THE CASUIST New Casus Conscientiae of General Import, Discussed and Solved Vol. II I. IMPEDIMENTUM CRIMINIS 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: "Si quis uxore vivente fide data promisit aliam se ducturum, vel cum ipsa de facto contraxit, si nec ante nec post (legitima ejus superstite) cognovit eandem: quamvis utrique ipsorum pro eo, quod in hoc graviter deliquerint, sit poenitentia injungenda; non est tamen matrimonium, quod cum ea contraxit, post uxoris obitum dirimendum. Ceterum tolerari non debet si prius vel postea dum vixerit uror ipsius, illam adulterio polluisset." 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: "De probabilitate itaque prioris sententiae (ignorance excuses) valde dubito; et censeo quod in praxi, sive impedimentum fuerit cognitum, sive non, dispensatio peti debeat." (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: "Quare, saltem post contractum matrimonium, omnino pro probabili haberi debet sententia docens, ignorantes hanc poenam non inprobabile habeo practice, impedimentum non adesse dummodo neuter complex legem ecclesiasticam sciverit: licet suadeam, maxime ante nuptias, ut petatur dispensatio." (1. c.) currere 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. II. THE CASE OF A CATHOLIC LAWYER Titius is a conscientious Catholic and a lawyer of considerable ability. In the practice of his profession, he is often called upon to defend persons who are being prosecuted in the courts for some crime. Now it sometimes happens that Titius knows, even before the case comes to trial, that his client is guilty and that he deserves to be punished; nevertheless Titius accepts the conduct of the case, because he has a special aptitude for such cases, and because he receives larger fees for them, than for the conduct of civil cases. But on the other hand, he has serious scruples about defending such persons, because he thinks it is against the best interests of the community, tending to breed contempt for the law, and affording a more or less sure escape from the consequences of its transgression. Question. How is he to be advised? Answer. "In the interests of the proper administration of justice," says William Lecky, "it is of the utmost importance that every cause, however defective, and every criminal, however bad, should be fully defended, and it is therefore indispensable that there should be a class of men entrusted with this duty. It is the business of the judge and of the jury to decide on the merits of the case, but in order that they should discharge this function it is necessary that the arguments on both sides should be laid before them in the strongest form. The clear interest of society requires this, and a standard of professional honor and etiquette is formed for the purpose of regulating the action of the advocate. Misstatements of facts or of law; misquotations of documents; strong expressions of personal opinion, and some other devices by which verdicts may be won, are condemned; there are cases which an honorable lawyer will not |