Title XIV: On Consanguinity and Affinity

Latin source headnote: A marriage contracted between affines of the first kind and the fourth degree is separated.

Alexander III, to the Abbot of Cassino.

From your letters directed to us we received that, when a certain man had secretly given bridal earnest to a certain widow and known her carnally, had cohabited with her for a year, the munduald drew the woman’s man into a suit, proposing that he had known her, who had been placed in his power, as though a fornicator; then the man and woman affirmed by oath that for a year each had consented to marital union with the other, and henceforth they cohabited together as husband and wife. But when not even to the oath of the [said] woman did the proctor have faith, he exacted that bridal earnest be given to her publicly. At last, when the man was prepared to give bridal earnest to her in the sight of the Church, two persons arose, proposing that this man who wished to give her bridal earnest touched the former husband in the fourth degree of consanguinity. But one swore that he had heard it so; the other, however, was unwilling to affirm it by oath. And on account of this, although the man delayed giving bridal earnest to the aforesaid woman, he nevertheless by no means withdrew from cohabitation with her. But in the course of time, at the insistence of the munduald, the aforesaid [man] publicly celebrated marriage and afterward remained with his wife for nearly a year. But now the first question revived, and two persons swore before the archpriest of Plumbarola, as you say, that the first man was joined to the surviving man in the fifth degree of consanguinity. Whence, because different persons think different things, through our letters you seek to be instructed as to what is to be done in this case. Therefore, by commanding through apostolic writings we order your discretion to summon each party before your presence and cause the witnesses to swear before you, [and] also inquire from whom and when they learned that to which they testify. But if they learned it after the question had been moved, the said marriage is not to be dissolved; likewise not if they learned it from the accusers of the marriage. But, after the truth has been more diligently investigated, if through circumspect witnesses and persons greater than every exception you find that the first husband touches the surviving man in the fourth degree of consanguinity, do not postpone promulgating a sentence of separation. For, as the canons say, one is equally to abstain from the blood relatives of one’s wife as from one’s own, up to the seventh degree. But we wish it not to escape your prudence that suitable persons are to be named, and the degrees on each side distinguished [and] computed; matrimonial cases are not to be treated by just anyone, but by discreet judges who have the power of judging and are not ignorant of the statutes of the canons concerning these matters.

Latin source headnote: Supervening affinity, which is established at least by report, dissolves betrothals of the future.

Urban III, to the Archbishop of Bordeaux.

Concerning that which you assert, that a certain young man, with faith interposed, betrothed a certain girl not yet marriageable, who, having now become marriageable, seeks him, and he excepts, saying that he ought not to take her because, after he affianced the same girl, he carnally knew her relation, we respond to your inquiry in this manner: if it is manifest that the same young man knew the relation of the aforesaid girl, or, if it is not manifest, nevertheless the report of the place has it so, since she was a betrothed woman only of the future, the same young man [can and] ought to be absolved from her prosecution.

Latin source headnote: If someone is dispensed so that he can contract in a certain degree otherwise prohibited, it is required that each of those contracting be distant from the stock by the whole degree, especially if custom has this.

Celestine III.

That which your affection—(And below:) You asked us, however, whether he who is distant from the stock in the sixth or seventh degree through a descending line can be joined matrimonially to her who on the other side is distant from the same stock in the second or third degree through a descending line, on account of the indulgence of Pope Adrian of happy memory, then Bishop of Albano, legate of the Apostolic See in Norway, by which it was permitted to the people of that land to be joined in the sixth degree. This appears properly to you to be able to be done according to a rule approved by certain doctors, by which it is said: in whatever degree someone is distant from the stock, he is distant from anyone descending from the same stock through another line; nevertheless, by the custom of the land, if ever such a case arises, the inhabitants of the land separate those joined on account of the nearer degree and impede those wishing to be joined, as the series of your letters demonstrated. We therefore respond thus to your consultation: that indulgence is to be understood in such a way that each of those to be joined is distant from the stock in the sixth degree, with kinship computed according to the canons. But if one is distant from the stock in the sixth or seventh degree and the other in the second or third degree, they ought not to be joined. Whence in this part we considered it more prudent to defer to the multitude and the observed custom than, with a certain novelty introduced, to establish something else unto dissension and scandal of the people.

Latin source headnote: Unbelievers joined in a degree prohibited by canonical law are not separated after baptism.

Innocent III, to the Archbishop and Chapter of Tyre.

You wished to consult us concerning unbelievers converted to the faith, whether, if before their conversion they were joined according to the institutes of the Old Law or their own traditions concerning degrees of consanguinity denoted by the canon, they ought to be separated after baptism. Concerning this, therefore, We have considered that this response should be made to your consultation: a marriage thus contracted before conversion is not to be separated after the washing of baptism, since the Lord, when asked by the Jews whether it was lawful to dismiss a wife for any cause, responded to them: “What God has joined, let man not separate,” intimating by this that marriage existed between them. [Given at the Lateran, on the third day before the Kalends of January. 1198.]

Latin source headnote: The husband’s blood relatives lawfully contract with the wife’s blood relatives. This is the first point. Marriages cannot be contracted in prohibited degrees even if custom has this. This is the second point.

The same, to the Archbishop of Rosano.

