Adoption

565. Declaration. 1. Legal relationship is the nearness of persons arising from adoption. It is called legal because it was first established by civil law, although afterward it was also received by ecclesiastical law.

2. Adoption is defined as a legitimate act by which someone who is not a son or grandson is assumed as son or grandson. It must be made through a public act according to the established laws of each region. Wherefore each person must learn the nature, extent, and effects of adoption from the civil code of his own region.

3. A threefold legal relationship arises from adoption: legal paternity between the adopter and the adopted person and the descendants of the adopted person; legal fraternity between the adopted person and the legitimate children of the adopter, who exist under paternal power; legal affinity, which intervenes between the adopter and the wife of the adopted person and, conversely, between the adopted person and the wife of the adopter.

4. In Roman law a distinction is made between perfect adoption, or arrogation, if a person of his own right is assumed as a son by the supreme authority of the emperor in such a way that he passes into the power and family of the adopter and becomes his necessary heir, equally as natural and legitimate children; and imperfect or simple adoption, if a person who is not of his own right is assumed as a son by the inferior authority of the magistrate in such a way that he does not pass into the family and power of the adopter, but nevertheless receives some right in the inheritance.

5. From perfect adoption in Roman law arose a diriment impediment of matrimony, legal relationship, namely:

a. Between the adopter, the adopted person, and the children and descendants of the adopted person, legal paternity.

b. Between the adopted person and the legitimate children of the adopter who at the time of adoption are constituted under paternal power, legal fraternity.

c. Between the adopter and the wife of the adopted person, and conversely between the adopted person and the wife of the adopter, legal affinity.

The impediment of legal relationship is perpetual, that is, even when adoption is dissolved, it endures in those between whom legal paternity and affinity exist; but in those between whom legal fraternity intervenes, the impediment ceases when adoption is dissolved.

Adoption is dissolved both through emancipation of the adopted person or of the son or daughter of the adopter, and through death of the adopter.

6. The Church made this law of the Romans its own and constituted legal relationship arising from perfect adoption a diriment impediment of matrimony. In more recent time most nations substituted their own civil codes for Roman law; hence the question arose whether the diriment impediment of legal relationship still had force. The question was resolved in this way: the diriment impediment of legal relationship remains in those places in which the law of adoption as to substantial elements agrees with the perfect adoption of Roman law. Wherefore in individual regions it had to be investigated whether the laws in force as to substantial things imitated perfect adoption. Since the decision of the question was not free from difficulty, it happened that this impediment was held as doubtful unless the Holy See issued an authentic declaration concerning it. The new Code now removes the whole difficulty of this matter, because it adopts the civil law as its own.

566. Nature of the Impediment. 1. The peculiar relation which arises by force of adoption between the adopted person and the family of the adopter furnishes a reason for establishing that matrimony not be contracted between persons joined by legal relationship. In reality, in many regions civil law constitutes adoption an impediment of matrimony, now impedient, now diriment. Whether and in what way this impediment stands in the way of ecclesiastical matrimony depends on canon law. Now the new Code has made civil law its own and, as they say, has canonized it.

2. In those regions where legal relationship arising from adoption renders matrimony illicit by civil law, it is also illicit by canon law.¹

3. Therefore in each region it must be examined whether the civil code constitutes legal relationship an impediment of matrimony, whether impedient or diriment, between what persons it has force, and how long it will endure. All these things have force in the same way also in the forum of the Church.

4. Legal relationship brings an impedient impediment of matrimony in Hungary, Germany, Switzerland, and France.

In several other regions legal relationship is a diriment impediment, as will be said below.² Note that a canonical impediment is not removed by civil dispensation, but only by dispensation of the Holy See.

¹ Cn. 1059.

² Cf. Chelodi, n. 57. In Austria, the civil Code derives no impediment of matrimony from adoption; therefore no impedient canonical impediment exists there.

567. On the Unworthy. After he had treated impedient impediments, the Code establishes what must be done by the parish priest if the unworthy wish to enter matrimony.¹ It lists two kinds of unworthy persons: a. notorious apostates and those enrolled in a sect condemned by the Church; b. public sinners and those bound by censure. Although a properly so-called impediment does not stand in the way of their matrimony, nevertheless they deserve peculiar care of pastors.

To 1. a. The faithful must be deterred from contracting matrimony with apostates or those enrolled in a condemned sect; for no less danger threatens both the other party and the future offspring from them than from heretics and schismatics.

b. The parish priest cannot assist at nuptials of this kind, but should refer the matter to the ordinary.

c. The ordinary can grant license of assisting if a grave cause urges and if he prudently judges that all offspring are to be educated Catholic and that the danger of perversion of the other spouse has been removed.

To 2. a. If public sinners or those notoriously bound by censure approach confession, even if they do this sacrilegiously, in the external forum they are held as reconciled before God and the Church; therefore nothing stands in the way of their being admitted to matrimony.

b. If they refuse to approach confession, the parish priest should not assist at the matrimony unless a grave cause, such as danger of civil marriage, concubinage, grave harm, etc., urges.

c. Concerning the cause and its sufficiency, if it can be done, the ordinary must be consulted.

¹ Cn. 1065 and 1066.

604. Nature of the Impediment. 1. The impediment of legal relationship (Burgerliche Verwandtschaft) consists in this, that between persons who have contracted relationship from adoption, valid matrimony cannot be entered.

For the declaration of this matter, see above n. 543.

2. The impediment of legal relationship is merely of ecclesiastical law. The chief reason for establishing this impediment is the peculiar relation of reverence and friendship which arises from adoption between the adopter and the adopted person. To this is added another reason, namely, to avoid the danger of fornication which would threaten between persons staying in the same family if hope of matrimony shone upon them.

3. Hitherto the diriment impediment of legal relationship had force in those places in which the law of adoption, with regard to substantial things, agreed with the adoption of Roman law. But this happened from an authentic declaration of the Holy See in France and in the Neapolitan kingdom, and from the interpretation of authors in Germany, Italy, Spain, and in several republics of Latin America. Therefore in these places legal relationship constituted a diriment impediment up to May 19, 1918.

4. The new Code establishes that legal relationship dirimently impedes matrimony where by civil law it dirimently impedes matrimony.¹ Therefore in judging this impediment, one must no longer attend to Roman law, but to the recent law of each state. From the modern codes legal relationship is a diriment impediment in Croatia, Slavonia, Italy, Spain, Poland. In Germany legal relationship impedes matrimony, but does not dirimently impede it.²

5. In this impediment, as we warned above, the matter of the law is taken from the civil code; the form of the law, or the force of obliging, descends from ecclesiastical law. We have a civil law canonized by the Church.

¹ Cn. 1080.

² Cf. Chelodi, n. 107 s.

By adoption a person becomes in law the child of another, though he is not such by nature. Legal adoption, according to Roman law, was a diriment impediment of marriage between certain parties, and in this matter the civil law was canonized by the law of the Church.

(a) It annulled marriage between the adopter and the adopted and those descendants of the latter who were under his authority at the time of the adoption.

(6) It annulled marriage between the adopted and the children of the adopter as long as they were under his authority.

(c) Finally, it annulled marriage between the adopter and the widow of the adopted, and between the adopted and the widow of the adopter.

Roman law, as such, is nowhere in force at present, and the Code has made new provisions for the circumstances. ,Canon 1059 prescribes that in those countries where by the civil law legal relationship arising from adoption makes marriage unlawful, marriage is also unlawful by canon law. Moreover, Canon 1080 prescribes that those who are held incapable of marrying each other by the civil law on account of legal relationship arising from adoption, cannot validly contract marriage and this by force of canon law.

In England the Adoption Act, 1926, sanctions adoption by order of the Court, but it does not seem to make it an impediment of marriage. In most of the States of the Union there seems to be a form of adoption recognized by law sufficient to make it the basis of the ecclesiastical impediment.¹

¹ Smith, Marriage Process, n. 263.

I. Notion. Legal relationship is a relationship of persons which comes from legitimate adoption, that is, adoption made according to the norm of civil law.

II. Existence of the impediment. In those regions where by civil law legal relationship arising from adoption renders nuptials illicit, by canon law also the marriage is illicit (canon 1059). But to know whether and between whom this impediment exists, one must have recourse to the civil laws of the country and decide according to their norm.

Where civil law either does not admit adoption or states nothing about the impediment, there is no impediment.

Corollary. No impediment exists in Holland, Austria, Lusitania, Denmark, Sweden, Norway, England, and in general in its colonies (including the Canadian dominion, Australia, India, Transvaal, etc.), in the Republic of Ecuador, Argentina, Costa Rica, Chile (as it seems), Mexico, Nicaragua, San Salvador, and Uruguay. A merely impedient impediment is had in Germany, Hungary, Switzerland, Venezuela; likewise, at least practically, in France, Belgium, Luxembourg, and Romania; if the matter is doubtful, practically the impediment is absent.¹

¹ Cf. Aertnys-Damen, Theologia Moralis II, n. 703; De Smet, op. cit., n. 499; Wernz-Vidal, op. cit., n. 191; Gury-Ferreres, II, n. 1051.

