Crime

584. Nature of the Impediment. 1. The crime which dirimently impedes matrimony consists in the injury which both who intend to enter matrimony inflict on the already existing matrimony of one of them. In reality the impediment of crime contains three impediments diverse among themselves:

a. The first is contracted by those who, by mutual physical or moral work, even without adultery, brought death upon a spouse.¹

b. The second is contracted by those who, during the same legitimate matrimony, consummated adultery between themselves and one of whom committed spouse-killing.²

c. The third is contracted by those who, during the same legitimate matrimony, consummated adultery between themselves and mutually gave faith to each other concerning entering matrimony, or attempted matrimony itself, even only by a civil act.³

Therefore the impediment of crime is contracted in a threefold case: a. because of spouse-killing alone; b. because of spouse-killing with adultery; c. because of adultery alone with promise or attempted matrimony. This threefold impediment, taking its denomination from spouse-killing alone, is also customarily presented in this way, so that it is said to be contracted because of a crime committed a. with both perpetrating; b. with one perpetrating; c. with neither perpetrating.

2. These three impediments are of ecclesiastical law.⁴ Moreover, the Church, in establishing these impediments, intends: a. to provide for conjugal fidelity and the lives of spouses; for when all hope of contracting matrimony with an accomplice either of killing or of adultery has been removed, it at the same time removes the occasion of committing these crimes; b. to punish spouses because of the crime committed, by which injury is inflicted on matrimony and on the innocent spouse.

3. Therefore the Church can dispense from these impediments; but it does not dispense in all of them. Namely, if the impediment arises from adultery with promise of matrimony, it dispenses when a canonical cause exists. If the impediment arises from spouse-killing, whether perpetrated by each or by one party, and the spouse-killing is occult, it dispenses rarely and only from a most urgent cause. But if the spouse-killing is public, it does not dispense "because of the enormity of scandal."⁵

Whether those who are ignorant of this impediment incur it. The affirmative opinion is now certain, since Cn. 16, 1 of the Code establishes: "No ignorance of invalidating or incapacitating laws excuses from the same, unless something else is expressly said"; but nothing else is said anywhere concerning this matter.

¹ Caius, joined in marriage with Bertha, conspires with Sempronia to kill Bertha, in order that he may marry Sempronia.

² Caius, joined in marriage with Bertha, commits adultery with Sempronia and then kills Bertha in order that he may marry Sempronia.

³ Caius, joined in marriage with Bertha, commits adultery with Sempronia (whether unmarried or married) and promises her matrimony to be entered after the death of Bertha, or attempts matrimony itself with her.

⁴ Cn. 1075, which presents the impediment in the words related above.

⁵ Cf. Gasparri I, n. 653 ff.

585. In Order That an Impediment Arise from Spouse-Killing Alone, or from the crime with both perpetrating, these three things are required:

1. Mutual conspiracy for the killing of the spouse of either of them. Now conspiracy is had both in the case of cooperation, even remote, whether physical, e.g., by giving poison, or moral, e.g., by corrupting a doctor so that he does not ward off death, and in the case of inducement, by which one party moves the other to killing by counsel, prayers, or consent alone.

If therefore one of them alone schemes the death of the spouse, while the other party is ignorant, and no adultery has intervened between them, the impediment is not contracted, even if the ignorant party afterward approved the death of the spouse. Likewise it is not contracted if one party indeed consented to the killing, and nevertheless the consent in no way moved the other to the killing.

2. That the spouse-killing was committed at least by one party from the intention of entering matrimony with the accomplice of homicide, with this intention externally manifested. Although this condition is not expressed in the new law, nevertheless it is rightly presumed from the end of the law and is commonly required by interpreters.

If therefore the killing was done not from the intention of contracting matrimony with the accomplice, but from another motive, e.g., revenge, or of sinning more freely with the accomplice, the impediment is not present, since it was established by law lest spouses be killed from desire for another's matrimony.

3. Death really followed from the physical or moral action of one of the accomplices, not from another cause.

Therefore attempted homicide does not suffice, but real killing is required, whether the accomplices of the crime carry out the killing by themselves or through another.

586. In Order That an Impediment Arise from Spouse-Killing with Adultery, or from the crime with one perpetrating, these three things are required:

1. True adultery, formal on the part of each, perfect, actually committed before the spouse-killing.

a. True, which supposes valid matrimony at least on the part of one adulterer. Therefore the impediment is not contracted if the accomplice of adultery thinks the other party is married, when he or she is not; or if the other party is commonly held to be married, when nevertheless he or she is not, because, e.g., that person's matrimony is invalid because of an occult impediment.

b. In order that the adultery be formal on the part of each, it is required that the married state of the one with whom adultery is committed be known. If therefore only one of the adulterers is married, it is required that the unmarried person know that he or she sins with a married person; and if both adulterers are married, it does not suffice that each know himself or herself to be married, but it is required that one of them know the accomplice of adultery to be married. Namely, in order that formal adultery be committed, it indeed suffices that the adulterer know either himself or his accomplice to be married; but for inducing the impediment of crime, it does not suffice that each know himself to be married, because injury must be inflicted by each adulterer upon the same matrimony.

c. Perfect, that is, of itself apt for generating offspring. Besides, if copula has in reality intervened, it is presumed perfect unless the contrary is established.

d. Actually committed before the spouse-killing. If only schemes of spouse-killing preceded the adultery, the impediment is contracted; but if the death itself of the spouse precedes, it is not contracted, because after the death of the spouse adultery is no longer committed.

2. Spouse-killing perpetrated by one party, even while the other party is ignorant or even unwilling, with the intention of entering matrimony with the accomplice of adultery. Therefore it is not required that both conspire in the killing, but it suffices that either one accomplishes it, either by himself or through another.

Therefore neither the intention of perpetrating homicide nor the intention of perpetrating homicide in order to enter matrimony must be manifested to the other party, but it is necessary that the intention of entering matrimony with that same party be known to the other party.

3. The death of the spouse really followed from the physical or moral action of the spouse.

587. In Order That an Impediment Arise from Adultery Alone with Promise or Attempted Matrimony, or from the crime with neither perpetrating, these things are required:

1. True adultery, formal on the part of each and perfect, as was explained above.

2. A promise of entering matrimony with the adulterer, true (a feigned one does not suffice), absolute (a conditional one does not suffice), and mutual, that is, made by one party and accepted by the other with a counter-promise.

a. The question whether the impediment is present if, in the promise of matrimony, the conditions prescribed by the decree Ne temere are not observed, seems so much the more to have to be answered affirmatively because the new Code does not require betrothals for contracting the impediment, but only a simple promise of matrimony.

b. Concerning the promise of entering matrimony after the death of the spouse, the Code has nothing; therefore this condition is no longer required.

c. If the promise of matrimony is revoked before adultery has been committed, no impediment arises; but if it is revoked after adultery has been committed, the impediment already contracted does not cease.

d. Attempted matrimony also constitutes an impediment, although it is only clandestine (before a heretical minister, before a civil magistrate, between the delinquents alone), provided the one attempting knows that the other party is married or, when the error has been discovered, perseveres in the union. If someone, therefore, after having entered valid matrimony, obtains a civil divorce and then contracts a new civil matrimony and consummates it while the prior spouse is living, he contracts the impediment of crime. Wherefore, when the prior spouse has died, he cannot without dispensation enter matrimony with the civil spouse, unless this latter had previously been ignorant of the matrimony.

e. It not rarely happens that those who have obtained either dispensation in a ratified and non-consummated matrimony, or a document of liberty because of the presumed death of the spouse, wish to contract matrimony with a person with whom, while the prior bond existed, they had contracted civil matrimony and had consummated it.

But since a dispensation from the impediment of crime arising from adultery with attempted matrimony is rarely sought, Pius X, lest matrimony be exposed to danger of nullity, established that dispensation from this impediment is to be judged granted through the given dispensation either in ratified and non-consummated matrimony or through permission of passing to other nuptials.¹

f. Hitherto the question was disputed whether a promise accepted by the other party alone suffices for contracting this impediment, or whether a counter-promise is also required. Now one must say that a promise with counter-promise is required, since Cn. 1075, 1 says: those who have mutually given faith to each other concerning entering matrimony.

3. The adultery and the promise must be made during the same marriage: for in order that the impediment arise, the whole injury must be inflicted on one and the same marriage. Moreover, it makes no difference whether the promise precedes or accompanies or follows the adultery, and likewise it makes no difference by how much time the adultery and promise are distant from each other, provided they were made during the same marriage.

If Caius promises matrimony to Bertha while his spouse Anna is living, and after Anna's death marries Sempronia, during whose life he commits adultery with Bertha, he contracts no impediment.

¹ S. C. de Sacr., June 3, 1912. Cn. 1053.

588. The Impediment of Crime Can Be Multiplied both by reason of the delict and by reason of the marriage.

1. If the impediment arises from homicide alone, a twofold impediment is had when both conspirators are married and the spouse of each is killed by them.

2. If the impediment arises from homicide with adultery, a twofold impediment is had when both adulterers are married and each kills his or her spouse.

3. If the impediment arises from adultery alone, a twofold impediment is had a. when both adulterers are married and both know this circumstance; b. if Caius, joined in marriage with Bertha, commits adultery with Sempronia and promises her matrimony, then after Bertha's death marries Anna and during this marriage knows Sempronia again with promise of matrimony.

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).

