Affinity

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.

The impediment of consanguinity may be multiple from various causes, but it is only multiplied as often as the common stock is multiplied (Can. 1076, sec. 2).

(a) If two near relations marry, their offspring will be related in several different ways: [diagram in the original]. In this scheme G and H are descended from the common stock C=F, and so they are in the second degree mixed with the first in the collateral line. Both G and H are also descended from A=B through C and through F. On this account they are in the third degree of relationship. Thus there is a double relationship between them, and if a dispensation were required for G to marry H, mention should be made of this fact.

(b) Similar results will follow if two relatives marry two relatives: [diagram in the original].

In this scheme G and H are descended from both A and B, and they are in double second degree of relationship.

(c) Similarly, if one man successively marries two who are related to each other: A D=B’ ‘C+D E F G H G and H are in the second degree from the common stock D, and in the third from the common to marry his deceased wife’s sister.

Affinity

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

I. Notion. Affinity is the relationship which arises from a valid marriage, whether ratified only or ratified and consummated, between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the husband (canon 97, § 1 and § 2). It is said:

1. From a valid marriage. Therefore affinity does not arise from a marriage invalid in any way. Nevertheless affinity is presumed to be present for the external forum if the invalidity of the marriage is not proved (cf. canons 1086, § 1; 1972).

2. Whether ratified only or ratified and consummated. Therefore, in order that affinity arise, it is required and sufficient that the marriage be ratified.

Corollary I. Affinity canonically taken does not arise from a legitimate marriage, i.e., a marriage of infidels, because, with canon 1015, § 1 considered, it is not a ratified marriage. That infidels are not bound by the impediment of affinity is clear, because they are not subject to the Church.

Corollary II. Affinity canonically taken does not seem to arise either from a marriage between a faithful party and an infidel party, or from a marriage contracted between two infidel parties, of whom only one or the other is baptized. The reason is that the aforesaid marriages do not seem to come under the name of a ratified marriage (n. 713); at least there is a doubt of law concerning the existence of the impediment.

Corollary III. Affinity canonically taken arises from a marriage contracted between two infidel parties and, after the baptism of both, persisting, because it comes under the name of a ratified marriage (n. 713).

3. Between the man and the blood-relatives of the wife, and likewise between the woman and the blood-relatives of the husband. Therefore: 1° those who have entered marriage are not affines between themselves. 2° The blood-relatives of the man and the blood-relatives of the woman are not affines between themselves; this is usually expressed in these words: Affinity does not go out beyond those who are joined. 3° The man becomes affine only toward the blood-relatives, and therefore not toward the affines, of the woman; likewise the woman becomes affine toward the blood-relatives of the man, but not toward his affines; this is usually expressed in these words: Affinity does not beget affinity (St. Alphonsus VI, 1069). Moreover, given a marriage either ratified only or ratified and consummated, affinity also exists with respect to the infidel blood-relatives of the other party. Hence, for example, a widower from a ratified marriage cannot, without dispensation, enter nuptials with an infidel who is blood-related within the determined degrees to his deceased Catholic wife.

II. Line and degree of affinity. Affinity is computed in such a way that those who are blood-relatives of the man are, in the same line and degree, affines of the woman, and vice versa (canon 97, § 3). Hence, for example, one who has entered a valid marriage with Anna, the mother of Rosa, becomes affine to Rosa in the first degree of the direct line, because Rosa is related by blood to Anna in the same line and the same degree; one who contracted with Titia, the paternal aunt of Clara, is affine to Clara in the second degree touching the first in the collateral line, because Clara is related by blood to Titia in the same line and the same degree.¹

Corollary. From what has been said it follows that two persons can be at once blood-relatives and affines. Thus, for example, one who entered marriage with Bertha, his blood-relative, is both a blood-relative and an affine to Bertha's sister.