I. The notion was explained in n. 760.

II. Existence of the impediment. Those who by civil law are held incapable of entering nuptials between themselves because of legal relationship arising from adoption cannot, by force of canon law, validly contract marriage between themselves (canon 1080). In order to know whether and between whom this impediment exists, recourse must be had to the civil laws of the country, and the matter must be decided according to their norm.

The diriment impediment is in force in Italy, Spain, Brazil, Bolivia, Colombia, Guatemala, and Peru.¹

¹ Wernz-Vidal, op. cit., n. 191; Aertnys-Damen, op. cit., II, n. 771.

What about legitimate and illegitimate, natural and adoptive children? - Some children are legitimate and natural, others natural, others legitimate. Legitimate and natural children are those who are born from a man and his wife. Those are presumed by law legitimate and natural who are born from a mother joined in lawful marriage, unless it is juridically certain that their origin is from another than the husband of the mother. For he is held as father whom marriage points out. The mother indeed is certain; but the father is presumed. And this presumption also has force in the forum of conscience. C. B. 1591, 1717, 1720; C. L. 101 seqq.; C. He. 252.

The fetus is usually brought forth in the ninth month from the time it was conceived, sometimes at the beginning of the seventh, sometimes at the full tenth, namely not before 180 days, nor after 300 days. C. I. 161 seqq.; C. G. 315; C. H. 108; C. A. 138, 163; C. B. 1592, 1717; C. L. 101; C. He. 252, 254.

Hence, of him who is born either after the seventh month from the marriage entered, or before the tenth month from the marriage dissolved, he is the father whom marriage points out, unless something else is most evident. C. L. 103; C. He. 254, 255. Nor indeed does it at all stand in the way that the mother was adulterous, C. I. 165; C. G. 313; C. H. 109; C. A. 158, or that she herself has declared the son adulterine, C. A. 158, unless she brings forward such indications as would suffice in the external forum, Lugo, de Iust., d. 12, n. 26, although she be most worthy of faith, and sworn, and assert this while dying; for no one deserves belief when alleging his own baseness. C. Inter 8, § ult., de Donat.; L. 654, 924.

A fetus brought forth before the seventh month from the marriage entered is held legitimate only if the husband either married the woman knowingly and willingly while she was pregnant, or, since he was present, did not altogether repudiate the child born. C. I. 161; C. G. 314; C. H. 110; C. L. 102. A fetus brought forth later after the tenth month from the dissolution of marriage is held as illegitimate, unless the health and morals of the mother and the circumstances of things suggest otherwise. C. I. 169; C. G. 315; C. H. 111; C. L. 102 seqq.

Natural or illegitimate children are those who are born outside marriage. These by canon law are irregular; by civil law they are distinguished from legitimate children chiefly as to succession to paternal inheritance. C. A. 155, 165; C. H. 114, 127, 134, 139. These natural children, if they were born from a man and woman between whom marriage could not have been entered, whether by natural law or by divine and canon law, by the same canon law are called spurious, or born from condemned intercourse. C. 3, 10, Qui fil. sint legit. And they are adulterine, sacrilegious, incestuous, and nefarious, if they were born from ascendants and descendants. But by civil law all are called illegitimate, and if they are adulterine or incestuous, they cannot be recognized. C. I. 180; C. G. 335; C. He. 304.

Other illegitimate children can be acknowledged and legitimated. C. I. 179, 195; C. G. 331, 334. They are acknowledged by the confession of parents, in civil law, authentic, C. I. 181; C. G. 334; C. H. 131; C. He. 503; in canon law, simple and bare, C. 10, de Probat.; and after they have been acknowledged they follow the condition of the one acknowledging, whether of the mother, or of the father, or of both. C. I. 185. But those acknowledged are legitimated by subsequent marriage by the law itself, C. I. 194; C. G. 331; C. H. 120, 121; C. He. 258 seqq.; C. A. 161; C. B. 1719; and they can also be acknowledged after the marriage has already been contracted. C. I. 197; C. H. 121; C. L. 119. Cf. C. G. 331.

By Canon Law, C. 1, 6, Qui filii sint legitimi, and C. H. 119, by marriage only children are legitimated from parents who freely could contract marriage between themselves. But whether those legitimated by dispensation of the Supreme Pontiff, as to canonical effects, are also legitimated as to civil effects, some affirm, others deny.

But from the time when they have been legitimated, they are held as if they had been born from lawful marriage. C. 6, Qui fil. sint leg.; C. I. 194; C. G. 333; C. H. 122; C. A. 161; C. He. 263. Cf. Benedict XIV, de Syn., l. 13, c. 24, n. 16. But one merely acknowledged is understood as the child only of him who acknowledged him. C. I. 182; C. G. 336; C. H. 129, 134. From C. B. 1589, 1705, a natural child and father are not reputed blood-relatives; and on the contrary, in his relations with the mother and the mother's blood-relatives he has the juridical condition of a legitimate child. But the same code admits investigation of the natural father and obligations, arts. 1708, 1717. Almost the same is had from C. He. 302 seqq., which also admits investigation of the natural father and obligations. C. H. 135 and C. L. 130 admit investigation of the father in a limited way, and the same codes admit investigation of the mother in the following articles. C. I. 189, 190, 193 admits investigation of maternity. But investigation of paternity is limited to the case of abduction and seduction. C. G. 340, 341, 342 likewise admits investigation of maternity, but investigation of paternity is restricted to the case of abduction. But by each Code and by C. L. 132, investigation of paternity and maternity is forbidden to adulterine and incestuous children whose recognition is prohibited; and by C. H. 141 investigation of paternity is prohibited to children in whom the legal condition of natural children does not concur. In doubt whether someone was born from legitimate marriage, he is to be presumed legitimate. C. I. 120; L. l. 3, n. 951.

Legitimate children are natural children legitimated, and adoptive children. C. I. 737. Adoption is an act by which one is taken into the place of a child who is not such by nature. From more recent laws, the adopted person is held as the legitimate and natural child only of him who adopted him, and he acquires the right of succession to him. C. I. 202, 204, 210, 737; C. G. 343, 344, 350; C. B. 1741, 1757; C. L. 124, 129; C. He. 268. But he is not withdrawn from the power of his natural father, nor does he pass into the power and family of the adopting father. C. I. 210, 212; C. G. 348, 349. But it is otherwise from C. A. 183; C. H. 177; C. B. 1765. This adoption is perpetual and is not dissolved even by mutual consent. C. I. 217. And so also the French Jurists. It is otherwise from C. A. 185; C. B. 1768; C. He. 269.

Legitimate and natural children, as to receiving donations and as to the right of succession, are held such from the time when they were truly conceived, provided they are afterwards born viable. C. I. 724; C. G. 725; C. A. 138. He is born viable who is born after the 180th day from conception, C. I. 160, 162; C. G. 312, 314; C. A. 138, and is perfectly born. In doubt, one who was brought forth alive is presumed to have been born viable. C. I. 724. Abortive children, if they do not survive, are held as born dead.

Natural children only, whether legitimated or acknowledged, acquire the right of succession from the marriage entered by the parents, or from that later time when they have been acknowledged. C. I. 197; C. H. 124. Merely legitimate children acquire the right of succession from the time when they were adopted, as if they had then first been conceived. C. I. 210, 217; C. B. 1754, 1757. From C. H. 177, an adopted person acquires no right of succession except from a testament, or from a previous agreement. From C. B. 1767, the right of succession can be excluded in the contract of adoption. To spurious, incestuous, and adulterine children the laws concede only support, namely when their filiation is duly established. C. L. 134, 135, 136; C. G. 762; C. I. 193, 752; C. H. 139, 140, 141.

What is paternal power? - Paternal power is the complex of rights of parents over children, and it arises from a twofold cause: 1. because children have had life from them; 2. because parents must educate them fittingly. C. A. 147; C. L. 137. It is from Natural and Positive Law at the same time, positive law defining and determining natural right. For the rights of parents over children flow from natural and civil law. By Natural Law, piety is owed to parents, whether legitimate or illegitimate, namely to father and mother, and it belongs to them equally and perpetually as to love and honor, but not however as to obedience after the son has become major, or has been emancipated. C. I. 220. Besides this, power belongs to parents as to those things which pertain to the spiritual salvation of children. And this also belongs equally to each, indeed also to grandfather and grandmother. But if they disagree among themselves, he prevails who consults the salvation of the child. And, when the father has died, if the mother as tutor and the paternal grandmother disagree, the latter will be stronger. Benedict XIV, Ep. Probe te, §§ 20, 21, 23; Ep. Postremo mense, §§ 16, 17; C. Ex litteris 2, de Conv. infid. - The natural power of parents in those things which pertain to the salvation of the soul ends when infancy has passed; in those things which pertain to the choice of state it ends at puberty, C. Cum virum 12, de Regul.; C. A. 148; in those things which pertain to domestic care and discipline it ends by emancipation. But in those things which regard the sustenance of the body and generation of offspring, children are their own masters. And as to entering marriage, they commonly are bound only to seek the counsel of parents. L. 335.

