§ II. On Impediments in Particular

§ 1. A man before the completed sixteenth year of age, a woman likewise before the completed fourteenth, cannot enter valid marriage.

§ 2. Although marriage contracted after the aforesaid age is valid, nevertheless pastors of souls should take care to turn young persons away from it before the age at which, according to the received customs of the region, marriage is usually entered (Can. 1067).

I say. Therefore in the new Code a notable change has been introduced; the age of puberty is no longer regarded, but the year is fixed absolutely before whose completion marriage cannot validly be entered: the sixteenth for a man, the fourteenth for a woman.

In the second paragraph, once it has been established that after the aforesaid age wedlock is valid, pastors are admonished to turn young persons away from entering this covenant before the civil legal age.

In all our States the age at which marriage can validly be contracted is the age of 21 years, except South Carolina, North Carolina, New Hampshire, Michigan, Idaho, in which it is the age of 18 years, and Tennessee, in which it is 14; this is established for men, and indeed without the consent of parents. For women, however, without the same consent, in many States the age is 18 years, except the States Florida, Kentucky, Louisiana, Pennsylvania, Porto Rico, Rhode Island, Virginia, West Virginia, Wyoming, in which it is 21; Maryland, New Hampshire, in which it is 16; Tennessee, in which it is 12. But the age with the consent of parents in many is 18 years for men; but in Alabama, Georgia, Kansas it is 17; in Arkansas, Iowa, North Carolina, Texas, Utah it is 16; in Kentucky, Louisiana, Maryland, Mississippi, New Hampshire, Virginia it is 14. For women with the consent of parents it is variable from the twelfth year in Virginia, Mississippi, Maryland, Kentucky, Louisiana; to the year 13 in New Hampshire; to the fourteenth year in Utah, Texas, South Carolina, Rhode Island, North Carolina, Maine, Iowa, Georgia, Arkansas, Arizona, Alabama; to the fifteenth year in Wisconsin, Washington, South Dakota, Oklahoma, North Dakota, Minnesota, Kansas, Hawaii, California; to the sixteenth year in Wyoming, West Virginia, Porto Rico, Oregon, Ohio, Nevada, Nebraska, Montana, Michigan, Massachusetts, Indiana, Illinois; and to the eighteenth year in Idaho. In Connecticut no provision is made in a special way for the age of matrimonial consent. New York has its own provisions in relation to this matrimonial consent.¹

¹ Cf. Addenda, p. 1117, n. 70.

The impediment of impotence consists in incapacity for exercising carnal intercourse of itself apt for generation. But this incapacity is manifold, namely: 1°. certain or doubtful; 2°. antecedent or consequent, according as it precedes Marriage or follows it; 3°. temporal or perpetual, according as by lapse of time or by art it can be removed or cannot be removed; 4°. natural or accidental, according as it arises from an intrinsic defect or from an extrinsic cause, for example, a spell; 5°. absolute or respective, according as it exists between a man and all women, or between a man and some determinate woman, or conversely.

§ 1. Antecedent and perpetual impotence, whether on the part of the man or on the part of the woman, whether known to the other or not, whether absolute or relative, dirimently invalidates marriage by the law of nature itself.

§ 2. If the impediment of impotence is doubtful, whether by a doubt of law or by a doubt of fact, marriage is not to be impeded.

§ 3. Sterility neither dirimently invalidates nor impedes marriage (Can. 1068).

In the first paragraph the impediment is established because the object of the matrimonial contract is not had; in the second, the principle known in this matter is applied, that in these natural rights a man is not deprived of their exercise until it is clearly established that the right itself does not exist; in the third, sterility is affirmed to be neither an impeding nor a diriment impediment, for the object of the contract is present.

From this Canon, therefore, it is established: 1°. that consequent impotence and antecedent temporal impotence do not annul the contract; 2°. that marriage is not to be impeded when impotence is doubtful, whether by a doubt of law or by a doubt of fact; 3°. that sterility does not render the contract either invalid or illicit.

You Will Resolve. - 1°. Impotence is not to be confused with sterility, for sterile persons are not impotent for the conjugal act; hence old men who are able to consummate marriage contract validly; likewise women who can receive seed, even if they do not retain it. - Cf. S. Alphonsus, n. 1015.

2°. Eunuchs or castrated men deprived of both testicles, or who have them crushed, are reputed impotent, as is clear from the Declaration of Sixtus V, in the year 1587, which begins "Frequenter in istis regionibus." But otherwise if they lack only one, because then they can emit true seed. - Cf. Sanchez, lib. 7, disp. 104, p. 17.

3°. In doubt concerning antecedent impotence one must stand for the validity of Marriage, and the spouses must be permitted to try intercourse. Indeed, for this a triennium is conceded to them by canon law, notwithstanding greater probability for perpetual impotence. But for demonstrating impotence there is no need of this three-year experiment when safer means are available for rendering judgment. Safer means of this kind are the depositions of the spouse affirming the impotence of the other, confirmed by suitable testimonies, and the judgment of experts and obstetricians after a physical examination duly performed. - Cf. Acta S. Sedis, vol. 7, p. 118.

4°. In doubt concerning consequent impotence, likewise, it is licit for the spouses to try intercourse until they are altogether certain that it can in no way be completed. This certainty indeed can very rarely be had, for according to the principles now commonly received in the schools of physicians, although it is necessary that the man pour forth seminal fluid, nevertheless it is not required that he inject it all the way into the inner parts of the female organ; but it is enough that fluid of this kind be applied to the external surface and entrance of the vagina. Cf. Ballerini, note (a), p. 830. - Varceo, vol. 2, p. 357.

