Affinity and its degrees

597. Nature of the Impediment. 1. The impediment of affinity consists in this, that matrimony between persons related by affinity in some certain degree is invalid.

2. Affinity, as far as it extends, is of ecclesiastical law; nor does it seem admissible that affinity in the first degree of the direct line dirimently impedes matrimony by natural law.

a. It is indeed from natural law that affinity arises; but it is not from natural law that affinity dirimently impedes matrimony. And indeed, among persons related by affinity in the first degree there does not exist a relation of principle and of one arising from a principle, and therefore neither a debt of special reverence as between father and daughter. Therefore the foundation from which an impediment of natural law might arise is lacking.

b. Formerly a vehement controversy was carried on concerning the question whether the Church can dispense in the impediment of affinity of the first degree of the direct line. But today the affirmative opinion has become common among theologians, nor does any reason for doubting remain, since the impediment is of ecclesiastical law and the Church itself has declared that there is no doubt concerning the power of the pontiff to grant dispensation in this case.¹ Nevertheless the Church, although often asked and although most grave causes for dispensing existed, never granted dispensation in affinity of the direct line because of the great indecency which marriages between persons related by affinity in the direct line present before themselves; for among all sufficiently cultivated nations those related by affinity in the descending direct line are held in the manner of children. With wholly peculiar circumstances concurring, the Holy See on December 2, 1911, dispensed for the first time in this impediment. Cf. Archiv f. k. K. 1913, p. 677 ff.

¹ S. Office, September 4, 1743.

598. Declarations. 1. Affinity is the nearness of persons arising from valid matrimony, whether only ratified or ratified and consummated, between the man and the blood relatives of the woman, and conversely between the woman and the blood relatives of the man.¹

a. With this definition of affinity established, both the practice of confessors and the examination of the betrothed are rendered much easier, since inquiry no longer has to be made concerning carnal copula had with a consanguineous person. From the same definition it is clear that no affinity arises from invalid matrimony, even putative matrimony.

b. Although the Code speaks only of the ratified matrimony of baptized persons, nevertheless affinity and the impediment of affinity seem also to arise from legitimate matrimony of non-baptized persons. Namely, affinity, since it naturally arises from valid matrimony, exists also among infidels; but the impediment of affinity does not exist among them. But if infidels who are free are converted to the faith, they are bound by the impediment of affinity which they had contracted in infidelity. Therefore a spouse, for example, who after the death of his wife received baptism, could not marry the baptized sister of the deceased wife.

c. Once the matrimony which is, as it were, the principle of affinity has been dissolved, whether through the death of the other spouse, or through dispensation of the supreme pontiff, or through profession, affinity itself does not cease, but endures until death.

d. Therefore supervening affinity, by which a spouse because of adultery committed with a person related by affinity lost the right of seeking the debt from the other spouse, no longer exists. But because of adultery he or she loses the right of demanding the debt from the other spouse.

e. With this new definition of affinity established, in this matter there is conformity of canon law with the civil law of Austria and Germany.²

2. Affinity is contracted by the man alone with the blood relatives of the wife, and by the woman alone with the blood relatives of the husband. Therefore it is not contracted a. by husband and wife, who are as it were the principle of affinity, nor b. by the blood relatives of one with the blood relatives of the other: affinity does not beget affinity.³

Hence two brothers can marry two sisters; indeed father and son can marry mother and daughter; and generally any blood relative of the husband can marry a blood relative of the wife, and conversely any blood relative of the wife can marry a blood relative of the husband. Therefore also stepchildren, who are such in the full sense, that is, who have neither father nor mother in common, as when a widower having a son marries a widow having a daughter, can enter matrimony.

3. Affinity follows the degree and line of consanguinity; therefore in determining affinity this rule must be observed: those who are blood relatives of the man are related by affinity in the same line and degree to the woman, and conversely.⁴

Therefore Claudius is related by affinity to the mother of his wife in the first degree and to her grandmother in the second degree of the direct line; to the sister of his wife in the first degree and to the niece of his wife in the second degree of the collateral line.

4. Affinity also can be multiple. Now it is multiplied a. as many times as the consanguinity from which it proceeds is multiplied; b. by repeated successive matrimony with a blood relative of the deceased spouse.⁵

¹ Cn. 97, 1, 2.

² Cf. Austrian Code, sec. 66; German Code, sec. 1590.