But emancipation is naturally had when the son of the family has already grown sufficiently by age, so that he himself can now be father of a family, and by himself duly consider and oblige himself concerning those things which pertain to his own person and to his exterior goods. C. 11, 12, de Regul.; S. Th. 4 D. 27, q. 2, a. 2; D. 38, q. 1, a. 1, q. ult., sol. 3; 2. 2, q. 104, a. 5; S., q. 43, a. 2; q. 58, a. 5; St. Basil the Great, Epist. 276, Migne, vol. 32, col. 1011.

By Common Law paternal power belongs only to the father of the family, and it was per se perpetual. Inst. 1, l. 1, t. 9, §§ 2, 3; t. 12; lib. 1, tit. 6, ff., §§ 3-5, de Patr. pot.; l. 8, t. 46, C.; C. 2, de Convers. infid. But from the More Recent Laws it belongs also to the mother of the family. C. I. 220; C. G. 372; C. B. 1634, 1684, 1685; C. L. 138; C. He. 274. But the mother does not use it as long as the father uses it, to whom it principally belongs. C. I. 46, 220, 230, 331; C. G. 141, 373, 507; C. A. 144, 147; C. H. 154; C. B. 1634; C. L. 139, 155. Moreover it belongs over legitimate and natural children, over natural children acknowledged, over natural children acknowledged and legitimated, and at least in some way also over adoptive children. C. I. 66, 184, 194, 210, 211, 220; C. H. 154; C. A. 183; C. B. 1306, 1757, 1765; C. L. 166. Cf. here n. 663.

Paternal power is exercised by the father, and when he has died or is absent, by the mother with equal right. C. I. 46, 220, 231; C. H. 154; C. G. 141, 390; C. A. 144, 147; C. B. 1627, 1684; C. He. 274. Yet a father dying has the right to prescribe to the surviving mother the manner he wishes to be observed in the education of the children and the administration of goods. C. I. 235, 1059. Cf. C. G. 391; C. B. 1852 seqq. If the mother enters second nuptials, it will be in the power of the family Council or pupilary Judge to permit or remove guardianship from her. C. I. 237; C. G. 395; C. A. 255. When parents are lacking, and a tutor has not been named, guardianship by law belongs to the paternal grandfather; and, he being lacking, to the maternal grandfather. C. I. 244; C. B. 1776.

Moreover paternal power is exercised partly over the persons, partly over the things of children. C. B. 1627.

Paternal Power is exercised, 1. over persons by the faculty which the father has of retaining the son at home, C. He. 273, unless the son wishes voluntarily to give his name to military service. C. I. 221; C. G. 374; by the faculty which the father has of moderately correcting and punishing a disorderly son, C. He. 275; also of barring him from his own house, and even having recourse, where there is need, to the tribunal, and of placing him in another house of education or correction. C. I. 222; C. H. 155, 156; C. G. 375 seqq.; C. A. 145; C. B. 1631, 1632; C. L. 143; L. 3, de Patr. pot., C. Moreover the son is prohibited without the consent of parents from giving himself into adoption, C. I. 208; C. G. 346; C. A. 181; C. B. 1747, and from entering marriage. C. I. 63; C. G. 148; C. A. 49, 153; C. H. 1305; C. L. 1058, 1061; C. He. 98. But when the mother dissents, the consent of the father suffices. C. I.; C. G., ll. cc.; C. He. 274. Finally the right of appointing a tutor belongs to the last surviving parent. C. I. 242; C. G. 397; C. B. 1777; C. He. 274.

Excepting marriage, which before puberty is null from canon law, as to other acts and contracts sons of a family who are minors are only naturally obligated; and if in due time they do not seek restitution in full, they can also be civilly obligated, and those who contract with them are naturally and civilly obligated. Therefore, if they have entered betrothals, if they have emitted a vow, they are bound by the betrothals and by the vow. If they have donated anything, they transfer dominion to the recipient; and if they themselves receive something as a gift, they licitly acquire and retain dominion. C. I., de Desp. impub.; C. I. 1304; C. G. 1314; C. H. 160, 161; C. A. 244, 246; C. B. 106; C. L. 98, 99; Inst. 1, l. 3, t. 19, § 6; S. Th. 2. 2, q. 88, a. 8; 4 D. 27, q. 2, a. 2; L. l. 3, n. 918; Lugo, de Iust., d. 22, nn. 228, 295, 300.

But although a minor validly contracts, from the More Recent Laws he does not contract firmly if various prescriptions of those laws are not observed, and then restitution in full is conceded to them, which also holds in the forum of conscience, since a law of this sort is definitive of right and just; since it is for protecting good morals, for the peace and good of families, and for the common good. C. G. 2012; C. I. 317, 319, 1899.

From C. I. a minor is restored because he is a minor, and an action of nullity is admitted: 1. If a non-emancipated minor performed an act by himself without the intervention of the father or his legitimate representative. 2. If an emancipated minor performed by himself an act for which the law requires the assistance of a curator. 3. When the formalities constituted for certain acts by special dispositions of law are not observed. But an action of nullity is not admitted: 1. If the minor by evil art and deceit concealed his condition as a minor. 2. If the matter concerns an obligation arising from delict or quasi-delict. 3. If it is proved that what was paid was turned to the convenience and utility of the minor. C. I. 1300, 1303, 1305, 1306, 1307, 1899.

From C. G. a minor is restored because he was harmed, and an action of nullity is admitted if the prescriptions of the law in contracts of minors were not observed. Rescission is not admitted: 1. If the harm happened from a chance event. 2. If a minor exercises commerce or some art, as to contracts entered by reason of his commerce or art. 3. If the matter concerns an obligation flowing from delict or quasi-delict. 4. If it is proved that what was paid went to their convenience and utility. C. G. 1304, 1305, 1306, 1308, 1310, 1312, 2012; L. l. 3, nn. 514, 918. Cf. Troplong, della Vendita, cap. 2, art. 1594, num. 166 seqq.

From C. H., the formalities of law not having been observed, the contract of a minor becomes liable to rescission. But he is not bound to restitution except insofar as he became richer by the thing received. C. H. 317, 420, 1163, 1304, 1764, 1765. From C. A., in general a minor indeed cannot be validly obligated without the consent of the father and the other prescriptions of the law. Yet he can freely dispose of things acquired by his own industry, and of others given to him for his own use after puberty has been attained. C. A. 151, 152, 244, 246, 248. From C. B., a minor needs the consent of his representative for any declaration of will whatever, unless this procures a juridical advantage for him, or unless the matter concerns things left to his free disposition. Without the aforesaid consent of the representative, the act can be rescinded. C. B. 108 seqq. From C. L. 297 seqq., the acts of a minor are null if they are made without due authority. But they themselves cannot use this nullity as to obligations upon things of their own art or profession, or if they use deceit so that they may be held as majors.

The power of the father is exercised, 2. over the things of children. From common Law the son was at first a thing of the father of the family; whatever he acquired belonged to the father. Afterwards peculium was recognized. Peculium is any good whatever proper to the son, separated from paternal goods. It is fourfold: 1. Castrense, acquired by military service or on the occasion of military service; and this whole thing, in perfect dominion, belongs to the son. Yet one below puberty does not have its administration.

2. Quasi-castrense, acquired by the profession of sciences or liberal arts, or by some civil office, for example, of judge, advocate, physician, teacher, from an ecclesiastical office or benefice; and the perfect dominion of this also belongs to the son. Yet administration belongs to the father if he himself is below puberty.

3. Adventitious, which comes to the son from elsewhere than from paternal goods, and not by regard for the father, for example, what comes to the same son from the mother, from the maternal line, or by regard for the mother, or what is acquired by his own industry and labor, by the liberality of others, by chance and fortune. The dominion of ownership belongs to the son; the usufruct and administration of this peculium belongs to the father as long as he lives. Therefore by Roman Law the father has the usufruct of all these goods of the son; and this usufruct ends only by the death of the father, otherwise than is had by More Recent Law.

4. Profectitious, which either is acquired from paternal goods, or has been donated to the son by regard for the father. And this whole thing belongs to the father, in ownership, usufruct, and administration. Inst. 1, l. 2, t. 9, §§ 1, 2; l. 3, t. 29; Lugo, d. 5, n. 23 seqq. The father can dispose of adventitious goods if they are consumable, with the burden however of restitution. If the son trades outside the father's house from goods other than paternal goods, the gain is adventitious. If he labors in the paternal house and is fed by the father, or trades from the father's goods, it is profectitious. "If a son trades with the money of the father, either received as a loan or secretly stolen, at his own risk, so that he seriously determines to preserve the father unharmed in any event whatever, it is certain from the common opinion of all cited by Laymann, l. 3, tr. 4, c. 8, n. 12, that the whole gain pertains to the ownership of the son as adventitious peculium. Why is this? Because although he obtains the whole gain by the money of the father, he obtains it in such a way that the whole gain is derived not from the money of the father, sterile of its own nature, but from the industry of the son, which renders the money fruitful." Ithur., Cas. 3, n. 6; L. 488.

