Chapter I — On diriment impediments

I. Fifteen impediments are numbered after Trent, contained in these verses:

Error, condition, vow, kinship, crime, Disparity of worship, force, order, bond, Honesty, affinity, if clandestine, if impotent, If the woman be seized, and not restored to a safe place.

These forbid marriages to be made, and undo them when made.

II. QUESTION I. Whether error of person dissolves matrimony? ANSWER. Error of person by the law of nature annuls the contract, because this error takes away consent, when one person is substituted for another. This error nevertheless must needs be antecedent, giving cause to the contract, as when someone intends to marry Rachel, prepared not to marry Lia. It is disputed only whether concomitant error renders matrimony null. Some affirm it, others deny it. To me the affirmative opinion is the more probable, because concomitant error, although it does not make it involuntary positively, yet makes it so negatively. Error concerning accidental qualities, whether antecedent or concomitant, according to the more probable opinion does not annul matrimony; unless the accidental quality throw back the error into the very substance of the person, or the consent given were only under the condition of such a quality — for instance: I take thee, if thou be rich, if thou be noble; otherwise I take thee not.

III. QUESTION II. What is understood by the name of condition? ANSWER. Condition betrays servitude. Those are called slaves whose master has full dominion of selling, letting, and employing them, and so forth; these are called also mancipia. This condition of servitude according to all annuls matrimony. It is disputed only whether error of servitude annuls it by civil and ecclesiastical right alone, or also by the right of nature. To me the more probable opinion is that this impediment proceeds from the law of nature itself, and has been determined by positive law. He who knows a woman to be a slave and nevertheless marries her, the matrimony is valid. It is valid also if a man ignorant that she is a slave marry her, when he himself is a slave: because the condition of each is equal.

IV. There are three cases in which the laws dispose that a slave obtains liberty through matrimony: 1. When the master bestows a dowry; 2. When a master receives a female slave as wife, or a mistress a slave; 3. When a master delivers a female slave to a free man ignorant of her servitude. In these three cases, even in the last, the matrimony is valid. For this servitude is of no moment, as though it were not.

V. In servitude the offspring follows the womb, as the laws dispose. If a man be born of a slave mother and a free father, he is a slave. On the contrary he who is begotten of a free mother and a slave father is free. Slaves of penalty are called those condemned by a judge to the galleys, to perpetual exile, or to death, which they decline by flight. Their marriages are null as regards civil effects, namely of legitimation, inheritance, and so forth. But as regards the conjugal and sacramental bond they are annulled by no ecclesiastical law. The marriages of other slaves contracted with the master unwilling are now according to all held ratified and valid.

VI. QUESTION III. What is the impediment of a vow and of sacred Order? ANSWER. A simple vow makes matrimony unlawful, not invalid. A solemn vow emitted in an approved Religion renders null a matrimony to be contracted; and likewise a simple vow emitted in the Society of Jesus after a biennium of noviceship.

VII. QUESTION IV. What is the impediment of kinship? ANSWER. Kinship is threefold: natural, spiritual, and legal. Natural is called consanguinity, as it were a unity of blood: because blood-relations descend from the same stock and are as it were conjoined in it. Spiritual kinship is that affinity which is contracted from Baptism or Confirmation, and is called also co-paternity. Legal kinship arises from legal adoption, and is called adoption.

VIII. QUESTION V. What is consanguinity, and of how many kinds is it? ANSWER. It is a bond of persons descending from the same stock, contracted by carnal propagation. It is divided into lines and degrees. A line is an ordered collection of persons descending from the same stock. It is twofold: one direct, which is the collection of those of whom one descends from another, as a son from a father, a grandson from a son, and so on to infinity. This is regarded in two ways. One is of ascendants, by which ascent is made from the begotten to the begetters, as from a son to a father, from a father to a grandfather, and so forth. The other of descendants, by which descent is made from a father to a son, from a son to a grandson, and so forth. The second line is transverse, which is the collection of those who descend from the same stock, without one deriving his origin from another, as brothers, cousins, and so forth. This is considered under a twofold aspect. One is equal, as two brothers, who descend in the same degree from a single stock. The other is called unequal, as an uncle and a nephew, who stand unequally distant from the same stock. A degree is the greater or lesser distance of one person from another according to the line of consanguinity. The stock, lastly, is called that person from whom the other blood-relations draw their origin, as the father is the stock of sons, and a grandfather of grandsons.