When husband or wife commits adultery with a third person and promises to marry that person after the death of the other spouse, the Church makes the adulterers incapable of contracting a valid marriage even after the first has been dissolved by death. The aim of the Church is to protect married people, to guard the sanctity of marriage, and to punish crime. A law, however, which restricts the liberty of marriage must be strictly interpreted, and so Doctors require the following conditions in the adultery and in the promise in order that the impediment may arise:

(a) The adultery must be real, formal on both sides, and complete. It must be real, or one at least of the parties must be united in a true, valid marriage. That fact must be known to both the adulterers, or else they are not guilty of formal but merely material adultery. If each party knows that the other is married and the other conditions are verified, there will be a double impediment between them. The adultery must be complete, so that it would be possible for it to produce its natural result in offspring.

(6) The promise, too, must be real, not fictitious, accepted by the promisee, absolute, not conditional, made with knowledge of the present marriage, and undertaking to contract marriage after the death of the other spouse. For one of the objects of the law is to remove the temptation to plot against the life of husband or wife.

Both the adultery and the promise must have place during the continuance of the same marriage, but it is immaterial whether the promise be made before, after, or at the same time as the adultery is committed.

This impediment of crime also exists between parties who have committed adultery with each other and attempted to marry during the lifetime of the spouse of one of them. The adultery must have the same qualities as in the preceding case, and the marriage must be really and truly attempted, not merely feigned. It is immaterial whether the attempted marriage precede or succeed the adultery. It is obvious that those will lie under this impediment who, after a civil divorce from a spouse, marry again and consummate the attempted marriage.

Murder by a man and a woman of the spouse of one of them constitutes a diriment impediment to their marriage. This impediment does not arise unless death really ensues; attempted murder is not sufficient. Moreover, the murder must be committed not by one of them alone, even if the other afterward approve of it, but by both, either by mutual physical help, or by moral persuasion of some sort. Death must also be inflicted with the intention of marrying the other when free, as Doctors gather from the end of the law, which is to prevent murder of a consort with a view to marrying someone else. This intention must at least be manifested in some way to the other party, though it is not necessary that it should openly actuate both of them to the perpetration of the crime.

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

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

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

The impediment of crime arises from two crimes, namely adultery and spouse-murder, and indeed, with certain conditions fulfilled, in four cases. But the cases according to canon 1075 are: 1° adultery with a mutual promise of marriage; 2° adultery with attempted marriage; 3° adultery with spouse-murder; 4° spouse-murder alone.

Canon 1075, 1° states: "They cannot validly contract marriage who, while the same legitimate marriage endures, have consummated adultery between themselves and have mutually given faith to each other concerning marriage to be entered." Therefore two things must concur: adultery and the promise of marriage, and indeed they must concur or be joined while the same legitimate marriage endures.

I. The adultery must be:

1. True. Hence it is required that at least one or the other spouse be joined in a valid marriage. For the rest, it does not matter whether the marriage is consummated or only ratified.

2. Consummated, namely by copula of itself apt for generation.

3. Formal on each side, and this in such a way that by both, at least one and the same marriage has had injury inflicted upon it. Hence it is required that each party know at least the matrimonial state of one and the same person; but it is not required that each know the marriage of the other; nor is it sufficient that each know himself or herself to be joined in marriage.

Let there be cases: Peter, unmarried, has relations with Anna, a married woman, while ignorant of her marriage. There is not adultery formal on both sides. Paul, married, has copula with Rose, married; but neither knew the other's marriage. Injury is not inflicted upon one and the same marriage. Henry, married, and Bertha, married, commit adultery. Henry knows Bertha's marriage, but Bertha is ignorant of Henry's marriage. Each party inflicts injury upon the same marriage (St. Alphonsus VI, 1036). But the reason why injury must be inflicted upon the same marriage by both spouses is this: that the impediment was established lest hope of marriage lead to plotting the death of a spouse by the common design of each.

II. The promise must be:

1. True. Therefore desire does not suffice, nor, as is more commonly taught, a fictitious promise. For "faith given" is required; moreover, since we are dealing with odious things, the law must be interpreted strictly, and therefore concerning a promise properly so called (St. Alphonsus VI, 1039).

2. Duly intimated and accepted. For thus a promise is perfected or completed. Hence the silence of the other party does not suffice of itself (St. Alphonsus VI, 1037).

3. Absolute, or, if it is not absolute, conditional, as follows: If the promise was made under a condition concerning the present or concerning the past, it is required that the condition exist. If it was made under a suspensive condition concerning the future, the condition must be fulfilled, and indeed, as is more commonly taught, before the death of the innocent spouse. The reason why the condition must exist or be fulfilled is this: because otherwise there is not simply a promise; yet such a promise is judged to be required, since we are dealing with odious things (St. Alphonsus VI, 1040). But the suspensive condition must be fulfilled before the death of the innocent spouse, because otherwise there is not simply a promise which gives occasion for plotting the death of the spouse.

4. Mutual; for canon 1075, 1° declares: "and they have mutually given faith to each other."

5. It is required, with sufficient probability, that it be a promise concerning marriage to be entered after the death of the spouse. For the cited canon speaks of marriage to be entered. But a promise about marrying while the prior spouse is living is rather a promise about attempting marriage. Hence we judge that the impediment does not subsist if, for example, Peter promises Anna, a married woman, that he will enter marriage after she has obtained a civil divorce.

6. Finally, it is required with sufficient probability either that each, while promising, knew that one or the other was married, or that the promise, after that knowledge was received, was expressly or tacitly¹ confirmed. The reason is that both the promise and the adultery must give occasion for seeking the death of the innocent spouse.

III. Joining of adultery and promise. Adultery and promise must have place while the same legitimate marriage endures; therefore they must have existed together, and this while the same legitimate marriage persisted. But it does not matter whether the promise precedes the adultery or the reverse.

1. They must have existed together. Hence if the promise preceded the adultery, it is required that it was not revoked before the adultery. But that it is revoked after the adultery has been committed effects nothing, because they already existed together.

2. They must have existed together while the same spouse was living. Hence the impediment does not arise if, for example, Peter, while his prior marriage stands, had copula with Anna, unmarried, and promises marriage to her during the time of his second marriage.

¹ For example, Peter promises marriage to Anna while ignorant of her marriage. Afterwards, once Anna's marriage has become known, moved by the promise made, he commits adultery with her.

Canon 1075, 1° states: "They cannot validly contract marriage who, while the same legitimate marriage endures, have consummated adultery between themselves and... have attempted that marriage itself, even by a merely civil act." Therefore there are required:

I. Adultery, and of the sort set forth in n. 787.

II. Attempted marriage. By this is understood here an act by which two persons, knowing that because of the impediment of ligamen they cannot enter another valid marriage, truly offer conjugal consent to each other. It is required that each be conscious of the impediment, because each must attempt marriage. For the rest, with regard to the consent to be offered, it is the same whether it is offered in the form required by law or without it, even if it is done merely civilly. Mere concubinage as such does not involve matrimonial consent, although it can give occasion for offering it, or even, with the custom of the place considered, carry it with itself.¹

III. The joining between adultery and attempted marriage must be the same as between adultery and the promise of marriage (n. 787).

Corollary. All those who, after a validly contracted marriage, seek and obtain a civil divorce, and then contract and consummate another civil marriage, incur this impediment; and therefore, although the prior marriage has been dissolved, they cannot enter marriage without a dispensation.²

¹ Sacred Congregation of Propaganda Fide, January 14, 1844.

² Vlaming, I, n. 318.

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

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

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

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

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

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

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

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

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

Canon 1075, 3° states: "They cannot validly contract marriage who by mutual physical or moral cooperation, even without adultery, have brought death upon a spouse." Therefore there are required:

I. Cooperation or plotting of the spouse's death, and that mutual. It is the same whether each party has influenced the death physically or morally, or one physically and the other morally. Therefore command, persuasion, and approval also suffice, but not approval of spouse-murder already perpetrated. There are also those who judge that simple consent to spouse-murder to be perpetrated does not suffice, because the word moral cooperation is not sufficiently verified;¹ others, however, think otherwise for the contrary reason.

II. Cooperation or plotting done from the intention of marrying, and indeed marrying the accomplice. For although the aforesaid condition is not expressed in the law, nevertheless it is gathered from the end of the law, namely lest one come to spouse-murder through hope of marriage with the accomplice (St. Alphonsus VI, 1033). But:

It is disputed, first, whether the aforesaid intention must be in each of those plotting. Most deny this, because the end of the law consists in this: that the occasion of plotting against the life of the legitimate spouse be removed. That occasion is sufficiently taken if even one of those plotting had, in the plotting, the intention of marrying the accomplice. The Austrian Instruction, § 37, openly favors this opinion. A few affirm it, because just as each must cooperate in the spouse-murder, so almost consequently it seems required that each come to the crime through hope of marriage. The pastoral Instruction of Eichstatt seems to favor this opinion.

It is disputed, secondly, whether the intention of marrying must be manifested to the other party before the spouse-murder. Now this is affirmed with sufficient probability, because otherwise that intention would not influence the fact that the mutual plotting was done through hope of marriage. But the manifestation can be made both by words and by gifts, familiarities, and similar things (St. Alphonsus VI, 1034).

III. Death must have followed, and indeed from the plotting set forth. It does not suffice that death, although attempted, followed, for example, from the negligence of the wounded person, or from the inexperience or lack of care of the surgeon.

Question 1. How is the impediment of crime multiplied?

