulty and without foundation is it said that in marriage fidelity is promised to the spouse of not placing the mind on another. These things Hurtado says sufficiently probably. Certainly without sufficient foundation and urgent necessity or reason the Sacrament of penance must not be burdened. The reason is otherwise concerning one bound by a vow of chastity. For one vowing chastity to God, the inspector of hearts, without doubt principally vows and obliges himself to chastity even internal, without which external chastity is worth nothing; but one contracting marriage with a human being is asserted without foundation also to oblige his mind to him or her, lest it tend lustfully toward another object." Sporer, n. 523.

71. Is it adultery, intercourse had with one betrothed by words concerning the future?

R. "It is more probably denied with Sanchez, de Matr., l. 1, d. 2, n. 2; Salm., d. c., 5, n. 10; Roncaglia, ibid., q. 5. But Roncaglia and Salm., de Matr., c. 1, n. 11, judge that if one of the betrothed fornicates with another person, he ought to open in confession the circumstance of betrothal as changing the species by reason of the injury inflicted on the other. Yet it is sufficiently probable with Trullench, Pontius, Diana, Covarruvias, Lugo, Sanchez, and Laymann that it is only an aggravating circumstance, since a betrothed person by betrothal acquires no right in the body of the other. See this in de Matr., l. 6, n. 647." L. 447; Ithurriaga, Cas. 6, n. 16; Billuart, diss. 6, art. 2, App. 1, You ask third; Lugo, de Poenit., d. 16, n. 177-178.

72. What are the penalties against adulterers?

R. From Canon Law they are: 1. that adulterers cannot compel the innocent party to render the debt; for it is equitable that no fidelity be kept to one breaking fidelity. 2. That there is a right in the innocent co-party of seeking divorce, provided nevertheless the adultery was consummated, certain, formal, not praised by either, nor remitted. - But the penalty from the French Penal Code, l. 3, art. 336-339, and from the Italian Penal Code, art. 353-358, is the penalty of detention, prison, and fine. The penalty also of reclusion and detention as well as forced labors is established for another marriage contracted after another valid marriage. Italian Penal Code, art. 359; French Penal Code, l. 3, art. 340.

422. • 1. Adultery is copula with the spouse of another, or it is access to a bed not one's own.

2. Adultery, besides sin against chastity, includes another against justice. It is evident from reason, and clear from various places of Sacred Scripture.

3. Adultery is committed even if the other spouse consents, because in every case the rights of the Sacrament and of the indissoluble contract are violated; which rights indeed nature itself requires to be altogether inalienable.

4. Adultery between two married persons is double, and is a violation of a double bed; and therefore this circumstance is to be set forth in confession. - St. Lig., n. 445.

40. 3. Concerning adultery. (A) Adultery is intercourse with the spouse of another; it is simple if an unmarried person sins with a married woman or vice versa, but double if both are married. External acts, even non-consummated, and also impure desires of sinning with the spouse of another, in some way take on the malice of adultery. Nevertheless, not a few, from lack of consideration or ignorance, do not advert to this twofold malice in incomplete acts: in which case they are not strictly held to declare it.

(B) Adultery, even simple, always includes a twofold malice, both mortal, namely against chastity and against justice, by violating the right of the other spouse. This indeed is true even if the other spouse consents: for the right of which there is question, since it arises from a contract necessary for the public good, cannot be alienated. Wherefore this proposition 50 was condemned by Innocent XI: "Intercourse with a married woman, with the husband consenting, is not adultery; and therefore it suffices in confession to say that one has fornicated." - But besides, as often as offspring is born from an adulterous wife, temporal damage is brought upon her husband by introducing an adulterine infant into his family, and also upon legitimate children, who thereby lose a portion of inheritance; when and how such damage must be repaired, we explained in the Treatise on Justice, n. 575.

41. (C) Intercourse had with a person who has contracted valid betrothal with another is certainly a notably aggravating circumstance, because the inchoate right of another is violated; but whether it changes the species of the sin, and therefore must be declared in confession, is not certainly established; hence if the penitent is silent about this matter, the confessor is not held to ask.

1. - Illegitimate copulation exercised in contempt of the conjugal bond is called adultery. The adulterer, insofar as he joins his body, torn away from his spouse, to another, attempts to divide the flesh which God, by an indivisible bond, had made one from two. Thus breaking the unity of which he is a part, he is seen to sin in himself against piety. He also sins against piety toward the other spouse. And if the matrimony which he contemns was a sacrament, as is every valid matrimony between the baptized, he profanes the sacramental bond, and consequently commits sacrilege ¹, as one who abuses a sacred thing. Finally, insofar as he violates the formal contract made with this spouse, he injures commutative justice.

¹ Cf. Lehmkuhl, I, 1491.

We omit the harms which are accustomed to arise from adultery for the legitimate offspring, the innocent spouse, and others also.

2. Innocent XI, on March 2, 1679, reproved as at least scandalous, under no. 50, this proposition: "Copulation with a married woman, with the husband consenting, is not adultery, and therefore it is sufficient in confession to say that one has fornicated."

By his assent, however, the other spouse can certainly remove the final note of violated justice toward himself. In vain do some object that his right is inalienable. For no abdication of the right is necessary in order that an injury not be done to one who consents. It is sufficient that he who possesses the right not positively set that right in opposition. Cf. our work De iustitia. But the other spouse can in no way remove by his consent the malice of violated piety and violated religion. Wherefore:

Adultery perpetrated with the assent of the other spouse differs in species from adultery of which the other spouse was unwilling or unaware. But it is not simple fornication, since it preserves the other malices proper to it; and therefore we by no means defend or excuse the proposition proscribed by Innocent XI.

And so adultery committed with the assent of the other spouse will, as such, have to be distinctly accused. Yet because the opinion which denies the specific distinction of this adultery from common adultery retains some extrinsic probability, the obligation of a distinct accusation is not to be urged. Cf. Palmieri, Opus theologicum, vol. 2, treatise 6, no. 1014; Lehmkuhl, vol. 1, no. 1049.

3. Double adultery, which is committed by a married person who sins with the spouse of another, must be accused as such. Most affirm this ², against Emmanuel Sa ³.

² Sanchez, De matrimonio, book 9, disputation 15, no. 1; Lehmkuhl, I, 1049; Noldin, De sexto, no. 20.

³ Summa, under the word Confessio, § Quidam putat, etc.

The rationale, however, is difficult, since both are committed by a single act of the will; it is the same, as Sanchez himself says, as if you were to kill two persons by one blow. Now, with Cardinal de Lugo ⁴, we judge that there are not several sins in the killing of several persons which is accomplished by a single act. Lugo indeed ⁵ judges that "in the sin of adultery of a married man with a married woman, each marriage must be explained, because the married adulterer contracts one malice in species by reason of his own marriage, and another by reason of the marriage of his accomplice.... The virtue which inclines this spouse to preserve his own matrimony seems to be diverse from that which inclines him to preserve the marriages of others." But this pleases us less. For the same virtues of piety and justice forbid both the principal act and cooperation or complicity. The brief rationale given by Lehmkuhl ⁶, "a twofold right of another is violated," needs explanation in order that we may approve or disapprove it.

⁴ De Paenitentia, disputation 16, nos. 135 and 140.

⁵ In the cited place, no. 140.

⁶ Theologia moralis, I, 1049.

This appears to us to be the truer rationale. Contrary to what occurs in the homicide of several persons, where the killer alone sins of himself, here we have two persons sinning, and consequently two sins in number; but each contracts the guilt of each sin because of complicity. Therefore a spouse who sins with the spouse of another must in his accusation accuse both his own sin and the sin of the other. But he would not accomplish this by saying, "I committed adultery": he would accuse only his own principal act, but not his complicity with the principal act of the other. Moreover, by such an accusation he would positively deceive the confessor, who would understand: "I committed adultery with an unmarried woman," which would be false. In the same manner, one who wished to kill several persons by one blow and did kill them must indicate some plurality in a confused manner, lest the confessor understand: I killed one person. Cf. Lugo, De Paenitentia, disputation 16, no. 141.

