Article — Merkelbach, Summa Theologiae Moralis
Article VII: On Kinship, Carnal, Spiritual, and Legal
S. Th., Suppl., q. 54, 56 and 57.
902. Kinship (parenté; verwantschap) is here understood as the propinquity or conjunction of persons, insofar as it is impeditive of matrimony; and, by reason of its cause or origin, it is distinguished as threefold: natural or carnal, - spiritual, - and legal, according as it arises from natural generation or filiation, from spiritual generation and filiation, or from legal filiation or adoption.
903. Carnal kinship or consanguinity (parenté naturelle, consanguinité; natuurlijke- of bloedverwantschap) is the propinquity or conjunction of persons, of whom one descends from another, or all descend from the same proximate stock through carnal generation. It is founded upon communion of blood, which through natural generation from carnal copula, licit or illicit, is derived from father and mother together, or from either one. Hence matrimony is equally prohibited among cognates and agnates, uterine, consanguine, and full kin.
So that consanguinity may be well understood, one must distinguish stock, line, and degree. A stock is a person from whom others descend. A line is an ordered series of persons descending from the same stock. A degree is the measure of the distance of one person from another in the same line of consanguinity.
One line is direct, which is constituted from persons of whom one descends from another, and it is subdivided into the line of descendants, who draw origin from others, and of ascendants, from whom others arise; another is transverse, oblique, or collateral, which is constituted from persons who descend from a common stock, without, however, one proceeding from another. This latter is equal or unequal, according as the collateral persons are distant from the common stock in an equal or a diverse degree.
For computing the degree of consanguinity, the following rules from can. 96 have force in canon law:
1° In the direct line there are as many degrees as there are generations; or as many persons composing the line, the stock being removed. Thus father and son are consanguineous in the first degree, grandfather and grandson in the second.
2° In an equal collateral line there are as many degrees as there are generations in one tract of the line, or as many persons in one series, the stock being removed. Thus brother and sister are in the first degree, first cousins in the second.
3° In an unequal collateral line there are as many degrees as there are generations in the longer tract of the line, or as many persons in the more remote series, the stock being removed. Thus an uncle with his niece is consanguineous in the second degree; by others it is said: in the second degree touching the first, or the second mixed with the first. An unequal or mixed degree, according to the style of the curia, is to be expressed in the petition for dispensation.
Let it be noted that in civil law the rule has force universally: there are as many degrees as there are generations. Hence in the direct line the computation is the same as in canon law; in the collateral line it is different, so that the degrees are computed from both sides and therefore are doubled in an equal line, and in an unequal line are added to one another.
904. Principle I. In the direct line of consanguinity, matrimony is void between all ascendants and descendants, both legitimate and natural, i.e., indefinitely. - Thus can. 1076, § 1.
The reason is the reverence and subjection owed to ascendants, with which the offices of spouses do not agree; whence the impediment is of the law of nature. St. Thomas shows this thus, q. 54, a. 3:
"1° That which human nature has in its first condition is of the law of nature. But from its first condition human nature had this, that father and mother were excluded from matrimony, which is clear from what is said, Gen. II, 24: For this cause a man shall leave father and mother; which cannot be understood with respect to cohabitation, and so it must be understood with respect to the conjunction of matrimony. Therefore consanguinity impedes matrimony according to the law of nature...
"2° In matrimony that is said to be against the law of nature by which matrimony is rendered unsuitable with respect to the end to which it is ordered. But the end of matrimony per se and first is the good of offspring. This indeed is impeded by some consanguinity, namely, between father and daughter or son and mother, not indeed so that it is totally taken away, because a daughter can receive offspring from the seed of her father and together with her father nourish and instruct it, in which the good of offspring consists; but so that it is not done in a fitting manner. For it is disordered that a daughter be joined to her father by matrimony as a companion, for the sake of generating and educating offspring, when she ought through all things to be subject to her father, as proceeding from him. And therefore it is of the law of nature that father and mother be repelled from matrimony. And even more mother than father; because more is derogated from the reverence which is owed to parents if a son takes his mother than if a father takes his daughter as wife, since a wife ought in some way to be subject to her husband."
905. Principle II. In the collateral line, matrimony is void up to the third degree inclusive, yet so that the impediment of matrimony is multiplied only as often as the common stock is multiplied. - Thus can. 1076, § 2.
A threefold reason for the impediment is indicated by St. Thomas, II-II, q. 154, a. 9: 1. the reverence owed to parents and consequently to other consanguineous persons who draw origin from the same parents, to which the baseness inherent in venereal commingling is contrary; - 2. the restraining of concupiscence among consanguineous persons who make use of familiar association; - 3. the extension of friendship with outsiders. Cf. q. 54, a. 3. To these can be added a reason from the physical order, because harm from these unions, by force of heredity, more easily arises for the offspring.