IX. QUESTION VI. How many are the rules which are assigned by theologians and canonists for the computation of the degrees of consanguinity? ANSWER. Three. 1. In the direct line of ascendants and descendants there are as many degrees as there are persons, the stock being taken away. Hence father, son, grandson, great-grandson, great-great-grandson are five persons and four degrees: the son is in the first degree with the father, the grandson in the second, the great-grandson in the third, the great-great-grandson in the fourth; since there are as many degrees as there are generations. 2. The rule: In the collateral equal line persons are distant from one another by as many degrees as they are from the common stock. Thus two brothers are distant in the first degree from one another, because they are distant by one degree from the stock. The sons of two brothers are blood-relations in the second degree, because they are distant in the same from the stock. 3. The rule is: In the collateral unequal line persons are distant from one another by as many degrees as he is distant from the stock who is the more remote. Wherefore an uncle and a brother's son are unequally distant from the grandfather, in whom they are conjoined. For the former is in the first, since he is his son; but the latter is distant in the second degree. Therefore they are distant from one another in the second degree, because the more remote person is distant by two degrees from the stock.

X. In the direct line canon law and civil law agree in the computation of degrees. In the transverse or collateral line the civil law differs from the canon. For the civil law numbers the degrees by persons, and numbers as many degrees as there are persons, the stock being taken away. Thus two brothers are indeed distant by one degree from the common father, but they are distant from one another by two degrees, because there are two persons; the sons of two brothers are distant in the fourth degree, because there are four persons, the stock being taken away. On the contrary canon law numbers the degrees not by persons but by the distance from the stock. The reason of the canonical computation is that persons in the transverse order are not conjoined with one another save by reason of the stock from which they descend. Therefore they cannot be more or less distant from one another than they are distant from the stock from which they descend. Hence two brothers are distant from one another in the first degree, because both are conjoined in the first with the stock. If they be unequally distant from the stock, as an uncle and a brother's son, they are distant from one another by that degree by which he is distant from the stock who is the more remote, as has been said.

XI. In the first degree of the direct line there are no marriages by the law of nature, as the Fathers commonly teach. Theologians dispute whether in every degree of the direct line marriages are unlawful, and whether Adam, if he should now rise again, could marry some woman; but this disputation I judge futile. For it is enough that there are none up to the fourth degree. For in the fifth degree they are either dead, or are in an age so bowed down that it would be most absurd to wish to contract matrimony between them.

XII. That in the first degree of the transverse line there are no marriages by the law of nature, Soto, Toletus, de Lugo, Gonet, and others contend. But the contrary denying opinion is more probable. For at the beginning of the world brothers in fact married sisters. Nor is it to the purpose that they answer that this was done by divine dispensation. What? Did God establish such a law, which scarcely promulgated could not be observed without a dispensation?

XIII. Spiritual kinship, as has been indicated, is called a nearness of persons introduced by ecclesiastical right. This induces an impediment between godparents and the one baptized or confirmed, and the father and mother of the one baptized or confirmed. For this kinship nevertheless solemn Baptism is required. If a child be baptized privately at home, very many teach that this kinship is not contracted between the godparents and the one baptized and the father and mother of the one baptized, but only with the one baptizing.

XIV. That legal kinship arising from adoption may induce an impediment, six conditions are required: 1. That the adopter be male; 2. That the adopter be twenty-five years old; 3. That he be able naturally to beget sons; 4. The adopter ought to exceed the adopted by eighteen years, that by reason of age he can be called his son; 5. The adopter and the adopted ought to be present; 6. The authority of the Prince or of the Magistrate must accede. They distinguish a twofold adoption. The first is perfect, which is called also arrogation, and is made by the rescript of the Prince with an extraneous person who is sui juris. The other, imperfect, is called simple adoption. This does not require that the adopted be sui juris, nor the rescript of the supreme Prince; but the authority of any Magistrate suffices. The arrogated necessarily succeeds the arrogator, both by testament and ab intestato. The simply adopted succeeds only ab intestato.

XV. That perfect adoption induces a diriment impediment by positive right all affirm. Concerning the imperfect they dispute on either side. To me it is the more probable that it does not induce one, as St. Thomas seems to defend, Suppl., q. 57, art. 1, reply 1. This impediment lasts between the adopter and the adopted, between the wife of the adopter and the adopted, and between the wife of the adopted and the adopter, in perpetuity; between the adopter and the posterity of the adopted up to the fourth degree inclusively. In the collateral line, namely between the adopted and the carnal and legitimate sons of the adopter, the impediment lasts only so long as they persist subject to the power of the adopter. The paternal power being taken away either by the death of the adopter, or by the emancipation of the adopted, whether legal or natural, that impediment vanishes, nor does it extend beyond the first degree. Chapter unicum, on legal kinship.