I. Adultery¹ (overspel, echtbreuk) is, as it were, an approach to another bed, and therefore can be defined: the violation of another's bed, or copulation with the spouse of another. But if both are married, there will be a twofold malice of adultery to be declared in confession; for each one commits his own sin of adultery and, besides, by complicity cooperates in the adultery of the other. If he did not declare this in confession, he would deceive the confessor.

¹ Concerning adultery, these can usefully be consulted: Revue Eccl. de Liege, VII, January 1912: "Les effets de l'adultere"; and Loslever, Amour libre ou Fidelite.

II. Adultery, even when had only on one side, is a distinct species of lust because it includes a twofold grave malice: one against chastity, the other against justice, by violating the fidelity promised in marriage and the right over the body acquired by the spouse, while that which belongs to the spouse as to use is given to another. The co-adulterous party cooperates in this infidelity and injustice. Hence, besides the deformity of fornication, which it has from the fact that someone approaches one not his own and impedes the good of educating his own offspring, it has a deformity from this, that he approaches another's and thus impedes the good of another's offspring.² For this reason it also contains indistinctly a malice against religion, if the marriage is a sacrament; against piety, by breaking the unity of which each spouse is a part; and against the common good.

² Saint Thomas, II-II, q. 154, a. 8.

Hence it is a very grave sin, as is clear from the manner of speaking of Scripture: Lev. XVIII, 20; XX, 10; Deut. XXII, 22-24; Tob. IV, 13; Prov. VI, 29; Eccli. XXIII, 25-29; I Cor. VI, 9; and from the penalties of civil law.

III. Adultery is committed in three ways, and therefore three degrees are distinguished in it: the first is that of a married man with an unmarried woman; the second, of a married woman with an unmarried man; the third, of a married man with a married woman. The second is of itself graver than the first, because it is more repugnant for one woman to be mingled with several men than for one man with several women. For:

a. from mingling with several men the woman is usually made sterile and generation is impeded; but if it is not impeded, it is uncertain whose the offspring is;

b. the adulteress exposes herself to the danger of introducing illegitimate offspring into the family, with great harm to the husband and to the legitimate children, who are thereby deprived of part of the inheritance. See the treatise on justice. But all these things do not follow from the adultery of a married man with an unmarried woman.

The third degree is the gravest of all, because beyond the aforesaid things it contains a twofold malice of infidelity and a twofold malice of injustice.

IV. Adultery is also a special sin if the other spouse consents, as is evident from proposition 50 condemned by Innocent XI.³ For although no injury is done to this one, as knowing and consenting, who, so far as he is concerned, has renounced his right or does not oppose it, nevertheless that right, arising from a contract for the public good, necessarily cannot be perfectly alienated, and much less the right of God or of society. Namely, the husband does not have an absolute right over the use of the wife's body, but an exclusionary right limited to the licit use of marriage. Hence the conjugal right remains whole, concerning which the spouses cannot yield, and therefore, although injury is not done to the husband, nevertheless there remains injury done to the state and right of marriage.

³ "Copulation with a married woman, with the husband consenting, is not adultery; and therefore it suffices in confession to say that one has fornicated."

V. Observation. Copulation had with a person betrothed to another, from valid betrothals, implies a notably aggravating circumstance. Nevertheless, as it seems, the species is not changed, because the betrothed man does not yet have a strict right over the body of the betrothed woman. Such copulation is graver in the betrothed woman than in the betrothed man, because the betrothed woman is thereby notably less esteemed.

I. Notions. - The sin which is opposed to the good of marriage, as regards the person of the spouse joined by marriage, is called adultery, which is prohibited by the sixth precept of the Decalogue and is defined as the violation of another's bed, and consists in carnal union with another's spouse.

Besides the malice of fornication, by which someone approaches one not his own and therefore offends against chastity, this sin imports the malice of injustice, and indeed:

1. injury inflicted on the other spouse, from the fact that someone approaches another's wife;

2. furthermore, temporal damage, in the case in which offspring also should be born from adultery, namely on account of the expenses which come to the husband from the birth, nourishment, and education of another's offspring, or also on account of the inheritance of the father handed over to this offspring, by which legitimate children or other heirs are unjustly deprived;

3. but if the adulterer by force, grave fear, or deceit led the wife to carnal union, the sin is increased because an unjust manner was employed.

Hence from adultery there usually arises an obligation of reparation, which, since it more often presents a difficult case, it seems opportune to add a few things about that argument.

151. Principle 1. The adulterer is held to no material reparation if from the adultery neither offspring nor any external damage has arisen. Thus at least before the sentence of a judge.

This is plain from the first principle explained above.

Note. When the adultery committed has remained secret, and no other material damages have arisen from it, then each accomplice is to be warned to observe deep silence, because otherwise the greatest quarrels easily arise.

152. Principle 2. If the adultery was perpetrated with each accomplice consenting, then each adulterer in solidum is liable to the reparation of all damages arisen.

The material damages which can arise from adultery are chiefly: expenses for the childbirth and education of the offspring conceived, the portion of inheritance which will come to the spurious offspring and will be taken away from legitimate offspring, and diseases caused from the carnal intercourse itself.

Of itself indeed each adulterer (i.e., the adulterous man and the adulterous wife) is held to repair half of the damages; but if the one cannot or does not wish to repair the other half, the first adulterer is held to repair the whole damage. For each adulterer is the unjust cause of all the damages.

As to inheritances, legacies, and gifts which come to adulterine offspring reputed legitimate, a distinction must be made: a) All inheritances and legacies which come from the putative father (or from the paternal line) by intestacy must be restored. This is plain, because by this the strict right of the legitimate children or of other necessary heirs is injured. b) All inheritances and legacies which fall to adulterine offspring from the mother (or from the maternal line) are not to be restored, provided the civil law does not exclude that offspring from the hereditary succession of the mother.²¹⁰ c) All inheritances, legacies, and gifts which come to adulterine offspring not by intestacy nor by force of law, but by force of the free disposition of donors, need not necessarily be restored. For although such or similar donations would not have come to the adulterine offspring if his condition had been known, nevertheless from this commutative justice is not injured with respect to the legitimate children, inasmuch as they do not have a strict right to those free donations. But if the adulterine offspring certainly knows his own condition, he himself cannot receive or retain donations of this kind, as having been made from error.²¹¹

The adulterous wife ought to make reparation of the damages from paraphernal goods or other goods of which she has free disposition. But if she does not have free goods, she is held by greater labor and industry to repair damages both to the husband and to the legitimate children, insofar as this is possible. Usually, however, the adulterous wife is not held to manifest her crime for avoiding the damages of the husband or children. For such a manifestation is accustomed to cause great quarrels, indeed perhaps divorce. Besides, the common adage says: No one is held to defame himself; and Innocent III established: "To a woman who, while the husband is ignorant, has conceived offspring from adultery, although she fears to confess this to her husband, penance is not to be denied.... But competent satisfaction ought to be enjoined upon her by a discreet priest."²¹² If nevertheless the adulteress were of such lost reputation that confession of the adultery would not cause grave damage to her, she would be held to make it known in order to avoid grave damages otherwise arising to others.²¹³ But that case is rare.

As to the manner and quantity of reparation of damages to be made by adulterers, great prudence is necessary. Adulterers ought first of all to inquire what up to now the putative father has expended in the support and education or even dowering of the illegitimate offspring, if perhaps that offspring has already assumed a state. All these damages must be made good to the putative father. But as to those things which the legitimate children will be able to suffer if afterward the illegitimate son receives an equal portion of inheritance from the putative father, the adulterers ought to make dispositions for these damages to be made good to the legitimate children. But they are not held even now to make good these damages, because it can happen that the illegitimate son dies before the putative father, and then no damage arises to the legitimate children. But what must be done if the adulterer now is near death, but on the contrary both the putative father and the illegitimate son are still in good health? Certain authors (Navarrus, Soto, Billuart) think that then the adulterer is not held to repair the whole damage perhaps about to occur, but only a certain part according to the prudent judgment of a man. Perhaps it would be better if then the dying adulterer committed it to the confessor, that he, when the case occurs, should make good from goods handed over to him the damages arisen. But if the illegitimate son should die before the putative father, then the confessor ought to dispose otherwise of the goods received, according as the dying adulterer shall have determined. But let the confessor proceed with the greatest prudence and, for greater security, exact from the penitent that, necessity demanding it, he himself not be held to the sacramental seal. But if he foresees that some grave damage is going to occur, it is better that he tell the penitent that he is not held to repair the damage with so great a damage to himself.

