Doubt V: On incest

INCEST is a congress committed against consanguinity, affinity, or compaternity. So D. Bonavent. p. p. Centil. sect. 24. Or: It is the union by which the bond of consanguinity, or affinity, or compaternity is corrupted, as D. Bonavent. lib. 3. Compend. cap. 21. says. It is a sin distinct from fornication, as in 1 Cor. 5: Fornication is heard among you, such as is not even among the Gentiles, so that one has his father's wife.

THE REASON is, because beyond the deformity of fornication it has another against the honor owed to parents, whence within the forbidden degrees arises an impediment of marriage; and it is a greater sin with consanguineous relations than with affines, because with the former there is a greater conjunction, as D. Bonavent. in 4. dist. 41. dub. 3. litterali. notes.

THE FORBIDDEN degrees are four; and indeed affinity is contracted by lawful union up to the fourth degree, but by illicit union up to the second, as is found in the Council of Trent sess. 24. cap. 4. de reform. matrimonii; but beyond these degrees there will be no incest.

The degrees, however, are numbered by remove from the stock, this aside. Thus sisters and brothers are in the first degree; sons of brothers in the second, and so of the rest; but these things are treated in the Tract. de Matrimonio.

IT IS CERTAIN, however, that the first degree of ascendants and descendants is forbidden by natural law for marriage, as between parents and children; for it has turpitude, as is said in Levit. 18. As to the others, there are various opinions, of which there will be discussion when I treat of Matrimony.

MANY say that all degrees of consanguinity are distinct in species. So Nauar. man. cap. 16. Valent. tract. 3. disp. 9. quaest. 3. puncto 3.

OTHERS will that all degrees and incests are of the same species. Diana de Circumst. resol. 31. part. 1. and part. 4. resol. 234. Caietan. 2. 2. quaest. 154. art. 9. Bonacina de matrim. quaest. 4. puncto 16.

OTHERS hold that the degrees of consanguinity differ in species from the degrees of affinity, of legal and of spiritual cognation; but that the degrees of consanguinity are not distinguished among themselves. The same they say of the degrees of affinity among themselves, Lessius lib. 4. cap. 3. dub. 11. num. 79. Azor 3. part. lib. 3. cap. 9. quaestio 1. Filliucius tract. 30. cap. 5. num. 96. Bassaeus num. 3.

However it may be, the degrees of incest are to be specified, as Sayrus lib. 8. cap. 4. says, with others there.

YOU WILL ASK, whether with the consanguinean of one's wife in a ratified marriage there is incest.

THOSE ASSERT who place affinity from ratified marriage; as D. Thom. 4. dist. 41. Sot. there quaest. 1. art. 2. Sylvester V. matrim. 8. quaest. 14.

D. Bonaventure DENIES, 4. dist. 41. quaest. 1. Tolet. lib. 7. cap. 11. Ledesma de matrim. quaest. 55. art. 4. Conrad. quaest. 151. Henriquez lib. 2. de matr. cap. 16. Sanchez lib. 7. disp. 64. Fagundez in 6. praecep. lib. 6. cap. 6. It is proved by D. Bonaventure from 35. quaest. 3., where it is decreed that affinity requires copulation and emission. Nay, they require the emission of both, Sanchez lib. 7. disp. 83. Praeposit. 3. part. de matrim. disp. 9. n. 81. Diana 4. part. tract. 2. resol. 43. and others apud Bassaeum num. 6. In the external forum, however, copulation is presumed to have taken place, Sanchez disp. 15. lib. 7.

¶ FROM ratified marriage, however, there arises nonetheless the perpetual impediment of public honesty, cap. fraternitatis, dist. 34. cap. 7. That between confessor and penitent there is no incest, Filliucius tract. 30. numero 105. Sa V. Confess. 25. Caspens. tom. 1. tract. de pecc. dub. 2. num. 56. Diana part. 2. tract. 5. misc. resol. 11. Azor 3. part. lib. 3. cap. 9. quaesito 5. Bonacina loco cit. num. 89. Caramuel num. 1015. Sancius select. disp. 11. Rodriquez tom. 2. qq. reg. quaest. 27. art. 1. 2. Naldus V. confessar. num. 26. teach.

OTHERS, however, apud Bassaeum num. 5. assert [it]. See Diana p. p. De Circumst. resol. 12. and 56., where others assert it. Certainly there is some aggravating circumstance, for by Canon law it is punished, apud D. Bonaventure in Confessionali, cap. 3. partic. 3. If, however, he used confession to solicit, let him be denounced to the Holy Inquisition. See Diana 4. part. tract. 5. throughout.

¶ But if she was baptized by him, it is incest of spiritual cognation, as all confess apud Bassaeum, and the S. Doctor indicates loco cit.

FROM the union of sodomy in the first and second degree incest arises. So Azor part. 3. lib. 3. cap. 18. quaesito 5. Graff. de arbitr. cons. lib. 2. cap. 34. and commonly apud Bassaeum num. 1.

It is not, however, a reserved case by the force of incest. So Diana part. 3. tract. 4. resol. 101. and part. 1. tract. 7. resol. 31. and part. 7. tract. 12. resol. 18.

NAY, Sanchez denies incest between these, lib. 7. de matr. disp. 67. num. 8. Sancius sel. disp. 40. num. 21. Similarly many admit no affinity from this source. See Diana part. 7. tract. 12. resol. 17.

INCEST is of the mixed forum, and so it is punished by the laws of both fora. So the DD. apud Fagundez num. 36.

By Canon law, besides the penalty of impediments to marriage, those who knowingly contract incestuous marriages in the forbidden degrees are excommunicated ipso facto, Clem. 1. de consang. et affinit. An incestuous Clerk is by Canon law to be deposed, as Covarruvias notes, 4. decretal. Julius Clar. §. Incestus, Farinacius tom. 4. quaest. 149. But he who is copulated with a stepdaughter or his wife's sister is to be separated, 32. quaest. 7. from the Council of Mainz apud D. Bonavent in Confess. cap. 3. part. 45.

By CIVIL law they are deported, or cast into exile to the Islands, Texts in leg. si quis viduam, ff. de quaest.; and because the penalty of deportation is not in use at this time, they say this penalty is discretionary, Bald. consil. 429. ad finem leg. 5. Iul. Clar. lib. 5. sent. §. Incestus, Menoch. de arbitr. qq. lib. 3. casu 501.

If, however, incest is joined with adultery, he will incur the penalty of death which is enacted for adulterers in civil law. So the Glossa in leg. si adulterium, ff. ad leg. Iuliam, de adult. Menoch. casu 502. Clarus num. 3. supra, and others apud them.

By CIVIL law also the goods of those who contract incestuous marriages are published, Auth. de incestuosis nupt. A declaration of the judge, however, is required, as Sanchez warns lib. 7. de matrim. disp. 9. Fagundez loco cit. num. 42.