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.

XVII. That homicide with adultery may induce a diriment impediment, the following conditions are required: 1. That death in fact followed by force of such an action; 2. The matrimony antecedent to the killing of the spouse ought to be valid; 3. The adultery ought to be consummated; 4. The adultery must needs precede the killing; 5. The adulterer and the adulteress ought to be conscious of the matrimony of each. There is always required a mind of future matrimony, as authors commonly teach, although some teach that homicide with adultery suffices.

XVIII. Homicide without adultery induces a diriment impediment when a man and a woman conspire in a machination for the death of the wife or of the husband, with the intention that, death following, they may enter upon matrimony. And it is required that death in fact follow.

XIX. Adultery with a promise of future matrimony without homicide induces a diriment impediment, when the adultery is consummated, and both the adulterer and the adulteress are conscious of the matrimony. Again, both the adultery and the promise ought to precede the death of the spouse, and the promise must needs be manifested by external signs and accepted; not nevertheless that it be mutual, nor according to many that it be sincere.

XX. Adultery with a matrimony of the present contracted induces a diriment impediment, if the preceding matrimony was valid, and both were conscious, and they in fact attempted to contract matrimony.

XXI. QUESTION VIII. What is the impediment of disparity of worship? ANSWER. Disparity of worship signifies a diverse religion, such as is between a believer and an unbaptized unbeliever. This impediment has been introduced by ecclesiastical right, from which, a just and grave cause urging, the Supreme Pontiff can dispense. For a believer ought to contract matrimony as a sacrament. But an unbaptized person is capable of no sacrament without Baptism. When a danger of subversion threatens, marriages of this kind are forbidden by natural and divine right. Similarly the marriages of Catholics with heretics are forbidden both by divine and by ecclesiastical right, yet not invalid. For heretics are excommunicated. Therefore they are not to be admitted into the most straitened society of matrimony. And assuredly the Supreme Pontiffs permit these save in causes most grave and most urgent, for the avoiding of graver inconveniences.

XXII. QUESTION IX. What is the impediment of coercion and of bond? ANSWER. This impediment of coercion arises from force or fear, by which someone is compelled to contract matrimony. Force here must needs be extrinsically inflicted, and the fear must be such as falls upon a constant man, as has been explained above. The impediment of bond is that which spouses contract from matrimony, and they cannot take another wife while the former lives. Of this impediment, or of polygamy, it has been said above.

XXIII. QUESTION X. What is the impediment of public honesty, and between whom is it contracted? ANSWER. This impediment arises from matrimony and from betrothals. It is contracted between the betrothed man and the mother, sister, and daughter of the betrothed woman, or between the betrothed woman and the father, brother, and son of the betrothed man, provided nevertheless that the betrothals first contracted were valid. For if they be invalid on some head, no impediment arises. But the impediment arising from ratified matrimony extends up to the fourth degree, because Trent limited only the impediment arising from betrothals.

XXIV. From clandestine matrimony there arises the impediment of public honesty, because these marriages are not void from a defect of consent, but on account of the omission of the solemnities. But only those marriages which are null from a defect of consent do not induce the impediment of public honesty. This impediment of public honesty is perpetual, whether it arise from ratified matrimony or from betrothals. If valid betrothals be dissolved by mutual consent, the impediment nevertheless lasts, because as soon as valid betrothals were contracted, the impediment arose. Second betrothals, as being null, supposing that the first are valid, induce no impediment.

XXV. QUESTION XI. What is the impediment of affinity? ANSWER. Affinity is a nearness of persons proceeding from carnal copulation. That copulation is necessary which suffices for the consummation of matrimony. Affinity arises from copulation whether lawful or fornicating, and lasts in perpetuity. The blood-relations of a man do not become through his carnal copulation affines to the blood-relations of the woman with whom he had copulation, nor conversely, because affinity does not beget affinity. Only therefore he who had carnal copulation becomes affine to the blood-relations of the woman, and the woman affine to the blood-relations of the man. The impediment of affinity dissolves matrimony, and arises from lawful copulation up to the fourth degree, from unlawful up to the second inclusively, as Trent determined.

XXVI. QUESTION XII. What is the impediment of impotence? ANSWER. I shall touch upon a few heads with that caution which I can, lest the pen itself be stained by turning over so putrid a matter.