Things to be noted for the practice of the confessor. From what has been said it is plain how many things must be considered by the confessor if it is a question of restitution arisen from fornication or adultery. Therefore let the confessor proceed in order as follows:

1. Let him investigate whether from fornication or adultery truly certain and unjust material damage has been caused.

2. Then let him investigate how great that damage is which has already been suffered up to now.

3. Finally let him investigate how great a damage is going to arise in the future for legitimate offspring, for the spouse who is the other party, and for others.

4. If there is question of a dying penitent, let the confessor proceed most cautiously and not assume the restitution to be made in the name of the penitent under the sacramental secret.²¹⁴

²¹⁰ The German Civil Code § 1705 and the Swiss Civil Code a. 324 and 461 concede to illegitimate offspring the right of taking an inheritance from the mother and her blood relatives. The Austrian Civil Code § 754 indeed grants inheritance from the mother, but not from her blood relatives. The French Civil Code a. 762 and the Spanish Civil Code a. 845 exclude adulterine offspring from every legal hereditary succession and concede to him nothing except support.

²¹¹ Cf. Billuart, De iure et iust. diss. 10, a. 11, appendix 3.

²¹² c. 9, X 5, 38; cf. also Billuart, l.c. a. 11, and St. Alphonsus, Theol. mor. l. 3, n. 653.

²¹³ Cf. St. Alphonsus, l.c.

²¹⁴ Cf. Billuart, l.c. We have written more broadly on this matter in Linzer Theol. Quartalschrift 1916, 807 sqq.

703. 6. Adultery is carnal intercourse between persons of whom at least one is bound by marriage, or the violation of another's bed. It is simple if a spouse sins with an unmarried person; it is double if each accomplice is joined in marriage.

Besides the sin against chastity, adultery includes a grave sin against justice. How justice injured by adultery must be repaired, see above, n. 151 ff., in the tract on justice. - Even if a husband consents to the fornication of his wife, nevertheless true adultery is present, because the husband cannot cede his right.¹³⁶⁵ Proposition 50 was condemned by Innocent XI: "Intercourse with a married woman, with the husband consenting, is not adultery."¹³⁶⁶

The character of imperfect adultery is also assumed by a) other gravely immodest acts which a married person exercises or admits with another person; b) pollution which a married person perpetrates upon himself. Hence a married person committing something of this kind must declare his marital state in confession.

¹³⁶⁵ Cf. Billuart, l.c. a. 5.

¹³⁶⁶ Denzinger, n. 1200.

781. Definition. Adultery is copulation had with a married person.

Therefore the perfect malice of adultery is present when, by concubitus, either one's own marriage-bed or another's, or both at once, is violated. But imperfect malice of adultery is had if this violation happens through imperfect acts, for example touches, or through actions by which a married person illicitly disposes of his own body or of the body of his wife (see below n. 782).

Division. Adultery is either simple, when an unmarried man sins with a married woman, or a married man with an unmarried woman; or double, when a married man sins with a married woman.

Principles. I. Adultery is a grave sin against chastity and a most grave sin against justice, even if consent of the spouse is present. It is established: 1. From Scripture (Deut., 22, 22): If a man has slept with the wife of another, let each die, that is, the adulterer and the adulteress; and you shall take away the evil from Israel. And (1 Cor., 6, 9): Neither adulterers shall possess the kingdom of God. 2. From reason: for adultery injures, in a most grave matter, the right of the other spouse, harms the good of offspring, hurts the family, often begets scandals and quarrels, and generates innumerable other evils, as daily experience teaches.

We said: even if consent of the spouse is present, because such cession is null, since the right over the body of the spouse belonging to each spouse is exclusively proper and entirely inalienable, from the divine institution of matrimony and from the very law of nature. Hence this 50th proposition was proscribed by Innocent XI: "Copulation with a married woman, the husband consenting, is not adultery." Cf. Viva on this proposition; see what we established above, n. 723.

782. II. Adultery of a married man with a married woman includes in itself a double injustice distinct in number. The reason is evident; for the rights of each marriage-bed are violated. Hence, such a circumstance is to be disclosed in confession (cf. n. 330).

From these things conclude: 1. Adultery of an unmarried man with a married woman is, speaking of itself, a graver sin than that of a married man with an unmarried woman. The reason is that, in the first

case, copulation either harms generation (which not rarely happens), and then the husband is unjustly deprived of offspring; or it introduces false heirs into the family, or at least often begets uncertainty of offspring (III, 445). 2. He who knows his own wife sodomitically or onanistically, or is voluntarily polluted, according to the common opinion, more probably commits adultery; because such a crime is against the good of the faith given, and an injury against the body of the spouse (III, 446; Sanchez, de Matrim., l. IX, disp. 18, n. 5; Lehmkuhl, I, 1049; Berardi, II, n. 816). 3. He who has relations with another's betrothed does not commit true adultery. Indeed, on the part of the betrothed woman, there is a promise of her body, but the completed handing over of the body is lacking, as we already said n. 774.

494. Definition. - Adultery is copula had with a married person.³

Principles. - I. Adultery is a most grave sin, both against chastity and against justice. This is clear: 1° From Scripture:¹ If a man sleeps with the wife of another, each shall die, that is, the adulterer and the adulteress; and you shall take away evil from Israel. ... Neither adulterers shall possess the kingdom of God. 2° From reason: for adultery violates in a grave matter the right of another, namely of the other spouse; it obstructs the good of offspring; it harms the family; often it begets scandals and quarrels, and produces innumerable other evils, as daily experience teaches.

II. Adultery committed with a married woman is a graver sin, of itself speaking, than if a married man were to sin with an unmarried woman. The reason is that in the prior case copula either harms generation (which happens not rarely), and then the husband is unjustly deprived of children; or it introduces false heirs into the family, or at least often begets uncertainty of offspring.²

Note. - 1° It makes no difference that the spouse consents, because such a cession of right is null, since the right over the body of the spouse belongs to each not only for the private good, but also for the public good. Hence this proposition 50 was proscribed by Innocent XI:³ "Copula with a married woman, with the husband consenting, is not adultery."

2° If a married man sins with a married woman, there is a twofold adultery; which must be expressed in Confession.

3° He who knows his wife sodomitically, by the common opinion more probably commits adultery; because this is against the good of the faith given, and this circumstance must be declared in Confession.³

386. Adultery, besides the malice of fornication by which someone approaches one not his own,

1. imports an injury inflicted on the other spouse, from the fact that someone approaches another's woman: this injury and disgrace and infamy, which the husband suffers, must of itself be repaired by satisfaction from justice as much as can be done, by seeking pardon, showing sorrow, furnishing favors, especially by honoring; nevertheless

a) if this would not be pleasing to the husband, or if the adultery has remained secret, it is better to omit this satisfaction, lest quarrels or graver things be caused;

b) if the husband is the adulterer, satisfaction does not seem to have to be made on account of the disgrace of the wife, because the wife is commonly judged to perceive no infamy and no disgrace from the adultery of the husband;

2. it imports besides temporal damage to be repaired, in the case in which offspring also has certainly been born from adultery, namely,

a) the expenses which the husband had in the birth, nourishment, and education of another's offspring, unless this offspring compensates by labor, because then there is no damage;

b) the gifts and inheritance of the father (or ascendants) handed over to this offspring, by which the legitimate children are unjustly deprived;¹ but if no legitimate offspring is present, restitution must be made to those heirs to whom the goods of the husband otherwise would fall. - Yet detriments which come merely per accidens are not to be restored, from the fact that other blood-relatives or friends give or leave certain things to the adulterous child which otherwise would have come to the legitimate children.

¹ The same holds of itself concerning the maternal inheritance, at least for the legitimate portion; unless civil law disposes otherwise. Namely the German Code, a. 1705, and Swiss Code, a. 324 and 461, concede to illegitimate offspring the right of taking inheritance from the mother and her blood-relatives; the Austrian Code, a. 754, only inheritance from the mother. More conformably to principles, the French Code, a. 762, and Spanish Code, a. 845, exclude adulterous offspring from every legal hereditary succession, and concede to him only support.