By the impediment of impotence is understood impotence of coition, or inability for having perfect carnal intercourse, which is effected by penetration of the female vessel and the pouring forth of seed in it. Thus Reiffenstuel, 1. IV, tit. XV, n. 1; and in nearly the same words Laymann, Schmalzgrueber, Sanchez, Lacroix, Palaus, Pirhing, Tamburini. "The faculty of coition, such as it is conceived in canon law," says Tarquini, "and is held sufficient for marriage, is completed by that act by which seeds are mingled in the natural vessel. For from this the spouses become one flesh, and attain the secondary end of marriage, which is the quieting of concupiscence. But now all these things, the quieting of concupiscence, the mingling of seeds, and conjunction into one flesh, are completed in the vagina itself, so that there is no necessity of penetrating the uterus. Therefore, though the uterus is closed, provided that the vagina is free, the faculty of coition, insofar as it is conceived as separated of itself from the faculty of generation, remains whole." Analecta Ecclesiastica, year 1900, p. 260.

These things having been said, whatever is in no way removable, or removable only with the greatest difficulty, and whether on the part of the man or on the part of the woman renders perfect intercourse impossible, renders the man or woman impotent. But a woman whose ovaries or uterus have been cut out is not unable for perfect carnal intercourse. For her vessel can be penetrated, and seed can be poured forth in it. Therefore, since she is not unable for perfect carnal intercourse, she is not impotent. Moreover the normal scope and function of intercourse is to place male seed in the woman's vessel; for this function the presence of an ovule is not required. The production of an ovule is accomplished independently of coitus, and the production of sperm is made independently of the ovule. Therefore intercourse takes place, whether there is or is not an ovule; this arises from nature, that from free will. It is not within the woman's power to produce an ovum as she wills. In marriage the spouses oblige themselves to an act, that is, to perfect intercourse, which according to the named authors is effected by penetration of the female vessel and the pouring forth of seed in it. If nature completes the rest, by that very fact there will be conception. It is not impotence of generating, but impotence of coition, which dirimently invalidates marriage. The contracting parties mutually hand over to themselves the right to intercourse itself. A woman who has been cut hands over this right just as a woman not cut. Therefore she is not impotent. Besson explains this argument beautifully in Nouv. Rev. Theol., v. 42, p. 193. Add that the parts of a woman in undergoing intercourse consist only in this, that she receives seed in the vessel; by this reception the human act is terminated, whether in one cut or not cut. Intercourse itself is posited in the same way by either woman. Someone says, generation will not follow; to whom you may reply, nor is it required that it follow. Finally, on 3 Feb. 1887, when the doubt had been posed to the Holy Office, "Whether a woman rendered sterile by defect from the cutting out of both ovaries can and may be permitted to enter marriage, or not?" it responded: "The matter maturely and long considered, that the marriage of the woman concerning whom in the case there is question is not to be impeded." "Not to be impeded," it responded on 23 July 1890, even if the uterus also had been removed; again on 31 July 1895; but especially on 2 Apr. 1909, when a response was given repeating the decision of 23 July 1890; which last response the distinguished Ferreres, after his custom, examines most acutely in Razon y Fe, v. 26, pp. 101 sqq. The negative opinion is safe: Eschbach, Disp. Phys. Theol., d. 2, p. 2, c. 3. - D'Annibale, n. 431, note 9. - Genicot, 503. - De Smet, p. 337. - Van de Burgt-Schaepman, p. 241, and others. But the other opinion also has very weighty supporters, who say: Perfect carnal intercourse is intercourse of itself apt for generation; but such intercourse is not had in the case. Therefore it is not perfect intercourse; therefore that woman is unable for such intercourse and consequently is impotent. This is the opinion of Antonelli, De Conceptu Impotentiae. - Bucceroni, n. 994. - Noldin, n. 577. - Sebastiani, n. 561, note. - Bulot, n. 837, and others.

Question. Must he now be called impotent who has undergone double vasectomy?

Resp. It is all but certain that the impediment is present, but it is not certain. Several grave authors adhere to the affirmative opinion, whose reason is very pressing: he who labors under antecedent and perpetual impotence, absolute or relative to this bride, is unable validly to contract marriage; but the vasectomized man labors under such impotence. For he is impotent for perfect carnal intercourse, which is effected by penetration of the female vessel and the pouring forth of seed in it, because he cannot ejaculate true seed, and he has been cut for inducing this inability.

The negative opinion is proved. In order that there be a diriment impediment, impotence must be perpetual. But it is not certainly established that it is perpetual in the case. For surgeons themselves vary, and there are those who affirm that the cut parts can be joined together and the function probably restored. Moreover, to use the words of Cardinal D'Annibale: it is publicly pernicious to prohibit men from marriages in such a doubtful matter. v. 3, n. 447. If the case occurs, let the confessor refer the matter to the Ordinary.

Note. - Let the confessor most greatly beware lest, in a matter of such grave moment and subject to so many difficulties, he proceed rashly or decide anything by his own authority; but let him refer the case, duly examined with all its circumstances, to the Ordinary, whose role it will then be to establish and determine what must be done in a similar business. Indeed, a prudent and discreet confessor will not question spouses concerning impotence, nor even forewarn those whom he believes impotent; nor will he respond finally to those consulting him on that matter, unless he himself first has consulted the Bishop.¹

¹ Cf. Addenda, p. 1117, n. 70.