³ Cn. 97, 2.

⁴ Cn. 97, 3.

⁵ Cn. 1077, 2.

599. Names of Persons Related by Affinity.

a. Socer, Schwiegervater; socrus, Schwiegermutter.

b. Vitricus, Stiefvater; noverca, Stiefmutter.

a. Gener, Schwiegersohn; nurus, Schwiegertochter.

b. Privignus, Stiefsohn; privigna, Stieftochter.

a. Levir, the husband's brother; glos, the husband's sister.

b. Sororius, the sister's husband, Schwager; fratria, the brother's wife, Schwagerin.

600. Principles. 1. Affinity in the direct line dirimently impedes matrimony in any degree.

2. Affinity in the collateral line dirimently impedes matrimony up to the second degree inclusively.¹

Note. The impediment of affinity has been changed by the new Code both with regard to foundation and with regard to extent.

a. Hitherto the foundation of the impediment was any perfect copula whatever, provided it was perfect. Now its foundation is valid matrimony, whether it has been consummated or only ratified.

b. Hitherto licit affinity dirimently impeded matrimony in the direct line in any degree, in the collateral line up to the fourth degree; illicit affinity in the direct line in the first and second degree, in the collateral line in the first degree. Now affinity, whether from ratified-only matrimony or from ratified and consummated matrimony, dirimently impedes matrimony in the direct line in any degree, in the collateral line up to the second degree inclusively. No illicit affinity exists.

c. Hitherto from ratified non-consummated matrimony there arose the impediment of public honesty; now from it there arises the impediment of affinity.

d. Hitherto spouses (through incest) could contract affinity (subsequent affinity); now no subsequent affinity exists.

¹ Cn. 1077, 1.

Affinity is the relationship which one contracts with the relatives by blood of a person with whom he has contracted a ratified marriage only or a ratified and consummated marriage (Can. 97, sec. 1).

It has its origin in positive ecclesiastical law with regard to the collateral line and more probably also in the direct line. Affinity annuls marriage in the direct line in every degree, in the collateral line to the second degree inclusively (Can. 1077). The degrees in affinity with the husband are the same as the degrees of consanguinity with the wife and vice versa.

As this impediment is of ecclesiastical origin, the Church can dispense from it, but she does not dispense in affinity in the first degree in the direct line.

The impediment of affinity is multiplied as often as the impediment of consanguinity from which it proceeds is multiplied, and by marriage with a relative of a dead spouse (Can. 107", SEC, 2).

Affinity, however, does not generate affinity, so that two brothers may marry two sisters, and a father and son may marry a mother and daughter.

English law only acknowledges affinity arising between those who are married, and it extends only to the same degrees, computed in the same way, as does consanguinity. e

811. Principles. - I. Affinity from licit intercourse invalidates matrimony through the fourth degree inclusively ¹; but that from illicit intercourse only through the second degree inclusively. This is established from the Fourth Lateran Council and from the Council of Trent, session 24, chapter 4.

¹ The Doctors observe that this decree is to be understood of the collateral line, but is not restricted to the fourth degree if there is question of the direct line. This observation, however, contributes nothing to practice, because matrimony between persons related by affinity in the fifth or sixth degree in the direct line is scarcely probable, when the highest prosperity presented in Sacred Scripture is that of one who sees the fourth generation.

II. Affinity is not contracted except through perfect and consummated intercourse, or such that generation can follow from it of itself; because otherwise the man and woman do not strictly become one flesh ². - St. Ligorius, no. 1075.

² The Doctors agree unanimously in denying affinity if the woman alone has emitted seed; they do not agree if the man alone has done so. Concerning this controversy St. Alphonsus (book 6, no. 1075) concludes that each opposed opinion is probable; and it is certain that St. Thomas stands with those who require an act perfect on both sides. Therefore, since there is question of an impediment, according to the general principle it would have to be decided that the matter is doubtful, and consequently that the impediment is not present.

As regards practice, however, the rules which St. Alphonsus also has (l.c.) ought to prevail, namely: 1. when the intercourse is established, in the external forum there is always a presumption in favor of the impediment having been contracted; 2. the same is presumed even in the internal forum when the contrary is not established, because judgment is prudently made from things that commonly occur, especially if the woman admits that she experienced a great sensation of pleasure, even though she did not notice a seminal emission; 3. if it is certainly established that in fact emission did not occur on either side, in the forum of conscience a judgment in favor of the impediment cannot be rendered. Schmalzgrueber, book 4, title 14, nos. 71-73.