Response. It is multiplied: 1° if one of the species of the impediment is verified with regard to several marriages;² 2° if several species of the impediment are verified with regard to one marriage,³ although some judge that in the case in which promise and attempted marriage concur with adultery, there is added only a circumstance to be expressed, but the impediment is not multiplied; 3° if several species of the impediment are verified with regard to several marriages;⁴ 4° if, with adultery concurring to constitute the impediment, each party is married,⁵ although some again judge that in this case there is added only a circumstance to be expressed, but the impediment is not multiplied.

Question 2. To what extent are infidels bound by the impediment of crime?

Response 1. If each accomplice is an infidel, the impediment does not arise, even if they are afterwards converted.⁶

Response 2. If one accomplice is a faithful person and the other an infidel, the impediment arises if the faithful person also posited those things which are required for the impediment. Therefore the first species of the impediment arises if the faithful person, marriage having been promised, commits adultery with the infidel; the second species, if the faithful person commits adultery and attempts marriage with the infidel; the third species, if the faithful person perpetrates the killing; the fourth species, if the faithful person was a participant in the plotting (St. Alphonsus VI, 1037).

Response 3. If one of the requisites for the impediment had place in infidelity, and the other after Baptism, the impediment does not arise. Except if the promise or attempted marriage happened in infidelity, but the parties after Baptism persevere in it and commit adultery.

Question 3. To what extent can a dispensation be obtained in the impediment of crime?

Response. A dispensation, when a proportionate cause is present, is granted. Nevertheless, if the impediment arises from public spouse-murder, whether one or both plotted, outside danger of death dispensation can scarcely be hoped for.⁷

Note. A dispensation given by the Holy See upon a ratified and non-consummated marriage, or permission made for passage to other nuptials because of the presumed death of a spouse, always carries with it dispensation from the impediment arising from adultery with promise or attempted marriage, if any such is needed, but by no means dispensation from the impediment of which canon 1075, nn. 2, 3 treats, that is, from the impediment of crime of the third and fourth species (canon 1053).

Warning. "Suspicion of an impediment contracted can sometimes be moved by those who during the prior marriage committed adulteries; who a little after the death of the prior spouse fly to second nuptials, especially if the prior spouse was sick for a long time before death; a male servant who is about to enter marriage with his recently widowed mistress; or a recently widowed man who is about to contract marriage with his female servant or with his wife's sister, etc.

With regard to the manner of inquiring, one must proceed cautiously. Concerning occult adultery, it can be asked, for example, whether he already had familiarity with that person while the prior spouse was living; whether he ever indulged too much familiarity with her. If adultery had place with her, let him be asked further whether already then there was speech between them about a future marriage, etc. Concerning occult spouse-murder, it can be asked whether he at any time desired the death of the prior spouse; whether he gave any cause for that person's death. From the responses a prudent confessor will easily detect guilt or innocence."⁸

¹ So, for example, d'Annibale, III, § 447.

² For example, Peter first, while his marriage with Anna stands, promises marriage to Titia and commits adultery with her; then, while his marriage with Bertha stands, he again promises marriage to Titia and commits adultery with her.

³ For example, Peter, while his marriage with Anna stands, promises marriage to Titia and commits adultery with her; then he kills Anna.

⁴ For example, Peter, while his marriage with Anna stands, promises marriage to Titia and commits adultery with her; then he kills Anna. The same Peter, while his marriage with Bertha stands, again promises marriage to Titia and commits adultery with her; then he kills Bertha.

⁵ For example, Peter and Titia, being married, mutually promise marriage to each other and commit adultery.

⁶ Sacred Congregation of Propaganda Fide, August 23, 1852, ad 5 (Collectanea, n. 1079).

⁷ Benedict XIV, Constitution Pastor Bonus, April 13, 1744.

⁸ Aertnys-Damen, II, n. 745.

Are betrothals dissolved by the crime of the other? By an atrocious crime of the other spouse, betrothals are dissolved on the part of the innocent one. Heresy, grave theft, homicide, or something similar is judged an atrocious crime, which produces grave damage or infamy. The reason is that a notable change of affairs is altogether present. On the part of the innocent one; for no one ought to gain advantage from his own delict. L. 860; C. B. 1299.

What is the impediment of crime? Crime dirimently impeding marriage is threefold, namely: 1. adultery; 2. homicide of a spouse; 3. both together, provided that certain conditions concur, which we set forth below. This impediment is an impediment only of ecclesiastical law.

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 homicide alone? Three conditions are required so that from this there be an impediment: 1. Mutual conspiracy, by command, counsel, etc. Hence it does not suffice that a spouse kill his or her spouse if the person with whom he or she is about to enter marriage is ignorant of this action or contradicts it. Nor does it suffice that someone, hearing of the killing of the spouse, and much less by mere negligence, e.g., in caring for the sick person, approve and ratify it. Nor does consent alone seem to suffice, because the Laws require machination. C. Laudabilem 1, de Conv. infidel.; L. 1033.

2. Intention of marriage. Thus commonly, although it is not expressed in the Law. The reason is that the end of the law is lest someone, in hope of marriage, kill his own spouse or another's spouse. This intention is not required on the part of both, but more truly it is required that that intention, had by one, be manifested in some way to the other. But St. Alphonsus says, 1034, that it suffices that certain indications of this intention preceded, e.g., familiarities, love letters, etc. Therefore the impediment is not present if Titius, with Caia cooperating, kills his wife in order that he may enjoy Caia more freely, or marry her daughter.

3. Death really following from the physical or moral action of one or the other accomplice. C. 1, 3, 6, de Eo qui duxit; C. 1, de Conv. infid.; L. 1031 ff.; 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.

XVI. Those communicating with an excommunicated person named by the Pope in a criminal crime, namely by furnishing help or favor to him.

Those communicating, both clerics and lay persons. With an excommunicated person named by the Pope, namely one whom the Supreme Pontiff excommunicates by name by particular excommunication, or denounces by name as excommunicated by a general excommunication latae sententiae. Therefore one who is excommunicated by anyone else is by no means comprehended here, nor one who, after he has incurred papal excommunication, is afterwards denounced by name as excommunicated by some other Ordinary. In a criminal crime, "That is, in the same crime or contumacy because of which excommunication was imposed, after the excommunication imposed and known to him; e.g., if someone again knows his excommunicated concubine after excommunication, as is held from C. Si Concubinae 55, de Sent. exc., or if someone, after excommunication imposed on someone because of theft, concubinage, etc., furnishes help or counsel to him, lest he restore, lest he dismiss the concubine, or lest he go out from excommunication." L. 197. Namely by furnishing help or favor to him: therefore not any communication whatsoever is comprehended here, but communication 1. with an excommunicated person named by the Pope; 2. in a criminal crime; 3. by furnishing to him help or favor in that crime; counsel is not added. Therefore the crime here, as is clear, is a crime already committed, for one who furnished help or favor in committing a crime would be communicating with one not yet excommunicated. C. Nuper 29, de Sent. excomm.; Bonacina, disp. 2, q. 3, part 21; E.M.

1. Franciscus, married, attempts to contract marriage with Francisca, his adulteress. After the death of his wife, he again wishes legitimately to contract marriage with Francisca. - Can he validly contract this marriage?

R. Negatively, from c. Cum haberet 5, de Eo qui duxit, etc.; I. M. 1018.

2. Sempronius, married and faithful, attempts to contract marriage with Sylvia, his adulteress, an infidel. After the death of the wife of Sempronius, he now wishes legitimately to contract marriage with Sylvia, converted to the faith. - Validly?

R. Negatively, from c. Laudabilem de Conv. infid. - I. M. 1021.

3. "1. Can an infidel man who before baptism had copula with the infidel wife of another, to whom, the woman consenting and accepting faith of future marriage, he brought death, after the baptism of both, enter marriage with the said woman? 2. Can they contract this marriage if, when they perpetrated those crimes, one party had been Christian?

"R. To the 1st: Affirmatively. - To the 2nd: Negatively." S. C. de P. F., Aug. 23, 1852; I. M. 1021.

4. Seius committed adultery with Seia. Meanwhile Gneus, the husband of Seia, is seized by a grave illness. Seia, seeing this, rejoices in her mind because of the marriage which she hopes afterward to enter with Seius. But the illness of Gneus, although very grave, is not mortal if Gneus undergoes a surgical operation in time. Seia, making use for herself of so good an occasion, in view of the future marriage, herself draws out delays in calling the surgeon, and Gneus dies. Hence Seia immediately contracts marriage with Seius.

It is asked: 1. What is the impediment of crime? - 2. What is to be said to the case as it is set forth? - 3. What if there had been present in the case a mutual matrimonial intention, reciprocally manifested? - 4. What if there had been present in the case a mutual promise or a mutual conspiracy, or both? - 5. What if the crime in the case had become public?

R. To the 1st. Cf. I. M. n. 1017 seqq. It is only to be noted that, although as regards adultery alone, more probably and more commonly a return-promise is not required for a promise made of future marriage, but the acceptance of that promise suffices, nevertheless in the formulas of dispensations of the Apostolic Datary there is the clause: faith having been given to each other concerning marriage to be contracted after the death of the spouse; which clause imports a return-promise.