I say. Bond, namely the bond of Marriage by which spouses are bound between themselves as long as they live, certainly by divine law dirimently invalidates any other Marriage which one of the spouses would attempt. The reason is that Marriage is, at least by positive divine law, one and indissoluble.

§ 1. He invalidly attempts marriage who is held by the bond of a prior marriage, although not consummated, with the privilege of faith saved.

§ 2. Although a prior marriage is invalid or dissolved from any cause whatever, it is not therefore licit to contract another before the nullity or dissolution of the prior has been established legitimately and certainly (Can. 1069).

You Will Resolve. - 1°. He who in good faith believes that his spouse is dead, while in fact she is living, and hastens to other nuptials, does not indeed sin, but contracts invalidly and is bound to return to the prior spouse when she appears.

2°. For entering a new Marriage, the mere absence of the spouse, however great it may be, is not sufficient; but arguments of death are required which make true moral certitude.

3°. This moral certitude required by law is not had through rumor, even public rumor, unless it is supported by some positive argument, nor through one single witness, unless other conjectures are present, concerning which it belongs to the Bishop alone to judge. - Hence in doubt one must always have recourse to the Bishop; but he, while the doubt remains, cannot permit the celebration of Marriage, but must transmit the whole cause, insofar as there is need, to the Holy See.

4°. By special law and reason, especially among us, recourse must be had to the Ordinary when it is a question of Marriage to be entered by wanderers and foreigners. - Cf. Council of Trent, sess. 24, cap. 7. - Kenrick, n. 193.¹

Note. - What must be done when a woman desires to enter new nuptials from the fact that her husband gave his name to the military and has not returned, you may see in the Second Plenary Council of Baltimore, n. 328. Consult also the Instruction given for proving the death of a spouse in the Third Plenary Council of Baltimore, Appendix p. 258.²

¹ Cf. Addenda, p. 1120, n. 75.

² Cf. Addenda, p. 1117, n. 70.

§ 1. A marriage contracted by a non-baptized person with a person baptized in the Catholic Church or converted to it from heresy or schism is null.

§ 2. If the party at the time of the contracted marriage was commonly held as baptized, or his baptism was doubtful, one must stand, according to the norm of can. 1014, for the validity of the marriage, until it is certainly proved that one party was baptized, but the other was not baptized (Can. 1070).

In this impediment it is supposed that one party has not been baptized, and that the other either has been baptized in the Catholic Church or has been converted to it from heresy or schism; therefore the extension of this impediment is greatly diminished. From the second paragraph a particular question is decided: when marriage was contracted, the party was commonly held to be baptized, and the other party also was held to be baptized; now a doubt arises, because one party for a not altogether slight reason doubts concerning baptism. One must stand for the validity of the marriage until it is certainly proved that the one party was baptized, and that the other was not baptized. There is no impediment between a person baptized in heresy and not converted to the faith and a non-baptized person. There is no impediment between two persons baptized in heresy. In other words, it is a question of an impediment dirimently invalidating the matrimonial contract itself, not of dissolving a marriage already validly entered. By reason of this impediment the persons concerning whom the question is had are a non-baptized person and a person either baptized in the Catholic Church or converted to it from heresy; in this case the marriage which is entered between them is invalid. It is not a question of non-Catholics contracting marriage. Again, in contracting this impediment, one party is supposed baptized in the Catholic Church, or converted from heresy or from schism. The other party is not baptized. Baptism in the Catholic Church, or conversion to it from schism or heresy, is had on one side; on the other, no baptism. When these adjuncts occur, the impediment enters. Titius and Bertha, heretics, enter marriage; the baptism of both is doubtful; Bertha is found not to be baptized. No impediment is present, because there is not had a party baptized in the Catholic Church or converted to it entering with another not baptized.¹

Those things which have been prescribed concerning mixed nuptials in Canons 1060-1064 must also be applied to marriages to which the impediment of disparity of cult is opposed (Can. 1071). Therefore cautions are altogether required for entering marriage in the case, so that not even a dispensation can be given if they are not given.

¹ Cf. Addenda, p. 1122, n. 77; p. 1135, n. 95.

Question 1. From what law does this impediment proceed?

Resp. It is certain that the impediment of disparity of cult, insofar as it is diriment, depends on ecclesiastical law alone. For in the first centuries of the Church this impediment did not exist, and several Marriages of this kind are read as having been approved in ecclesiastical history, as the Marriage of St. Monica with Patricius, of St. Cecilia with Valerian, of St. Chlotildis with Clovis while still pagan, etc. ... But the impediment of mixed religion, and also of disparity of cult insofar as it is impeding, proceeds both from natural and divine law and from ecclesiastical law. Second Plenary Council of Baltimore, Appendix p. 311. - Third Plenary Council of Baltimore, p. 130. - Acta S. Sedis, vol. 6, p. 456. - Sanchez, lib. 7, disp. 71, n. 7.

Question 2. What does an appropriate caution, taken accurately and most strictly, signify?

Resp. It signifies "such a promise which, having been brought into a pact, furnishes a moral foundation concerning the truth of execution, so that such execution can prudently be expected." Thus the Holy Office, 30 June 1842.

Question 3. Whether a dispensation concerning the impediment of disparity of cult imparted by one having power from the Holy See, when the prescribed cautions were not required or were denied, must be held valid?

Resp. "That a dispensation imparted as it is set forth is null." Holy Office, 21 June 1912.