III. Affinity contracted between spouses cannot invalidate their matrimony, since it supervenes upon that matrimony already indissolubly contracted; nevertheless, it impedes its use as a punishment of the adulterous or incestuous spouse. This is established from several passages of Canon law, especially from the chapter Si quis, On One Who Has Known, etc. But this affinity, inasmuch as it is from illicit intercourse, by force of the decree of the Council of Trent, session 24, chapter 4, On the Reformation of Matrimony, is not contracted except from intercourse with the blood relatives of the other spouse in the first and second degrees. This is confirmed from an express Declaration of Gregory XIII reported by St. Ligorius, no. 1070.

815. • QUESTION 3. Does affinity from a consummated but invalid matrimony invalidate matrimony through the fourth degree, or only through the second?

Reply 1. By reason of affinity it invalidates only through the second degree, because there is no affinity from legitimate matrimony.

Reply 2. By reason of public propriety, however, it appears to invalidate through the fourth degree, because matrimony, even when invalid, invalidates through the fourth degree by force of public propriety. - See what is soon to be said, no. 818.

QUESTION 4. Has a wife who has been carnally known by a blood relative of her husband through force or fear lost the right to ask the debt?

Reply 1. No, if the force was absolute; for that impediment to asking the debt in the case of incestuous spouses has only the character of a penalty, but no penalty can exist where there is no fault. - Thus all.

Reply 2. No, even when the wife who suffered force or fear did not sin gravely, because a grave penalty bears no proportion to a light fault.

Reply 3. Indeed, more probably it appears that the answer must also be no if that wife sinned gravely, because grave fear excuses from human laws, even though it cannot excuse from the natural law. Therefore, since in our case it excuses from the law insofar as the law is ecclesiastical, it ought also to excuse from the penalty inflicted by that law ⁷. - Thus more commonly with St. Ligorius, no. 1071, against some.

⁷ Schmalzgrueber (book 5, title 39, no. 79) gives the reason more suitably when he says that one who has violated an ecclesiastical law because of grave fear is excused partly because one who sins thus cannot be regarded as contumacious and a despiser of ecclesiastical power, since he sins from the infirmity of nature rather than from the malice of an obstinate will; and partly because fear of this kind generally excuses from the observance of ecclesiastical law. From these things it is apparent that the reason adduced by the Author after St. Alphonsus and others does not always hold, and therefore another must be adopted, namely, the absence of contumacy; so that, even as regards ecclesiastical law, it must be established that it sometimes happens that one is excused from the penalty by reason of fear, although he is not totally free from fault.

843. Computation of degrees in affinity. St. Thomas²⁰⁵ and the older authors taught that affinity properly does not have its own degrees, for degrees are computed from a series of generations. But there are no generations of persons related by affinity, since generations belong only to blood relatives. Therefore, affinity, not having its own degrees, takes its degrees from the consanguinity of the other party. Hence the blood relatives of the man are related by affinity to the woman, and the blood relatives of the woman are related by affinity to the man. From these things said, the following rule for computing the degrees of affinity follows:

There are as many degrees of affinity on one side as there are degrees of consanguinity on the other side, or as St. Thomas says:²⁰⁶ "In whatever degree of consanguinity my husband is related to me, in that degree of affinity his wife is related to me"; or as the Code of Canon Law, can. 97, § 3, says: "Affinity is computed so that those who are blood relatives of the husband are persons related by affinity to the woman in the same line and degree, and conversely."

This rule is clearly seen in figures 5 and 6, where affinity up to the second degree of the direct and collateral line is delineated, and from which it appears that the husband and wife are the stock from which affinity is to be computed.

Figure 5. Affinity in the Direct Line

Wife's grandparents ─────────────── affinity ─────────────── Husband
Wife's parents ──────────────────── affinity ─────────────── Husband
Wife ═════════════════════════ matrimonial union ═════════════════════ Husband
Wife's children by another marriage ─ affinity ───────────── Husband
Wife's grandchildren by another marriage ─ affinity ─────── Husband

Wife ─────────────── affinity ─────────────── Husband's grandparents
Wife ─────────────── affinity ─────────────── Husband's parents
Wife ─────────────── affinity ─────────────── Husband's children by another marriage
Wife ─────────────── affinity ─────────────── Husband's grandchildren by another marriage

The adages are very much to be noted: "Affinity does not beget affinity," and: "Affinity does not go beyond the persons joined." Therefore, between the blood relatives of the man and the blood relatives of the woman no affinity exists, and affinity is never present unless at least one of the contracting parties was previously bound by a valid sacrament of matrimony.