Thus if the offspring is morally certainly adulterous; for in doubt, offspring received in marriage is presumed to be from the legitimate husband, according to the axiom: the father is he whom the nuptials demonstrate. Nor must restitution be made as long as it is uncertain that the action was efficaciously damaging. But if the offspring was certainly conceived from adultery, it is asked to what the adulterer is held, whether he used unjust means or did not use them.

387. Principles. - I. The adulterer who by force, grave fear, deceit, or another unjust means has brought the wife to copula, from justice is held by himself alone to repair all damages which from this come of themselves to the husband and legitimate children, because he is the sole cause of these truly, efficaciously, and formally unjust.

II. The adulterer who has not used an unjust means, but who obtained consent from the wife altogether freely, from justice is held in solidum with the wife to repairing damages inflicted upon the husband and children; because both together are the unjust, efficacious, and culpable cause of them.

III. Several adulterers who, from copula had at a time apt for conception, can be the father of adulterous offspring, are held to reparation by proportionate part of the doubt, at least those who acted thus by common counsel or with advertence, because then they are the voluntary cause of the uncertainty of the father; - otherwise it is uncertain whether they are held to restore, since the mother is rather the cause that it cannot be established concerning the father.

Let it be noted that the adulterous woman alone sometimes is held to repairing damages which occur by reason of inheritance; namely, if she could easily have removed the child so that he would be nourished outside the family, for example, in a foundling home or hospice, and the adulterer did whatever he could to obtain this: for then he withdrew the cause of damage and did not sin against the family, and the adulteress alone efficaciously caused the damage.

388. The manner of restitution in practice often is difficult, on account of the danger of suspicion by which the peace of the family would be disturbed. Hence the following things come to be noted especially:

1. An adulterous man can make restitution by laboring for the family, or by giving to the husband or legitimate children, whether among the living or by testament, according to a prudent estimation.

2. An adulterous mother can make restitution: a) from her own goods if she has those of which she can dispose without prejudice to the husband; b) from the profit which she makes from her own labor, or by exercising a business or art; c) by diminishing accustomed expenses, caring more diligently for the family estate, and living more sparingly as much as can be done according to her condition, to which, when another means is lacking, she is even held; d) by applying to the adulterous offspring the alms which she can make according to her state, or by seeking an alms from the husband for a poor blood-relative; e) by secretly taking, as far as she safely can, from the goods which are going to come to the adulterous son or have already come, and by compensating the legitimate children with them; f) or also, by prudently giving to the illegitimate son the counsel of religious life.

3. If it is possible for the adulterous offspring to be educated in a hospice or foundling home without suspicions arising, care must be taken that it be done in this way, since thus the expenses of education are greatly limited and the division of inheritance is avoided. Nor is there an obligation of making restitution to the hospice, except in the case in which it is supported by the public expenses alone of the city and is destined exclusively for poor infants, and the parents are not truly poor.

4. Regularly, even if it is necessary for avoiding damages or for making restitution, the mother is not held to manifest her crime: she is not held, namely, with danger to life, - nor with danger of graver infamy, unless she is already suspected and has partially lost reputation, - nor with danger of great hatred on the part of the husband and blood-relatives and of graver discord, - nor without hope of fruit, when manifestation will profit nothing, whether because the son will not believe his mother, or because he will not make restitution since it is foreseen that he cannot or will not wish to do this. - Yet she would be held if those dangers of death, graver infamy, and indignation and scandal were absent, and the son were judged likely to believe the mother and to make restitution.

5. An illegitimate son is not held to believe his mother affirming his adulterous origin, even under oath, but can consider himself as legitimate, unless from circumstances or indications the testimony of the mother produces such certainty as suffices in judgment, as if the absence of the putative father at the time of conception is certainly proved. But if it is thus established, the son cannot retain the paternal inheritance, nor the gifts which come to him from error, unless meanwhile he has legitimately prescribed.

6. Damage which in reality has already followed must be repaired as soon as possible. As regards that which has not yet been inflicted but is to be inflicted, the guilty person ought to dispose matters in such a way that at the opportune time he may make restitution, for example, so that everything which the illegitimate child is going to acquire unjustly by inheritance may be returned to the legitimate children: for he is not held now to compensate this damage, because it has not yet been inflicted and because it can happen that the illegitimate son dies before the putative father, and then no damage arises to the legitimate children.

Yet if the adulterer is near death, he is held to make restitution at once, by himself or through another, for the proportion of probability of the life of the illegitimate child, with account taken of his age and strength; - or, perhaps better, to commit to the confessor or another trustworthy man that he restore the whole damage from goods to be handed over to him, in such a way, however, that if the illegitimate child dies before the putative father, he dispose otherwise of the goods received, according as the adulterer has determined.

7. If a dying adulteress wished to commit to the confessor that after death he declare the offspring illegitimate, he cannot accept this, both lest confession be rendered odious, and because the offspring would not be bound to have faith in his words and thus the manifestation would be useless.

389. Remark. - If the husband consented to the adultery, the obligation of making restitution ceases, provided that necessary heirs are not frustrated of their legitimate portion.

1011. Adultery (overspei; echtbreuk) is commonly defined: violation of another's bed, or intercourse with another's spouse.

1. This is a species of luxury distinct from the others; because beyond the deformity of fornication, which it has entirely from this, that someone approaches one not his own, it has besides another special deformity from this, that he approaches one belonging to another. For thus he sins against the fidelity given in the contract of marriage, in which he promised and handed over his body for conjugal use to his spouse alone; and against justice, by violating the right acquired by the spouse over his body, according to 1 Cor. 6:9. The coadulterating party cooperates in this infidelity and injustice.

2. Hence it is a grave mortal sin, which is further clear from the sixth precept, and from 1 Cor. 6:9-10: Neither adulterers shall possess the kingdom of God (cf. Lev. 18:20; 20:10; Deut. 22:22-24; Tob. 4:13; Prov. 6:29; Eccli. 23:21-27); likewise from the penalties of civil law.

There are three grades in adultery: the first is of a married man with an unmarried woman; the second is of a married woman with an unmarried man; the third is of a married man with a married woman; and their gravity is diverse.

The second is graver than the first, because it is more repugnant for one woman to be mingled with many men than for one man to be mingled with many women; for a) from mingling with many men a woman very often becomes sterile and generation is impeded; but if it is not impeded, it is uncertain whose the offspring is; b) an adulteress exposes herself to the danger of introducing illegitimate offspring into the family, with great unjust harm for the husband and for the legitimate children, who are thereby deprived of part of the inheritance (n. 386). But all these things do not follow from the adultery of a married man with an unmarried woman.

The third grade is the greatest of all, because beyond the aforesaid things it contains a double malice of infidelity and a double injustice.

But if the spouse yields his right, or even if the husband becomes the pander of his wife, does adultery remain? It must be answered altogether in the affirmative, notwithstanding the axiom: injury is not done to one knowing and consenting. For by such an act injury is done, not indeed to the consenting husband, but to the state and conjugal right which the spouses cannot renounce, and which therefore, since it remains entire notwithstanding their yielding, is violated through adultery. Thus, if a cleric renounces the right and privilege of his state and from this is dragged to a secular tribunal, injury is not done to him, but to the clerical state; nor therefore does the one dragging him to this tribunal sin less. Hence the contrary opinion was condemned by Innocent XI.³

³ "Copulation with a married woman, with the husband consenting, is not adultery, and therefore it suffices in confession to say that one has fornicated," prop. 50.

Adultery is copulation with the spouse of another, or is access to a bed not one's own.

I say 1st. Adultery, besides a sin against chastity, includes another against justice, which by its own nature is mortal, because it contains a violation of strict right gravely obliging. Indeed, if it is had between two married persons, a double adultery is committed, because the diverse rights of two persons are injured.

I say 2nd. Adultery is committed even if the other spouse consents; because in every case the rights of the sacrament and of the indissoluble contract are violated, which rights nature itself requires, and are altogether inalienable.

Now if you notice at what time this canon was established, namely when divorces with dissolution of the bond were permitted by Imperial laws for many causes, you will understand that the sentence of the canon, expressed universally, that is, without any limitation, also and indeed principally regards the case in which a wife, for causes approved by earthly law, for example because of adultery, was cast out or dismissed. Already, that is, the Church uses her own right concerning marriage, with no regard had to civil laws.