The impediment is of ecclesiastical law, except in the first degree: namely, matrimony between brother and sister seems rather to be against natural law, not indeed primary but secondary, and against divine law.
According to present-day discipline:
1° The impediment renders matrimony void up to the 3rd degree inclusive, but not beyond, even if the more remote degree is mixed with the nearer, e.g., the fourth with the second. Hence it can be said that matrimony cannot be entered between those whose grandparents are brothers or sisters, but can be if they are distant by a more remote degree; - or, in other words, that the impediment does not extend beyond the children of first cousins, and great-grandchildren.
Formerly it urged up to the 7th degree; afterward by the Fourth Lateran Council and by Trent, sess. 24, c. 4, it was reduced to the 4th, and by the new code of law to the 3rd degree. The reason is that, as St. Thomas explains, q. 54, a. 4, formerly consanguineous persons were accustomed to dwell more in one family; but now toward more remote consanguineous persons there is almost no bond of greater friendship than toward outsiders. Hence beyond this it is useless to prohibit degrees of consanguinity, and also dangerous, because, concupiscence prevailing, men do not sufficiently observe the numerous multitude of consanguineous persons.
2° The impediment is multiplied only as often as the common stock is multiplied. Namely, from multiplied consanguinity the impediment is multiplied as often, namely, as the persons communicate in the same blood because of the multiplication of a common stock, or as often as they descend from several stocks.
Before the new code of law, consanguinity was also multiplied from the fact that either or both of the spouses descended from the common stock by a multiple way; but now only from the fact that the common stock is multiplied. This can happen in a threefold way: a) if several men consanguineous to each other have generated offspring from women consanguineous to each other; b) if someone has successively generated offspring from several persons consanguineous to each other, successively taken; c) if someone has generated offspring from a person consanguineous to himself, and the common ascendants are already consanguineous to each other. Moreover, several causes of multiple consanguinity can occur together even in one case.
906. Observations. - 1. The impediment of consanguinity, even insofar as it is established from the law of nature, is not only impedient but diriment; this is necessary so that the law may efficaciously remove from these marriages and attain its end.
- Hence in an impediment which certainly or probably is of natural or divine law, the Church cannot dispense; whence can. 1076, § 3: "Let matrimony never be permitted, if there is any doubt whether the parties are consanguineous in any degree of the direct line or in the first degree of the collateral line."
- In other degrees the Church can dispense; and indeed in the third degree easily, less easily in the equal second degree, and with difficulty in the second touching the first. And according to can. 1052, a dispensation is valid, even if an error concerning the degree has crept into the petition or concession, provided the degree really existing is inferior, or even if the multiplicity of the impediment in an equal or inferior degree has been kept silent.
- Unbelievers, while they contract among themselves, are subject to impediments of natural and divine law, but not to impediments of ecclesiastical law. Hence marriages entered between unbelievers consanguineous in the direct line or in the first degree of the collateral line are to be held as invalid; nevertheless in practice recourse must be had to the Holy See. Marriages entered with other consanguineous persons are valid, unless the civil prince has established the impediment; if the impediment is doubtful, one must conclude for the nullity of the matrimony, in favor of the faith.
- So that consanguinity may more easily be detected where the stock is unknown, above the names of the spouses there should be written the names of their ascendants up to the third degree. But if names are found common to each spouse, the impediment is present, and then the degree by which each is distant from such a common name is to be computed; otherwise the impediment is not present. - If it is present, special attention must be given to the three ways in which it is multiplied. 1
- Let it be permitted to set forth the three ways schematically:
a. Consanguineous men generating offspring from consanguineous women:
John Joseph
| |
+-------+-------+ +-------+-------+
| | | |
Albert Raymond Mary Aloysia
Albert + Mary -> Louis
Raymond + Aloysia -> Eugenia
Between Louis and Eugenia there exists a double impediment in the 2nd degree of consanguinity, because they have a double common stock, namely, the parents both of their father and of their mother.
b. A man generating offspring successively from several consanguineous women:
John
|
+-------------+-------------+
| |
Martha Margaret
| |
+----------- Leo -----------+
| |
Peter Paul
| |
Mary Joseph
Between Joseph and Mary there is present a double impediment of consanguinity, one in the 2nd, the other in the 3rd degree, because they have a double common stock, namely Leo, their grandfather, and John, their great-grandfather.
c. A man generating offspring from a consanguineous woman, or common ascendants already consanguineous:
John
|
+------------+------------+
| |
Luke Paul
| |
+-----+-----+ |
| | |
Leo Eugenia Andrew
| | |
| +---------+---------+
| |
Joseph Mary
Between Joseph and Mary there is present a double impediment of consanguinity, one in the 2nd degree, from the common stock Luke, the other in the 3rd from the common stock John.