Hence, for example, two brothers can marry two sisters; a father and son can marry a mother and daughter; indeed, the father can marry the daughter and the son the mother, in which case the son would become the father-in-law of his own father; the husband's son and the wife's daughter born of previous marriages can enter matrimony with one another; someone can successively marry two widows whose deceased husbands were germane brothers.

Figure 6. Affinity in the Collateral Line

Their sons and daughters - Husband's brothers and sisters - Husband ═ Wife - Wife's brothers and sisters - Their sons and daughters

²⁰⁵ Suppl., q. 55, a. 7.

²⁰⁶ Ibid.

844. Extent of the impediment of affinity according to the ecclesiastical law now in force. Affinity in the direct line dirimes matrimony in every degree, but in the collateral line up to and including the second degree.²⁰⁷

Cessation of this impediment. The impediment of affinity once contracted does not cease except through a legitimate dispensation. If it is a question of affinity in the direct line, a dispensation is not wont to be granted (at least for contracting matrimony),²⁰⁸ as was already said above, n. 841. But in all other cases a dispensation can be obtained; and a faculty of dispensing of this kind for danger of death and another urgent case is contained in the Code of Canon Law, cann. 1043 and 1044.

²⁰⁷ Code of Canon Law, can. 1077.

²⁰⁸ The Sacred Penitentiary granted such a dispensation for convalidating a matrimony already contracted on December 2, 1911.

S. Th., Suppl., q. 55.

911. Matter to be treated. - Besides the propinquity or conjunction of persons among themselves, there can be propinquity and an impediment of matrimony by reason of a third person conjoined; and if that person is legitimately conjoined through a valid matrimony, affinity arises; if that person is conjoined in some other way and not through valid matrimony, there can arise public honesty repelling from matrimony.

912. Affinity (affinité, alliance; aanverwantschap) is the propinquity or conjunction of persons arising from valid matrimony, - whether ratified, or ratified and consummated, - between the man and the blood-relatives of the woman, and conversely between the woman and the blood-relatives of the man. The foundation is true and valid matrimony, not only consummated but, according to the new law, also ratified (can. 97).

According to the mind of St. Thomas, a. 1, this can be shown thus:

"1° Husband and wife are made one flesh. Therefore if the man according to the flesh is related to all his blood-relatives, the woman by the same reason will be related to the same...

"2° A certain natural friendship is founded upon natural communication. But natural communication is in two ways, according to the Philosopher, VIII Eth., 12: in one way, through the propagation of flesh; in another way, through conjunction ordered to the propagation of flesh. Hence he himself says that the friendship of husband toward wife is natural." Hence, just as a person conjoined to another through the propagation of flesh makes a certain bond of natural friendship, so also if he is conjoined through matrimony. But "in this it differs, that a person conjoined to someone through the propagation of flesh, as a son to his father, becomes a participant of the same root and blood; whence by the same kind of bond the son is joined to the blood-relatives of the father, by which the father was joined, namely consanguinity"; but a person conjoined through matrimony "does not become a participant of the same root, but as it were one adjoined extrinsically, and therefore from this there is effected another kind of bond, which is called affinity."

Nevertheless the spouses themselves are not affines between themselves, but they are the principle of affinity, and as it were the stock from which the degrees of affinity are numbered and computed, for "the conjunction of husband and wife is stronger than the conjunction of the wife to the blood-relatives of the husband; nor ought it to be called affinity, but matrimony, which is a certain unity (one flesh), just as a man is the same to himself, not consanguineous" (ad 1). But affinity has force only between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the man, and indeed in the same line and the same degree in which they are blood-relatives (can. 97, §§ 2 and 3); whence the blood-relatives of either spouse are not affines among themselves.

Hence, for recognizing and computing affinity, three rules are established:

1. Affinity does not go beyond those joined by copula, because it does not flow to the blood-relatives of each spouse among themselves.

2. Affinity does not beget affinity, because it is not extended to the affines of the spouse, but only to that spouse's blood-relatives.

