Questions II and III

GRATIAN. Therefore, because it is necessary to abstain from unions between blood relatives, as has been proved, it must be seen to what degree one ought to abstain from one’s own female blood relatives, or whether it is lawful to take as spouse any woman from the kindred of one’s own wife.

Pope Gregory writes thus concerning these matters in the Council of Meaux:

Concerning the affinity of consanguinity, it was resolved to observe the degrees of kinship down to the seventh generation. For the inheritance of property, established through the legal determinations of instruments, also extends the succession of heirs to the seventh degree. For they would not succeed unless it were owed to them from the stock of kinship.

Likewise Pope Callistus, [letter II to the bishops of Gaul]. Unions between blood relatives are prohibited from being made. Why? Because both divine and secular laws prohibit them. Therefore, the divine laws cast out not only those who do these things but also those who issue from them, and even call them accursed. The secular laws, moreover, call such persons infamous and repel them from inheritance. But we, following our fathers, brand them with infamy and judge them to be infamous, because they are bespattered with the stains of infamy; nor ought we to receive as men or to receive the accusations of those whom the secular laws reject.

§ 1. But we call those persons consanguineous whom the divine laws and the laws of emperors, Romans, and Greeks call consanguineous and receive in inheritance, and whom they cannot repel.

Likewise Pope Fabian. Concerning relatives who come into affinity through husband and wife: when the wife or husband has died, let them be joined in the fifth generation; if they are found joined in the fourth, let them not be separated. Nevertheless, in the third degree of relationship it is not lawful to take another’s wife after his death. A man shall be joined in marriage equally with his own female blood relatives and with his wife’s female blood relatives after his wife’s death.

Those who take a woman related by blood as wife and are separated shall not be permitted to join other wives to themselves in marriage as long as both are living.

GRATIAN—unless they are excused by ignorance. Hence in the Council at Verberie:

If anyone has committed fornication with a mother and daughter, the mother being ignorant concerning the daughter and the daughter concerning the mother, let him never take a wife; but let the women, if they wish, take husbands. But if the women themselves knew this, let them remain perpetually without husbands.

If a man has committed fornication with a woman and his brother, unaware of this, has taken the same woman as wife, let the brother do penance because he concealed the crime from his brother, and let him marry after the penance. But let the woman do penance until death and remain without hope of marriage.

GRATIAN. But the other authorities are to be understood concerning those who are unknowingly joined. Hence Pope Julius:

We permit no one of either sex to take a wife from the relationship of his own blood or his wife’s down to the seventh degree of lineage, or to be joined with the stain of incest. Moreover, we also added this: that, just as it is not lawful for any Christian to take a spouse from his own consanguinity, so it is also not lawful to take one from the consanguinity of his wife, on account of the unity of flesh.

Likewise from the Council of Agde, [c. 61]. Concerning incestuous unions, we reserve absolutely no pardon unless they have healed the adultery by separation. But those whom it is deadly even to designate as incestuous are to be considered worthy of no name of marriage.

§ 1. For we judge these persons to be such: if anyone has polluted by carnal union the widow of his brother, who had previously existed almost as his sister; if any brother has taken his own full sister as wife; if anyone has taken his stepmother; if anyone has joined himself to his female cousin or niece; if anyone mingles with the widow or daughter of his maternal uncle, or the daughter of his paternal uncle, or his own stepdaughter; or one who has polluted by intercourse or taken as wife any woman from his own consanguinity, or a woman whom his blood relative had. All these persons we do not doubt to be incestuous both under the ancient law and under this constitution, and we command that they remain and pray among the catechumens until lawful satisfaction. We so prohibit this at the present time that we do not dissolve those things which have been established hitherto.

§ 2. Certainly, those to whom an unlawful union is forbidden will have liberty to enter a better marriage.

Likewise from the Council of Lérida, [c. 4]. Concerning those who defile themselves with the pollution of incest, it was resolved that, for as long as they persevere in that detestable and unlawful carnal union, they are to be admitted in church only as far as the Mass of the catechumens; nor will any Christians be permitted to take food with them, as the Apostle commanded.

Likewise Pope Gregory to Felix, Bishop of the city of Messina, [book XII, letter 31]. It is not and will not be lawful for any Christian to take in marriage either a woman whom someone from his own consanguinity had as wife or one whom he stained by any unlawful pollution, because such intercourse is incestuous and abominable to God and all human beings. We read that it was established by the holy Fathers that incestuous persons are to be considered worthy of no name of marriage.

GRATIAN. That is, according to the order of nature; but if extraordinarily, it is not so. For Urban II says to Hugh, Bishop of Grenoble:

Extraordinary pollution, when admitted only in natural relations or repeated more frequently short of the marital effect, does not appear to impede marriage, provided that, after the sacraments have been furnished, it is established to have occurred as was signified to us by your letters, although that pollution itself is criminal and damnable.

Likewise Pope Julius. This too was established: let no one take in marriage the widow of his wife’s father, the widow of his wife’s brother, or the widow of his wife’s son. Let no one take as wife the widow of his wife’s blood relatives down to the third generation; but if they are found joined in the fourth or fifth, let them not be separated.

The same. Let a man be considered equally connected to his own blood relatives and to his wife’s blood relatives.