III. Existence and scope of the impediment. Affinity in the direct line diriments marriage in any degree; in the collateral line up to the second degree inclusive (canon 1077, § 1). Hence today a widower is not bound by this impediment in the collateral line except with regard to the sisters of his deceased wife (degree 1), paternal aunts, maternal aunts, daughters of a brother or sister (degrees 1 and 2), paternal cousins, paternal-aunt's daughters, and maternal cousins (degree 2); similarly a widow is bound only with regard to the brothers of her deceased husband (degree 1), paternal uncles, maternal uncles, sons of a brother or sister (degrees 1 and 2), paternal cousins, paternal-uncle's sons, and maternal cousins (degree 2).² But note that the more remote degree draws the nearer to itself; wherefore affinity is not contracted by one party with the other party's blood-relatives in the third degree, even if this degree perhaps is mixed with the second or first.

Corollary I. "Two brothers can marry two sisters; father and son can marry mother and daughter. 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. The surviving spouses of a deceased brother and sister can contract marriage between themselves. The son of the husband and the daughter of the wife, begotten from prior marriages, can enter marriage between themselves. Someone can successively marry two widows whose deceased husbands were full brothers" (St. Alphonsus VI, 1069).³

Corollary II. The impediment of affinity persists even if the marriage is dissolved by death or by another cause.

¹ Before the Code of Canon Law, affinity arose not from marriage as such, but from perfect copula, whether free or violent, whether licit or conjugal, or illicit, as fornication or adultery.

² Vlaming, n. 349.

³ Aertnys-Damen, II, n. 763.

IV. Multiplication of the impediment of affinity. The impediment is multiplied: 1° as often as the impediment of consanguinity from which it proceeds is multiplied; 2° by repeated successive marriage with a blood-relative of the deceased spouse (canon 1077, § 2). It is said:

1. As often as the impediment of consanguinity from which it proceeds is multiplied; understand this as often as, or when, some person was multiply related by blood to the prior spouse because of a multiple common stock. The case occurs, for example, when the deceased wife of a man was at once the maternal aunt and paternal aunt, or maternal aunt and niece, of that person with whom the man intends to enter nuptials.

2. By repeated successive marriage with a blood-relative of the deceased spouse; for example, Peter successively and validly married Mary and Anna, sisters of Rosa; now he is doubly affine to Rosa in the first degree of the collateral line.

Before the Code of Canon Law, affinity from matrimonial copula dirimented marriage up to the fourth degree inclusive of each line; from fornicatory copula, up to the second degree inclusive of each line.

V. The law by which affinity diriments marriage. Affinity diriments marriage by ecclesiastical law alone; and this, which previously was called into doubt by some, holds even concerning affinity in the first degree of the direct line, indeed even if consummation of the marriage has occurred. It is proved: 1° from canon 1043, which enumerates the aforesaid affinity among impediments of ecclesiastical law; 2° from the fact that the Holy Office¹ absolutely declared: Affinity which is naturally contracted in infidelity from copula, whether licit or illicit, is not an impediment for marriages which are entered in infidelity; 3° from the fact that the Church has already dispensed even in the aforesaid affinity.

VI. Dispensation in affinity of the collateral line is granted for proportionate causes to be assigned later. But in affinity of the direct line, at least in the first degree, it is ordinarily not granted. We have mentioned above the fact of a dispensation granted, though after the marriage had been contracted.²

¹ August 26, 1891 (Collectanea, n. 1766); cf. Holy Office, September 4, 1743; February 20, 1888 (Collectanea, n. 1685).

² Rescript of the Sacred Penitentiary, December 2, 1911 (Nouvelle Revue Theologique 1912, p. 528).

I. In the direct line:

1. Socer = father of the husband or wife (schoonvader, suocero, beau-pere, father-in-law, Schwiegervater).

Socrus = mother of the husband or wife (schoonmoeder, suocera, belle-mere, mother-in-law, Schwiegermutter).

2. Gener = husband of a daughter (schoonzoon, genero, gendre, son-in-law, Schwiegersohn).

Nurus = wife of a son (schoondochter, nuora, belle-fille, daughter-in-law, Schwiegertochter).

3. Vitricus = husband of the mother (stiefvader, padrigno, beau-pere, stepfather, Stiefvater).

Noverca = wife of the father (stiefmoeder, matrigna, belle-mere [maratre], stepmother, Stiefmutter).

4. Privignus = son from a prior marriage of the other party (stiefzoon, figliastro, beau-fils, stepson, Stiefsohn).

Privigna = daughter from a prior marriage of the other party (stiefdochter, figliastra, belle-fille, stepdaughter, Stieftochter).