3. Those who are blood-relatives of one spouse are the same, in the same line and degree, as affines of the other, because they are affines of the one by reason of consanguinity to the other. Thus a man is affine with the mother of his wife in the first degree and with her grandmother in the second degree of the direct line, with the sister of the wife in the first, and with the niece in the second degree of the collateral line.

913. Principle I. Affinity in the direct line dirimently impedes matrimony in any degree, or indefinitely; in the collateral line up to the second degree inclusive. - Thus can. 1077, § 1.

The reason for the impediment is similar to that on account of which matrimony is impeded among blood-relatives of the collateral line, namely reverence and the restraining of concupiscence among familiars and those dwelling together, and friendship to be extended to outsiders. St. Thomas says, a. 6:

"Affinity preceding matrimony impedes matrimony to be contracted and dirimently annuls a contracted one: for the same reason as also consanguinity. For just as there is a certain necessity of dwelling together among blood-relatives toward one another, so also among affines. And just as there is a certain bond of friendship among blood-relatives, so among affines." "Whence affinity... would be contracted by the matrimony which was to be contracted with an affine, insofar as it would impede the multiplication of friendship and the repression of concupiscence, which are sought through matrimony" (ad 1).

The impediment is not of natural law, but of positive law, not divine but ecclesiastical, even in the first degree of the direct line, since in this case also the Church sometimes, though most rarely, dispenses. Hence, although affinity arises from valid matrimony among unbelievers, nevertheless from this there does not arise the impediment of affinity, unless the civil law has established the same; but if both are baptized, the matrimony by that very fact is ratified and the impediment of ecclesiastical law arises; but if one is baptized, for that one the impediment arises with respect to the blood-relatives of the other party (cf. Response of the Congregation of the Holy Office, Jan. 16-31, 1957).

According to present-day discipline, can. 1077:

1° The impediment extends in the collateral line only up to the second degree inclusive.

2° It is multiplied only a) as often as the impediment of consanguinity from which it proceeds is multiplied, i.e., as often as between the spouse and that spouse's blood-relatives there is a multiple common stock; b) by repeated successive matrimony with a blood-relative of the deceased spouse.

Let it be noted that between two persons affinity can be present together with consanguinity: if someone enters matrimony with a blood-relative, at the same time he becomes affine with his own blood-relatives.

914. Corollaries. - From the preceding the following can be deduced:

1° The blood-relatives of the husband validly and licitly contract matrimony with the blood-relatives of the wife, and these conversely with those.

2° Two brothers can marry two sisters; indeed a father and son can marry a mother and daughter.

3° A stepson can marry the mother, daughter, or sister of his stepmother; and conversely a stepdaughter can marry the father, son, or brother of her stepfather.

4° The surviving spouses of a deceased brother and sister can contract matrimony between themselves.

5° The son of the husband and daughter of the wife, generated from a preceding matrimony, can enter marriage between themselves.

6° Successively it is lawful to marry two widows whose deceased husbands were full brothers.

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

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

3°. Two brothers can marry two sisters.

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

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

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

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

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

¹ Cf. Addenda, p. 1117, n. 70.

Titius, a missionary, after spending many years fruitfully in the vineyard of the Lord in southern Africa, returns to his native country to restore his bodily and spiritual strength. In the mission several moral cases not easy to resolve presented themselves, among them also the following. A certain man, a leader among the pagans, was converted to the faith; but since he had four wives, he had to dismiss three. Nevertheless, he was in no way willing to retain the first, but rather her sister, the youngest among them and the last, whom he had bought for many oxen. Titius, perplexed, doubted whether this could be permitted, even if he used his rather ample missionary faculties for granting the necessary dispensations. It is asked:

1. Is the impediment of affinity of natural law or only of ecclesiastical law?

2. What faculties do missionaries in regions of unbelievers have that would be useful to Titius in the case?

3. What is to be said of the case?

1. Is the impediment of affinity derived from natural or ecclesiastical law?

Affinity in the collateral line is certainly derived from ecclesiastical law, and more probably also in the direct line. As a diriment impediment, therefore, it does not affect those who are not baptized. However, even in the non-baptized, carnal intercourse creates a certain natural bond; the parties become one flesh, and this natural bond becomes affinity and a diriment impediment of marriage after Baptism.¹

1 Manual of Moral Theology, vol. ii, 302.

2. What faculties have missioners among infidels which might perhaps be of use in this case?

Bishops and even priests in missionary countries frequently have the following faculties:

“ To dispense in the third and fourth degrees of consanguinity and affinity, simple and mixed only, and in the mixed second, third, and fourth degrees, but not in the second degree alone with regard to future marriages; with regard to past marriages, however, even in the second degree alone, provided that it in no way touches the first degree, with those who are converted from heresy or unbelief to the Catholic faith; and in the aforesaid cases to declare the offspring begotten legitimate.”

