147. Consanguinity

1. Aloisius is the son of Caius and Caia from illicit intercourse. Aloisia is the daughter of Sempronius and Sempronia from likewise illicit intercourse. Caius and Sempronia, Sempronius and Caia, after the aforesaid children were born, entered marriage between themselves because of the exhortation of the parish priest, who often warned them to cease from sin and to establish an upright life. But after these marriages had been celebrated, Aloisius wishes to take Aloisia as wife. But the parish priest refuses because of the impediment of consanguinity.

It is asked: What is to be said to the case?

R. The reverend parish priest is deceived in the proposed case. For no consanguinity is present between Aloisius and Aloisia. And first, there can be no question of affinity, since Aloisius had no carnal intercourse with the blood-relatives of Aloisia, nor, vice versa, did Aloisia have carnal intercourse with the blood-relatives of Aloisius; for nothing is said about this in the exposition of the case. Now as to consanguinity, that this is absent is clear from the fact that Aloisius and Aloisia do not have a common stock. For Aloisius is the son of Caius and Caia; and Aloisia is the daughter of Sempronius and Sempronia. - I. M. 997, 1002.

2. Ioseph, the parish priest, is called to administer the sacraments to Emmanuel, dying, who in the house of Carmela had already lived for several years, applying himself to studies of Law. Emmanuel, seized by love for Carmela, had promised marriage to her; and, this promise having been made to her, had conceived three children from her, still living. Although Carmela is of an honorable family and of equal condition with Emmanuel, who now has the age of twenty-six years, the mother of Emmanuel always opposed the marriage, the father already being deceased. Since Ioseph found Emmanuel excellently disposed, and time was pressing, given the gravity of the illness, he celebrated the marriage before witnesses. For Emmanuel and Carmela belonged to his parish. But, once the marriage had been celebrated, Emmanuel and Carmela were found to be blood-relatives in the fourth degree in equal line. Without delay the parish priest asks for and obtains a dispensation, and proceeds to Emmanuel, so that he can convalidate the marriage. With Carmela present and with the witnesses present, the parish priest addresses Emmanuel, that he renew his consent. But Emmanuel, placed in the lethargy of agony, did nothing other than turn his eyes to the parish priest and emit a sigh several times; and after four hours he died. Immediately after his death, new investigations having been made, it appeared that Emmanuel's grandfather had been the brother of Carmela's great-grandmother. But Emmanuel's mother, hearing of the death of her son and of his marriage, contends that the marriage of the son was altogether invalid, whence she vindicates for herself the rich inheritance of the son.

It is asked: 1. Whether the parish priest acted rightly by celebrating the marriage? - 2. Whether the aforesaid marriage was valid? - 3. Whether the mother of Emmanuel is bound to restore the inheritance of the son to his widow and children?

R. To the 1st. There is no doubt that the parish priest acted rightly by celebrating the marriage. Emmanuel was duly disposed, and he was bound to repair the scandal and the damage inflicted on Carmela, by taking counsel for the good reputation and honor of Carmela, as well as for the legitimacy of the children, in the best way in which it could be done. But from the very common opinion of doctors, the damage in the case cannot conveniently be repaired except by marriage. But nothing could stand in the way of this marriage. For both were consenting spontaneously, and Carmela was of an honorable family and of equal condition. Nor could the dissent of Emmanuel's mother evidently stand in the way of the validity of the marriage, nor of its liceity, since, with the circumstances of the case attended to, it is altogether irrational, and there is question of a most grave obligation of justice to be fulfilled and of scandal to be repaired. And since Emmanuel had already exceeded the twenty-fifth year of age, that consent is no longer required even by civil law. Cf. St. Alph., l. 3, n. 641 seqq.; I. M. 920.