Question 4. How were the words of Formula D, n. 3, to be understood: "except, however, the case of marriage with a Jewish man or woman"?

Resp. They were to be understood in this sense, that by force of this Faculty our Bishops were able to dispense with all, even Jews, except only non-reformed Jews; indeed, they were able to dispense even with these if there had been danger in delay. Cf. Zeitschrift fur Kath. Theol., Innsbruck, v. 15, p. 390. - Holy Office, 12 June 1882; 3 Aug. 1889. - Wernz, v. 4, n. 510, note 35.¹

¹ Cf. Addenda, p. 1117, n. 70.

The vow dirimently invalidating Marriage is only the solemn vow of chastity, emitted by profession in an approved Religion. But the Order dirimently invalidating Marriage is sacred Order, namely the presbyterate, diaconate, and subdiaconate.

I say 1°. The solemn vow of chastity and sacred Order dirimently invalidate Marriage by ecclesiastical law. This is established from the First and Second Lateran Councils, and also from the Council of Trent, sess. 24, can. 9, where it is said: "If anyone shall say that Clerics constituted in sacred Orders, or Regulars who have solemnly professed chastity, can contract Marriage, and that the one contracted is valid notwithstanding ecclesiastical law or vow, let him be anathema."

Likewise religious who have professed solemn vows invalidly attempt marriage, or simple vows to which, by special prescription of the Apostolic See, the force of invalidating nuptials has been added (Can. 1073).

I say 2°. Clerics constituted in sacred orders invalidly attempt marriage (Can. 1072).

We declare Marriage contracted even after the recited Orders (subdiaconate, diaconate, presbyterate) null and invalid: thus Benedict XIV, Etsi Pastoralis, Par. VII, n. 27; Council of Trent, sess. 24, de matr., can. 7. - I said by ecclesiastical law, for nothing is had from the Scriptures or tradition, or even from the law of nature, by which it is indicated that sacred Order is repugnant to the conjugal state; and elsewhere the common opinion of theologians holds that Order dirimently invalidates Marriage by force of the vow which is annexed to it from the sole will of the Church. - But the vow of chastity therefore dirimently invalidates Marriage because it is solemn; but solemnity is of ecclesiastical law; therefore, etc. Cf. Sanchez, lib. 8, n. 7. - S. Alphonsus, n. 1059. - Heiss, §§ 34 and 35.

By a special privilege conceded by Gregory XIII, in the Constitution Ascendente Domino, the vow of chastity which members of the Society of Jesus emit after two years of novitiate, although simple, likewise dirimently invalidates Marriage. This is established from the very words of the Supreme Pontiff, who speaks thus: "Indeed, all those [members of the Society of Jesus] are incapable of contracting [Marriage], and contracts of this kind are null and invalid, just as we make them invalid and annul them." - But concerning these things the following are to be observed:

1°. This special concession is not to be understood as if the emission of the simple vows of members of the Society of Jesus were equivalent to religious profession, so that it would annul a ratified Marriage perhaps contracted by them beforehand; for although this had been asserted by some canonists, nevertheless the Society of Jesus itself, as Ballerini says, never either learned of it or thought of it.

2°. Since by the law laid down by Pius IX even in other Religious Orders strictly so called profession is no longer made immediately after the novitiate, but then only simple vows are emitted, and one must remain in these for at least a triennium, now it can and must be said that those religious are compared to the Scholastics of the Society of Jesus. Nevertheless the special privilege of the vow of chastity in relation to Marriage cannot be extended to them. - Cf. Ballerini, note (a), p. 733; and note (b), p. 777. - Lehmkuhl, nn. 749 and following.¹

¹ Cf. Addenda, p. 1117, n. 70.

I say. Abduction, namely the violent carrying away of a woman from a safe place to another, where she is detained under the power of the abductor for the sake of entering Marriage, dirimently invalidates by ecclesiastical law Marriage between the abducted woman and the abductor, whether he carries away the woman by himself or through others. This is established from the Council of Trent, sess. 24, cap. 6, and from Canon 1074:

§ 1. Between a male abductor and a woman abducted with a view to marriage, as long as she has remained in the power of the abductor, no marriage can stand.

§ 2. But if the abducted woman, separated from the abductor and placed in a safe and free place, has consented to have him as husband, the impediment ceases.

§ 3. As regards the nullity of marriage, violent retention of a woman is held equal to abduction, namely when a man violently detains a woman with a view to marriage in a place where she is staying or to which she freely came (Can. 1074).

From the third paragraph, violent retention of a woman in the place in which she is staying, or to which she freely came, is held equal to abduction.

Question 1. Does abduction of seduction induce the impediment, or when a woman is induced by gifts, flatteries, etc., to follow the abductor?

Resp. Negatively, because through the impediment of abduction the Church intends only to consult for the liberty of Marriage, which is not injured when a consenting woman is carried away, even when the parents are unwilling. Except nevertheless, unless deceit and fraud intervene in bestowing and promising gifts, as perhaps some Declarations of the Sacred Congregation of the Council suppose, on which the patrons of the affirmative opinion rely. - Cf. S. Alphonsus, n. 1107. - Analecta Juris Pontificii, vol. 4, pp. 1848 and following.

Question 2. Is the impediment incurred if Marriage takes place after the woman has been liberated from the power of the abductor?