Likewise Isidore from the Council of Mâcon. Certainly, the consanguinity that is to be observed in one’s own person is undoubtedly to be guarded by the law of marriage in the kindred of one’s wife. Because it is established that those two were in one flesh, each kindred must therefore be believed common to them, as it is written: “The two shall be in one flesh.”

Likewise Augustine, [book XXII Against Faustus, c. 61]. If husband and wife are now not two but one flesh, a daughter-in-law is to be considered no differently from a daughter.

Likewise Gregory to the bishops of Gaul. We decree that each person is to observe his own stock down to the seventh generation, and, for as long as they recognize themselves to be near by affinity, we deny them access to conjugal union. But if they do it, let them be separated.

Likewise Nicholas to the suffragans of the see of Amalfi. Let no one take a wife from his own consanguinity until after the seventh generation, or for as long as the kinship can be recognized.

§ 1. But let a layman who has a wife and concubine at the same time not communicate with the Church.

Likewise from the Council of Worms, [c. 32]. In the union of the faithful we do not define the number of the generation, but establish that no Christian may take a wife from his own consanguinity or kinship for as long as the generation is recalled and recognized or retained in memory.

Likewise from the Council of Lyon. Let no one take wives from the relationship of his own blood down to the seventh degree, nor without the blessing of a priest. But let those who are about to marry dare to marry after being blessed by a priest.

GRATIAN. By the foregoing authorities everyone is prohibited from union with blood relatives down to the seventh generation. But that passage of Gregory to Augustine, Bishop of the English, is objected, [c. 6]:

A certain Roman law permits the son and daughter either of a brother and sister, of two full brothers, or of two sisters to be joined. But we have learned by experience that offspring cannot grow from such a marriage. Hence it is necessary that the fourth or fifth generation of the faithful be lawfully joined to one another.

§ 1. But when the same most humble Father Gregory, a long time afterward, was asked by Felix, prelate of Messina in Sicily, whether he had written to Augustine that marriages contracted among the English in the fourth generation should by no means be dissolved, among other things he supplied this reason: You should know with complete certainty that what I wrote to Augustine, bishop of the nation of the English—your alumnus, as you recall—I wrote specially to him and also to the nation of the English, which had recently come to the faith, and not generally, lest, through fear of harsher things, it withdraw from the good it had begun. Hence the whole Roman city also stands as my witness. Nor did I write these commands to them with the intention that, after they had been consolidated in the faith with a firm root, they should not be separated if found within their own consanguinity, or should be joined within the line of affinity, that is, down to the seventh generation. Rather, because they were still neophytes, it was first necessary to tolerate unlawful things among them and to instruct them by words and examples. For according to the Apostle, who says, “I gave you milk to drink, not solid food,” we granted things to be observed at those times to them only, not to their descendants, as was stated, lest the good that had been planted with a weak root be burned away, but rather be made somewhat firm and guarded unto perfection.

GRATIAN. Likewise, that passage of the Council of Chalon is objected:

We forbid that anyone any longer be joined in marriage in the fourth, fifth, or sixth generation. But where it is found to have occurred after the prohibition, let the union be separated.

GRATIAN. Since marriage is prohibited in the sixth generation by this authority, it appears to be permitted in the seventh. But the degrees of kinship are variously reckoned according to certain persons. For some place the father in the first degree and the children in the second. Others call the children the first degree, denying that there is a degree of kinship between father and son, since father and son are proved to be one flesh. Therefore, the authorities that prohibit union within consanguinity down to the seventh degree place the father in the first degree; but those that prohibit it down to the sixth degree call the children the first degree. Thus it happens that the same persons, according to this diversity, are found in the sixth or seventh degree.

§ 1. Likewise, that passage of Fabian, by which affines are commanded to be joined in the fifth generation, appears contrary to that decree of Pope Julius: “Just as it is not lawful for any Christian to take a spouse from his own consanguinity, so it is also not lawful to take one from his wife’s consanguinity, on account of the unity of flesh.” Similarly, it is also found contrary to that chapter of Gregory: “Nor her whom someone from his own consanguinity had as wife, etc.” But that passage of Fabian is to be understood of two persons joined to one another by affinity, such as the wives of two brothers. If it happens that one of them is joined to someone in marriage, after his death the man will not be able to take the surviving affine as spouse unless they are found in the fifth degree of affinity. Hence one who takes someone’s stepmother as wife will not be able, after her death, to take the wife of the stepson. Hence the same Pope Julius also says elsewhere: “The widow of his wife’s blood relatives”—he does not say “a blood relative of his wife,” but “the widow of the blood relatives”—“let no one take as wife down to the fourth generation.” But Paschal II, writing to Bishop Reginus, assigns a third kind of affinity, union within which is found prohibited no further than the second degree. For he says:

Moreover, the justice of public decency, even apart from canonical authority, forbids the wives of two cousins from marrying one man, although at different times, the one after the death of the other. And your prudence knows that one must abstain from the wife’s blood relatives just as from the husband’s.

GRATIAN. But those passages of Gregory and Julius are understood of the consanguinity of a husband or wife, so that after the death of either of them the survivor is joined in marriage to no one from the kindred of the deceased. It has been demonstrated to what degree each person ought to abstain from his own consanguinity or the kinship of his wife.