To the 2nd. No impediment is present, because the impediment affects both, and therefore, since in the case there is question of the impediment of crime, and this is a penalty for protecting the rights of marriage lest they be violated for the sake of a future marriage, it is necessary that each one, at least in some way, in perpetrating that crime, act in view of a future marriage, and that this intention held by one be at least manifested to the other. Hence it is clear that, in the case, no impediment of adultery is present, because a promise of marriage was lacking, since nothing is said concerning it. Likewise there was no impediment of homicide, because mutual conspiracy was lacking, as appears from the tenor of the case. Finally there was no impediment of both together, because the view toward marriage was held by Seia alone, and Seius perhaps never even thought of the future marriage. Nor is it valid to object that that intention was sufficiently had in the preceding adultery committed. For this can hold at most in the external forum, by reason of presumption; but not in the internal forum, where not presumption, but truth is attended to, namely if in reality Seius did indeed wish to sin with Seia, but in no way to contract marriage, as happens many times. Nevertheless in the external forum that intention is indeed presumed by law, both if the woman and an alien man concur by common work toward the death of the innocent spouse, and if adultery preceded, with only one party bringing death. Schmalzgr., l. 4, tit. 7, n. 55; De Iustis, de Dispensat. matr., l. 2, c. 16, n. 22; Sanchez, l. 7, d. 78, n. 19.

To the 3rd. Certain persons to whom the present case was proposed judge that the impediment is not present, because the wife did not kill the man, but only permitted him to die, since she was certainly not held by justice to call the surgeon; and because besides it is required, as the doctors have, cf. Reiffenst., l. 4, t. 7, n. 22, that death follow from machination and not from the lack of skill or negligence of the physician or surgeon. But they are remarkably deceived. For although the wife does not sin in the case against justice, she certainly sins against charity and piety; and this already suffices so that it can no longer be said that she permits the death of the man, but she wills it, and she is the true cause of it, although indirect, by not acting, that is, by not doing that which she could and ought to do. Then she most truly sins against justice; whence not only by charity and piety, but also by justice, she was held in the case to call the surgeon, and by injury, by not calling the surgeon, she acts against her husband. For first, Seia was held to call the surgeon from the office of wife, and consequently from quasi-contract. For Gneus the husband, as the matter practically happens, and in the case happened from the tenor of the case, trusting his wife, entrusted himself to her judgment, vigilance, and diligence, and did not commit himself either to a servant or to another outside person, so that the surgeon might immediately be called and every work be applied for preserving health. Besides, Seia knew, either from herself or from the opinion of the physician manifested to her and, as usually happens, not explained to the sick man, the lethal danger in which the husband was found, and the urgent and absolute necessity of calling the surgeon. Saying nothing to the husband and omitting to call the surgeon, that most cunning woman used a most notable fraud, thus deceiving the husband, and therefore acting altogether with injury. Nor indeed must that machination of death be a physical cooperation toward death, but a moral one suffices, Reiffenst., l. 4, t. 7, n. 21; and if moral cooperation toward death suffices, as it certainly suffices, by mandate, by counsel, is there not in the case true moral cooperation? Is not Seia the true moral cause of the death of her husband? He surely kills you who shuts you in a room where you perish by hunger, and who does not free you by opening the door of the room, when he can and ought to do that most easily. Nor does the authority of the doctors praised make to the matter. For it is one thing that a physician treating unskillfully, or not applying due diligence, or someone else not applying every due assistance to a sick person, for example, be, contrary to opinion, the cause of death; it is another that one intending death deliberately omits to do, for preventing death, what he is most strictly bound to do. The first is voluntary in the cause, by which one does not properly contract morally the malice of homicide, since he neither wills nor notices it, but contracts only the malice of a defect of skill to be had or of diligence to be applied. The other is voluntary in itself, which most properly brings in the malice of homicide. But the authority of the doctors invoked is beside the matter, which is clear from Reiffenstuel himself, who is cited against himself. For after Reiffenstuel, l. c., n. 21, explaining machination, expressly said that for contracting the impediment it suffices "that one of the spouses be the true physical or moral cause of the death of the innocent spouse," he concludes, n. 22: "The doctors commonly infer that then an impediment does not arise if death indeed follows, or follows not by force of the aforesaid machination, but from negligence or from the lack of knowledge of the physician or surgeon, or from elsewhere." It follows not by force of the aforesaid machination: namely there is no question of an unskillful and negligent physician and of one thus killing by his unskillfulness and negligence, whether namely he himself incurs the impediment of crime; but there is question of the one machinating, whether namely he incurs the impediment of crime if death follows not from the machination itself, for example, from the wound inflicted, but from the lack of knowledge and negligence of the physician. Therefore that authority does not make to the matter, and round things are confounded with square things. Cf. De Iustis, de Dispensation. matrimon., l. 2, c. 16, n. 13; Schmalz., l. c., n. 54.

And the whole assertion can be confirmed from this, that a dispensation is conceded with more difficulty if the petitioners killed the spouse by poison than if they had killed him by sword, because they act more treacherously, and the one killed could defend himself less. Now would not a killing be still more treacherous if someone were to deny food to the sick person, from the intention of his death, when he could and ought to give it, or, as in the case, if he were to omit calling the physician?

To the 4th. If there had been present in the case a mutual promise of marriage as regards adultery, the impediment of adultery would certainly be had, since all the conditions of this impediment would be verified. I. M. 1018. The impediment of homicide would not be present, because mutual conspiracy is lacking. I. M. 1019. But the impediment of both together would be present. For adultery and machination of death are present, with the promise of marriage and return-promise, which suffices, so that it be from one alone with the intention of marriage already manifested to the other. I. M. 1020; Sanchez, l. 7, d. 78, n. 2. And this impediment of both together would absorb in itself the impediment of adultery. For adultery induces the impediment of marriage insofar as it induces the danger of machinating toward the death of the spouse, in hope of entering marriage; which machination would be present in reality in the case. But since with that adultery there is had a promise of marriage, which now of itself suffices for establishing the aforesaid danger, Schmalz., l. 4, t. 7, n. 6, 32, 51, hence in reality rather the impediment of adultery with homicide would be had, and thus it would have to be expressed in asking for dispensation. - But if mutual conspiracy had been present in the case, there would indeed be present the impediment of homicide, if namely it were from the intention of marriage; otherwise, as has already been said to the 2nd, the intention of marriage being removed, even with adultery and homicide from mutual conspiracy, no impediment is had, at least in the forum of conscience; for in the external forum that intention would be presumed. De Iustis, l. c., n. 22. But if the intention of marriage had been present, the impediment of both together would also be present. I. M. 1020; Sanchez, l. 7, d. 78, n. 9, 14. For if this impediment is present when there is adultery and homicide with the intention of marriage without mutual conspiracy, all the more is it present if there is also mutual conspiracy. Whence this impediment of both together absorbs that other one of homicide alone, as in the preceding case. But as regards asking for a dispensation, because this is more difficult, it must be added in the petition that both together were present with the promise of marriage, or with mutual machination; or a dispensation can also be sought from the impediment of adultery with spouse-killing, in the first case, and a dispensation from the impediment of spouse-killing with adultery in the other. - But if finally there were present at the same time mutual promise of marriage and mutual conspiracy, two impediments are had, of adultery and of homicide, since all the proper conditions of each impediment are then present. I. M. 1020.

To the 5th. Benedict XIV says that it is established by no example that the Pontiff dispenses in a public impediment of this sort. I. M. 1021. Hence Clement VIII, although supplication had been made to him by most powerful petitioners for a dispensation upon this impediment, with only one of the two machinating, in no way wished to concede the dispensation. Schmalzgr., l. c., n. 65; Pyrrhus Corradus, Praxis dispens. apostol., l. 8, c. 9, n. 8.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“As Pickler explains according to the sacred canons, book 4 of the Decretals, title 7, in order that adultery may induce an invalidating impediment, it is required that there be joined to it either a promise of future Marriage or a contract of present Marriage with the adulteress or adulterer while the prior spouse is still living. But to contract, or attempt, a present Marriage is to enter nuptials—invalidly, of course—through words of the present tense or through some other sign which includes a promise of consent. It makes no difference, however, whether the adultery preceded the attempted Marriage or followed it.... In order that the taking of a concubine—or rather, an adulteress—may be regarded in the case as a true attempted Marriage, it is necessary that it include a promise of Marriage, whether in the present or in the future.” Sacred Congregation for the Propagation of the Faith, 14 January 1844.

“When a certain I., bearer of the present letter, had a lawful wife named A., he committed adultery with M.; and when he had been summoned to law concerning this, he forswore the adulteress, and afterward, having despised his oath, while his lawful wife was still living, he presumed to contract Marriage with the adulteress and to cohabit with her for a long time. Finally, after the aforesaid A. was taken from the present light, the aforementioned I. remained with the adulteress for ten years and begot ten sons by her. We therefore give this response to your consultation: let them be altogether separated and, penance having been imposed upon them, let perpetual continence be enjoined, especially since both have advanced in years and, knowingly persisting for so long publicly in adultery and perjury, they have disturbed the Church with grave scandal. For you know that Pope Leo established that no one is to take in Marriage a woman whom he has defiled by adultery; and that here matters proceeded further than if a pledge had merely been given to the adulteress that, after the lawful wife had died, he would take her as his wife, since the same man presumed, even while the first wife was living, to adhere to the adulteress almost matrimonially as an adulterer and rashly to violate his oath. This union—which both Pope Gregory and the Synod of Tribur detest, even where no sacred obligation of an oath intervened—they command that each person joined in this manner be subjected to public penance and remain perpetually without any hope of Marriage,” etc. Chapter Cum haberet, 5, On Him Who Took in Marriage, etc.

"As Pickler explains according to the Sacred Canons, l. 4, Decretals, tit. 7, that adultery may induce a diriment impediment, it is required that there accede to it either a promise of future marriage, or a contract of marriage de praesenti with the adulteress or adulterer while the prior spouse is still living. But to contract, or to attempt, marriage de praesenti is to enter nuptials, certainly invalidly, by words de praesenti, or by some other sign which includes the promise of consent; yet it makes no difference whether the adultery preceded the attempted marriage or followed it.... That the taking of a concubine, or rather of an adulteress, be had in the case as a true attempted marriage, it is necessary that it include a promise of marriage, either de praesenti or de futuro." S. C. de P. F. 14 Jan. 1844.