The father of the family and the son of the family are held as one person. Since therefore no one can contract with himself, if they contract, the pact is civilly void. Civilly, for naturally they are mutually obligated and obligate. Inst. 1, l. 3, t. 19, § 6. A son of the family, not even with the father consenting, can make a testament concerning adventitious or profectitious peculium; but he can, even against the father's will, concerning castrense or quasi-castrense peculium. Inst. 1, l. 2, t. 12.

From More Recent Laws, minors are held by law incapable of protecting themselves and their own goods. Hence as to each, he with whom paternal power is represents them. C. B. 1630; C. L. 98, 100; C. He. 279.

The administration of all goods of minor children is in the hands of the father or mother, or tutor, who must supply the incapacity or lack of skill of the children until they become majors or obtain emancipation. Exceptions must be made, from C. B. 1638; C. L. 147; C. He. 294; C. I. 224, of goods given to the son with exclusion from this administration of the father. Cf. C. L. 146, 147. Majors are altogether free in managing their own affairs, unless in some case the law specially forbids this to them, and therefore they have full administration of their own goods; but emancipated persons have it only limited. C. I. 323, 310 seqq.; C. G. 488, 476 seqq.; C. A. 149, 187, 251. Cf. C. L. 305 seqq., 311.

Hence he who exercises paternal power manages the affairs of the son. C. I. 224, 242; C. G. 389; C. A. 149, 152. He, not the son, acts in judgment, enters upon inheritances coming to the son after an inventory has been made, accepts donations, C. I. 226, 1059; C. A. 205, 222 seqq., 243, and administers his goods, C. I. 224; C. G. 389; C. H. 159; C. A. 149. But goods, whether immovable or movable, excepting those which cannot be preserved by being preserved or become worse, he cannot alienate, bind by mortgage or pledge, nor likewise receive a loan in the name of the son, nor exercise other acts which exceed acts of simple administration, except from a cause of necessity or evident utility and by decree of the civil tribunal. C. I. 224, 225; C. H. 164; C. G. 389; C. B. 1640 seqq.; C. L. 150; C. He. 290, 299, 300.

The father, or mother exercising paternal power, has the usufruct of those things which come to the son by succession, donation, or another lucrative title. C. I. 228, 229, 231; C. G. 384, 386; C. H. 160; C. B. 1640, 1685; C. He. 294, unless the goods were left to the son by testament, or given by donation, on this condition, that the usufruct not pertain to the parents, C. I. 229; C. G. 387; C. B. 1651; or were left to the son by testament, or given by donation for undertaking some course of life, art, or profession, C. I. 229; or for his education and instruction, C. H. 162; or unless, against the will of the parents, the son accepted the donation or legacy, or entered upon the inheritance, C. I. 229. Likewise excluded from that usufruct are those things which the son acquired for himself by labor, profession, or separate industry, C. I. 229; C. G. 387; C. B. 1650, 1651, and the goods of the succession of a son as to which parents have been declared unworthy. C. I. 728; C. G. 730.

To this usufruct there inheres the obligation of feeding, sustaining, educating, and instructing the children. C. I. 230; C. G. 385; C. B. 1602, 1603, 1606, 1656; C. L. 148; C. He. 293. Neither father nor mother has the usufruct of the goods of natural children. They can only administer their goods, but with the burden of rendering an account also concerning the fruits. Gousset on a. 384, C. G.; C. I. 184. Cf. C. L. 166, 167.

From C. A. 149, 150, 151, 154, all goods, administration excepted, simply pertain to the son; yet the father can deduct the expenses of education from the revenues. From C. H. 161, goods acquired by children from the goods of the same parents simply pertain to the parents. From the same C. H. 160, the usufruct even of those goods which the son acquired by his own labor and industry pertains to the parent exercising paternal power. From C. L. 145, 146, 147, the usufruct of goods which a son of the family acquires by his labor, his industry, his means, or by any other gratuitous title whatever, pertains to the parents, unless they were given with exclusion of this usufruct, or the children acquire by arms, letters, liberal arts, or acquire by their own labor and industry, but live from themselves with the father's permission.

Usufruct of this sort ends by the emancipation of the son, or by death, or when minority or legitimate age has been completed; by the widowed father or mother passing to other nuptials; if the father abuses paternal power, either by not caring for the obligations imposed or by administering goods badly, with a sentence of the tribunal added; and likewise it ceases with respect to the spouse by whose fault divorce has legally been pronounced. C. I. 156, 228, 232, 233; C. G. 384, 386; C. H. 167, 172; C. B. 1666, 1673, 1679, 1680; C. He. 297 seqq. From C. B. 1661, 1662, usufruct also has an end by the marriage of the son, and by renunciation of the father. From C. G. 384, 386, usufruct is conceded to the father, and after he has died to the mother remaining unmarried, up to the eighteenth year of the children, or their emancipation. Cf. C. L. 149; C. He. 274, 292.

But when the son has become a major, those things which have been done by the parents, if they were done according to law, remain ratified; but otherwise they can be made void by him. And if meanwhile a conflict arises as to goods between father and son under paternal power, the latter will be able to have recourse to the tribunal. C. I. 224, 227, 1304; C. G. 1314; C. H. 165; C. A. 271; C. B. 1667, 1668; C. L. 153; L. 488, 543, 544; Gousset 682; C. He. 283, 284, 297 seqq.

Paternal power is dissolved by the death of the father or son, C. H. 167; C. L. 170; C. He. 274; by adoption of the son, C. H. 167; C. B. 1757, 1765; C. A. 183; by emancipation of the son, C. I. 220, 311; C. G. 372, 476-479; C. L. 170; C. H. 167; C. A. 172, 252. But a son is emancipated by the law itself through marriage, C. I. 310; C. G. 476; C. L. 304; C. He. 14, otherwise from C. A. 175. Emancipation is a legitimate act by which a father dismisses his minor son from his power, so that he is made his own master. Emancipation cannot be made before the completed eighteenth year, C. I. 311; C. He. 15. It is dissolved besides by majority of age, C. I. 220;

C. G. 372; C. A. 172; C. L. 170. Cf. here 664. From C. B. 386, which does not admit emancipation, declaration of majority can be had in the eighteenth year of age. It is likewise dissolved if the father abuses paternal power, with a sentence for the crime added. C. I. Poen. 392; C. H. 171; C. B. 1666, 1680; C. A. 177, 178. Paternal power ought to consist in piety, not in atrocity. If the mother survives, she does not simply lose it, although she passes to other nuptials. Yet in this case, from C. I. 237, she can be removed from the administration of the son's goods. From C. B. 1697, a mother passing to other nuptials loses paternal power in part. Cf. C. L. 155 seqq.; C. He. 286. When parents are interdicted, insane, or mad, their paternal power remains suspended. C. I. 220, 229 seqq.; C. A. 179; C. B. 1676 seqq.

When paternal power has been dissolved, the son of the family becomes his own master. But whether he is his own master or is still subject to paternal power, the father of the family can usefully contract with him, and from the eighteenth year of age he can make a testament. C. I. 763, 1107; C. A. 271, 596; at the sixteenth year, but in a limited way, from C. G. 903, 904. Inst. 1, l. 1, t. 12.

Is incest between spiritual and legal relatives of a diverse species from that between blood relatives and relatives by affinity? "Absolutely one must affirm with the Salmanticenses and S. Thomas, who 2. 2, q. 154, a. 10 ad 2 teaches that through intercourse between spiritual relatives a sacrilege is committed after the manner of incest... Likewise incest between legal relatives, namely by reason of adoption, is of a diverse species from the others enunciated, and must be explained." L. 450, 469. Cajetan on 2. 2, q. 154, a. 9: "To the 2nd objection concerning spiritual and legal kinship, it is said that because such conjunction is not ordered to consanguinity as its proper and proximate end, but according to a certain assimilation, therefore violation of it is metaphorically called incest." But Lugo, de Poenit. d. 16, n. 327 seqq.: "It must be admitted that it [incest between legal relatives] is properly incest; hence there is no reason why we should say it differs in species from incest between natural blood relatives and relatives by affinity... Hence... it will not be necessary to explain the difference of legal kinship from natural... But the circumstance of spiritual kinship is diverse in species from incest, because although it contains some malice of incest... nevertheless beyond this it adds the malice of sacrilege."

Sporer n. 612, 613, has these things: "He who sins carnally with a person joined by legal kinship, of which there is a fourfold degree, 1. between the adopting person and the adopted person and his descendants, 2. between the adopted person and the legitimate children of the adopter, 3. between the wife of the adopted and the adopter himself, 4. between the wife of the adopter and the adopted, without doubt commits a special sin of incest, necessarily to be confessed as such, since between the same persons, because of the often-mentioned reverence due to those joined, the Church establishes a diriment impediment of marriage. But whether this incest must be explained as a sin distinct from the other incests mentioned above, and whether also that diversity just mentioned of degrees or persons must be explained? Again, it is more probable and safer that yes; and sufficiently probable that no. But he who sins with a person joined by spiritual kinship contracted from the sacrament of baptism and confirmation, of which there is a twofold degree or species, spiritual paternity between the one baptizing and confirming, likewise between sponsors on one side, and the baptized and confirmed on the other side; and spiritual co-paternity between the same, the one baptizing and confirming, and sponsors on one side, and the parents of the baptized or confirmed on the other side; for spiritual fraternity between the baptized and confirmed and the children of the one baptizing or sponsors has become obsolete, altogether commits incest distinct from all the aforesaid in consanguinity, affinity, or legal kinship, and therefore to be specially explained in Confession, because it adds a special malice of irreverence by reason of the sacrament, by which it is reduced to a certain genus of sacrilege. But whether it must also be explained whether it was done from the sacrament of baptism or confirmation; likewise whether by paternity or co-paternity? It is most probable that no, because in all there is the same deformity, not much graver or lighter." So also Billuart Diss. 6, art. 6.