Resp. Negatively, and the reason is that, the woman having become of her own right and violence having ceased, actual abduction is no longer had, as is required by the Council of Trent. It must be noted, however, that this impediment exists if the woman contracted Marriage while she remains under the power of the abductor, even if she consents altogether freely. Cf. S. Alphonsus, n. 1032. - Acta S. Sedis, vol. 1, pp. 15 and following.

Question 3. Do those who carry out abduction for another incur this impediment?

Resp. Negatively, because they are not properly abductors, although they can incur the penalties laid against abductors. - Cf. Varceno, vol. 2, p. 362. - Ballerini, note (a), p. 832. - Acta S. Sedis, vol. 9, p. 519.¹

¹ Cf. Addenda, p. 1117, n. 70.

Crime, insofar as it is a diriment impediment of Marriage, is threefold, namely: 1°. adultery; 2°. both at once, provided certain conditions concur which we set beneath; 3°. homicide of the spouse, provided, etc.

They cannot validly contract marriage:

1°. Those who, while the same legitimate marriage endures, have consummated adultery between themselves and have given faith to each other mutually concerning marriage to be entered, or have attempted marriage itself, even through a civil act only;

2°. Those who, while likewise the same legitimate marriage endures, have consummated adultery between themselves, and one of them has perpetrated conjugicide;

3°. Those who by mutual physical or moral work, even without adultery, have brought death upon the spouse (Can. 1075).

For the impediment to be incurred from this head, it is required:

1°. That the adultery be true, formal, consummated. And first indeed true, that is, that at least one or the other fornicator be joined in Marriage not merely putative, but legitimate and valid, even if perhaps not consummated. Then formal, and indeed on each side, that is, that each know that one or the other is married. For the impediment arises on account of injury inflicted on one and the same marriage. Finally consummated, with perfect carnal intercourse intervening.

2°. That there be present a promise of future Marriage to be contracted, namely after the death of the spouse. This promise, although it is not restricted to any time, but can precede, accompany, or follow adultery, provided that, if it preceded, it was not retracted before the adultery, nevertheless must be true, absolute, and mutually given to each other, as is clear from the clear declaration of the canon. But if a promise of future Marriage is not present, but the accomplices have attempted it in the present in any way, even clandestinely, this suffices for inducing the impediment.

3°. That both the promise of Marriage and the adultery take place while the prior spouse is living, or while the same Marriage stands. - Thus from many places of canon law, for example, from cap. Si quis vivente 5, caus. 31, q. 1. Likewise from cap. Propositum 1, de eo qui duxit, etc. Cf. S. Alphonsus, nn. 1036 and following. - Ballerini, notes (a), (b), (c), etc., pp. 796 and 797.

You Will Resolve. - 1°. If an unmarried man lies with a woman whom he does not know to be married, formal injury to one and the same wedlock is not made on both sides, and therefore neither is adultery had which is required in this impediment. A married man and a married woman have relations, but just as the woman wholly does not know that the man is bound by marriage, so also the man does not know that the woman is married; therefore the man bears injury to his own marriage, not to the woman's, likewise the woman to her own, not to the man's; therefore the adultery on both sides is not formally injurious to one and the same marriage; hence neither does the impediment exist. On the contrary, however, if each knew of the other's marriage, a double impediment arises.

2°. Pius X established, lest marriages be exposed to danger of nullity, that for the future a dispensation from the impediment arising from adultery with attempted marriage should be judged granted through a dispensation given by the Holy See, whether over a ratified and non-consummated marriage, or through permission of passage to other nuptials. S. C. Sacr., 3 June 1912. - Cf. Can. 1053.

When the crimes of adultery and conjugicide are found joined, mutual conspiracy toward conjugicide is not required, nor a promise of Marriage, but these three things suffice: 1°. Adultery, such as was explained above, which precedes the conjugicide; nevertheless it is not necessary that it precede the machination of death. 2°. Machination of death by one of the adulterers from the intention of Marriage; but it suffices that this intention be had by one, although S. Alphonsus besides requires as more probable that this intention be manifested to the other in the same way as will be said below. 3°. Death following from the machination of one of the adulterers, in the same way as will be said below concerning homicide alone. Thus from the same law. - Cf. S. Alphonsus, n. 1036. - Gousset, n. 824. - Carriere, n. 739.

In this species it is required that on the part of each the adultery be formal with respect to the spouse killed, and therefore tend to the injury of that spouse. Thus Bertha does not know that Titius is married; she commits adultery with him. That adultery was not injurious on each side to the wedlock of Titius. But he knows that Bertha is married. Bertha's husband dies; Titius now kills his own wife. The adultery was not formal on each side with respect to the spouse killed. Wherefore neither is the impediment present. - Cf. Ballerini-Palmieri, n. 1031. - Schmalzgrueber, 1. IV, t. 7, n. 49.

This impediment, which because of the double crime united is called both at once, constitutes one single impediment. But, on the contrary, if both adultery and homicide have their own proper conditions separately, as they are explained here in I and III, they introduce a double impediment.

Three conditions are required so that an impediment may proceed from this.

1°. Mutual conspiracy; whence it does not suffice that a spouse kill his own spouse if the person with whom he is going to enter Marriage is ignorant of this action, or contradicts it, or finally, although he knows it, does not properly participate in it. Thus theologians commonly, from cap. Laudabilem 1, de Conv. infidel. - Cf. S. Alphonsus, n. 1033. 2°. Intention of Marriage. Thus commonly, although it is not expressed in the law. The reason is that the end of the law is lest someone kill his own or another's spouse in hope of Marriage. But it is enough that Marriage be intended by only one of the accomplices. Some require that that intention have in some way been manifested to the other; but S. Alphonsus says that it suffices that certain indications of this intention had preceded, for example, familiarities, love letters, etc. Otherwise, in the external forum, when machination or common work toward killing has been supposed, the intention of Marriage is always presumed. - Cf. Ballerini, note (b), p. 798. 3°. Death really following from the physical or moral action of one or the other accomplice. This is clear from canon law. - Cf. S. Alphonsus, nn. 1033 and following.