"Since I., bearer of the present letters, had a legitimate wife by the name A., he perpetrated adultery with M.; and since he had been summoned into court over this, he abjured the adulteress, and afterwards, the oath having been contemned, while the legitimate wife was living, presumed to contract marriage with her and to cohabit with her for a long time. Finally, after the aforesaid A. was taken away from the present light, the mentioned I. lived with the adulteress for ten years, by whom he procreated ten sons. Therefore we give such a response to your consultation, that they be altogether separated, and, penance having been enjoined upon them, perpetual continence be indicated, especially since both have advanced in their days, and, enduring so long publicly in adultery and perjury from certain knowledge, have disturbed the Church in grave scandal. For you know that Pope Leo established that no one should take in marriage her whom he polluted by adultery; and that here there was more process than if faith had merely been pledged to the adulteress, that, when the legitimate wife was dead, he would take her as wife, since even while the first was living, as adulterer with adulteress, he presumed to adhere to the same woman as if matrimonially, and rashly to violate his sacrament; which union indeed, where also no religion of oath intervened, both Pope Gregory and the Synod of Tribur detests, and ordered each person joined in this way to be subjected to public penance and to remain perpetually without any hope of marriage." etc. Chap. Cum haberet 5, De eo qui duxit in matrim., etc.

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

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

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

1. from adultery with a promise of matrimony;

2. from adultery with an attempted matrimony;

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

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

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

¹⁶⁴ Bk. 4, tit. 7.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

826. Third case: Adultery with spouse-killing.

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

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

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

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

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

827. Fourth case: Spouse-killing without adultery.

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

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

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

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

¹⁷⁷ Vogt, loc. cit.

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

828. Multiplication of this impediment.

The impediment of crime is multiplied from a twofold cause:

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

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

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

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

829. Cessation of this impediment.

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

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

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

140. • I. Notion.

a) It is a diriment impediment of matrimony to be contracted between persons who have committed qualified adultery or qualified conjugicide.

b) Under a threefold form the impediment of crime can be found:

1. adultery with a promise or attempted matrimony.

2. adultery with conjugicide perpetrated by only one of the adulterers.

3. conjugicide alone, but perpetrated by common counsel.

141. • II. First form.

a) "They cannot validly contract matrimony:

1° Who, while the same legitimate matrimony endures, have consummated adultery between themselves, and have mutually given faith to each other concerning matrimony to be entered, or have attempted matrimony itself, even by a civil act." (Can. 1075.)

b) Conditions that crime under the first form exist as an impediment.

1. On the part of adultery.

It is necessary that the adultery be: true, i.e., that at least one accomplice be validly bound by matrimony; formal on the part of each, i.e., that each know at least one, and indeed the same, party to be married. Therefore if each party is married, but neither knows the accomplice to be married, the impediment is not present; consummated, i.e., that the man enter the vaginal canal of the woman and pour forth true semen in it.

Copula is presumed perfect in both forums.

2. On the part of the promise.

It is necessary that the promise of matrimony be: true and serious, i.e., a simple purpose or a feigned or joking promise does not suffice. According to the more common and more probable opinion, and one safe in practice, any fiction, even merely internal, prevents the impediment from being present. For an invalidating law is of strict interpretation (Can. 19), and in a doubt of law the impediment is practically null (Can. 15); free, i.e., not extorted by grave fear or deceit, nor vitiated by substantial error; absolute, i.e., not made under a condition; concerning matrimony to be entered after the death of the spouse, although it is not necessary that this be added expressly to the promise; injurious to the existing matrimony: such would not be a promise made at the insistence of a dying spouse; joined with adultery in the same matrimony: the impediment is not present if before the adultery the promise was sincerely and externally revoked; externally manifested and mutually accepted.

3. On the part of the attempted matrimony.

Attempted matrimony is the act by which two persons, conscious of the existing impediment of bond, truly and seriously give conjugal consent to each other, although invalidly.

It matters little in what manner that attempt is made.

142. • III. Second form.

a) "They cannot validly contract matrimony:

2° Who, while the same legitimate matrimony endures, have consummated adultery between themselves, and one of them has perpetrated conjugicide." (Can. 1075.)

b) Conditions necessary that the impediment really exist.

1. On the part of adultery: the same conditions as above for the first form, n. 141 b) 1.

2. On the part of conjugicide.

It is necessary that the death of the spouse be plotted by one or the other of the adulterers, and indeed from the intention of contracting matrimony with the accomplice of adultery; that it actually follow, at least probably; therefore in practice it is required that the adultery precede the act which is the cause of death; the spouse to whom death is brought must be the same one who was living at the time the adultery was committed.

For the canon says: "while the same legitimate matrimony endures."

143. • IV. Third form.

a) "They cannot validly contract matrimony:

3° Who by mutual physical or moral work, even without adultery, have brought death to a spouse." (Can. 1075.)

b) Conditions required for incurring the impediment.

1. The killing of a true spouse.

2. Death following from the true and mutual cooperation of both accomplices.

3. Intention of entering matrimony with the accomplice.

In practice this intention is required in both accomplices. Certainly, on this point authors disagree theoretically. But from this the impediment becomes doubtful by a doubt of law if the intention of matrimony is not found in each party, and therefore null.

For the same reason it is necessary in practice that such intention be manifested in some way to the other accomplice.

In the external forum this intention is presumed.

144. • V. Reason for the impediment.

The intention of the Church in establishing that impediment was both to provide for conjugal fidelity and the safety of spouses, and to inflict punishment on account of the most grave crime committed.

145. • VI. Multiplication of the impediment.

The impediment of crime is multiplied:

S. Th., Suppl., q. 60, a. 2.

894. Matter to be treated. - This double impediment has this in common, that each arises from a special delict. The first, namely abduction, was introduced by the Council of Trent, sess. 24, de ref., c. 6, for guarding the full liberty of matrimony; - the other, already existing for many centuries, but amplified and more defined by the decretals, and again confirmed, arises from a qualified crime, namely from adultery or spouse-murder, perpetrated under certain conditions; and this was introduced by the Church in order that provision be made for conjugal fidelity and for the safety of spouses, so that, all hope of union having been taken away, she might deter from these crimes and also justly punish them when committed.

897. Crime (crime; misdaad of misdrijf), which is an impediment of matrimony, consists in the injury which both, who intend to enter matrimony, inflict upon the matrimony of one of them already existing, or in qualified complicity against the honesty of marriage.

It arises from a threefold crime and therefore is in reality a threefold impediment:

1st on account of adultery alone with promise or attempted matrimony,

2nd on account of adultery with spouse-murder committed by one,

3rd on account of spouse-murder alone committed by common action.

It is customarily denominated the impediment from the death or killing of the spouse, and therefore respectively is said to be contracted either with neither plotting or perpetrating; - or with one plotting and perpetrating; - or with both plotting and perpetrating.

For, as St. Thomas says, q. 60, a. 2:

"1° In that in which someone sins, he must also be punished. But he sins against matrimony who kills his wife (or commits adultery). Therefore he ought to be punished so that he be deprived of matrimony.

2° Wife-murder from the statute of the Church impedes matrimony... and... sometimes diriments it when contracted: as when someone kills his wife in order to marry her with whom he commits adultery. For then he becomes an illegitimate person simply for contracting with her, so that, if in fact he has contracted with her, the matrimony is dirimented. But through this he does not become simply an illegitimate person with respect to other women."

898. Principle II. Those cannot validly contract matrimony who, while the same legitimate matrimony endures, have consummated adultery between themselves and have mutually given faith to each other concerning entering matrimony, or have attempted matrimony itself, even only by a civil act. - Thus can. 1075, 1°.

The conditions required for the impediment are:

A. On the part of adultery, that it be true, formal, and consummated.

1° Let it be true, so that at least one accomplice is bound by a valid matrimony.

2° Formal on the part of each, i.e., so that each knows the conjugal state of at least one and the same accomplice, and thus injury is inflicted upon one and the same matrimony.

3° Consummated by perfect copula by which otherwise matrimony is consummated; moreover, copula once had is presumed perfect.

B. On the part of faith given or promise, that it be true, free, absolute, and mutually given and accepted; or there is an attempted matrimony.

1° Let it be true and serious, not feigned or jocose. For an irritating law is of strict interpretation (can. 19), whence any fiction, even merely internal, seems to stand in the way of the impediment being present.

2° Free, not extorted by grave fear or deceit, nor vitiated by substantial error.

3° Absolute, not merely conditioned, unless the suspensive condition was fulfilled before the death of the spouse, because then the promise has already passed into an absolute one.

4° Mutually given, as now is certain from the tenor of the canon, and accepted by word or sign; hence it does not suffice that one party promise, if the other behaves negatively, a fortiori if he rejects it.

5° Or an attempted matrimony, by which, conscious of the impediment of ligamen, they truly and seriously furnish conjugal consent mutually to each other, although invalidly: it matters little by what pact the attempt is made and in what form, whether public and prescribed by the code, or wholly clandestine, or merely civil.

C. On the part of the circumstances, that the promise or attempted matrimony and adultery are knowingly done while the same union stands, so that they simultaneously violate the fidelity owed to the same spouse, 1 whether the promise or attempted matrimony precedes the adultery, or follows it.