Canon IX. A believing woman who has left a believing adulterous husband and marries another is to be prohibited from marrying. If she marries, she is not to receive communion before the one whom she left has first departed from this world, unless perhaps the necessity of illness compels it to be given.

Behold the doctrine concerning the indissolubility of the bond clearly proposed even in the cause of adultery. Directly, indeed, the matter concerns a wife dismissing an adulterous husband; but since it is established that husband and wife are equal in this matter by Christian right (cf. Thesis XIII, I), what the Fathers of Elvira affirm concerning the wife is to be received equally concerning the husband.

Canon XIV. Virgins (secular, not yet having experienced copula) who have not kept their virginity, if they have received the same men who violated them and have found them as husbands, because they violated nuptials alone, ought to be reconciled after a year, without penance (Ferd. Mend.: after the penance of one year). Or if they have known other men, because they have committed adultery, it pleased the council that they be admitted to communion after legitimate penance has been performed through the space of five years.

Canon XV. Because of the abundance of girls, Christian virgins are by no means to be given in marriage to Gentiles, lest an age swelling in its flower be dissolved in adultery of the soul.

Theodosius the Great forbade a Jew to marry a Christian woman, with the penalty of adultery proposed. Cod. Theod., book III, title 7, law 2.

Canon LXV. If the wife of any cleric has committed adultery, and her husband knows that she commits adultery and has not immediately cast her out, let him not receive communion even at the end.

Cf. Canon VIII of Neocaesarea below. The wife of a cleric who perseveres in the crime of adultery is to be cast out; for it is especially unbecoming for a cleric to live in the same house with an adulterous woman. The last words, "let him not receive communion even at the end," if regard is had to the grammatical construction, seem to refer to the cleric.

Canon LXX. If with the consent of the husband the wife has committed adultery, it pleased the council that communion is not to be given even at the end (F. 31: to them). But if he has left her (F. 31 adds: and they have been separated and have done penance worthily), let him receive communion after ten years (F. 31: let them receive).

The consent of the husband does not prevent the approach of a spouse to another from being adultery. An adulterous wife was to be dismissed, as Hermas had already warned, book II, commandment 4. Cf. the preceding Canon LXV.

Canon X. Concerning those who detect their wives in adultery, and the same are young believers and are prohibited (Petavius suggests that it should be read: are not prohibited, because of the ἀκολουθίαν of the discourse) from marrying, it pleased the council that, so far as can be, counsel be given to them that while their wives are living, though adulterous, they not take others.

Canon I. If a presbyter has married a wife, let him be deposed from order. But if he has fornicated or has perpetrated adultery, he ought to be expelled more fully and reduced to penance.

Canon VIII. If the wife of a certain layman constituted as such has committed adultery, and is evidently accused, such a man will not be able to come to the ministry of the clergy. But if she has committed adultery after ordination, it is fitting to dismiss her; but if he has lived with her, he will not be able to obtain the ministry committed to him.

Canon XVIII. Concerning fallen virgins, who have professed to the Lord a chaste life, and afterwards, overcome by the lusts of the flesh, make their covenants void, our fathers, since they accommodated themselves simply and gently to the weakness of those who fall, judged that these could be admitted after a year, judging about them according to the likeness of digamists. But indeed it seems to me, since by the gift of God the Church, progressing, becomes stronger, and now the order of virgins is multiplied, that the matter itself must be carefully considered, as it is manifest to one considering it, and the sentence of Scripture, which can be found from consequence. For widowhood is inferior to virginity; therefore also the offense of widows is far less than that of virgins. Let us therefore see what was written to Timothy by Paul, 1 Tim. V. 11-12. And so if a widow is subjected to a most grave judgment as one who has made void her faith in Christ, what must we think about a virgin, who is the spouse of Christ and a sacred vessel dedicated to the Lord? It is indeed a great sin even for a maidservant, giving herself to clandestine marriages, to fill the house with debaucheries and by a worse life to do injury to her owner; but it is far more grave for a spouse to become an adulteress and, bringing disgrace to her union with the spouse, to give herself to immodest pleasures. Therefore the widow indeed is condemned as a corrupted maidservant, but the virgin is subjected to the judgment of an adulteress. Therefore, just as we call him who is with another's wife an adulterer, not admitting him to communion before he has ceased from the sin, so certainly we shall also establish concerning him who has a virgin. But we must establish this in advance: that she is called a virgin who has offered herself of her own accord to the Lord, and has renounced nuptials, and has embraced the institute of sanctity. But we admit professions from that time at which age has had the completion of reason ... she who, being more than sixteen or seventeen years old, mistress of her own reasonings, after being examined for a long time and proved, has thereafter persevered and has constantly asked to be admitted, then at last is to be numbered among virgins, and her profession must be held ratified and the violation of it inexorably punished.

You have a clear definition of a professed virgin. Basil proposes his opinion concerning the fornication of these virgins, indicating sufficiently that it had not yet been received into use in the Greek Church. But that by the violation of the covenant, which he calls adultery, Basil also comprehends attempted marriage seems to me at least very probable from the universal formulas which he uses.

Canon XXI. If a man, dwelling with his wife, afterwards not content with marriage, has fallen into fornication, we judge him to be a fornicator and we prolong him further in the imposed penalties; but nevertheless we do not have a canon which subjects him to the crime of adultery (that is, punishing him with the penalty of an adulterer), if the sin has been committed with one free from marriage, because he who has fornicated is not excluded from dwelling with his wife. Wherefore the wife indeed will receive her husband returning from fornication; but the husband will cast the polluted woman out of his house. And indeed the reason of these things is not easy, but custom has thus prevailed.

Canon XXXI. She whose husband has departed and does not appear, dwelling together with another before she has been made more certain of his death, commits adultery.

Canon XLVIII. She who has been left by her husband, in my opinion indeed, ought to remain. For if the Lord said, "If anyone leaves his wife, except for the cause of fornication, he makes her commit adultery," from the fact that He calls her an adulteress, He has shut off for her union with another. For how could the man indeed be guilty as the cause of adultery, while the woman be without fault, she who has been called an adulteress by the Lord because of union with another?

Canon LX. She who, having professed virginity, has fallen from her purpose, will complete the time of the sin of adultery in the prescription of continence. The same also applies to those who have professed the monastic life and fall.

Canon LXXVII. He who leaves the woman legitimately coupled to him and marries another is subjected, according to the sentence of the Lord, to the judgment of adultery. But it has been established by the canons of our Fathers that they weep for one year, hear for two years, be prostrate for three years, in the seventh stand with the faithful, and thus be held worthy of the oblation, if with tears they have done penance.

Response. In this matter indeed adultery intervenes, nor do I find what I should answer concerning that matter; nevertheless, according to the spiritual sentence, he ought not.

The response, says Balsamon here, is that he can say nothing; for it is adultery if, the marriage standing, a man takes another woman as wife. But the question was whether the man could dissolve the prior marriage. Timothy responds that, according to the spiritual sentence, he ought not.

Decree I. If a virgin already veiled to Christ, who has professed integrity by public testimony and has received from the priest the veil of blessing after prayer has been poured forth, either has secretly committed incest or, wishing to protect the crime, has imposed the name of husband on the adulterer, taking the members of Christ and making them the members of a prostitute, so that she who had been the spouse of Christ would be called the spouse of a man, in a woman of this sort there are as many charges as there are causes of guilt: the purpose of integrity changed, the veil lost, the first faith depraved and rendered void. What sort and how great a satisfaction is needed here? How great the penance of her who has incurred the destruction of the flesh? ...

Decree II. A girl who has not yet been veiled, but had proposed to remain thus, although she has not been veiled in Christ, nevertheless because she has proposed it and has not been veiled in marriage (or: has been veiled?), the nuptials are called furtive (see the difference from the former case: there it is adultery, here only furtive nuptials), from the fact that she has not observed the precept of heavenly marriage, love hurrying on to the blindness of lust. And for these a time of doing penance must be established.