Hold all these things in memory thus in fewer words:

1°. Adultery with a promise of Marriage mutually given and accepted.

2°. Homicide from common conspiracy and with the intention of contracting, had and manifested at least by one.

3°. Both at once with a view to Marriage, but without conspiracy and promise of Marriage. - Since this impediment of crime is of ecclesiastical law, it has no place among unbelievers, as S. Alphonsus, n. 1037, indicates from common doctrine, even if afterward they come to the faith. But, on the contrary, a faithful person who has an unbelieving accomplice contracts it and communicates it to the unbeliever, and therefore cannot enter Marriage with that same one converted to the faith. This is established from cap. Laudabilem 1, de Convers. infidel. - There is added the resolution given by the Sacred Congregation de Prop. Fide, 23 Aug. 1852, in Cretoni, vol. 2, p. 459.¹

¹ Cf. Addenda, p. 1117, n. 70.

Kinship is distinguished as of three kinds, namely: 1°. natural; 2°. spiritual; 3°. legal. A few things will be said concerning each for practice.

Natural kinship, or consanguinity, is the bond of persons descending from the same nearest stock through carnal generation, or the bond which arises from participation of the same blood within certain limits.

In consanguinity three things must be distinguished, namely: 1°. the stock, or the person from whom the others draw origin; 2°. the degree, or the measure of the distance of one person from another; 3°. the line, or series of persons descending from the same stock. But the line is twofold: one direct, and the other collateral or transverse. The former is the series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents or from great-grandparents, etc. But the latter is the series of persons who, although they have a common stock, nevertheless do not descend one from another, as brothers, cousins, etc. Besides, this is equal or unequal according as blood-relatives are equally or not equally distant from the common stock.

I say 1°. § 1. In the direct line of consanguinity, marriage is invalid among all ascendants and descendants, both legitimate and natural (Can. 1076), at least by positive law. - I said at least by positive law, because although it is certain that Marriage in the first degree of the direct line is null by the law of nature itself, nevertheless it is disputed among theologians whether it is dirimently invalidated by the same law in other degrees. - Cf. S. Alphonsus, de Sacram. Paenit., n. 470. - Schmalzgrueber, lib. 4, tit. 14, n. 30.

I say 2°. § 2. In the collateral line it is invalid up to the third degree inclusive, yet in such a way that the impediment of marriage is multiplied only as often as the common stock is multiplied (Can. 1076). But concerning the law of this impediment it must be said that it is from a positive ecclesiastical statute, as is deduced from the practice of the Church, which dispenses from it, except in the first degree, concerning which it is disputed whether it dirimently invalidates by ecclesiastical or natural law, or at least by positive divine law, since the Church never dispenses so that brothers and sisters may be joined, and unbelievers themselves detest nuptials of this kind. - Cf. Schmalzgrueber, loc. cit., nn. 45 and 46. - Ballerini, notes (a) and (b), p. 786.

I say 3°. § 3. Marriage is never to be permitted if there is any doubt whether the parties are blood-relatives in some degree of the direct line or in the first degree of the collateral line (Can. 1076).

But that the diversity of the degree of consanguinity may be computed, attention must be given to the following rules:

§ 1. Consanguinity is computed by lines and degrees.

Rule I. § 2. In the direct line, there are as many degrees as generations, or as many persons, with the stock removed (Can. 96).

Hence between father and son there is one degree, because there is one generation or one person of the son, the father being excluded as the stock. Between grandson and grandfather two degrees are counted, because there are two generations, although three persons intervene, namely grandfather, father, and his son, or grandson with respect to the grandfather. Suppose likewise great-grandfather or great-great-grandfather, and you will have three or four degrees.

Rule II. § 3. In the oblique line, if each tract is equal, there are as many degrees as generations in one tract of the line (Can. 96).

In the equal collateral line there are as many degrees as there are persons on one side, with the stock removed. Hence brother and sister are in the first degree, because if the common stock or father is set aside, one person remains on each side; and since each is distant by one degree from the stock, they also are distant from each other by one degree. Likewise paternal cousins, or the children of two brothers, are each distant by two degrees from the common stock or from the grandfather, and consequently are blood-relatives between themselves in the second degree. Thus also it must be said concerning the others.

Rule III. § 3. If the two tracts are unequal, there are as many degrees as generations in the longer tract (Can. 96).

Hence if one is distant from the common stock by two degrees and his blood-relative by three, they will be blood-relatives between themselves in the third degree, according to the saying: The more remote degree draws the nearer to itself. Therefore Bertha will be a blood-relative in the second degree with her paternal uncle, or the brother of her father, because she is distant by two degrees from the common stock, namely from her grandfather, although the paternal uncle himself is separated from the same stock by one degree, since he is the son of the stock, or the brother of Bertha's father. Thus also must it be established concerning any others.

Notice that these rules regard computation according to ecclesiastical law. But if the civil laws of some State compute differently, attention must be given to them, but only for civil effects. Cf. Kenrick, n. 153.