To the 2nd. From the circumstances of the case it is clearly apparent that Emmanuel and Carmela were ignorant of the impediment and contracted the first marriage in good faith. Therefore from this head no difficulty can arise for the invalidity of the marriage. For, since Emmanuel is said to have been duly disposed and to have entered marriage in order to satisfy his own conscience, and since the man himself is not uncultivated, so that he could have been ignorant that the impediment of consanguinity renders marriage null, it must consequently be said that Emmanuel and Carmela were ignorant of their own consanguinity. And as regards Carmela, it certainly was very much in her interest not to contract a null marriage; whence it must altogether be said that she too was wholly ignorant of the impediment.

When the impediment had been discovered, the parish priest acted wholly well by asking for a dispensation, namely so that the marriage might be convalidated. But the dispensation was altogether valid in the case. For if Emmanuel's grandfather was the brother of Carmela's great-grandmother, then the common stock is Emmanuel's great-grandfather, who at the same time is Carmela's great-great-grandfather; and therefore Emmanuel and Carmela were blood-relatives in an unequal line, that is, in the fourth degree touching the third. But from the Motu Proprio Sanctissimus of St. Pius V, Aug. 26, 1566, a dispensation obtained without mention of the nearer degree cannot be marked with the defect of subreption or obreption, provided that the nearness is not of the first degree of consanguinity or affinity; nevertheless declaratory letters upon the nearer degree are to be obtained afterward, for removing the scandals of the people, who think, on account of ignorance, that a dispensation made upon only the more remote degree is not valid. Benedict XIV, C. Etsi pastoralis, Sept. 30, 1755; St. Alph., l. 6, n. 1136; I. M. 998, 1001, 1038.

But since Emmanuel spontaneously and entirely consented to the marriage the first time, it is permitted to presume that also the second time he consented to the marriage; indeed, those acts of Emmanuel, that is, the turning of the eyes toward the parish priest and the sighs several times repeated, can and must also be held as true and sufficient expressions of consent. And although, because of the gravity of the illness, Emmanuel could not have manifested his will the second time, the nullity of the marriage does not therefore certainly follow. For from the opinion of grave theologians, the party ignorant of the impediment does not necessarily have to renew consent for a valid reintegration of the marriage. The reason is that the prior consent, although it lacked its effect because of the impediment placed by positive law, nevertheless by the law of nature was valid, since it was furnished by a person capable by the law of nature toward a person capable by the law of nature of contracting. Therefore, the impediment having been removed, the prior consent suffices, which virtually perseveres. Gury, Comp. n. 896; I. M. 1050.

Lastly, in the present matter there is not question of a marriage to be contracted, or of a marriage contracted, but of a marriage already dissolved by death, and of the effects of a marriage of this sort. Now for sustaining the value of a marriage already dissolved by the death of either or both spouses, as regards the acquired rights of the widow and children, lighter proofs suffice, as the Rota has in Decis. 668, n. 21, part. 19, tom. 2, recent. These proofs certainly are not lacking in the case.