Canon CIV. If any widows, however much still placed in lesser years and left by a husband at mature age, have devoted themselves to the Lord and, having cast off lay clothing, have appeared in religious habit under the testimony of the bishop and the Church, but afterwards have passed over to secular nuptials, according to the Apostle they will have condemnation, because they have dared to make void the faith of chastity which they vowed to the Lord. Therefore let such persons remain without the communion of Christians, and let them not even communicate in banquets with Christians. For if adulterous wives are bound by guilt to their husbands, how much more will widows who have changed religious life be marked with the crime of adultery if by lustful pleasure they have corrupted the devotion which, of their own accord and not compelled, they offered to God, and have made a passage to second nuptials? And if they have been seized beforehand by someone with violence rushing in and afterwards by delight of the flesh and of lust have consented to remain in marriage with the abductor or violent man, they will be held liable to the condemnation comprehended above.

If religious widows who pass over to secular nuptials are judged adulteresses, it is evident what these Fathers thought concerning the value of marriage of this sort. Yet this canon, which is said to have been issued with Augustine present, does not sufficiently agree with his opinion. Cf. Thesis XXIX, III.

Decree XII. Those who have spiritually married Christ and have merited to be veiled by a priest, if afterwards they have either publicly married or have corrupted themselves secretly, are not to be admitted to doing penance unless the one to whom they had joined themselves has departed from this world. For if this reckoning is kept concerning all, that any woman who, while her husband is living, has married another, is held an adulteress, and the license of doing penance is not conceded to her unless one of them shall have died, how much more must that woman be held to this, who had before joined herself to an immortal spouse and afterwards migrated to human nuptials?

Decree IV. And this also was desired to be known: why men communicating with adulterous wives are not suited, when, on the contrary, wives seem to remain in the company of adulterous husbands. Concerning this, the Christian religion condemns adultery in each sex by equal reckoning. But women do not easily accuse their husbands of adultery, and hidden sins do not have punishment; but men have been accustomed more freely to report adulterous wives before priests. And therefore, their crime having been betrayed, communion is denied to women; but, the offense of men lying hidden, hardly anyone is kept away by suspicions. He indeed will be removed if his disgrace is uncovered.

Decree VI. Your love also inquired concerning those who, divorce intervening, have coupled themselves to another marriage. It is manifest that these are adulterers on each side. But those who, even while the wife is living, although the marriage seems to have been dissociated, have hastened to another union, cannot fail to be seen as adulterers, to such an extent that even those persons to whom such men have been joined seem themselves also to have committed adultery, according to that which we read in the Gospel: "He who has dismissed his wife and has married another commits adultery; likewise also he who has married one dismissed commits adultery."

Roman laws, enacted by Emperors who were even Christian, permitted repudiation for certain causes, in such a way that the bond of marriage was dissolved and it was lawful to enter other nuptials while the prior spouse was surviving. Thus Constantine (in Cod. Theod., book III, title 16, law 1), and Theodosius and Valentinian (Cod., book V, title 17, law 8), and Justinian both in the same place and in Novella 117, chapters 8-9. But the Church rejected these laws as opposed to Christian right. Wherefore Innocent says that, divorce intervening, the marriage seems to be dissociated, because Roman right approves the dissolution of the bond; but the same Pontiff denies that the bond has been dissolved, since he affirms that spouses of this sort are adulterers if they are joined to others.

Canon XVIII. A virgin who has vowed to God to remain chaste and afterwards has married a carnal spouse, let her be of excommunication until she is converted; if she has been converted and has dismissed the adulterer, let her do penance, and afterwards let them not dwell in one house nor in one town.

Canon XIX. A Christian woman who has received a man in honorable nuptials and afterwards has departed from the first and has joined herself to an adulterer, she who does these things, let her be of excommunication.

Canon XXVI. Hear the Lord saying: "He who adheres to a harlot is made one body." Likewise: "Let the adulteress be stoned," that is, let her die to this man, so that she cease to grow who does not cease to commit adultery. Likewise: "If a woman was an adulteress, does she return to her former husband?" Likewise, it is not lawful for a man to dismiss his wife except for the cause of fornication; as if He should say: for this cause it is lawful. Hence if he marries another, as after the death of the former (manuscript: or), they do not forbid it.

If you interpret that velut as "just as," a faculty, though wrongly, is created for dissolving the bond because of adultery. Perhaps this published reading or the manuscript reading would suffer another interpretation; but the following Canon XXVII too strongly suggests the obvious interpretation of this one also. These canons, namely, depart from the common doctrine of the Church, which Decree VI of Innocent I to Exuperius, Canon IX of the Council of Elvira, and Canon VIII of the African Council above report. But concerning these canons, as we already warned, it is not necessary for us to be solicitous.

Canon XXVII. By the same reason first vows and first marriages are to be observed, so that first ones are not made void by second ones, unless they have been adulterated.

By these words there is also comprehended the case in which the woman has been dismissed because of adultery.

Canon II. We establish that those who, having left their wives, as is said in the Gospel, except for the cause of fornication, without proof of adultery, have married others, are to be kept from communion.

These Fathers seem not to have been about to punish men of this sort who had married another if the adultery of the wife were proved. But consider that the canon is penal, by which a penalty is established for a crime. But since to marry another after an innocent woman has been dismissed is a special sin, there certainly could have been a reason why this sin would be specially struck, without its being lawful to infer from this that the Fathers would not otherwise disapprove those second nuptials.

Canon IV. Those who, having professed virginity and having obtained blessing through the imposition of hands (see the rite of imposition of the hand in the blessing of a professed virgin, no otherwise than for Greek deaconesses) under attestation of this purpose, have been detected in adultery (that is, their commingling with anyone at all is called adultery, as we have already heard from others), we judge are to be kept from communion with their adulterers.

If nuptials of this sort are called incestuous covenants, it is evident from the mind of Gelasius that there is no true marriage. Cf. Decree XII of Innocent I to Victricius above and the following decree of Gelasius. "Virgins who marry after consecration are not so much adulteresses as incestuous," said Jerome against Jovinian, book I, n. 13.

I. Hitherto of restitution in general: now restitution in particular is to be treated; and first of all restitution on account of voluntary homicide, in which two losses can be regarded. The first is the taking away of life or of members; the other is that which follows upon the privation of life or the mutilation of members. He who voluntarily snatches away another's life injures commutative justice — for the discourse is not now of mutilation or homicide which follows upon necessary defence. But life once snatched away, or a member cut off, cannot be rendered back. What therefore is to be done, that injured justice may be repaired? If the judge punish the slayer or mutilator, no other satisfaction is required: since the judge commands that all the losses which are to be repaired in justice be repaired. It is disputed therefore concerning what is to be restored by a slayer or mutilator not punished by a just judge.

II. QUESTION I. Is a slayer or mutilator bound to compensate a personal injury with goods of fortune? ANSWER. There is a twofold opinion. One denies that anything is to be restored on account of a personal injury, that is, on account of the mere taking away of life or the mutilation of a member. The other opinion, which is the more probable, affirms it. Because he who kills, mutilates, or injures another violates commutative justice. Therefore this justice ought to be repaired by that way which is possible. But although life or a cut-off member cannot be rendered back, it can nevertheless in some manner be compensated with goods of fortune. He who owes to restore a thousand, but can only a hundred, will he be free from the restitution of a part, because he cannot render the whole? As regards practice therefore, it is the confessor's part to hand down that a homicide or mutilator, besides the compensation both of ceasing gain and of emerging loss to be made to the heirs, should bestow something for the life or member taken away, should take care that sacrifices be offered and alms laid out, and should study to console and help with all his might the whole family of the slain or mutilated man.

III. QUESTION II. What losses ought a slayer to compensate? ANSWER. All the losses which follow from the killing or mutilation are to be made good. There are to be compensated the expenses of the cure, and all the gains which the slain or mutilated man could have obtained by his art, trade, or industry, when there are sons, or sisters, a wife, and other relations who suffer such losses from the killing or mutilation. But if there be no one who suffers loss, nothing is to be restored. Authors dispute how many years of life are to be reckoned in the slain man. To settle the matter in few words, all these things are to be subjected to the judgment of prudent men. Killings among nobles are wont to be made good by no compensation. If a homicide should pay the penalty of retaliation, the heirs would be liable to no restitution, because when the penalty of death is inflicted all things are reckoned remitted: so the common custom obtains. If anywhere an opposite reasonable usage prevail, it is to be observed.