“ To dispense with gentiles and unbelievers having several wives so that after conversion and baptism they may retain whichever of them they prefer, if she also becomes a believer, unless the first wife wishes to be converted.”

“ To dispense in both forums with Catholics subject to his jurisdiction, in marriages either contracted or to be contracted, concerning the impediment of the first degree of affinity in the collateral line arising from lawful intercourse (for ten cases).”

3. The case. The first wife is presumed to be the only lawful one, and if she is willing to be converted, her husband should adhere to her. If she is not willing to be converted, but is ready to live peaceably with her husband, in this case also he should remain with her, unless he obtains a dispensation which may be given in virtue of the second of the above faculties. In case the first will neither be converted nor live peaceably with her husband, the Pauline privilege may be invoked, and the husband will be free to marry any Christian wife. Sometimes among infidel savages there may be serious doubt as to whether the marriage with a first wife was valid on account of the man’s intention not to limit himself to one, and for other reasons. In such a case the man would not be married at all. In the case proposed, the woman that the man wishes to retain as his wife is related to him in the first degree of affinity in the collateral line, but sometimes power to dispense in this impediment is granted as by the third of the above faculties, or a dispensation for a particular case may be asked for from the Holy See. From what has been said Titius will see how his case and similar ones must be treated.

THE Church has frequently changed her discipline with regard to affinity, and the drastic changes on the subject which have been inserted into the new Code of Canon Law are a good example of the fearlessness with which the Church uses her authority when changed circumstances seem to require it. The ecclesiastical law now in force on the subject is stated in the new Code in a few simple but far-reaching canons.

Canon 97. " § 1. Affinity arises from valid marriage whether ratified only or ratified and consummated. " § 2. It exists only between the man and the relations by blood of the woman, and also between the woman and the relations by blood of the man. " § 3. It is so reckoned that those who are the relations by blood of the man are the relations by marriage of the woman in the same line and degree, and vice versa"

Canon 1077. " § 1. Affinity in the direct line annuls marriage in every degree; it annuls it in the collateral line to the second degree inclusively. " § 2. The impediment of affinity is multiplied:

" 1°. As often as the impediment of consanguinity is multiplied from which it proceeds; " 2°. By the successive repetition of marriage with a relation of a dead spouse."

The first section of Canon 97 changes the very notion of affinity as it has been understood in ecclesiastical law from very early times. Practically it adopts the definition of affinity which was accepted in Roman Law, and which has been followed by most modern legal systems. Affinity therefore, now, in ecclesiastical law arises only from ratified Christian marriage. It does not arise from the marriage of unbaptized persons, and probably not even from the marriage of a baptized person with another not baptized. It does not arise from carnal intercourse, whether licit between married people, or illicit between those who are not married. This simple change sweeps away some very irksome difficulties which frequently occurred under the old ecclesiastical legislation. According to the law as it existed before the new Code came into force, and which still governs cases which happened before that date, affinity arose only from carnal intercourse. It annulled marriage to the fourth degree when it arose from lawful carnal intercourse, and to the second degree when it arose from unlawful intercourse. Theologians taught, and the doctrine was confirmed by many decisions of the Roman Congregations, that although the diriment impediment of affinity did not affect unbaptized persons, yet carnal intercourse between unbaptized persons produced a natural bond which became the diriment impediment of affinity after the reception of baptism. Moreover, if a married man committed adultery with a near relative of his wife, he thereby contracted affinity with his wife which deprived him of his marital rights until dispensed by lawful authority. All these difficulties are now swept away and ecclesiastical law on the subject of affinity has been brought into greater harmony with the civil law of the country.

These great and beneficial changes in the law of the Church have their counterpart in the past history of this diriment impediment of marriage.