Question 1. How can the degrees of consanguinity easily be found?

Resp. If the common stock is known, write his name on paper, and below mark the generations and the names of the persons descending from here and there, until you come to those persons who are to be joined in wedlock; from this you will easily compute the degrees. - But if the stock is unknown, proceed thus: write in the lower part of the paper or table the name of the bridegroom on one side, and the name of the bride on the other; then above the bridegroom's name mark the names of those blood-relatives of his who perhaps can be the cause why some kinship exists with the bride; do the same with respect to the bride. When this notation has been made, ascend on one side, and see whether they come together in a common principle or stock, from whom the bridegroom and bride have been mediately begotten. Hence after you have found it, and at the same time have observed whether the betrothed are in an equal or unequal line, finally apply the rules proposed below and the resolution of the doubt will be clear. For these things let the following example stand:

                         GREAT-GRANDFATHER

PATRITIUS MURPHY

GRANDMOTHER                         GRANDFATHER
              Anna Murphy                         Petrus Murphy
              Wife of Joseph Smith

FATHER                              FATHER
              Michael Smith                       Joannes Murphy

BRIDEGROOM                          BRIDE
              Robertus Smith                      Maria Murphy

In the example Robertus Smith and Maria Murphy are blood-relatives in the third equal degree.

Another method also exists for recognizing the degrees of kinship, namely the use of the tree of consanguinity or of the genealogical table which is had on the following page. Therefore, that the whole matter may be done practically, inspect the table, and see in what line and in what cells you find the persons concerning whose kinship inquiry is made, and attend by how many degrees they are distant from the common stock.

Consanguinity between the same persons can arise from a multiple head, and then there is a double or multiple propinquity or impediment to be opened in the petition of dispensation. But this can happen when two or more common stocks concur. Thus, for example, if wives who are themselves sisters or cousins between themselves were married by two brothers or cousins, the children received from each wedlock will be joined between themselves by a double bond of consanguinity. - Cf. Scavini, lib. 3, tract. 12, n. 1012.

Question 2. Who are collateral blood-relatives?

PATRUUS MAGNUS, or brother of the grandfather - grandfather's brother.

AMITA MAGNA, or sister of the grandfather - grandfather's sister.

PATRUUS, or brother of the father - father's brother, paternal uncle.

AMITA, or sister of the father - father's sister, paternal aunt.

PATRUELES, or children of brothers from the father's side - first cousins.

AVUNCULUS MAGNUS, or brother of the grandmother - grandmother's brother.

MATERTERA MAGNA, or sister of the grandmother - grandmother's sister.

                                      3
                              Great-grandfather
                              Great-grandmother

3            2             3
                 Great paternal     Grandfather    Great maternal
                 uncle/aunt         Grandmother    uncle/aunt

3          2            1            2           3
         Their children  Paternal     Father       Maternal    Their children
                         uncle/aunt   Mother       uncle/aunt

3        2          1           N           1          2        3
   Nephews   Paternal    Brother                 Sister    Cousins   Nephews
             cousins                                      maternal
             Amitini                                      Amitini

3        2                       1                    2        3
   Second    Brother's               Son/Daughter        Sister's  Second
   cousins   children                                    children  cousins

3                                2                             3
   Brother's                         Grandson                      Sister's
   grandchildren                     Granddaughter                 grandchildren

3
                              Great-grandson
                              Great-granddaughter

Notes

I. This table represents consanguineous persons up to the third degree in the direct and collateral line.

II. Persons who are joined by a tract are blood-relatives between themselves in the direct line, and with the rest in the collateral line.

III. Where the lines are joined, there the stock is had.

AVUNCULUS, or brother of the mother - mother's brother, maternal uncle.

MATERTERA, or sister of the mother - mother's sister, maternal aunt.

CONSOBRINI, or children of brothers from the mother's side - first cousins.

AMITINI, or children of brothers - first cousins.

SOBRINI, or their children - second cousins.

NEPOTES, or children of brothers - nephews - brother's or sister's children.

PRONEPOTES, or their children - second nephews - grand nephews.¹

¹ Cf. Addenda, p. 1117, n. 70.

Spiritual kinship is a certain propinquity which, by statute of the Church, arises from the administration and reception of Baptism among certain persons determined in canon law.

I say. Only that spiritual kinship invalidates marriage concerning which there is question in can. 768 (Can. 1079). From baptism only the baptizer and the sponsor contract spiritual kinship with the baptized person (Can. 768).

And therefore neither the baptizer nor the sponsor can validly enter with the baptized woman. Any other kinship no longer constitutes an impediment.

You Will Resolve. - Sponsors, whether male or female, do not contract spiritual kinship unless they themselves immediately and by themselves, or through a proxy, physically touch the baptized person, either by holding or touching him while he is baptized, or by receiving him immediately from the hand of the priest after Baptism; because otherwise they are not properly judged to receive him from the sacred font. For all the texts of canon law by which spiritual kinship is established are expressed in these words: he who receives, holds, touches, etc. - Cf. S. Alphonsus, de Baptismo, n. 148.

2°. An unbeliever cannot contract spiritual kinship because this propinquity arises from the Church; and therefore the minister of the sacrament, in order that he incur it, must be baptized. Hence an unbeliever who validly and licitly baptized someone in a case of necessity afterward does not incur the impediment when he himself is baptized. Since in this case the spiritual kinship itself never existed, it cannot revive when the sacrament has been received.