XXVII. Impotence is an ineptitude for exercising conjugal copulation with penetration of the woman's vessel and effusion of seed within it, apt for the generation of offspring. Here one impotence supervenes upon matrimony, another precedes it; one is perpetual, another for a time; one natural and intimate, another accidental and coming from without. Natural impotence is of one kind from a defect of heat in the man, of another from an excessive straitness of parts in the woman. Again, natural impotence is of one kind absolute in respect of all, of another relative — that is, in respect of this woman and not of another. Accidental impotence is of one kind from nature, as in the aged; of another from man, as in the emasculated and in eunuchs; of another from a demon, as in those bewitched.

XXVIII. Absolute impotence is a diriment impediment of matrimony. Similarly that is reputed impotence by which, on account of excessive heat or straitness in the woman, seed can be admitted neither wholly nor in part within the natural vessel, when it can be removed by no remedy at all. And this also induces a diriment impediment of matrimony by natural and ecclesiastical right, as all confess. Whether this impotence be mutual, or in one alone, whether it be known or unknown to the spouses, it dissolves the matrimony, nor can they cede their own right, because the absurdities which would follow thence are known. And they sin mortally who, conscious of impotence, contract matrimony.

XXIX. Temporal impotence does not dissolve matrimony, as is had in chapter Fraternitatis, and all teach. That is called temporal impotence, or for a time, which can be removed without sin and without danger to life. He nevertheless sins mortally who, or she who, conscious of the same contracts, on account of the injury inflicted upon the party, and on account of the other absurdities proceeding thence. Those who are strong in a true faculty of coming together enter upon a valid matrimony, even if they be sterile either by nature or on account of old age. Several things would have to be said concerning relative impotence. But because this rarely happens, and the other things are clear, therefore I pass them over.

XXX. Accidental impotence proceeding from a defect of age, as in boys, renders matrimony null by ecclesiastical right. Old age is not a diriment impediment. If nevertheless they were impotent for coming together in a manner apt for generation, the matrimony would be null. Eunuchs lacking both testicles are unfit for matrimony, but fit if they lack only one.

XXXI. Impotence proceeding from bewitchment, if within a triennium it cannot be removed by prayers, fasts, penance, and the exorcisms of the Church, is judged perpetual, and renders matrimony void. Similarly it is reputed perpetual when it cannot be removed without another bewitchment, since it is never lawful to remove a bewitchment by a bewitchment.

XXXII. Impotence supervening upon matrimony, from whatsoever head it proceed, in no way dissolves the matrimony. Impotent persons of this kind cannot attempt intercourse, when there is danger of effusing seed outside the vessel, and they have learned by experiment that they are in truth inept for copulation. It is hard; but such men will suffer the tribulation of the flesh. If on the contrary it happen that seed is not infrequently admitted within the vessel, although sometimes beyond their intention it turn out otherwise, they are not to be prohibited from the conjugal office. There is need nevertheless of prudence.

XXXIII. QUESTION XIII. What is the impediment of clandestinity and of abduction? ANSWER. The impediment of clandestinity arises from an occult matrimony without the presence of the parish priest and of witnesses, and dissolves matrimony by ecclesiastical right, of which it has been said above. Abduction is an impedient impediment, when a man leads away a wife from the house of her own husband. This abduction hinders matrimony not only with the woman abducted, but with any other whatsoever, when she is truly a wife under the power of a husband, and he resists. And even if the woman abducted consent, both she and the abductor are bound by the impediment, if the husband resist.

XXXIV. Abduction which is a diriment impediment is the violent leading away of a woman from place to place for the cause of matrimony. Violence is twofold. One physical, by which by force a woman is dragged from her own house. The other moral, which stirs up threats and fear falling upon a constant man. Either is required for abduction. For if a woman be led away from her parents' house with her own consent, even if she be deceived by guile and fraud, it is not abduction inducing an impediment, because then it is flight, not abduction, since all violence, whether physical or moral, is lacking as often as the woman consents. Nor does it matter that the woman abducted be a virgin or corrupt. It is said from place to place, that is, she ought to be led from the place in which she is to a place in which she is under the power of the abductor, although no copulation follow. Wherefore if he lead her from chamber to chamber that he may know her, it is not abduction. There is added for the cause of matrimony, because if this intention be lacking, and for another end — for instance for the fulfilling of lust — the woman be led away, it is not properly abduction inducing an impediment. Read the penalties constituted against abductors in Trent, session 24, chapter 6.