To the 3rd. It is certainly known to all that children, although born from a condemned union, that is, procreated by those between whom marriage cannot stand, are considered not spurious nor incestuous, but simply natural as regards the right of succession, if either or both of the parents were ignorant of the diriment impediment existing between them. Rota, Decis. 325, n. 7, part. 12, recent.; Decis. 376, n. 5, part. 16, recent. But as ignorance of incest makes it so that children arisen from a condemned union are considered not incestuous but natural, in exactly the same way an irrit and invalid marriage makes children legitimate no less than a true marriage, if both or one of the spouses is in good faith. Rota, Decis. 367, n. 9, 10, 18; I. M., v. 1, n. 680. But further, the marriage in the case must be held as altogether valid. For, the marriage having first been celebrated invalidly, and a dispensation of the marriage immediately obtained, Emmanuel, stirred by the parish priest to renew consent into marriage, furnished it in the best way he could, with sighs issued several times and with a turning of the eyes toward the parish priest; whence it is established that he understood those things which were being said to him by the parish priest and agreed. Besides, there is no need here of an altogether certain demonstration, since lighter proofs ought to suffice in the case. Nor indeed, as has already been said, was renewal of consent certainly necessary in the case for revalidating the marriage, given the ignorance and good faith in which the marriage had been contracted; for that ignorance and good faith does not prevent someone from truly and sincerely consenting to marriage. It is indeed understood only with difficulty how someone sincerely consents to marriage who knows that the marriage is null. Whence consent must then be renewed. But he can consent very well who, although through error, nevertheless thinks that no diriment impediment intervenes. Hence, the impediment having been removed by dispensation, that consent produces its natural effect. But the dispensation was asked for immediately after the marriage had been celebrated; whence also ceases another reason why consent should be renewed, namely the danger lest in the intervening time the prior will had been changed. Likewise, there is no question here of living spouses, who could renew consent in order to prevent grave damages which otherwise could arise; but there is question of a union already dissolved by the death of one party, for whose validity, if renewal of consent were altogether required, grave damages, on the contrary, would follow for the widow and children. Whence the Sacred Rota, in controversies of this sort, namely when there is question of a union dissolved by the death of one of the spouses, perpetually proclaims that it is valid, even if in the revalidation a new consent had by no means intervened. Decis. 455, part. 1; Decis. 687, part. 2, recent., etc. - A. S. S., v. 26, p. 407 seqq.

Since these things are so, it is clear that, since the rights of Carmela and of the children are certain in the case, Emmanuel's mother cannot retain the inheritance of the son for herself, but must restore it entire to the children of Emmanuel and to his widow.

3. Franciscus and Dominica entered civil marriage; and now they have several children. But publicly they are held as truly married. Converted to God, they approach the parish priest so that they may duly be joined by the sacrament of matrimony; but secretly, lest infamy and scandal arise. While the proper investigations are being made to the aforesaid effect, a grave doubt arises whether Franciscus and Dominica are brother and sister between themselves from the illicit intercourse of Titius and Caia, whose children Franciscus and Dominica are affirmed to be by two persons whom the parish priest interrogated.

It is asked: What is to be said to the case?

R. The office of the parish priest as regards marriages to be contracted is to investigate whether some impediment stands in the way, c. 3, de Cland. Desp., and he must report it to the bishop, and meanwhile abstain from the banns. For the matter is one which pertains to the external forum. Therefore the parish priest, in the case, cannot render a definitive judgment, but must remit the business to the bishop, with the witnesses, documents, and indications having been given.

Now the office of the Ordinary is to judge from the acts and proofs whether the impediment really exists. Here even a single witness is admitted, if he is worthy of faith, Lig. 996, 997, 998, and reputation. It is necessary that the witness depose concerning the impediment under oath and from his own knowledge, excepting impediments of kinship, in which witnesses from hearsay also are admitted. Lig. 997. But the reputation must be of that place, and not only rumor, provided that this is not weakened by the oath of the blood-relatives or of the contracting parties. Lig. 999.

Therefore those two persons who depose concerning the impediment are duly to be examined; and if they are worthy of faith and not base persons, although otherwise they are not greater than every exception, the aforesaid marriage must altogether be impeded. And although the impediment appears doubtful or only probable, the marriage cannot be permitted because of the danger of scandal which lies beneath. But if those persons deserve no faith, the marriage, on the contrary, cannot be impeded for that reason. Lig. 902; I. M. 1031.

And here it must be noted that apostolic missionaries to whom, by indult, the faculty is conceded of dispensing in degrees of consanguinity not prohibited by divine law, can in no way dispense with an infidel converted to the faith upon the impediment of the first degree of consanguinity in the transverse line, so that he can marry his own sister, with whom he had entered betrothals in infidelity; for it is not permitted to presume that the Supreme Pontiffs delegated an authority which they themselves have never used. Zitelli, de Dispens. matr., Rome, 1887, p. 55.