3°. "But if others beyond those designated have touched the baptized person, they contract spiritual kinship in no way." - Council of Trent, sess. 24, cap. 2.

4°. If parents have designated more than two, or persons of the same sex, contrary to the Tridentine Decree itself, and these, admitted illegitimately by the pastor, have touched the infant, all, otherwise capable, contract spiritual kinship.

5°. Sponsors can receive infants through proxies; in which case not the proxies, but the sponsors, contract the impediment.

6°. That absent persons be sponsors, it is required that they truly give a mandate to others, by which these receive the infant in their name; it is not enough that they ratify an act placed without mandate. - Cf. Wernz, v. 4, n. 492. - Van de Burgt, n. 168.

Legal kinship is the propinquity of persons which arises from legal adoption.

I say. Those who by civil law are held incapable of entering nuptials between themselves on account of legal kinship arisen from adoption cannot, by force of canon law, validly contract marriage between themselves (Can. 1080).

Therefore such as is the incapacity among legal kinsmen by force of civil law, such is it also by force of canonical law.

§ 1. Affinity arises from valid marriage, whether ratified only or ratified and consummated.

§ 2. It exists only between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the man.

§ 3. It is computed so that those who are blood-relatives of the man are affines of the woman in the same line and degree, and conversely (Can. 97).

I say. § 1. Affinity in the direct line dirimently invalidates marriage in any degree; in the collateral line up to the second degree inclusive.

§ 2. The impediment of affinity is multiplied:

1°. As often as the impediment of consanguinity from which it proceeds is multiplied;

2°. By repeated successive marriage with a blood-relative of the deceased spouse (Can. 1077).

Question 1. By what law does affinity dirimently invalidate?

Resp. From the certain opinion of all, it dirimently invalidates by the law of the Church alone in the collateral line, and more probably also in the direct line.

Question 2. Who are the various affines?

Resp. They are the following, namely:

SOCER, or father by reason of affinity, whether of the married man or of the married woman - father-in-law.

SOCRUS, or mother affine - mother-in-law.

PROSOCER, or grandfather affine - wife's grandfather.

PROSOCRUS, or grandmother affine - wife's grandmother.

GENER, or husband of the daughter - son-in-law.

NURUS, or wife of the son - daughter-in-law.

PROGENER, or husband of the granddaughter - granddaughter's husband.

PRONURUS, or wife of the grandson - grandson's wife.

LEVIR, or brother of the husband or wife - brother-in-law.

GLOS, or sister of the husband - sister-in-law.

FRATRIA, or wife of the brother - sister-in-law, a brother's wife.

SORORIUS, or husband of the sister - brother-in-law, a sister's husband.

VITRICUS, or husband of the mother - stepfather.

PRIVIGNUS, or child from the first Marriage of the father or mother - stepson, stepdaughter.

NOVERCA, or wife of the father - stepmother.

Question 3. Does affinity from Marriage consummated, but invalid, dirimently invalidate Marriage?

Resp. Negatively, affinity arises from valid marriage alone.

You Will Resolve. - 1°. Persons who are joined in marriage are not themselves affines, but rather the foundation of affinity.

2°. The blood-relatives of the woman are not affines of the blood-relatives of the man. Affinity does not beget affinity.

3°. Two brothers can marry two sisters.

4°. A father and son can marry a mother and daughter.

5°. Such as is the degree of consanguinity with one person, such is the degree of affinity with the other.

6°. One must not doubt concerning the power of the Supreme Pontiff of dispensing in the first degree of the direct line of affinity. Therefore in desperate cases perhaps some hope shines forth.

7°. Martha enters Marriage with Titius, who is multiply blood-related to Thomas. Titius dies. Theodorus enters Marriage with Martha; when she is dead, he enters it with Bertha, the sister of Martha. These are cases of multiple affinity between Martha and Thomas, and between Theodorus and the blood-relatives of Bertha.

8°. Titius and Bertha, unbelievers, enter Marriage; both become Catholics; their marriage is now already ratified. After years of conjugal life Bertha dies. Titius now wishes to enter with Bertha's blood-relative in a prohibited degree. Titius becomes an affine of this person in the same degree.¹

¹ Cf. Addenda, p. 1117, n. 70.

The impediment of public honesty arises from invalid marriage, whether consummated or not, and from public or notorious concubinage; and it dirimently invalidates nuptials in the first and second degree of the direct line between the man and the blood-relatives of the woman, and conversely (Can. 1078).

Indeed, it is not fitting that the blood-relatives in the first and second degree of the direct line of one of those invalidly joined in marriage, or of those publicly known as concubinarians, be able to enter marriage with the other co-party. Public honesty forbids it. The source of this impediment is invalid marriage, consummated or not, and public and notorious concubinage.¹

¹ Cf. Addenda, p. 1117, n. 70.

The abrogated impediments are the following:

1°. The impediment of disparity of cult between a person baptized outside the Catholic Church, and not converted to it from heresy or schism, and a non-baptized person;

2°. The impediment of consanguinity in the fourth degree of the collateral line;

3°. The impediment of affinity in the third and fourth degree;

4°. The impediment of affinity from illicit intercourse;

5°. The impediment of public honesty from betrothals;

6°. The impediment of public honesty beyond the second degree;

7°. Every impediment of spiritual kinship except between the baptizer and the baptized person, and between the baptized person and the sponsor.

The sources of the double impediment, affinity and public honesty, are changed; the source of the first is valid marriage, the source of the second is invalid marriage and public and notorious concubinage.