Because concerning these articles which induce some doubt in you, you consider that our counsel should be sought, and you take care to invoke the aid of the Apostolic See for executing those things which the pastoral office demands, we commend your solicitude in the Lord with worthy praises and respond to your petitions with a grateful spirit. Indeed, you signified to us that in your diocese father and son take mother and daughter, two kinsmen two kinswomen, maternal uncle and nephew two sisters as spouses, and husband and wife together baptize another’s child. Moreover, certain persons of your diocese touching one another within the third and seventh degree of consanguinity contract marriage with each other, asserting that this is lawful for them by ancient custom. [(And below:)] Concerning the fact, therefore, that father and son contract marriages with mother and daughter, two kinsmen with two kinswomen, and maternal uncle and nephew with two sisters, we have considered that this response should be made to you: although all the blood relatives of the man are affines of the wife, and all the blood relatives of the wife are affines of the man, nevertheless, between the blood relatives of the wife and the blood relatives of the man, no affinity whatsoever has been contracted from the marriage of the same persons, namely the man and wife, on account of which marriage between them ought to be impeded. (And below:) But you ought publicly to prohibit marriage from being contracted within the prohibited degrees and punish presumptuous persons with ecclesiastical severity, notwithstanding a custom which is rather to be called a corruption. [But when, etc. Given at the Lateran, on the second day before the Kalends of January. 1199.]

Latin source headnote: A dispensation obtained from the Pope concerning a marriage contracted between blood relatives is not valid if a false cause is expressed there, unless the Pope afterward confirms it. This the chapter says according to the true and common understanding.

The same.

Because concerning—(And below: [Compare chapter 6, On Bigamists, I. 21.]) Moreover, concerning the noble man N., for whose dispensation—namely, the indulgence of remaining with her who touches him in the fifth degree of consanguinity—a false cause had been alleged to us in order to obtain it from the Apostolic See, namely offspring, although before the dispensation was obtained the only daughter he had had entered the way of all flesh, as your consultation contained, you will be able to dissemble so that he may remain in the union thus contracted, since, as you assert, you see grave scandal threatening from the separation. [Finally you, etc. Given at Segni, on the fifth day before the Nones of October, in the sixteenth year of our pontificate. 1213.]

Latin source headnote: Witnesses who depose concerning consanguinity ought to begin the computation from the stock or germ.

The same.

Your fraternity led you to consult us whether the testimony of those persons is sufficient for dissolving a marriage who began to compute the degrees of consanguinity from a maternal uncle and nephew, namely the son of a brother or sister, when they knew or heard nothing concerning the brothers or their superiors. We therefore respond to your inquiry in this manner: since marriage obtains much favor, witnesses who, having been produced for obtaining a judicial separation, compute the degrees of consanguinity ought to begin from the stock, that is, from the parents or siblings, and thus distinguish the degrees in order, designating the persons by proper names or equivalent indications, especially since they very frequently furnish testimony from hearsay. Because this is less valid, the faculty is not to be relaxed excessively in an article of this kind, since, by the same [reason] by which they would begin the computation from the second, they would begin from more remote persons. [Consequently, etc. (Compare chapter 26, On Betrothals, IV. 1.) Given at the Lateran, on the Ides of February, in the fourteenth year of our pontificate. 1212.]

Latin source headnote: In the second and third kind of affinity, the prohibition which formerly existed in contracting marriage is removed. Likewise, the prohibition concerning offspring received from second nuptials, who formerly could not contract with the kindred of the former husband, is removed. And the prohibition of marriage does not extend beyond the fourth degree of consanguinity and affinity. This the chapter says; this text is cited daily and is singular in its subject matter.

The same, in the General Council.

It ought not to be judged reprehensible if human statutes are sometimes varied according to the variety of times, especially when urgent necessity or evident utility demands it, since God himself changed in the New Testament certain things which he had established in the Old. Therefore, since the prohibitions concerning marriage by no means to be contracted in the second and third kind of affinity, and concerning offspring received from second nuptials not to be joined to the kindred of the former husband, frequently induce difficulty and sometimes give birth to peril of souls, since when the prohibition ceases the effect ceases, revoking the constitutions issued concerning this with the approval of the sacred council, by the present constitution we decree that those contracting in this manner henceforth be freely joined. Also, henceforth let the prohibition of conjugal union not exceed the fourth degree of consanguinity and affinity, since in more remote degrees a prohibition of this kind can no longer be generally observed without grave detriment. But the number four agrees well with the prohibition of corporeal marriage, concerning which the Apostle says that the man does not have power over his body, but the woman, nor does the woman have power over her body, but the man, because there are four humors in the body, which are composed of four elements. Therefore, since the prohibition of conjugal union has now been restricted up to the fourth degree, we wish it to be perpetual in such a way, notwithstanding constitutions issued concerning this long ago either by others or by us, that, if anyone presumes to be joined contrary to a prohibition of this kind, he is defended by no length of years, since length of time does not diminish sin but increases it, and crimes are the graver the longer they hold the unhappy soul bound.

Latin source headnote: One distant from the stock in the fourth or a nearer degree can contract with one distant in the fifth or a more remote degree. This the chapter says together with the gloss.

Gregory IX. A man who is distant from the stock in the fourth degree, and a woman who on the other side is distant in the fifth, can lawfully be joined matrimonially according to the approved rule by which it is said: in whatever degree the more remote person differs from the stock, he or she differs from anyone descending from the same stock through another line.