907. Spiritual kinship (parenté spirituelle; geestelijke verwantschap) is the propinquity or conjunction of persons arising from the conferral and reception of the sacrament of Baptism, by which a man is spiritually generated. Hence the Church establishes a diriment impediment between spiritual parents and spiritual children, namely, between the minister and sponsor of the sacrament on one side, and the receiving subject on the other side.
From Confirmation also spiritual kinship arises, because it is the sacrament of perfect spiritual nativity; but in the new law from this sacrament there no longer arises an impediment of matrimony.
The impediment is of ecclesiastical law, which therefore is contracted by baptized persons alone. Unbelievers themselves are subject to it in no way, nor indirectly, because kinship, since it is a mutual relation, cannot arise from one baptized party; nor if they are afterward baptized, because spiritual kinship did not exist, and therefore cannot revive.
The conditions required for contracting the impediment are:
A. On the part of the sacrament, that Baptism be validly conferred.
b) it does not arise from mere supplied solemnities (ibid.);
c) if Baptism is repeated conditionally, it arises only if the same person functions in both Baptisms 1 (can. 763, § 2).
B. On the part of the minister, that he not only baptize validly, but also himself be baptized.
Parents who baptize their offspring, even outside a case of necessity, no longer incur the impediment of kinship impeding the use of marriage.
Hence a) if the office of sponsor is exercised through a proxy, only the principal is affected by the impediment, not the mandatary;
b) if someone through error has received one infant for another, he is not judged to contract kinship, unless he had the intention of receiving anyone whatever;
c) all and only those holding who are designated contract kinship; beyond those designated, no one does, even if in the act of Baptism he held the infant.
After the new code of law, no impediment any longer arises between the baptizer or sponsor and the parents of the baptized.
St. Thomas shows the fittingness of the impediment:
"1° The holier some bond is, the more it is to be guarded. But a spiritual bond is holier than a bodily one. Therefore, since the bond of bodily propinquity impedes matrimony, it seems also that spiritual kinship does the same.
"2° Just as through carnal propagation a man receives the being of nature, so through the sacraments he receives the being of spiritual grace. Hence, just as the bond which is contracted from the propagation of flesh is natural to man insofar as he is a certain thing of nature, so the bond which is contracted from the reception of the sacraments is in some way natural to someone insofar as he is a member of the Church. And therefore, just as carnal kinship impedes matrimony, so does spiritual kinship, from the statute of the Church," q. 56, a. 1.
"Just as in carnal generation someone is born from father and mother, so in spiritual generation someone is born a son of God as father and of the Church as mother. But just as he who confers the sacrament bears the person of God, whose instrument and minister he is, so he who receives the baptized person from the sacred font... bears the person of the Church. Hence spiritual kinship is contracted toward each," a. 3.
The impediment can be multiplied, its foundation being multiplied: in the case in which the same person is baptizer and sponsor, namely, who would exercise the office of sponsor through a proxy, there would be a double spiritual kinship between the baptizer and the baptized. Yet it is not multiplied from the fact that someone holds several children of the same parents in Baptism (S. Off., April 29, 1894); much more so because now no impediment at all arises with the parents.
- This is certain for the sponsor, on account of can. 763, § 2. Concerning the minister nothing is explicitly established in the law, and therefore it can be disputed in law. Some say that the prior law subsists, and therefore that a doubtful impediment subsists; and because this is a doubt of fact, a dispensation is to be sought concerning it for caution, according to the norm of can. 15. Others conclude from analogy that, as for the sponsor, kinship has not arisen. Hence, with a doubt of law standing, the impediment does not urge, as the same can. 15 says.
909. Legal kinship (parenté légale; wettelijke verwantschap) is the propinquity or conjunction of persons arising from adoption or legal filiation; as was said, n. 866.
In this matter the Church has canonized the respective civil law of each nation; hence in many regions there is no impediment from legal kinship, or it is merely impedient. In some, however, it is diriment, concerning which the following principle has force.
910. Principle IV. Those who by civil law are held incapable of entering nuptials between themselves because of legal kinship arising from adoption cannot, by force of canon law, validly contract matrimony between themselves. - Thus can. 1080.
Thus in Italy, Spain, Croatia, Slavonia, and in certain regions of Latin America: Bolivia, Colombia, Guatemala, Brazil, Peru.
The impediment arises not only from civil law, but also from canon law, and therefore it does not cease without a dispensation of ecclesiastical authority, even if a civil dispensation had been obtained.