III. On Incestuous Copulation

315. - 1. Intercourse with a consanguineous or affine person in the degrees in which matrimony is invalidated adds to the malice of lust a grave malice against piety, and is called

incest. For by using his jurisdiction, the legislator, beyond the natural prohibition but because of the same motive of piety or of the reverence to be preserved, effectively prohibited nuptials between those closely joined. Wherefore, when a dispensation has been given, the impiety will also cease and the malice of incest will be removed. And so one who, after obtaining a dispensation, sins with a consanguineous betrothed woman will no longer have to confess this circumstance. Cf. St. Alphonsus, book 3, no. 452.

2. Among Christians today, a diriment impediment arises from consanguinity or affinity in every degree of the direct line; but in the collateral line the first three degrees invalidate matrimony among consanguineous persons, and the first two among affine persons. While canonical affinity formerly arose from copulation, which could be licit or illicit, now, under the new Code, affinity is founded only upon valid matrimony, whether ratified only or ratified and consummated ¹. But a matrimony is not called ratified in the strict sense unless it is a sacrament. From this rationale you would say that no ecclesiastical affinity is generated by a matrimony validly contracted between a baptized and a non-baptized party. For a union of this kind more probably is not a sacrament. Yet because this mixed union is governed by ecclesiastical law, several think from the sufficiently manifest mind of the legislator that ecclesiastical affinity also arises from it. But this is deservedly doubted, so that the impediment is only doubtful with a doubt of law, and consequently practically nonexistent. For marriages between the non-baptized, however, civil laws, or, among less cultivated peoples, customs having the force of law, will define and govern affinity.

¹ Cf. canon 97.

Formerly, every affinity, even from illicit copulation, invalidated matrimony in every degree of the direct line; but in the collateral line, affinity from licit copulation invalidated matrimony in the first four degrees, and affinity from illicit copulation in only the first two.

3. Matrimony is indeed also impeded by public propriety. But this induces no special offices of piety. Wherefore this circumstance of fornication - that it was committed between persons among whom, because of public propriety, matrimony could not exist - need not be accused, at least under grave obligation.

4. As regards species:

a) Incest with a consanguineous person does not seem to differ specifically from incest with an affine person. For since an affine person is joined to the other on account of a consanguineous person, "consanguinity and affinity produce an impropriety of the same rationale." So St. Thomas himself, II-II, question 154, article 9, reply to objection 2. Vasquez speaks otherwise, on III, question 91, article 1, doubt 4, nos. 11-15; and Lessius, book 4, chapter 3, no. 79.

b) Neither the line nor the degree induces various species, whether among consanguineous persons or among affine persons, since specifically one piety is violated in all. Several, however, for example Lehmkuhl ², arguing from the fact that the rationale of piety is found of itself in parents but in others by participation, wish to except the first degree of the direct line. But in vain. First, as Cardinal de Lugo observes, that would have to be said of every line ³. And we have just heard from St. Thomas: when one thing exists on account of another, both are of the same species. Cf. Noldin, De sexto, no. 22.

² Theologia moralis, I, 1050, after St. Alphonsus, book 3, no. 448.

³ De Paenitentia, disputation 16, no. 315.

c) But if another office of piety is violated at the same time, the circumstance will then have to be disclosed. Thus parents sinning with children constituted under their power gravely derogate from the office of right education. Thus also, as Lugo ⁴ and Lehmkuhl ⁵ hold, adulterous incest with a stepmother, while the father is living, is opposed to piety by this rationale also, because it contains an atrocious injury done to the father.

⁴ De Paenitentia, disputation 16, no. 222.

⁵ I, 1050.

316. - A sin of the flesh with a person spiritually related is not properly incest, but it has a special malice because of violated reverence of a diverse rationale ⁶.

⁶ Some, however, for example Noldin, De sexto, etc., no. 21, use the common name of incest to designate sins with persons spiritually or legally related. Cf. Palmieri, Opus theologicum, vol. 2, nos. 1020, 1021.

This malice is grave if this relationship induces a diriment impediment of matrimony. For today, under the new Code, although both baptism ⁷ and confirmation ⁸ produce spiritual relationship, only that which arises from baptism invalidates matrimony; and it is an impediment of a lesser degree (canons 1079 and 1042, 4). Moreover, this relationship is now contracted only by the baptizer and the godfather or godmother, and only with the one baptized (canon 768). Therefore, the relationship which was induced by way of co-parenthood between the minister of the sacrament and the parents of the person baptized or confirmed, and between the godfather or godmother and the same parents, has been abolished.

⁷ Canon 768.

⁸ Canon 797.

Formerly an impediment also arose from confirmation; but they admonished that in accusation the cause of baptism need not be distinguished from the cause of confirmation.

Whether the relationship is contracted with the minister or with the godfather or godmother, its violation through copulation does not change the species.

317. - Legal relationship, where and insofar as it invalidates matrimony, adds its own species to fornication. Although the gravity of this malice can deservedly be doubted. But the violation of the reverence induced by human law among those legally related is said to differ in species from the reverence of natural and spiritual relationship. Cf. Noldin, De sexto, no. 22.