Hence the impediment does not arise if the promise accedes to adultery after the death of the spouse, or if it was made while the first spouse was living and the adultery was committed while the second was living, or vice versa; or if, made previously, it was retracted before the adultery and this was notified to the accomplice, and not repeated after it; - on the contrary, if it was retracted after the adultery, the impediment which has already been contracted does not cease.

1. There are those who require the promise to be injurious to matrimony both materially and formally. Hence if an adulterer with the wife's sister should afterward only promise matrimony to her before the wife herself while dying, and indeed with the wife consenting and entreating it in favor of the offspring born, the impediment would not be present. Thus De Smet, o. c., n. 659, and Marc, Th. M. II, n. 2033. But Prummer, Th. M. III, n. 824, does not admit this, because the consent of the spouses does not take away the injury inflicted upon matrimony.

Canon VII. It pleased the council that if the wives of any clerics whatever have sinned, lest perhaps they have more license for sinning, their husbands receive this power, apart from killing (that is, with killing excepted), of guarding and binding them in their own house, compelling them to salutary fasts, not deadly ones ... But with those wives themselves who have sinned, let them not take food, unless perhaps, after penance has been done, they return to the fear of God.

Decree I. Since through the calamity of war ... men were carried off into captivity, and their women ... who thought their own husbands either killed or believed they would never be freed from domination, and, solitude compelling them, passed over to marriage with others, and since now ... some of those who were thought to have perished have returned, your charity deservedly seems to be uncertain what ought to be ordained by us concerning the women who have been joined to other men. But because we know it written that "a woman is joined to a man by God" (Prov. XIX, 14), and again we have recognized the precept, that "what God has joined, let not man separate," it is necessary that we believe the covenants of legitimate nuptials are to be restored, and, the evils which hostility brought in being removed, that to each one that which he legitimately had be reformed; and it must be procured with every zeal that each one receive what is his own.

Canon V. If any woman has plotted the death of her husband with other men, and that husband himself, by defending himself, has killed that man, and can prove this, that man can dismiss that wife, and, if he wishes, let him accept another. But that plotter, subjected to penance, shall remain without hope of marriage.

Chapter I. (The same, to the Abbot of Saint Alban). It is held from the canons that no one be united in marriage to the one whom he had previously polluted by adultery, and especially to that one to whom he had given faith while his wife was living, or who plotted for the death of the wife.

Crime, insofar as it is a diriment impediment of Marriage, is threefold, namely: 1°. adultery; 2°. both at once, provided certain conditions concur which we set beneath; 3°. homicide of the spouse, provided, etc.

They cannot validly contract marriage:

1°. Those who, while the same legitimate marriage endures, have consummated adultery between themselves and have given faith to each other mutually concerning marriage to be entered, or have attempted marriage itself, even through a civil act only;

2°. Those who, while likewise the same legitimate marriage endures, have consummated adultery between themselves, and one of them has perpetrated conjugicide;

3°. Those who by mutual physical or moral work, even without adultery, have brought death upon the spouse (Can. 1075).

For the impediment to be incurred from this head, it is required:

1°. That the adultery be true, formal, consummated. And first indeed true, that is, that at least one or the other fornicator be joined in Marriage not merely putative, but legitimate and valid, even if perhaps not consummated. Then formal, and indeed on each side, that is, that each know that one or the other is married. For the impediment arises on account of injury inflicted on one and the same marriage. Finally consummated, with perfect carnal intercourse intervening.

2°. That there be present a promise of future Marriage to be contracted, namely after the death of the spouse. This promise, although it is not restricted to any time, but can precede, accompany, or follow adultery, provided that, if it preceded, it was not retracted before the adultery, nevertheless must be true, absolute, and mutually given to each other, as is clear from the clear declaration of the canon. But if a promise of future Marriage is not present, but the accomplices have attempted it in the present in any way, even clandestinely, this suffices for inducing the impediment.

3°. That both the promise of Marriage and the adultery take place while the prior spouse is living, or while the same Marriage stands. - Thus from many places of canon law, for example, from cap. Si quis vivente 5, caus. 31, q. 1. Likewise from cap. Propositum 1, de eo qui duxit, etc. Cf. S. Alphonsus, nn. 1036 and following. - Ballerini, notes (a), (b), (c), etc., pp. 796 and 797.

XVI. QUESTION VII. What is the impediment of crime? ANSWER. It is adultery with a promise of future matrimony after the death of the other spouse; or it is the homicide of a spouse with adultery; or the homicide of either spouse perpetrated by the consent of an accomplice without adultery; or adultery with a matrimony of the present contracted with the accomplice. And so this crime is fourfold: 1. Homicide alone; 2. Homicide with adultery; 3. Adultery with a promise of future matrimony; 4. Adultery with matrimony.

Titius, an Anglican, obtained a divorce from Titia, his wife who was likewise an Anglican, because of her adultery, and married Bertha, by whom he has children. Titia having recently died, Titius and Bertha are converted to the faith and ask Julius, a Catholic priest, to receive them into the Church; but, knowing well that the Catholic Church does not admit divorce, they ask him at the same time to bless their marriage. Julius, however, asks what he must do. Hence it is asked:

1. Are heretics subject to the diriment impediments of marriage?

2. How are heretics to be reconciled with the Church?

3. What is to be said of the case?

1. Are heretics subject to the diriment impediments of marriage?, v -

Yes, unless they have been specially excepted by competent authority as is the case with the impediment of clandestinity.¹

1 Manual of Moral Theology, vol. ii, 286.

2. This question was answered above, p. 287.

3. The case. Titius, an Anglican, divorced his wife Titia, who was also an Anglican, and married Bertha. We must presume that Titius and Titia were baptized, and so subject to the diriment impediments of the Church. The divorce was null and void, and so in attempting to marry Bertha during the lifetime of Titia and consummating the attempted marriage, he contracted with her the impediment of crime. Most probably they are in ignorance of this; however in foro externo it is not safe to follow the opinion that ignorance excuses from this impediment. Julius should leave them in good faith, at any rate till he has obtained the requisite dispensation, if Titius and Bertha think that they are married; otherwise they should not use marriage rights. After obtaining the dispensation from the impediment of crime and from banns, they should be married privately before the parish priest and two witnesses.¹

1 Gasparri, De Matrim., vol. i, 649.

Applied correction from Woywod's opening insert: Case I.—The opinion of some authors that ignorance excuses from incurring an impediment like that of crime is not tenable any longer, for the New Code in Canon 16 states: "No ignorance of invalidating laws or such as inhabilitate a person for certain actions shall excuse from the law, unless it is thus stated explicitly in the Code."

Mr. B., a baptized non-Catholic, was validly married to a baptized lady, also a non-Catholic. As far as can be learned the marriage was in every respect a valid though an unhappy one. For a time they lived together, but owing to a disparity of temperament, together with other causes, they finally drifted apart. Some years after this, when Mrs. B. had fallen into a decline, Mr. B. became acquainted with a Catholic woman, who knew that he had a lawful wife living, but under a promise that he would marry her as soon as his lawful wife should die, she consented to live with him as man and wife. After cohabiting thus for a number of years, Mrs. B., the lawful wife, dies. The Catholic woman then accompanies Mr. B. to a Catholic priest and desires him to perform the marriage ceremony for them. She explains to him the origin and reasons of her relations with Mr. B., that she was never married to him, because his first wife was living, but still had consented to live with him because he promised to marry her on the death of his wife. It is quite evident that the Catholic woman knows nothing about the impedimentum criminis, much less the non-Catholic Mr. B. There exists a bona fide ignorance on the part of both concerning any such impediment. Did this ignorance exempt them from contracting this particular impediment? I am aware that ignorance does not excuse one from incurring the other impediments to marriage, but as there is some controversy about this particular impedimentum criminis, what ought a priest to do, practically, in a case like this? The parties have no children, but are looked upon by the public as lawful husband and wife and it would be a hardship to separate them.

Answer: If possible get a dispensation super impedimento criminis adulterii and marry them. It is not certain that a dispensation is necessary, because it is not certain whether, on account of their ignorance of this particular impediment, they contracted it or not.

The controversy about this particular impediment is famous in theology. This impediment first appears in the Corpus Juris, in the IV book of the Decretals of Pope Gregory IX, A.D. 1236. Under title 7th, ch. 8, we read:

“If a man, while his wife is living, has promised another woman on pledged faith that he will marry her, or has contracted with her in fact, if neither before nor afterward (while his lawful wife survived) he knew that woman carnally: although penance is to be imposed upon both of them because they have sinned gravely in this, nevertheless the marriage which he contracted with her after his wife’s death is not to be dissolved. But it must not be tolerated if, either before or afterward while his wife lived, he had defiled that woman by adultery.”

The reason for this impediment at this time seems to have been the relaxation of the rigor of the ancient penitential discipline. Under the ancient discipline, those guilty of adultery under a promise of marriage, could not get married at all, neither with the accomplice, nor with any one else. But when this discipline was relaxed, there arose the need of some such law as the impedimentum criminis to safeguard society from a particular kind of sin.