IV. If one provoked to a fight kill the provoker with the moderation of a blameless defence, he is bound to restore nothing. But if he had gravely exceeded the limits of moderation, then he would owe to restore in proportion. If they have mutually provoked one another, nothing is to be restored, because each yielded his right. If one has provoked the other by casting up the mark of cowardice, the provoked slayer is not held to restitution, say many of the younger authors: because he could not refuse the duel without disgrace. This reason seems to me to fight with the Gospel. Wherefore to me the following opinion of Fr. Viva is false, unless all things deceive me, who in Vol. III, part 3, question 7, article 1, no. 2, says: “Although he sometimes sins by not fleeing against charity, if namely he could flee without loss of honour, yet he does not sin against justice. Therefore he is not held to restitution.” What? Does a Christian sin against charity when he cannot flee without loss of worldly honour, and yet not sin against justice? But who would not disapprove this doctrine? For he is bound to take to flight, while the way lies open, with the loss of that honour which is set in the opinion of a raving world.

V. QUESTION III. Whether from casual homicide there arises a debt of restitution? ANSWER. Titius wounded Sempronius with a wound by no means mortal: by the negligence of a surgeon or physician Sempronius dies. Titius is bound to compensate the losses which follow not upon the death but upon the wound. If nevertheless Sempronius die of the wound received because a surgeon is not found, Titius the wounder is bound to compensate the losses which follow the death. From homicide following by accident nothing is to be restored. A cleric exercises forbidden hunting, uses all diligence that he may avoid a homicide: if this follow, he is bound to restore nothing. If on the contrary the homicide followed from gravely culpable negligence, then all the losses would be to be restored.

VI. QUESTION IV. To whom is restitution of the losses which follow from homicide to be made? ANSWER. It is to be made to the heirs — not to the free heirs, but to the necessary. Brothers and blood-relations, though they succeed ab intestato, are not necessary heirs, and consequently to them no restitution is to be made. Wives, sons, and parents are necessary heirs, to whom restitution is to be made.

VII. Moralists disagree whether a homicide is bound to pay the debts of the slain man to his creditors. The more common opinion denies it, since no action is given to the creditors against the slayer or mutilator in the exterior forum, nor even in the interior. The circumstances nevertheless are to be regarded, and the counsels of wise men to be heard, when like cases occur, that in most grave delicts that which is just may be determined.

VIII. If a wounded lord be absolved, and before he dies remit, together with the injury done him, also the losses to be made good, the slayer is free from restitution. For the rest, although a wounded man be bound to remit every injury done him and to love his wounder, he is nevertheless not obliged to remit the losses thence emerging; nay, if his wife, sons, grandsons, or parents should be gravely in need, he would sin against charity if with so great a cost and detriment to his own he condoned the losses.

IX. QUESTION V. What ought a deflowerer of a maiden to restore? ANSWER. Authors commonly absolve a deflowerer from restitution when the maiden consented spontaneously, and is her own mistress. The civil laws appoint that a ravisher either endow or marry the maiden ravished, because they always presume that she was seduced by blandishments and fraud. And indeed in practice a ravisher is scarcely to be absolved except from marrying or endowing the maiden. The circumstances nevertheless are to be regarded. If the defloration be public, accomplished by threats or fraud, then not only is the stain of corrupted virginity to be compensated, but also the mark of infamy inflicted upon her parents. A deflowerer is not bound to give a whole dowry, but to increase the dowry to be given by the parents. If nevertheless the deflowered woman be poor, then a whole dowry is to be given by the ravisher. If a doubt occur whether the maiden had been previously deflowered, the safer part is to be chosen, because no one is presumed wicked unless it be proved. Wherefore even in a doubtful case the losses are to be compensated. Nay, if in fact she was not a virgin, but was nevertheless so reputed, and the ravisher defamed her, then the losses are to be compensated. But if from such intercourse she suffered no infamy, nothing is owed to be restored. The same which has been said of a maiden is to be said of an honourable widow.

X. If by entreaties, blandishments, and little gifts alone he draw a maiden into consent, authors commonly teach that he is held to nothing, as has been said, because all these do not take away liberty. If nevertheless the entreaties were so repeated, and the blandishments so assiduous, that they were equivalent to violence, then the losses would be to be compensated. Whosoever has deflowered a maiden under hope of marriage is bound to marry her, because this contract is onerous and binds both parties, even if the promise were feigned. For although a contract concerning a shameful thing be null, the penalty of the crime committed is nevertheless to be undergone.

XI. These things are absolutely true: but for the rest, if the girls of our time be regarded, they are not seldom so shameless, so stripped of modesty, so brazen, crafty, and bold, that they themselves attack young men and men, and they themselves circumvent, bewitch, and craze them with their blandishments and tricks, either to plunder their purse or to draw them into matrimony. Wherefore, for the repressing of so great an audacity of girls, a law ought to be established that the deflowered should mourn their ravished virginity in perpetuity. This is always to be held before the eyes, that maidens modest, bashful, lovers of solitude, and fleeing the meetings and conversation of youths and men, are violated by no one. If therefore they themselves are forward, and hawkers of their own virginity, that others may learn, they ought to be punished as a public example, not endowed; especially if the deflowerers be of a nobler and higher estate. This nevertheless I submit here to the judgment and decision of prudent men, that that may be determined which is expedient for the public good.

XII. QUESTION VI. What is to be restored on account of adultery from which offspring follows? ANSWER. When from certain signs it is evidently established that the offspring was conceived from union with the adulterer — either because the husband was absent, or because he was sick, or because he was impotent — then all the losses are to be compensated which the husband has suffered from the third year of age in rearing the boy: for in the first three years the mother, but afterwards until the time at which the son can provide for himself, the father is bound to feed the son. What if a doubt occur whose the offspring is? Some, resting upon that axiom, the condition of the possessor is the better, deny the debt of restitution.

XIII. What seem to me the more probable are the following. When the adulterer and the adulteress have perpetrated the adultery by mutual consent, both are held in proportion to feed the boy and to compensate the losses to the husband or his lawful heirs: if one fail, the other is held in solidum. On the contrary, if the adulterer provoked the adulteress, and drew her into adultery by blandishments and little gifts, then the adulterer alone, as the principal cause, is liable to compensation. The adulterer failing, nevertheless, the adulteress is held. When it is doubted whose the offspring is, then judgment is to be made in favour of the marriage. But if the doubt persist, and reasons equally probable or more probable persuade that the offspring is spurious, I should judge that compensation is to be made in proportion to the doubt.

XIV. When an adulteress admits two men, one after the other, and it is unknown whose the offspring is, who of these is held to compensation, when it is established that the offspring was conceived by the work of one or the other? De Lugo, López, Trullench, Sánchez, Soto, and others free both; this opinion the Salmanticenses and Cardinal Cozza also defend. This opinion is to me improbable. What? It is certain that one or the other is the true parent, and both shall go free! If each perpetrated adultery, each ought to undergo the penalty. If each had attempted homicide, though it were unknown which of them had in fact perpetrated the homicide, in what forum would each go free? Each perpetrated adultery, each exercised the procreative action. Therefore neither is innocent, although one begot the son. Therefore each is bound in proportion to feed the son and to compensate the losses. The arguments of the opposite opinion do not press. They would have him innocent who did not beget. But how innocent, if he committed adultery and posited the generative action? There are therefore two guilty. Therefore both are to be punished: both ought to concur in making good the losses; and one failing, the other is held in solidum.