Natural feeling and the necessary intimacy between members of the same family exclude the idea of marriage among those who are closely related by blood. Experience, too, proves that the physical effects of such marriages are evil. By marriage one spouse becomes a member of the family of the other spouse. The reasons which militate against the marriage of those who are closely related by blood, militate also to some extent against the marriage of those who are related to each other by affinity. However, according to the received opinion, the natural bond which exists between those who are related by affinity is not sufficient to constitute a diriment impediment of marriage by the natural law. In other words the diriment impediment of affinity, even in the direct line and much more in the collateral line, is of positive, not of natural law. The positive legislation of most civilized peoples has recognized the impediment. The Mosaic law* enumerated the persons related to each other by affinity who were forbidden to marry. In much the same way the old Roman law for-

* Leviticus xviii. 8 ff.

bade marriage between certain persons closely related by affinity. During the first centuries of the Christian era the Church seems to have adopted the Mosaic and Roman laws on this subject. Very soon, however, she began to show that she was conscious of having legislative authority on such matters, and she began to make laws of her own. The Mosaic law allowed a man to marry a deceased wife's sister, and if a woman's husband died leaving her childless it obliged the husband's brother to marry her. At the beginning of the fourth century the Church forbade such marriages as these. The 61st Canon of the Council of Elvira in Spain (A.D. 305 or 306) enacted that: " If a man after the death of his wife marries her sister, let him abstain from communion for five years." The second Canon of the Council of Neocæsarea (A.D. 314-325) decreed that: "If a woman has married two brothers she shall be excommunicated till death." When St. Basil the Great was Archbishop of Cæsarea he forbade a man to marry his deceased wife's sister. Diodorus of Tarsus reprimanded him for this, but St. Basil defended himself by saying that such marriages had always been prohibited at Cæsarea.*

In the old law of pagan Rome lawful marriage was regarded as the chief ground of affinity in so far as affinity was an impediment of marriage. Yet even in Roman law affinity arose from certain other unions besides lawful marriage. As Wernz says:

"Affinitas jure Romano potissimum constituit impedimentum matrimonii quatenus

* Hefele, Histoire des Conciles, I., 161.

orta est ex nuptiis legitimis rite contractis, etsi non consummatis; veruntamen etiamsi ex contuberniis servorum originem duxit, matrimonii celebrationi obstabat. Nam L. 14, § 3, de rit. nupt. XXIII., 2 statuitur: ' Item, tamen, quod in servilibus cognationibus constitutum est etiam in servilibus affinitatibus servandum est, veluti ut eam quae in contubernio patris fuerit, quasi novercam, non possim ducere.' Imo, vel de ipsis concubinis (i.e., ex significatione hujus vocis in jure Romano) L. 4, de nupt. V. 4, decernitur: ' Liberi concubinas parentum suorum uxores ducere non possunt, quia minus religiosam et probabilem rem facere videntur. Qui si contra hoc fecerint crimen stupri committunt."'*

Still, in spite of these exceptional cases, affinity in general was regarded as arising from lawful marriage alone according to Roman law. During the first centuries of the Christian era there are no indications that Christians held any other view on the subject. The first sign of a change of opinion is met with in a passage from St. Augustine Contra Faustum. It was embedded subsequently in the Decretum Gratiani and quoted as c. 15, C. XXXV., q. 2, 3. It reads as follows:

" Si vir et uxor non jam duo sed una caro sunt, non aliter est nurus deputanda quam filia."

Henceforth, not marriage, but carnal intercourse, will begin to be regarded as the root of

* Wernz, Jus decretalium, IV., 654, nota (22).

affinity by ecclesiastical lawyers and writers. Over and over again the words are repeated in ecclesiastical laws. One of the chief authorities for the ecclesiastical rule of affinity was an apocryphal letter attributed to Pope Gregory and given by Gratian as c. 1, C. XXXV., q. 10.

"Si una caro fiunt [the Pope is made to say] quomodo potest aliquis eorum propinquus pertinere uni, nisi pertineat alteri? Hoc minime posse fieri credendum est. [Then a conclusion is drawn from the doctrine.] Porro uno defuncto in superstiti affinitas non deletur, nec alia copula conjugalis affinitatem prioris copulae solvere potest."