Who are necessary heirs? - By the very law of nature the right of succession seems to belong to proximate blood relatives. For the common good of society requires that there be a certain stability of wealth in families, which, by the disposition of divine Providence, are preserved and propagated by a continued series of generations. Necessary heirs are: 1. Descendants. 2. In their defect, ascendants. C. A. 762; C. H. 807. - If both are lacking, it is entirely open to the testator to dispose of all his property according to his judgment. C. I. 809; C. G. 916; with the right of the surviving spouse to a certain part of the usufruct of the goods left being preserved, C. I. 812, 814.

But descendants are natural and legitimate children, or only legitimate, i.e., legitimated and adoptive, and their descendants. C. I. 806; C. A. 763. - Descendants of sons succeed by right of representation if they concur with sons; and then, however many they are, they receive that portion, divisible among themselves, which belonged to their parent, that is, they succeed by stocks. But if no son survives, the testator can distribute his goods equally to each, according to the right conceded to him, and they themselves succeed by heads. C. H. 739-745.

To sons natural children, not legally recognized, no right is conceded in the goods of the parents; to those recognized, no right in the goods of those who are blood relatives of the parents. C. I. 743, 749; C. G. 756. According to C. He. 470, necessary heirs are descendants, parents, brothers or sisters, and spouse. By Canon Law, among necessary heirs is to be counted the church, to which by right pertain and are devolved ecclesiastical goods left by a Bishop, by a rector of a church, by a beneficiary, goods bought from the goods of the church, goods donated in view of the church, and improvements made in things of the church.

C. 1, 3, 4, 5 de Pecul. clericor. The goods of a solemnly professed Religious pertain to his Religion, unless special statutes of the Order stand in the way. The goods of a simply professed Religious pertain to his heirs, whether coming ab intestato or from testament. E. M. "An inheritance is usually divided into twelve ounces, which are contained under the name of the as. And these parts have their own names from the ounce up to the as, as follows: 1 ounce, 2 sextans, 3 quadrans, 4 triens, 5 quincunx, 6 semis, 7 septunx, 8 bes, 9 dodrans, 10 dextans, 11 deunx, 12 as." Inst. 1. 2. t. 14. § 5.

What is legal kinship? Legal kinship is the nearness of persons which arises from legal adoption. Adoption is a legitimate act by which one who is not such by nature is assumed as a son or grandson. In common law adoption is distinguished as twofold: 1. Perfect, which is also called arrogation, and this is that by which an outside person who is sui iuris, by Rescript of the Prince, passes into the power and family of the adopter, acquires all the rights of a legitimate son, and becomes a necessary heir. 2. Imperfect, which is called simple, is that by which an outside person who is not sui iuris, but remains in the power and family of his natural father or grandfather, by the authority of any competent judge, is assumed as a son or grandson; nevertheless he does not pass into the family and power of the adopter, and for that reason does not become his necessary heir from a testament, although he succeeds to him ab intestato. Cf. vol. 1, n. 663.

Legal kinship, namely perfect adoption, constitutes a diriment impediment by ecclesiastical law, approving Roman Law, by which this impediment was first introduced. This is drawn from the Response of Nicholas I and Paschal II, C. Ita diligere 1, c. 30, q. 3; C. Post susceptum 5, l.c.; C. un., de Cogn. leg. And the reason is that kinship stands in the way of nuptials because of the dangers of cohabitation. St. Thomas, IV Sent., d. 42, q. 2, a. 3, ad 2. Hence this impediment is in force where adoption is preserved: in Roman Law, not in the more recent law, by which the adopted person does not pass into the family of the adopter and under his paternal power. Thus Gury, 809; D'Annibale, 3rd ed., part 1, n. 65, compared with part 3, n. 433, and others, against others who hold that imperfect adoption also, and therefore also by more recent law, dirimently impedes marriage. "More probably," says St. Alphonsus, 1027, "St. Thomas, Suppl., q. 57, a. 2, Sanchez, book 7, disp. 73, n. 9, Salmanticenses, n. 41, with others, say that (legal kinship) arises only from perfect adoption." This indeed follows from L. Adoptivus 14, ff. de Adoptionib.; L. Si paterfamilias 15, ibid.; L. Quin etiam, § 2, ff. de Ritu nuptiarum, etc.

But in order that a canonical impediment be had by adoption, it must have been legitimately entered. Sacred Penitentiary, May 16, 1826. Adoption entered privately, with no solemnity of law, produces no impediment. Holy Office, April 16, 1761.

Legal kinship, after the likeness of natural kinship, dirimently impedes marriage by Roman Law between the following persons: 1. as if in the direct line, between the adopter and the adopted person and this person's children, while they are constituted under paternal power; 2. between the adopted person and the children of the adopter, as if in the collateral line, while the latter's children are under paternal power and are not emancipated; 3. between the adopter and the wife of the adopted person, and, conversely, between the adopted person and the wife of the adopter, as if in the direct line by way of affinity, as is established from the declaration of the Sacred Congregation of the Council in the Hortana case, September 25, 1734.

These kinships differ among themselves, and consequently also the impediment arising from them, in that the first and last are perpetual. Therefore the adopter, for example, cannot take an adoptive daughter or granddaughter as wife, even if the adoption has been dissolved by emancipation; nor can the stepson or daughter-in-law, understand adoptive, be joined in marriage with the stepmother or father-in-law, although the adoption has ceased either by emancipation or by the death of the adopter. Therefore a dispensation of the Apostolic See would be required, which, however, even in the last case is granted with very great difficulty. But the second, in the collateral line, lasts only as long as the adoption lasts. Lugo, de Poenit., disp. 16, n. 327.

According to Roman Law adoption is dissolved in six ways: 1. by the natural death of the adopter; 2. by the civil death of the same; 3. because of incestuous nuptials; 4. because of dignity, e.g., episcopal; 5. by sentence; 6. by emancipation.

Since this impediment is of common law, only the Supreme Pontiff can dispense. In the direct line and in legal affinity he dispenses with very great difficulty and from a grave cause. In the transverse line a dispensation is rarely sought, since this impediment is removed by emancipation, and thus without any dispensation the adopted person can contract marriage with the natural daughter of the adopter. Schmalzgrueber, book 4, tit. 12, n. 37.

Italian Civil Code, 213, etc.; French Civil Code, 353, etc.; Austrian Civil Code, 181; Spanish Civil Code, 178, 179: adoption is made by intervention of a public magistrate, and with the other prescriptions of law observed. Italian Civil Code, 211; French Civil Code, 349: adoptive parents are bound to procure, if there is need, the education of the adopted person, and to supply him the necessary supports and sustenance. But the adopted person is held by the same obligation as regards sustenance toward the adopter. The Spanish Civil Code, 176, establishes the same concerning sustenance. Italian Civil Code, 737, 806; French Civil Code, 350; Austrian Civil Code, 183, 755: the adopted person with his descendants is heir of the adopter together with legitimate children, and succeeds to him ab intestato. Nevertheless he has no right to the goods of the blood relatives or cognates of the adopter. Spanish Civil Code, 177: the adopted person acquires no right to inheritance except by testament or by special agreement. Italian Civil Code, 210; French Civil Code, 347; Spanish Civil Code, 175; Austrian Civil Code, 182: the family name of the adopter is conferred on the adopted person, who adds it to the name of his own family. Italian Civil Code, 210, 212; French Civil Code, 348, 349: the adopted person remains in his natural family and preserves in it all his rights and obligations. Therefore the adopted person does not pass into the family of the adopter, nor is he subject to his paternal power, as in perfect adoption, or arrogation, of Roman Law. Austrian Civil Code, 183; Spanish Civil Code, 177: the adopted person indeed preserves his rights in his own proper family, but passes under the paternal power of the adopter, the prior paternal power being dissolved. Nothing concerning the dissolution of adoption is contained in the Italian Civil Code and the French Civil Code, and therefore it seems to endure perpetually until death. According to the Austrian Civil Code, 185, adoption can be dissolved. According to the Spanish Civil Code, 180, an adopted minor can impugn the adoption within four years after attaining majority. Italian Civil Code, 60; French Civil Code, 348: marriage is forbidden between the adopter and the adopted person and this person's descendants; between the adopter and the spouse of the adopted person; between the adopted person and the spouse of the adopter; between the adopted person and the children of the adopter who are born after the adoption; between adopted children of the same person. Spanish Civil Code, 84: the adopting father or mother and the adopted person cannot contract marriage as incapable persons; nor the spouse of the adopting father or mother and the adopted person; nor the adopting father or mother and the spouse of the adopted person; nor the legitimate descendants of the adopter and the adopted person, while the adoption remains. German Civil Code, 1311: the adopter cannot contract marriage with the adopted person and his or her descendants as long as the adoption endures.