XV. QUESTION VII. An adulterer knowing for certain that offspring was procreated from his adultery, what is he bound to render to the lawful sons? ANSWER. Diana, Henríquez, Soto, Ledesma, and others contend that an adulterer is not bound to compensate the losses which the lawful sons undergo in the portion of the inheritance or of the legacies which the spurious son receives, when he did not persuade the substitution of the spurious son. This opinion is commonly disapproved; and they teach that both the adulterer and the adulteress ought to compensate all the losses which come to the lawful sons by reason of the spurious son, even if the adulterer did not persuade the substitution. Since each was the cause why the spurious son is reputed lawful: therefore each is subject to the reparation of the losses. First therefore each ought to use all diligence that the losses of the lawful offspring be avoided, while this can be done without loss of reputation. If the wife have paraphernal goods, or others free, she ought to give these to the lawful sons. But if the adulteress possess no free goods, what then? Ought the adulteress to betray herself, that she may avoid the losses of the sons? If the adulteress conceive no morally certain hope of preventing the losses which threaten the lawful sons on account of the offspring procreated from adultery, she is not bound to disclose the crime to the spurious son, even if she cannot compensate the losses: since she would imprudently squander her reputation, while she prudently doubts that the manifestation of her crime would profit. Nor is it to the purpose that you object that a defamer ought with the loss of his own reputation to retract what he said, even when he doubts that his retraction will profit: since indeed the defamer injured his neighbour in reputation, and therefore ought in the same kind, with the loss of his own reputation, to make good the blackened reputation. But an adulterous mother inflicted losses upon her sons not in reputation, but in money. Wherefore while she cannot compensate in the kind of money, she does not seem bound to make good losses of this kind with the loss of her reputation and honour.

XVI. A son is not bound to give credence to a mother testifying, even with an oath, that he is spurious, as the common opinion holds: because the word of one witness does not bring in a necessity of believing, especially while she lays open her own shame, with detriment to him who believes. There is added that, since the son by the common persuasion and by his own is reputed lawful, he cannot by right be deprived of the inheritance unless it be established by certain witnesses and proved that he is spurious. If the woman be of a lower condition and of slight reputation, and a vast inheritance is to be taken by the spurious son, then she ought to reveal her crime, as all commonly teach: for indeed a woman of slight reputation can easily be induced to make the loss of it. On the contrary, authors commonly free an honourable woman of bright reputation from the manifestation of her crime, even if a vast inheritance were to be taken by the son. But as regards this, the circumstances are to be regarded, and, all things weighed, it is to be determined what is more expedient. For a certain rule can scarcely be assigned.

Adultery is a sin of Lust by which conjugal fidelity is violated, and access is made to another's bed. So D. Thom. art. 8. D. Bonavent. p. p. Centil. sect. 14. and part. 2. sect. 32.

GRAVE is this sin, as the S. Doctor proves 4. dist. 38. dub. 7. and 8.

FIRST from Deuter. 22., where the penalty of stoning was imposed on adulterers, and Levit. 20: If anyone commit adultery with his neighbor's wife, he shall surely be put to death, both the adulterer and the adulteress.

IT IS grave, moreover, because, as the S. Doctor argues dub. 8., it is against concord and peace, against the good of the Republic in legitimate successions, and from it arise innumerable evils, because against justice the honor, succession, and other goods of a spouse are harmed. Whence Iob 31: For this is a wickedness, and iniquity most great.

HENCE you have that this sin has a special malice, distinct from fornication.

IT COMES about, however, in three ways. First, if a married person couples with an unmarried one. Second, if an unmarried person with a married one. Third, if both are in marriage; and certainly it is graver for a married woman with an unmarried man than for a married man with an unmarried woman; for it is worse for a woman to be with many men than for a man with many women; nevertheless on some account a man sins more, because he is bound, by reason of the greater use of reason, to abstain; also he is excused on another ground, because he is urged more to lust by the abundance of heat, and is not so ashamed as a woman. Therefore they stand as the exceeding and the excess; as the S. Doctor notes 4. dist. 35. dub. 2. litt.

From these it follows that there is adultery with the spouse of another already ratified, because the handing over of the body has been made; but not with a betrothed de futuro, because the handing over has not yet been made. See Sanchez lib. 1. de matrim. disp. 2., who proves it from Pope Gelasius.

TRULY COMPARING adultery, stuprum, and incest, adultery is graver than stuprum; the reason is, because by adultery the Justice owed properly to the innocent party is violated, nor is it sufficiently vindicated except by death in civil laws, and it corrodes the soul like a devouring fire, as is said in Iob. 31. But by stuprum the honor of the parent of the ravished virgin is not harmed, except through the will and consent of the virgin, as Fagundez cap. 7. num. 13. says; whence I gather that he is compelled to hold that stuprum is a distinct sin, even if the virgin consents, when she is under the power of her parents. Then, by adultery the Republic is harmed more in its successions, and greater infamy arises, as the S. Doctor says 4. dist. 41. dubio 4.

¶ BUT COMPARING adultery with Incest, the latter is graver at least in the first degree of ascendants and descendants, in which there is a monstrous deformity.

YOU WILL ASK: Whether one abusing his wife sins more gravely than one abusing a harlot.

D. Bonav. ANSWERS dist. 38. dub. 9., and with him others, that one sins more gravely with one's spouse, who is to be treated more honorably, and the union is to be directed to the goods of matrimony.

Wherefore it is adultery, because he does not chastely keep his body for his spouse, as Bassaeus num. 10. says. The S. Doctor calls this meretricious in Comp. Theol. lib. 3. cap. 1.

Hence that this is to be explained in confession, Caiet. quaest. 155. art. 1. Sot. 4. dist. 31. quaest. unic. art. 4. Sanchez de matrim. lib. 9. disp. 18. Petrus Ledesma de matrim. quaest. 49. art. 6. dub. 2. Diana part. 7. tract. 12. resol. 23. teach, where he reports those who say it suffices to confess that one committed the sin of Sodomy; Mazuchellus subscribes.

The penalties of adultery are inflicted by CANON and CIVIL law.

By canon law the adulteress loses her dowry, cap. Plerumque de donat. inter virum. She forfeits the earnest money, and loses the right to the debt, from D. Bonavent. in 4. dist. 35. art. unic. quaest. 3. D. Thom. quaest. unic. art. 3. and the common sense of the TT. Both are excommunicated and thrust into a monastery, cap. Gaudemus, de divort. A notorious adulterous Clerk is deposed, cap. Si quis Clericus, cap. Romanus, 81. dist. 70. cap. Significasti, de adult. See Farinac. quaest. 141. num. 31. Tom. 4.

By the law of the Code the penalty of death is inflicted, leg. 1. Quamvis, 2. in fine, Cod. ad Legem Iul. de adult., and there the Jurists, apud Farinacium 4. quaest. 141. Nor is the wife excused on account of poverty or the cruelty of her husband, leg. Palam, §. Non est ignoscendum, ff. de ritu nupt. cap. ex litt. cum ibi not. de divort. Menoch. consil. 31. Clarus lib. 5. sentent. §. adulterium, num. 45. Parisius consil. 23. Nay, even if the marriage is false, but presumed true, leg. si uxor, §. Divus, ff. ad leg. Iul. Bartol. Alberic report this there, and Gomez ad leg. 80. Tauri, num. 48.

They also incur infamy, leg. 2. §. Miles, ff. de his, qui not. inf. See Farinac. loco cit.

It pertains to the civil judge for laypersons; yet the Ecclesiastical can compel them to desist, cap. cum sit generale, de foro comp.

An adulterer certainly knowing that she is his own offspring is held to re-endow for the loss inflicted on his legitimate sons. So Azor part. 3. lib. 5. cap. 6. quaestio 6. Lessius lib. 2. cap. 10. num 43. Marquez de test. cap. 5. §. 2. num. 22. Nauar. cap. 16. num. 40. Sylvius 2. 2. quaest. 62. art. 2. quaest. 7. Bonacina de matrim. quaest. 4. puncto 15. num. 13. Malder. 2. 2. tract. 3. cap. 4. dub. 9. Rodriquez sum. cap. 205. Bassaeus num. 5. Whatever Diana may say, part. 2. tract. 3. miscel. resol. 55.

The reason is, because naturally from adultery there follows a spurious child, bringing loss.

They answer that this is a remote cause, when he willed only the lust; wherefore the loss is not to be imputed to him, just as homicide would not be imputed to him if the woman procured the abortion of the infant begotten by him.

These things are slight, although to Bassaeus, Diana, and others they seem solid. For birth follows per se and naturally from the union, from which abortion is not caused effectively. In doubt, however, whether she is his own offspring, he is not held, as Lugo warns in de iust. tom. 1. disp. 13. sect. 2., because it is presumed for marriage.

What the adulteress is held to, I said in the disp. de Restitutione.

This also I shall defer still further to the 3. part. Tract. de matrimonio.