Now the question arises: what was the primary object of the Pope in creating this impediment? Did he wish it principally to act as a punishment for those who committed adultery with a promise of marriage? Or did he create it, because of the natural indecency there would be in allowing such persons to marry? On this question hinges the whole controversy as to whether ignorance excuses from contracting this impediment. If the primary purpose of the impediment was to punish those who committed this crime by invalidating their subsequent marriage, then ignorance of the existence of the impediment would excuse one from incurring it, because where it was not known, it could not act as a deterrent and therefore fails of its principal object. But if the first purpose of the impediment was not to punish the delinquents, but to forbid unions that were wholly against all sense of Christian decency, then, of course, ignorance did not save one from the disability of the impediment, any more than that ignorance would excuse one from incurring the impediment of consanguinity or any other of the diriment impediments to marriage. This is precisely where the theologians and canonists divide. They can not agree as to the primary nature of the impediment of crime. Some authors of eminent name like Ballerini, D’Annibale, Navarrus, etc., etc., claim that this impediment was intended primarily as a punishment and a deterrent, and therefore that ignorance of its existence exempts from it. Others of equal fame as theologians and canonists, like Schmalzgruber, Reiffenstuhl, Sporer, Diana, etc., maintain that ignorance does not exempt from it, because its first purpose was not to punish the delinquents, but to forbid marriages that shocked the Christian sense of decency.

When doctors disagree, who shall decide?

Berardi, who is a very practical man, and is held in high esteem in Rome, has this to say on the subject:

“Therefore I greatly doubt the probability of the former opinion (ignorance excuses); and I judge that in practice, whether the impediment was known or not, a dispensation ought to be sought.” (Praxis Confess. n. 840.)

Lehmkuhl (n. 770) holds that the primary object of the impediment is the punishment of the delinquents, and that if they are already married, although invalidly, still to force them to separate would be a “poena gravissima et extraordinaria,’ and continues: “Therefore, at least after the marriage has been contracted, the opinion teaching that those who are ignorant do not incur this penalty must certainly be held probable . . . I hold it probable in practice that the impediment is absent, provided neither accomplice knew the ecclesiastical law; although I recommend, especially before the nuptials, that a dispensation be sought.” (. c.)

Hence we conclude that a dispensation should be procured, super impedimento criminis adulterii, before performing the marriage ceremony for Mr. B. and the Catholic woman. If for any reason it be impossible to get the dispensation, the marriage may be safely performed, since both were ignorant of the impediment and more than likely therefore did not incur it.

Titius and Bertha, both Catholics, were validly married and lived together for some years. Then Bertha divorced Titius and contracted a civil marriage with Sempronius, a non-Catholic. Sometime after this Titius, the Catholic husband, died. Now Bertha desires to have her marriage to Sempronius, the non-Catholic, sanctioned by the Church. What is necessary to have this done?

Answer.—The principal bar to the marriage of Bertha with Sempronius is the diriment impediment of crime. The Church has made or decreed that certain crimes shall act as a nullifying impediment to the subsequent marriage of those who commit them. These crimes are:

1. Murder of a married person, when the wife or husband has brought it about by conspiring with another man or woman;

2. Adultery by husband or wife with a third person, accompanied by a promise to marry that person after the death of the other spouse;

3. Murder and adultery together, as when a man and a woman commit adultery and one of them murders his consort in order to marry his accomplice in adultery.

The reason of this law of the Church is to remove, as far as possible, the motive of such crimes. The Church wishes to punish those who inflict this injury on the innocent husband or wife, by making it impossible for them to marry one another. The Church thus protects the innocent consort by destroying the hope of future marriage of a guilty husband or wife with a third person, which hope might impel them to commit murder or adultery. This law is older even than the Catholic Church, for it goes back to the time of the Romans. The "lex Julia" forbade the marriage of adulterers, even though the first marriage were subsequently dissolved, and even though there had been no promise of a future marriage between the adulterers, and no murder had been committed with marriage in view.

The early Church took over this legislation of the Romans and Pope St. Leo decreed: "Nullus ducat in matrimonium, quam prius polluit adulterio" and these words of St. Leo have become the rubric or title of the decrees or the canons against the marriage of adulterers or murderers, as contained in the corpus juris canonici.

At first there was a general prohibition, nullifying future marriages of adulterers or murderers conspiring in the death of husband or wife. Gradually, however, certain restrictions of this general prohibition were introduced into the legislation of the Church. It became necessary that a promise of marriage should accompany the adultery and conspiracy should characterize the murder, unless both adultery and murder were involved in the same case. This impediment is one of the oldest, therefore, of all the diriment impediments to marriage created by the Church. And the reasons that first impelled the Church to make these crimes a diriment impediment to marriage are still so powerful in the world to induce the Church to continue them in her legislation concerning the Sacrament of Matrimony.

The crime of adultery, in order that it act as a diriment impediment to the marriage of the persons guilty of it, must be coupled with a promise of marriage.

"Although it is contained in the canons that no one should join in marriage a woman whom he had previously defiled by adultery, and especially one to whom he had pledged his faith while his wife was living, or one who plotted the death of his wife." (Alexander III., cap. Laudabilem i, de convers. infid.)

Adultery alone, or a promise of marriage alone, does not constitute the impediment; the adultery must be coupled with the promise of marriage before the death of the innocent consort. It is immaterial whether the promise of marriage precede or follow the act of adultery. The act of adultery, of which there is question here, is adultery in the eyes of the Church; that is, at least one of the persons guilty of it must be at the time united in valid wedlock in the eyes of the Church. If the marriage be only valid in the eyes of the civil law, but invalid according to the Canon Law, no impediment arises, because there is no adultery, but only fornication. Both parties committing adultery must be cognizant of the adulterous nature of the act. In other words, it is necessary that the adultery be formal on both sides. If one of the guilty parties is ignorant that the other one is a married person, then there is no formal adultery on that person's part, and therefore no impediment to their future marriage after the death of husband or wife. It must be noted, in regard to the promise of marriage that is required to create a diriment impediment, that the promise to marry after the death of the innocent consort is the only marriage promise contemplated in the law. If one of the guilty parties promised the other to marry them as soon as they would obtain a civil divorce, no impediment arises, because there is no promise to marry post mortem conjugis. cf. Schmalzgruber, IV, 7, n. 9.

If, instead of promising to marry, the parties guilty of the adultery actually get married, either before a civil magistrate or a non-Catholic minister of worship, then the matrimonium attentatum, coupled with a previous or subsequent cohabitation, creates the diriment impediment. This has always been the law. It is immaterial whether the civil marriage precede the adultery or is subsequent to it. The Congr. de Prop. Fide, Jan. 14th, 1844, decreed:

"But to contract or attempt marriage in the present is to enter upon nuptials, certainly invalidly, by words of present consent or by some other sign that includes a promise of consent; it makes no difference, however, whether the adultery preceded the attempted marriage or followed it. For the taking of a concubine—or rather, an adulteress—to be regarded in a case as a true attempted marriage, it is necessary that it include a promise of marriage, whether in the present or in the future"

It is necessary, however, that both the civil marriage and the cohabitation or adultery should take place before the death of the innocent consort, ante mortem alterius conjugis. If two persons, one or both of whom are already validly married to other persons, attempt to get married civilly and, failing in the attempt, give up the idea of marriage and afterwards commit adultery, there will beno diriment impediment on this score to their future marriage. It is required that both parties to the second marriage have knowledge of the previous marriage. It may be that at the time of the second marriage the woman to it did not know that the man she was marrying had a wife living, although divorced. In that case, if she continues the relation after learning of the divorced wife, she contracts the impediment and may not marry validly the man with whom she is living, even after the divorced wife's death.

It follows, therefore, that all those persons, who having been validly married, afterwards obtain a civil divorce and enter into new -marriage arrangements, are barred from ever contracting a valid marriage between them on account of the diriment impediment criminis adulterii. It is hardly necessary to add that one or both parties to the adultery must be validly baptized, otherwise no impediment is incurred, as the impediment of crime is of ecclesiastical origin. It suffices that one of the parties be baptized, for the baptized person communicates his inability to marry to the unbaptized person, propter unitatem contractus.

Bertha and Sempronius cannot be married in the Church, unless a dispensation from the diriment impediment of the crime of adultery be first procured. If the civil marriage contracted by Bertha and Sempronius was before a non-Catholic minister, Bertha is excommunicate and requires a second dispensation. The same holds good if the civil marriage was contracted before a justice of the peace. Thirdly, if Sempronius was never validly baptized, a dispensation super impedimento disparitatis cultus is necessary; otherwise a dispensation from mixed religion will be necessary to make the marriage licit.

Case.—Cassandra married some ten years ago. Her husband became a confirmed drunkard and did not support her. While in his cups he was very cruel to her, so she left him, and has not seen him for the past five years. She is now keeping house for her brother. Philos boards with her brother and is very much attached to the married lady. Recently he found that his affection was reciprocated and straightway he promised to marry Cassandra, whenever her husband’s death would make her free to accept him. There has not been any question of violation of the obligations contracted by her marriage. She has just learned of the death of her husband who was accidentally drowned while bathing in the ocean.

Question.—Is Cassandra now free to marry Philos?

Solution.—The question asked is whether the impediment of crime has existence in the case quoted. Since she did not rid herself of her husband by conspiring to effect his death, which was brought about by circumstances over which she had no control, the solution of the case is greatly simplified. Again the absence of the factor of adultery removes all complication. We have to deal with a promise of marriage made during the existence of a valid marriage, which promise is conditioned by the continuance of said valid marriage. It looks as if the promise was a mere intention, externally expressed to marry when the law of God would permit both parties to contract a valid marriage. If so, no impediment of crime could possibly exist. Even if there existed more than an intention, a real, bona fide promise to marry when the existing impediment would no longer interfere with the contracting of a valid union before God, it is certain that no impediment was begotten by the promise. A promise of marriage, capable of begetting a diriment impediment of crime, must be materially and formally injurious to the welfare of the already existing union. In the absence of adultery and of all desire of conjugicide it can not be claimed that the marriage of Cassandra with her worthless spouse has suffered any material or formal injury. Hence the reasons that urged the Church to institute this impediment have no bearing on this case. The marriage with Philos would not of itself involve any scandal, and the promise by no means endangered the security and well being of the lady’s prior union. Evidently there is no reason for punishment, which punishment in the decree of the Church takes the form of an impediment dirimating the new marriage when contracted without the proper dispensation. Briefly, then, we hold that there is no reason why these parties should not be validly married. Their marriage would serve to remove any proximate danger of sin arising from their living under the same roof, and likewise do away with a possible occasion of scandal springing from the same fact. (Noldin, Vol. III, n. 611 c.).