II. In the collateral line:

1. Levir = brother of the other party (zwager or schoonbroeder, cognato, beau-frere, brother-in-law, Schwager).

Glos = sister of the other party (zwagerin or schoonzuster or snaar, cognata, belle-soeur, sister-in-law, Schwagerin).

2. Sororius = husband of a sister (as was said of levir).

Fratria = wife of a brother (as was said of glos).

What is the impediment of affinity? Affinity is the relationship which one contracts with the blood relatives of the person with whom he has carnal intercourse, or it is the relationship which arises from carnal copulation between one person and the blood relatives of the other, e.g., between the man and the blood relatives of the wife, and vice versa. From carnal copulation, namely one apt of itself for generation, although generation does not follow. Affinity from licit copulation dirimently impedes marriage in the transverse line up to the fourth degree, and further also in the direct line, C. Non debet 8, de Consanguin.; from illicit copulation, up to the second, Trent, sess. 24, chap. 4, de R. M., and therefore from public concubinage and from merely civil marriage it does not extend beyond the second degree. Does it also arise from a null marriage? Some affirm this, whether the man and woman have coeundum in good faith or in bad faith. Carriere, de Matr., p. 163. According to others, if the man and woman have coeundum in good faith, it extends up to the fourth degree; but if in bad faith, according to many, says Scavini, Milan, 1874, 12th ed., book 3, n. 794, it extends up to the fourth degree, according to others up to the second. And this seems more true according to Trent. The degrees and lines of affinity are taken from consanguinity, and as in consanguinity; so that one who is related by affinity to one party is in the same line and the same degree in which he is a blood relative of the other party. Hence he who is, for example, a blood relative of the wife in the first degree, whether of the direct or of the transverse line, is related by affinity to the husband in the same degree of the direct or transverse line. And as in consanguinity, so in affinity the distance is taken from the more remote degree. Therefore there is no need of a dispensation from affinity because of illicit copulation when one party is distant from the stock in the first degree and the other in the third. German Civil Code, 1310, 1327, 1590.

According to the certain opinion of all, affinity dirimently impedes marriage by ecclesiastical law alone in the collateral line, and much more probably also in the direct line, if perhaps the first degree is excepted. Concerning the first degree of the direct line, there is controversy among doctors. Yet there is no room for doubt concerning the power of the Pontiff to grant a dispensation in the first degree of affinity in the direct line, even from licit copulation between stepfather and stepdaughter. Holy Office, September 4, 1743; Schmalzgrueber, book 4, tit. 14, nn. 82-84, 101-105; Benedict XIV, Epistle Aestas anni, October 11, 1757; de Syn., book 9, chap. 13. But the Church has never dispensed in affinity arising from legitimate marriage, although she has dispensed in affinity arising from illicit intercourse, e.g., if someone marries a woman after having fornicated with her daughter or mother. For affinity from fornicarious copulation arises only because of the union of bodies; from consummated legitimate marriage it arises both because of carnal copulation and because of conjugal society in a common and individual life. St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3; q. 4, ad 2; Lugo, Responsa Moralia, book 1, disp. 40, 43. Therefore if two unbelievers, related by affinity in the first degree of the direct line from a legitimate marriage, after contracting a legitimate marriage with each other, were converted to the faith, they could not be separated without pontifical dispensation. But cf. the following case, n. 1002 bis.

Affinity from marriage, whether it is a diriment impediment by natural law or by ecclesiastical law, is certainly a natural affinity. Therefore an unbeliever converted to the faith cannot contract with the daughter, mother, or sister of that wife whom he legitimately had during the time of unbelief. The reason is that the natural bond arises even among unbelievers from marriage, and because it perseveres after baptism, it then becomes subject to the invalidating law of the Church. Does the aforesaid natural bond also arise from illicit copulation? Sanchez, book 7, disp. 65, n. 9, Lugo, l.c., and others deny it; but many other grave doctors more truly affirm it from St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 3. For if a man and a woman, although coeundum illicitly, nevertheless necessarily and naturally become one flesh, necessarily and naturally one enters the limits of the other's kinship and is joined to that person's blood relatives. Therefore an unbeliever converted to the faith cannot, without dispensation, enter marriage with the mother, daughter, or sister of her whom he had previously known fornicariously. And this is also established from the Response of the Holy Office, August 26, 1891.