According to the Italian Civil Code and the French Civil Code, adoption is only imperfect, since the adopted person does not pass into the family of the adopter, nor is he placed under his paternal power. Hence more probably no diriment impediment is had from it, until the Church certainly counts an adoption of this kind among diriment impediments, as she counted perfect adoption or arrogation of Roman Law. For more probably only perfect adoption or the arrogation of the Romans is, by Canon Law, a diriment impediment. On the contrary, for the opposite reason, adoption according to the Spanish Civil Code and the Austrian Civil Code seems to be a diriment impediment. And as regards Austria, in the Instruction of Cardinal von Rauscher, commended by the Pronuncio, it is said, § 29: "Adoption of the Austrian Empire... dirimently impedes marriage whenever the adopted person is subjected to the paternal power of the adopter, or is received into his house to dwell after the manner of children of the family."

Benedict XIV, de Syn., book 9, chap. 15; Schmalzgrueber, book 4, tit. 12, nn. 3, 10, 26 ff.; L. 1027; St. Thomas, Suppl., q. 57; E.M.

“Is adoption to be regarded as a canonical impediment invalidating Matrimony in the kingdom of Tonkin, when, according to the laws and customs of that kingdom, a person not yet of his own right can adopt, nor is it required that the adopter be more than twenty-five years old, just as little account is taken of whether the person is male or female; eunuchs themselves also can adopt, and no account is taken of the age of the adopter relative to the person adopted; nor is the presence of the adopted person required, or that person’s consent in the adoption, so that even absent boys and girls incapable of true consent can be adopted as sons and daughters?—Response. Negative.” Sacred Congregation for the Propagation of the Faith, 14 January 1802.

“Since in the kingdom of France the right of adoption has now been legally received, it is asked whether the canonical impediment of adoption which renders Matrimony null ought also to have place?—Response. Affirmative, if the question concerns an adoption legitimately entered into.” Sacred Penitentiary, 17 May 1822.

The Holy Office judged the same on 23 February 1853 for the Kingdom of the Two Sicilies, and the Sacred Penitentiary for France.

1. "Whether adoption is to be held as a canonical impediment diriment of marriage in the Kingdom of Tunkin, when, according to the laws and customs of the same kingdom, a person not yet of his own right can adopt, and it is not required that the adopter be older by 25 years, just as little care is taken whether it be a male or a female; eunuchs themselves also are able to adopt, and no account is taken of the age of the adopter relative to the adopted person, nor is the presence of the adopted person required, or his consent in the adoption, so that even absent little children and girls, and those incapable of true consent, can be adopted as sons and daughters?

"R. Negatively." S. C. de P. F., Jan. 14, 1802; I. M. 1011.

A threefold kind of relationship is distinguished, namely: first, natural; second, spiritual; third, legal. Concerning each separately.

799. • Natural relationship, or consanguinity, is the bond of persons descending from the same proximate stock through carnal generation, which arises from unity and participation in the same blood.

In consanguinity three things must be distinguished, namely: first, the stock, or the person from whom others derive their origin; second, the degree, or the measure of distance of one person from another; third, the line, or a series of persons descending from the same stock.

The line is twofold: one direct and the other collateral or transverse. The former is a series of persons of whom some descend from others, either immediately, as children from parents, or mediately, as grandchildren from grandparents or great-grandparents, etc. The latter, however, is a series of persons who, although they have a common stock, nevertheless do not descend from one another, as brothers, first cousins, etc.

A collateral line is equal or unequal according as the blood relatives are equally distant from the common stock.

800. Statements. - I. Consanguinity in the direct line, at least by positive law, invalidates matrimony indefinitely in any degree whatever. This is evident from Canon law in the Response of Nicholas I to the Bulgarians, chapter 37.

II. Consanguinity in the collateral line invalidates matrimony through the fourth degree inclusively, and not beyond. This is established from the Fourth Lateran Council and several places of Canon law.

III. Consanguinity invalidates matrimony also between those who were born only of the same father or only of the same mother; likewise between blood relatives born of illegitimate unions. The reason is that diversity of father or mother, or illegitimacy, does not prevent carnal consanguinity from existing between them.

801. • I. Rule. In the direct line, as many degrees are counted as there are persons, with the stock omitted; or there are as many degrees as there are generations. Hence between father and son there is one degree, because there is one generation, or one person of the son, with the father excluded as the stock. Between a grandson and grandfather two degrees are counted, because there are two generations, although three persons intervene, namely, the grandfather, the father, and his son, or the grandson with respect to the grandfather. Likewise posit a great-grandfather or great-great-grandfather, and you will have three or four degrees.

II. Rule. In an EQUAL collateral line, there are as many degrees as there are persons on one side, with the stock omitted. Hence a 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 first cousins, or the children of two brothers, are each distant by two degrees from the common stock or grandfather, and therefore are blood relatives to each other in the second degree. The same must be said of others.

III. Rule. In an UNEQUAL collateral line, there are as many degrees as there are persons on the more remote side, always with the stock omitted. Hence if one is distant from the common stock by two degrees and his blood relative by three, they will be blood relatives to each other in the third degree, according to the saying: The more remote degree draws the nearer to itself. Therefore Berta will be related in the second degree to her paternal uncle, or her father's brother, because she is distant by two degrees from the common stock, namely, her grandfather, although the paternal uncle himself is separated by one degree from the same stock, since he is the son of the stock, or the brother of Berta's father. The same must be established concerning all others.

For computing degrees according to civil law, the number, or sum, of all the persons in each line is taken, with the stock omitted. Therefore in the direct line they are computed in the same manner as canonical degrees; in an equal collateral line, the canonical degrees are doubled; in an unequal collateral line, the lesser line is doubled and the excess of the greater is added.

802. Questions. - QUESTION 1. By what law does consanguinity in the aforesaid degrees invalidate matrimony?

Reply 1. It is certain that consanguinity in the direct line invalidates matrimony in the first degree by natural law and, more probably according to the opinion of certain Theologians ¹, indefinitely also in the other degrees. But the case, as is evident, is most remote from practice.

¹ Others, however, think differently; and omitting for now the various opinions - in Schmalzgrueber, book 4, title 14, no. 30 - which extend the force of this impediment to more or fewer degrees, there are those who, with St. Thomas, think that only the first degree renders nuptials invalid by natural law. St. Alphonsus (book 6, no. 470) holds this opinion equally probable with the one which the Author reports, and several others with Schmalzgrueber (ibid., no. 31) judge it preferable to the others. But, as the Author well observes, these things contribute nothing to practice.

Reply 2. As regards the collateral line, in the first degree it more probably ² invalidates by natural law, or at least by positive divine law, since the Church never dispenses so that brothers and sisters may be joined, and infidels themselves detest nuptials of this kind; in the other degrees, according to all, it invalidates by ecclesiastical law ³, as is deduced from the practice of the Church, which dispenses from them.

² The Doctors disagree whether matrimony between brother and sister is invalid by natural law, and some call the affirmative opinion more probable, others the negative. Some contend that the Roman Pontiffs never dispensed as regards this degree, others that they sometimes dispensed. See Schmalzgrueber, book 4, title 14, nos. 45-46. And, as St. Alphonsus also observes (book 6, no. 470), St. Thomas also stands for the opinion which judges this union valid by natural law. It would indeed be useless to review the arguments of each side and the replies to the contrary reasons, which can be seen everywhere among the Doctors. See St. Alphonsus, l.c., and Schmalzgrueber, l.c., nos. 45-48. Meanwhile observe how much prejudice spontaneously flows from this against the opinion which, while denying to princes the power of establishing diriment impediments for infidel subjects, contends that natural law alone has force for them. For if this is presupposed, a matrimony contracted in infidelity between a brother and sister could not be held certainly invalid, however much it might be condemned by their laws; and since in a doubt, according to the general principle, one must stand for the validity of the matrimony, if both of them were converted to the faith they consequently could not be separated, even if that union were a scandal at once to infidels and to the faithful.

³ Hence follows a consequence of the greatest importance. For since the laws of the Church do not bind those who are not baptized, marriages contracted between infidels who are joined in these degrees of consanguinity must therefore be held valid, considering natural law; and consequently, if they are converted to the faith, they are neither to be separated nor do they need a dispensation in order to remain in the union contracted. What is said concerning the impediment of consanguinity must also be said concerning the other impediments of merely ecclesiastical law.

The Doctors disagree whether marriages which heretics enter with an impediment of merely ecclesiastical law are to be held valid. See Schmalzgrueber, book 4, title 1, nos. 378-380, who, after bringing forward the reasons of each opinion, appears to incline toward the affirmative side.

QUESTION 2. How can degrees of consanguinity be found easily?