Another famous text attributed by Gratian to Pope Gregory, but which in the judgment of Mansi belongs to Pope Zachary (A.D. 741-752) begins thus:

"Porro de affinitate, quam dicitis parentelam esse, quae ad virum ex parte uxoris, seu quae ad uxorem ex parte viri pertinet, manifestissima ratio est quia si secundum divinam sententiam ego et uxor mea sumus una caro profecto mihi et illi mea suaque parentela propinquitas una efficitur."*

Canon 13 of the Council of Compiègne, held in the year 757, clearly indicates that then affinity arising from illicit intercourse constituted a diriment impediment of marriage in the law of the Church. A decree attributed by Gratian to Pope Gregory, but which probably belongs to the same

* c. 3, C. XXXV., q. 5, Decreti Gratiani.

period as the above-quoted Council of Compiègne, makes no distinction between affinity arising from lawful marriage and from fornication. The terms are very sweeping and drastic.

"Nec eam quam aliquis ex propria consanguinitate conjugem habuit, vel aliqua illicita pollutione maculavit in conjugium ducere ulli profecto licet Christianorum aut licebit, quia incestuosus est talis coitus et abominabilis Deo et cunctis hominibus (c. 10, C. XXXV., q. 2, 3)." According to chapters 13 and 14, C. XXXV., q. 2, 3, a man committed incest equally by sinning with his wife's relations by blood and with his own. Some modern writers have attributed the law of affinity arising from fornication to the false Decretals. What has been said shows that the law of the Church on the point was well established long before the middle of the ninth century, when the false Decretals made their appearance.

Sanchez* defines affinity as, " Propinquitas personarum ex carnali copula proveniens, omni carens parentela." He says that the definition was accepted by St. Thomas and other theologians and by professors of both canon and civil law. It is true that subsequently he admits that Tancred and Vincent maintained that affinity arose only from lawful marriage and quoted the Roman law in proof of their opinion. But the Archdeacon, says Sanchez, deservedly reprehends these doctors, and all other doctors admit that affinity arises from fornication as well

* De matrimonio, lib. VII., disp. 64.

as from conjugal intercourse. The way in which Sanchez speaks of the opinion which he rejects seems to show that when he wrote the tradition that there could be any opinion on the question different from that which was commonly received had been almost lost.

Starting from the principle of duo in carne una, a second and even third kind of affinity was obtained. Benedict XIV. illustrates this threefold affinity by the following example. Titius, the brother of Caius, marries Bertha, and the marriage is consummated. Bertha contracts the first kind of affinity with Caius. Titius dies and Bertha marries Sempronius. Sempronius contracts the second kind of affinity with Caius and all the relations of Titius. Bertha dies and Sempronius marries Naevia. Naevia contracts the third kind of affinity with Caius and the relatives of Titius. The second and the third kind of affinity were abolished by the fourth Council of the Lateran in A.D. 1215, and since that time it has been admitted as an axiom that, Affinitas non parit affinitatem.

Owing especially to the influence of the Germanic tribes during the sixth and seventh centuries the impediment of consanguinity was greatly extended. The impediment of affinity soon followed that of consanguinity, and in the middle of the twelfth century, when Gratian wrote his Decretum, both impediments extended to the seventh degree in the collateral line.

The fourth Council of the Lateran (A.D. 1215) restricted both consanguinity and affinity to the fourth degree as diriment impediments of marriage. The Council of Trent restricted the impediment of affinity to the second degree when it had arisen from illicit intercourse. As we have seen, in the new Code of Canon Law, affinity arising from illicit intercourse is abolished; and affinity arising from marriage is restricted to the first and the second degree.

A practical case will help us to realize some of the important consequences of the changes in the law of affinity which have been made by the new Code.

Titius committed fornication with Bertha in the year 1917. Subsequently he married Titia, the sister of Bertha. He now comes to confession for the first time since he committed sin with Bertha. How is he to be reconciled?

If Titius married Titia after the new Code came into force on May 19, 1918, and he is sorry for his past sins, he may be absolved without more ado. He had contracted affinity with Titia on account of his sin with Bertha, but when he married, that affinity was no longer a diriment impediment of marriage, and his marriage was lawful and valid.

If, however, the marriage took place before May 19, 1918, it was invalid, because affinity in the first degree in the collateral line arising from fornication was then a diriment impediment of marriage. It is no longer a diriment impediment now, and so the marriage may be convalidated without any dispensation. We presume that the impediment and the invalidity of the marriage are occult. In such a case the marriage may be convalidated by the private renewal of consent on the part of Titius, since we presume that Titia still maintains her consent to the marriage (Canon 1135, § 3).