Affinity also can be multiple, namely if someone has had carnal intercourse with several blood relatives, or with a person who is related by blood to the spouse in multiple ways, but by no means if he has done so several times with the same blood relative. For affinity is multiplied not by acts, but by persons. Sanchez, book 8, disp. 24, nn. 4, 5; L. 1067, 1069; St. Thomas, Suppl., q. 55; Schmalzgrueber, book 4, tit. 14, n. 67 ff.; E.M.

1002 bis. The following case was very recently solved: "John T. and Rebecca St. of the diocese of Hagulstadensis and Novocastrensis (Hexham and Newcastle), prostrate at the feet of Your Holiness, very humbly ask for dispensation so that they may licitly contract marriage with each other, notwithstanding the impediments of affinity in the first degree and of public honesty. "The matter stands thus: "John T. contracted marriage with a woman named St., already the mother of a daughter from dishonorable copulation, named Rebecca St. "From these nuptials three or four children were born, and the wife of John T. died. But in the year 1907 John contracted a civil marriage with Rebecca St., in good faith as regards the diriment force arising from affinity. "It is certain and can be proved that Rebecca is not the daughter of John. From these second nuptials two children were born. "The causes are: 1. The legitimation of offspring. 2. The greater good of the offspring, who, still infants, are greatly in need of the care of father and mother. 3. To regularize the state of John and Rebecca. 4. To quiet the scandal arising from the cohabitation of the parties, who now can scarcely be separated because of the education of the offspring." "The Sacred Penitentiary, having maturely considered the peculiar circumstances set forth in the case, by special and express Apostolic Authority, with Our Most Holy Lord Pius X graciously thus assenting, grants to you, beloved in Christ, the Ordinary of the petitioners, the faculty, if things are so, of graciously dispensing the petitioners from the impediments listed in the prayers, so that they, the proclamations being omitted but scandal being removed, and the remaining canonical prescriptions being observed, may licitly and freely be able to contract marriage and remain in it, and of declaring and respectively announcing as legitimate the offspring either to be received thenceforth. All things to the contrary notwithstanding. But these present letters, with the attestation of the execution imparted, are to be carefully kept in the episcopal chancery, so that for any future event there may be proof concerning the validity of the marriage and the legitimacy of the offspring. Given at Rome in the Sacred Penitentiary on December 2, 1911." It is asserted that on another occasion already the same dispensation had been given.

Note: When there is question of one who wishes to marry a daughter after having fornicated with the mother, the condition is usually added in the dispensation, provided that copulation with the mother did not precede the birth of the daughter, namely so that the danger may be guarded against that someone marry his own daughter. But the condition can be judged sufficiently fulfilled if copulation with the mother preceded at such a time that that danger is entirely absent.

For contracting affinity it is certain that insemination by the man is required; but is insemination also by the woman required? Pontius and others deny it, because female seed is not necessary for generation. St. Bonaventure and others affirm it, "both because according to the opinion of many others the seed of the woman is also required for generation, and because, and this reason presses more strongly, affinity is not contracted unless those coeundum become one flesh; but they do not become one flesh unless the seeds are mingled. And this opinion is greatly strengthened from the authority of St. Thomas.... In doubt one must presume for perfect copulation (of the man), because from things that commonly happen it is prudently presumed to have been present.... And so also the insemination of the woman is always presumed when she felt great pleasure in coitus, even if she did not advert to the insemination. Indeed, in the external forum, where coitus is established, judgment must always be pronounced for the impediment of affinity contracted, and thus one must also judge in the internal forum, which must always conform to the presumption of the external forum, and it is not established that this presumption is false." L. 1075; Schmalzgrueber, book 4, tit. 14, nn. 71-73. These are the words of St. Thomas, IV Sent., d. 41, q. 1, a. 1, q. 4, ad 2: "Man and woman become one flesh through the mingling of seeds. Hence however much someone may invade the barriers of modesty, unless mingling of seeds follows, affinity is not contracted from this." And Pyrrhus Corradus, Praxis Dispens. Apost., book 7, chap. 1, n. 18: "For causing affinity the concurrence of both seeds is required." But since the seed properly so called in the woman is not that humor which is secreted in the heat of pleasure and even shows itself externally, but the ovum, which is insensibly secreted from the ovary from venereal excitation, and also without any sense of pleasure, naturally, almost every month, descends into the uterus and is fecundated in the uterus by male seed, if the man has inseminated within the female vessel, it will indeed be difficult to pronounce that the act on the part of the woman has not been consummated. Cf. Joseph Antonelli, de Conc. imp. et sterilit., Rome, 1900.