Reply 1. If the common stock is known, write that person's name on a sheet, and below it set down the generations and names of the persons descending on this side and that until you arrive at the persons to be joined in matrimony; from this you will easily compute the degrees.

Reply 2. If the stock is unknown, proceed thus: Write in the lower part of the sheet or table the name of the bridegroom on one side and the name of the bride on the other. Then above the name of the bridegroom note the names of those blood relatives who perhaps can be the cause why some relationship 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 meet in a common origin or stock from which the bridegroom and bride were mediately generated. Hence, after you have found it and at the same time observed whether the spouses are in an equal or unequal line, finally apply the rules to be proposed below, and the resolution of the doubt will be evident. Let the following be an example of these things:

Great-great-grandfather: Didacus Noel

In this example Petrus Pascal and Maria Noel are blood relatives in the equal fourth degree. But if Maria Noel descended immediately from Maurus Noel, Arthur Noel would be her grandfather and Didacus Noel her great-grandfather, and therefore they would be blood relatives in the fourth degree, but touching the third.

803. • Another method is also indicated for recognizing degrees of relationship, namely, with a genealogical table or tree of consanguinity. Inspect the table and see in what line and in what cells you find the persons concerning whose relationship inquiry is made, and attend to how many degrees they are distant from the common stock. Example: You ask, for example, in what degree Titius the bridegroom is related by blood to Berta the bride, since you already know that the grandfather of the former was the brother of the great-grandfather of the latter. Place Titius in the middle cell N. Ascend to his grandfather; the latter's brother on the right side, in the cell where paternal uncle is marked, will be Berta's great-grandfather. Descend through his direct line by counting the grandfather, the father, and the bride herself; hence the common stock will be the one who is found in the third cell above the middle line. Thus you will count three degrees on the bridegroom's side and four on the bride's side; hence you will conclude that they are blood relatives in the fourth degree touching the third.

Imagine any other similar examples, placing either of the spouses in any cell, whether the middle one or one at the side, and ascending to the common stock so that from there you may descend to the other spouse; but pay no attention to the names which you find in the various cells encountered, because all of them will vary according to the cell selected, as is evident.

Consanguinity between the same persons can arise from a double or even multiple source, and then there is a double or multiple relationship, or an impediment to be disclosed in the petition for a dispensation. Thus, for example, if two brothers marry two women related by blood to each other, the children proceeding from each matrimony will be doubly related by blood to one another ⁴, and this circumstance must necessarily be declared.

⁴ See several examples both of doubled and of tripled consanguinity in de Justis (On Matrimonial Dispensations, book 2, chapter 6, no. 61 and following).

Note. First, persons joined by a drawn line are among themselves in the direct line and with the others in the collateral line. Second, where the lines are joined, there the stock is found.

804. • QUESTION 3. Who are collateral blood relatives?

Reply. They are the following:

• PROPATRUUS, or the brother of one's great-grandfather (great-uncle).
• PROAMITA, or the sister of one's great-grandfather (great-aunt).
• PATRUUS MAGNUS, the brother of one's grandfather (grand-uncle).
• PROAMITA, the sister of one's grandfather (grand-aunt).
• PATRUUS, the brother of one's father (paternal uncle).
• AMITA, the sister of one's father (paternal aunt).
• PATRUELES, the children of brothers on the father's side (paternal first cousins).

• PROAVUNCULUS, the brother of one's great-grandmother (great-uncle).
• PROMATERTERA, the sister of one's great-grandmother (great-aunt).
• AVUNCULUS MAGNUS, the brother of one's grandmother (maternal grand-uncle).
• MATERTERA MAGNA, the sister of one's grandmother (maternal grand-aunt).
• AVUNCULUS, the brother of one's mother (maternal uncle).
• MATERTERA, the sister of one's mother (maternal aunt).
• CONSOBRINI, the children of brothers on the mother's side (maternal first cousins).
• AMITINI, the children of brothers (first cousins).
• SOBRINI, their children (children of first cousins).
• NEPOTES, the children of brothers (nephews).
• PRONEPOTES, their children (great-nephews).

The consanguinity tree exhibits the following persons and canonical degrees from the person marked N:

Spiritual relationship is a certain proximity which, from the statute of the Church, arises from the administration and reception of Baptism and Confirmation between certain persons determined in Canon law.

805. Principles. - I. Spiritual relationship invalidates matrimony by ecclesiastical law: first, between the minister of the Sacrament and the subject and the latter's parents; second, between the godfather or godmother and the goddaughter or godson and their parents. Thus from the Council of Trent, session 24, chapter 2, On Reformation.

II. Several conditions are required for sponsors to contract spiritual relationship, namely: first, that they are baptized ⁵, for otherwise they are not subject to the Church; second, that they have the use of reason, because otherwise they are not capable of the office of sponsor; third, that they were designated by the parents, or even by the Pastor in their place or in their absence ⁶; fourth, that the Baptism was valid ⁷.

⁵ For contracting the relationship, Baptism is a necessary condition as regards all. Therefore, if either the one baptizing or the parents of the baptized child are infidels, even catechumens, the relationship is not contracted by them. Consequently, both a faithful person who baptized the child of an infidel and one who received that child from the sacred font could contract matrimony, not indeed with the baptized child, but with the child's parents after they had been converted to the faith. Schmalzgrueber, book 4, title 11, nos. 62-65.

It is certain, however, that this relationship is contracted even by a heretic, whether the heretic baptizes, or holds the child at the sacred font, or another baptized person, whether heretic or Catholic, either baptizes or holds the heretic's child. The reason is that whoever has the baptismal character is capable of this relationship and is subject to the laws of the Church. Sanchez, book 7, disputation 60, no. 2; Pirhing, book 4, title 11, no. 40. Moreover, the decrees of the Sacred Congregations are already known by which it is forbidden either that a Catholic lift the children of heretics in Baptism or that a heretic be admitted to this office in the Baptism of a Catholic.

⁶ It is not actually necessary that someone be designated by the parents or by the Pastor; rather, it suffices that one who presents himself be admitted. See St. Alphonsus, book 6, no. 154, and the Declaration of the Sacred Congregation in Gallemart's note to chapter 2, session 24 of the Council of Trent, no. 7, or in Rebellus at the end of book 4, part 2, section 4, no. 95. It is generally necessary, however, that someone not merely assist materially and hold the infant, but have the intention or purpose of receiving the child or exercising the office of sponsor. Nevertheless, it is not further required that the sponsor have the intention of contracting spiritual relationship, because this is a consequence in no way dependent upon the sponsor's will, but upon the statute of the Church, and therefore it is contracted even by one ignorant of it. Schmalzgrueber, book 4, title 11, no. 66.

⁷ Namely, if Baptism, which is the principal thing, does not subsist, neither can the accessory, namely, the relationship, subsist. Hence argue that if Baptism is conferred again conditionally and it is afterward discovered that the infant had previously been validly baptized, no relationship will be present. But so long as this is not established, the Church presumes the relationship. Understand this, however, when a true doubt is present, which St. Alphonsus (book 6, no. 151) calls a negative doubt, namely, when no solid reason favors the validity of the prior Baptism; for if the doubt is positive, namely, if probability is present on either side, anyone can resolve the doubt as he pleases, and, as St. Alphonsus has it, l.c., matrimony can be contracted as though no impediment existed, because no certain impediment is present.

The same must be said in two other cases, namely: first, if someone through error holds one infant for another; second, if someone holds an infant in private Baptism. For since in each case the Doctors disagree - see St. Alphonsus, book 6, nos. 149 and 151 - it must finally be admitted that the matter is doubtful. But if the relationship is doubtful, the impediment also will be doubtful; and a doubtful impediment, as St. Alphonsus himself observes, no. 151, is not an impediment of matrimony.

806. Resolutions. - 1. A godfather and godmother can enter matrimony with each other, but not with the father or mother of the baptized person.

2. Those who exercise the office of godfather and godmother when the solemnities of Baptism are supplied do not contract spiritual relationship, nor do those who receive the baptized person from the sacred font merely in the name of another ⁸.

⁸ The latter point is confirmed by decrees of the Sacred Congregation, one of which Barbosa reports (Collection of Apostolic Decisions 177, no. 9), and two others Benedict XIV reports (Canonical Question 227). From another declaration of the Sacred Congregation, which Gallemart reports in the note to chapter 2, session 24 of the Council of Trent, no. 4, a man can exercise the office of proxy for a woman and conversely; in this case it is not forbidden that two men or two women actually lift the child from the sacred font.

3. Sponsors designated by the parents and unjustly rejected by the Pastor contract true spiritual relationship if they actually hold the infant; it is otherwise if they are justly rejected by the Pastor ⁹. - St. Ligorius, no. 154.

⁹ Although the Council of Trent, session 24, chapter 2, On the Reformation of Matrimony, decreed that only one person, either a man or a woman, or at most one man and one woman, should receive the baptized person from Baptism, nevertheless, it is established from the Declaration of the Sacred Congregation in the case of Aix, March 10, 1631 - Barbosa reports it in Collection of Apostolic Decisions 177, no. 10 - that this decree is not invalidating, provided that the third or fourth person was also designated, who will therefore contract the relationship.