BOTH Canon Law and Moral Theology give rules for the leading of a good life and attaining salvation. The two sciences depend on each other and assist each other. Antecedently to the commission of crime they both seek to prevent it. But consequently to crime being committed a slight divergence of aim sometimes makes its appearance. Canon Law seeks to discover the crime and bring it home to the criminal with a view to his punishment, the restoration of public order, and the prevention of the repetition of the crime for the public good. Moral Theology seeks to bring the culprit to repentance, to forgive the sin, and to put the sinner in the way of leading a good life for the future. Occasionally the public interest conflicts with the private good of the delinquent, and because there is a difference of aim, a difference of opinion will begin to appear between the Canonist and the Moralist. If this tendency is recognized by men of broad views, no great harm will follow; but if it is not recognized, there may be an occasion of quarrelling. Sometimes bishops and even the authorities in Rome are blamed for action which seems harsh to the individual, while in reality the public good left them no choice in the matter.

These general principles are important and I will try to illustrate them from the diriment impediment of marriage which is called " crime," and then inquire whether any change has been made in the matter by the new Code of Canon Law.

In Canon 1075 of the new Code we read:

" Those cannot contract marriage validly who, during the existence of the same lawful marriage have committed adultery with each other and promised each other to marry, or have attempted marriage even though only civil marriage." The object of this law is thus described by Cardinal Gasparri in his book on Marriage:

" The Church has made the guilty parties incapable of marrying each other as a penalty for committing the crime, as a protection for the innocent spouse, and because such a marriage would be publicly scandalous and harmful. Doctors disagree as to which was the primary, which the secondary object of the Church; we are of opinion that the Church intended and obtained all those objects at one and the same time by this incapacity. What some say, viz., that this impediment is rather an incapacity than a penalty, or vice versa, is without meaning if the matter be examined more closely; for this impediment, like all the other diriment impediments, is an incapacity purely and simply; and yet the Church made it both as a penalty for crime and on account of the other objects indicated above, and so in truth this incapacity is a penalty."*

* De matrimonio, n. 642.

A difference between the canonist's and the moral theologian's point of view emerges in the question whether ignorance of this impediment of crime excuses guilty parties from incurring it. Such differences are frequently referred to as differences between the external and the internal forum.

Cardinal Gasparri tells us that the question whether ignorance excuses guilty parties from contracting this impediment does not concern the external forum, but only the internal.* Wernz agrees. He writes:

" Ignorance cannot successfully be alleged in the external forum of the Church as a cause excusing the guilty from this annulling law. For the ecclesiastical laws by which the impediment of crime has been made never mention such an excuse. The rule of law is—Ignorance of fact but not ignorance of law excuses (R. J. 13 in VI°.). Besides, the Datary, the Penitentiary, and the Bishops' Courts never take into consideration knowledge or ignorance of this impediment, but in particular cases grant their dispensations absolutely, and not as a measure of precaution in the impediment of crime. Finally, although the impediment of crime secondarily has the character of an extraordinary vindictive penalty, yet principally it is a sort of condition or an incapacity on account of the unbecomingness inherent in such a marriage; but ignorance does not excuse from laws by which incapacity is established on account of public

* De matrimonio, n. 657.

indecency, although it may excuse from a medicinal penalty, and from an extraordinary vindictive penalty alone annexed to crime."* It is then only a question of the internal forum and the distinction illustrates the difference between the points of view of the canonist and of the moral theologian. But even with regard to the forum internum Doctors do not agree in their answers to the question. De Angelis, Marc, Gury, Giovine, Feije, Schmalzgrüber, Reiffenstuel, Sporer, Suarez, Diana, and most other authorities on the subject are quoted by Cardinal Gasparri as maintaining that ignorance of the impediment of crime does not excuse the guilty from incurring it. On the other hand, Ballerini, D'Annibale, Lehmkuhl, Krimer, Navarrus, Pichler, and others maintain the opposite opinion. Cardinal Gasparri himself before the issue of the new Code thought that the latter opinion was both extrinsically and intrinsically probable. But although the impediment was doubtful and could not be urged, yet it was better to ask for a dispensation or a sanatio in radice as a precautionary measure.†

It will be instructive to examine how the moralists established their probable opinion, and we cannot take a better example than the method followed by Ballerini. He first of all shows that this impediment is a penalty, and then gives authority for holding that ignorance even of a penalty alone excuses from incurring it even in the case of an annulling law. Moreover, the

* Jus Decretalium, IV., n. 522.

† De matrimonio, n. 658.

annulling of marriage in punishment of crime is not an ordinary, but an extraordinary penalty, such as no one would expect to be assigned in punishment of crime. But it was a common opinion that ignorance excused from such extraordinary penalties. If some theologians escaped this conclusion by maintaining that the impediment of crime was not a mere penalty, but that its principal object was to make married couples safer, Ballerini refutes them by quoting other theologians, such as Haunoldus, who maintained that it was a pure penalty. In such fashion do the supporters of the opposite opinion destroy each other's arguments. Some of them, says Ballerini, defended their opinion because, otherwise, they would be compelled to admit that ignorance of irregularity arising from crime excuses the guilty from incurring it, and this they were not prepared to admit. But, says Ballerini, it is a probable opinion that ignorance excuses from such an irregularity, and he quotes St. Alphonsus in proof of it. Some of the theologians on the other side defend their opinion by saying that the impediment of crime is rather an incapacity produced by law than a penalty. Ballerini answers that it makes no difference, for the same conditions are required for incurring this incapacity as for incurring a penalty, and what excuses from a penalty excuses from such an incapacity.

The gist of the argument may be put briefly thus: The impediment of crime is a penalty and an extraordinary penalty inflicted by ecclesiastical law. But ignorance excuses from such a penalty. Therefore ignorance excuses from incurring the impediment of crime. We shall presently see that whatever force there is in this argument has been taken out of it by several canons of the new Code. Even apart from the new Code the argument has its weak points. Granting that the impediment of crime is a penalty inflicted on the guilty parties, it is also something more. It is a measure intended to safeguard married life for the common good, and it annuls marriage because such a marriage would be a disgrace to public morality. Although there are good reasons for saying that ignorance should excuse from some penalties, for if the penalty is not known it cannot exercise its deterrent effect, yet it belongs to positive law to determine whether ignorance does excuse or not, and from what penalties. Especially if the penalty is an extraordinary one, such as no one would expect to be annexed to the crime, is there reason for saying that ignorance of it should excuse from incurring it. And yet, as Suarez drily remarks, we should be careful to limit this principle, as it certainly does not apply to the eternity of the punishments of hell in favour of one who is ignorant of that eternity. And after all it is not for the culprit to assess his own punishment. That is the function of the legislator and the judge. It is generally admitted, even by those theologians who use them, that these arguments do not establish the certainty of the opinion that ignorance of it excuses from the impediment of crime.* They only make the opinion more or less probable so as to permit confessors who learn of the impediment from confession to leave penitents in good faith. But most authors taught that it was advisable to procure a dispensation as a precautionary measure. Unless I am mistaken, the new Code has deprived the opinion of whatever degree of probability it possessed.

* Ballerini-Palmieri, Opus morale, VI., n. 1044.

In Canon 2229 rules are given which tell us how far and when ignorance excuses from a penalty inflicted by ecclesiastical law.

Canon 2229. " Affected ignorance, whether of law or of a penalty, excuses from no penalties latæ sententiæ. Ignorance of a law or even of a penalty alone excuses from no penalty latæ sententiæ if it were crass or supine; if it were not crass or supine it excuses from medicinal but not from vindictive penalties latæ sententiæ"

This canon settles the controversy as to whether ignorance of a penalty alone excuses a delinquent from incurring it. It also tells us that ignorance does not excuse from vindictive penalties. The impediment of crime is certainly a vindictive penalty latæ sententiæ, and so we must conclude that ignorance certainly does not excuse from it. Suarez, indeed, is quoted by Ballerini as maintaining that the impediment of crime is not a mere penalty, but that it is also "medicinal (so to say), inasmuch as it removes occasions of committing similar crimes." However, it is clear that Suarez here uses medicinal in a special sense defined by him in the words quoted, and not in the sense in which censures are called medicinal penalties in the Code. Censures are medicinal penalties in the sense that they tend to correct and overcome the contumacy of a delinquent. The Code does not adopt the opinion that ignorance of an extraordinary penalty excuses one from incurring it. But it expressly lays down the new rule that ignorance does not excuse from vindictive penalties like the impediment of crime.

Still more clear is Canon 16: "No ignorance of annulling or incapacitating laws excuses from them unless the contrary is expressly stated." And Canon 988: " Ignorance of irregularities, whether arising from crime or from defect and ignorance of impediments, does not excuse from them."

I think then that we may conclude that the new Code destroys all probability which the opinion may previously have had that ignorance excuses from the impediment of crime.