Affinity contracted between spouses cannot dirimently impede their own marriage, since it supervenes upon this marriage already indissolubly contracted; nevertheless it impedes the use of the same marriage as a punishment of the adulterous and incestuous spouse, by depriving the guilty party of the right of asking the debt. C. Si quis, de Eo qui cognovit, etc. But this, since it is from illicit copulation, by force of the decree of Trent, sess. 24, chap. 4, de R. M., is not contracted except from copulation with the blood relatives of the other in the first and second degree. This is confirmed from the express Declaration of Gregory XIII in St. Alphonsus, 1070. But it probably does not impede imperfect acts, provided the danger of pollution is absent. For since the law is penal, it must be understood strictly, and is not to be extended also to these acts. L. 933.

The Italian Civil Code, 52; the French Civil Code, 162; the Austrian Civil Code, 40, do not seem to acknowledge any affinity except from marriage, whence under it the bond of public honesty also is comprehended. But it is otherwise according to the Spanish Civil Code, 84, which rightly distinguishes legitimate affinity from merely natural affinity; and under that, public honesty also is comprehended. As regards Roman Law, cf. Schmalzgrueber, book 4, tit. 14, n. 70.

Who are relatives by affinity? The principal relatives by affinity by reason of licit copulation are the following: 1. Socer, socerus, father of the husband, to whom corresponds the nurus, the wife of the son. Socer magnus, grandfather of the husband, to whom corresponds the pronurus, wife of the grandson. Socer is also the wife's father, to whom corresponds the son-in-law, husband of the daughter; socer magnus or prosocer is likewise the grandfather of the wife, to whom corresponds the pro-gener, husband of the granddaughter. Socrus, mother of the husband, to whom consequently corresponds the nurus, or wife of the son. Socrus magna, the husband's grandmother, to whom the pronurus corresponds. Socrus is also the mother of the wife, to whom the son-in-law corresponds. Socrus magna or prosocrus, grandmother of the wife, to whom the pro-gener corresponds. 2. Vitricus, husband of the mother; noverca, wife of the father, to whom correspond privignus and privigna, son and daughter from the first marriage of the father or mother. 3. Levir, brother of the wife, brother of the husband; glos, sister of the wife, sister of the husband; fratria, wife of the brother; sororius, husband of the sister.

Does legal kinship dirimently impede marriage up to the fourth degree between the adopter and the descendants of the adopted person, or vice versa? It is certainly restricted to the first degree as regards the adopted person and the descendants of the adopter. This is established from Canon Law. It is controverted as regards the adopter and the descendants of the adopted person. Probably the kinship does not extend beyond the first degree, or beyond the adopted person, unless he has descendants constituted under his power. For according to the more common opinion of Sanchez, book 7, disp. 63, n. 34, from Roman Law the impediment extends to those who, together with the adopted father of the family, pass into the power of the adopter. L. 1027.

To n. 1002.

As consanguinity is a natural bond from communion of blood, so affinity is a natural bond from the commingling of seeds.

St. Thomas, 4 Sent., d. 41, q. 1, a. 1, qc. 4 ad 2: "Man and woman become one flesh through the mingling of seeds. Hence, however much someone invade the enclosures of modesty, unless commingling of seeds follows, affinity is not contracted from this." "It must be said," says the same St. Thomas, Supplement, q. 55, a. 3 ad 3, "that intercourse against nature does not have commingling of seeds, which can be a cause of generation, and therefore from such intercourse affinity is not caused."