4. A man who baptized a girl privately in a case of necessity can marry neither her nor her mother ¹⁰. - Thus commonly. - St. Ligorius, On Baptism, no. 149.

¹⁰ The same must evidently be said of a woman who privately baptized a little boy.

5. More probably, however, sponsors employed in private Baptism do not appear to contract this relationship. The reason is that in the Council of Trent there is question only of those sponsors who are employed in solemn Baptism, since none are required for private Baptism. - Thus more commonly with St. Ligorius, no. 149.

916. Formerly many difficulties were raised concerning legal relationship, whether or not it was an impediment, and in what degree. The Code, c. 1059, hands down the principle of solution, decreeing that in this matter civil law is to be followed, so that in regions where, by civil relationship, nuptials are rendered illicit, by canonical law marriage is likewise illicit, or a prohibiting impediment, and indeed in the same degree and manner: "In those regions where by civil law legal relationship, arising from adoption, renders nuptials illicit, by canonical law also, marriage is illicit."

Therefore the civil legislation concerning this matter must be carefully inspected. In Gaul legal adoption is held as a prohibiting impediment¹.

¹ "Marriage is prohibited: between the adopter, the adopted, and his descendants; between the adoptive children of the same individual; between the adopted and the children, whether legitimate or natural, who could be born to the adopter; between the adopted and the spouse of the adopter; and reciprocally between the adopter and the spouse of the adopted." (Cod. civ., a. 348.)

783. Notion. Legal relationship is the proximity of persons arising from civil legal adoption.

This impediment is diriment between those persons who by the civil law of their country are declared incapable of nuptials because of legal adoption; but it is merely impedient if the same civil law declares such nuptials only illicit. Thus the Code of Canon Law, cann. 1059 and 1080, establishes. Therefore ecclesiastical discipline no longer canonizes and adopts the ancient Roman law in this matter, but the civil laws of each region. Hence the ecclesiastical impediment of legal relationship also seems to be totally abolished in those regions (for example, in Austria, Holland, England, Chile, Mexico, and so forth) where civil law neither invalidates nor prohibits matrimony between the adopted person and the adopter.¹⁶

St. Thomas¹⁷ explains the fittingness of this impediment most excellently thus: "Divine law especially excludes from matrimony those persons whom it was necessary to live together, lest, if it were lawful for them to use carnal union, an easy occasion for concupiscence should lie open; matrimony is ordained to repress this. And because an adopted son dwells in the house of the adopting father as a natural son, therefore by human laws it is prohibited that matrimony be contracted between such persons, and such a prohibition is approved by the Church."

Origin of this impediment. Legal relationship as a diriment impediment of matrimony was first established by ancient Roman law.¹⁸ This civil law was afterward canonized by the Church. But when this was done is not so certain. Gratian already presupposes the existence of the impediment of legal relationship;¹⁹ but Raymond in the compilation of the Decretals placed a special title concerning legal relationship,²⁰ which he afterward briefly and clearly circumscribed in his Summa.²¹

Extent of the impediment. Legal relationship dirimes or prohibits matrimony according to the civil laws of each region. In Germany, France, Hungary, Switzerland, Belgium, and Luxembourg, legal relationship is a more or less impedient impediment; in Italy, Spain, Poland, Brazil, and so forth, this relationship is a diriment impediment.

Cessation of this impediment. Since legal relationship, according to present ecclesiastical discipline, is judged entirely according to the civil laws of each region, it also seems to cease in the ecclesiastical forum when it has ceased in the civil forum. Whether the Holy See will concede a dispensation from this impediment in a case of necessity if civil law invalidates or prohibits such a matrimony is not yet established.

¹⁶ Legal relationship seems to be a diriment impediment in Spain and Italy, but not in Germany, Switzerland, France, Austria, Holland, or Belgium.

¹⁷ Suppl., q. 57, a. 2.

¹⁸ Instit. Iustin., l. 1, tit. 11; Pandect., l. 1, tit. 7; Cod., l. 8, tit. 48; Novell. 74, c. 3, and 89.

¹⁹ c. 1 § 6, C. 30, q. 3.

²⁰ L. 4, tit. 12.

²¹ Summa, l. 4, tit. 8.

Already above, n. 783, where the impedient impediments of matrimony were discussed, enough was said concerning the impediment of legal relationship, which according to the civil laws of each region either invalidates matrimony or renders it merely illicit.

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.

94. • I. Notion.

It is the propinquity of persons arising from adoption.

95. • II. When it is a merely prohibiting impediment.

This depends upon the civil law of each nation, which in this matter is canonized by the Church.

"In those regions where by civil law legal kinship, arising from adoption, renders nuptials illicit, by canon law also the matrimony is illicit." (Can. 1059.)

a) In Belgium, France, Luxembourg, and Romania civil law establishes a merely prohibiting impediment, and indeed one in force:

1. between the adopter and the adopted person and his descendants.

2. between the diverse adoptive children of the same adopter.

3. between the adopted person and the children whom the adopter shall afterward have.

4. between the adopted person and the wife of the adopter, and between the adopter and the wife of the adopted person.

The impediment is perpetual with respect to legal paternity and affinity, i.e., with respect to the persons indicated under nn. 1 and 4.

It is temporary with respect to legal fraternity, i.e., with respect to the persons listed under nn. 2 and 3. For the impediment ceases as soon as the adopted son or the natural children are emancipated.

b) In Germany it is in force only between the adopted person and the adopter and his descendants, whether natural, even illegitimate, or adoptive.

It ceases with the adoption itself.

c) In Hungary it is in force:

1. between the adopter and the adopted person.

2. between the adopter and the wife of the adopted person, and between the adopted person and the wife of the adopter.

3. between the natural children, even illegitimate, of the adopter and the adopted person and the wife of the same.

4. between the natural children of the adopted person and the wife of the adopter.

Once the adoption has been dissolved, the impediment ceases.

d) In Switzerland it is in force:

1. between the adopter and the adopted person.

2. between the adopter and the wife of the adopted person, and between the adopted person and the wife of the adopter.

e) In Venezuela it is in force:

1. between the adopter and the adopted person and his descendants.

2. between the diverse adoptive children of the same adopter.

3. between the adopted person and the later-born children of the adopter.

4. between the adopter and the spouse of the adopted person, and between the adopted person and the spouse of the adopter.

Once the adoption has been dissolved, the impediment vanishes.¹

¹ Capello, op. cit., n. 324.

N. B. In the other regions, besides those indicated here and at n. 173 b, the impediment of legal kinship is in no way in force.

174. • I. Notion.

It is the propinquity of persons coming from adoption.

175. • II. When it is a diriment impediment.

a) This depends on the civil law of each nation, which in this matter the Church canonizes or makes its own.

"Those who by civil law are held incapable of entering nuptials between themselves on account of legal kinship arising from adoption cannot by force of canon law contract matrimony between themselves." (Can. 1080.)

b) A civil law having adoption as a diriment impediment is in force in the following states: Italy, Spain, Poland, Croatia, Slavonia, Russia, Monaco, Guatemala, Bolivia, Brazil, Colombia, Peru, and perhaps Greece.¹

¹ Cfr. Capello, cited work, n. 570.

c) From the diverse laws in force in diverse nations, it must be drawn out between which persons the impediment is present.

176. • III. Cessation of the impediment.

a) It ceases by abrogation of the civil law promulgating it.

b) Or by dispensation granted not by the civil prince, but by the Church.

XIV. That legal kinship arising from adoption may induce an impediment, six conditions are required: 1. That the adopter be male; 2. That the adopter be twenty-five years old; 3. That he be able naturally to beget sons; 4. The adopter ought to exceed the adopted by eighteen years, that by reason of age he can be called his son; 5. The adopter and the adopted ought to be present; 6. The authority of the Prince or of the Magistrate must accede. They distinguish a twofold adoption. The first is perfect, which is called also arrogation, and is made by the rescript of the Prince with an extraneous person who is sui juris. The other, imperfect, is called simple adoption. This does not require that the adopted be sui juris, nor the rescript of the supreme Prince; but the authority of any Magistrate suffices. The arrogated necessarily succeeds the arrogator, both by testament and ab intestato. The simply adopted succeeds only ab intestato.

XV. That perfect adoption induces a diriment impediment by positive right all affirm. Concerning the imperfect they dispute on either side. To me it is the more probable that it does not induce one, as St. Thomas seems to defend, Suppl., q. 57, art. 1, reply 1. This impediment lasts between the adopter and the adopted, between the wife of the adopter and the adopted, and between the wife of the adopted and the adopter, in perpetuity; between the adopter and the posterity of the adopted up to the fourth degree inclusively. In the collateral line, namely between the adopted and the carnal and legitimate sons of the adopter, the impediment lasts only so long as they persist subject to the power of the adopter. The paternal power being taken away either by the death of the adopter, or by the emancipation of the adopted, whether legal or natural, that impediment vanishes, nor does it extend beyond the first degree. Chapter unicum, on legal kinship.