St. Bonaventure, book 4 Sent., d. 41, q. 1, response: "Affinity is generally contracted through every coitus in which there is commingling of seeds. And the reason for this is that it is not contracted except by reason of union; but then they are said to become one flesh when, through the commingling of seeds, the consummation of that act is made."

Pyrrhus Corradus: "Through the conjugal bond, with the power for intercourse, husband and wife are united in the notion of one principle for generation, and thence affinity arises between them... It is called affinity only when man and woman are made one and the same flesh; whence the blood of one is said to touch the blood of the other." The blood of one, the blood of the other: certainly not the blood of the man, but the seed, which by a more modest word was called blood by the ancients; and accordingly neither the blood of the woman, but the seed, or ovule. Dispens. Apost., book 8, c. 7, nn. 18, 19, 20.

And by this same expression of blood and commingling of blood affinity is explained in C. Lex Divinae 18, can. 27, q. 2. Commingling of blood, that is, of the seed of each, man and woman, since commingling is not made when only one emits seed.

But still more clearly the same Pyrrhus Corradus, Praxis Dispensationum Apostolicarum, book 7, c. 1, n. 18: "for causing affinity the concurrence of the seed of each is required."

Perez, De Matrimonio, disp. 31, s. 1, nn. 1, 2, says: "Affinity arises from this alone, that the blood of the man, that is, seed, which by a more modest name is called blood because it is proximately made from blood, and the menstrual blood of the woman, or her seed, are commingled within the womb of the woman herself... Without this commingling, those who are otherwise joined do not become one flesh... to become one flesh or one blood is to become a principle of itself sufficient for one flesh and offspring."

The Salmanticenses, Cursus Theologiae Moralis, De Matrimonio, tract. 9, c. 4, punct. 1, nn. 5-6, say: "By that intercourse, and not another, marriage is consummated, by which the spouses become one flesh and affinity results with the consanguineous relatives; but even if the man penetrates the enclosure of modesty, unless the commingling of the seed of each follows, neither does affinity follow, nor do the spouses become one flesh. Therefore unless the seed-emission of the woman is joined with the seed-emission of the man within the vessel, marriage is not consummated."

St. Alphonsus in his Moral Work takes up almost the whole moral doctrine of the ancients. Now in book 6, n. 1075, he treats the question whether, for affinity to be contracted, it is required that intercourse be consummated on the part of both, man and woman, and he responds: "It is certain that the seed-emission of the man is required; whether, however, the seed-emission of the woman is also required, Pontius, Palaus, etc., deny... The reason is because, according to the opinion of very many, female seed is not necessary for generation. But the second opinion, also probable, affirms it, and this is held by St. Bonaventure, Innocent, etc.... The reason is both because, according to the opinion of many others, the seed of the woman also is required for generation, and because (and this reason presses more strongly) affinity is not contracted unless those having intercourse become one flesh; but they do not become one flesh unless the seeds are commingled. And this opinion is greatly strengthened from the authority of St. Thomas," etc. Hence St. Alphonsus, ibid., n. 918, says that this latter opinion is to be held in practice.

1. Paulus, hearing the confession of Titius, came to knowledge of the nullity of his marriage from an occult impediment of affinity. Reasonably fearing that, if he were warned, he would withdraw from the marriage with public scandal, he is silent and dismisses him absolved. But afterward he asks from the Sacred Penitentiary a dispensation in the root.

It is asked: 1. What is the impediment of affinity? - 2. What is a dispensation in the root? - 3. Did Paulus act rightly?

R. To the 1st. Affinity is "the association of two kinships through the conjunction of man and woman." L. 4, § Affines de Gradib. It is contracted from intercourse, whether licit or illicit, by which man and woman become one flesh, c. 3, 5, cau. 33, and therefore from perfect intercourse. Therefore all blood-relatives of the man become affines to the woman, and consequently all blood-relatives of the woman become affines to the man. Hence affinity does not go beyond the persons themselves joined by intercourse. Affinity of this sort dirimently impedes marriage up to the fourth degree from licit copula, c. 8, de Consanguin., and up to the second from fornicatory copula, Trent, sess. 24, c. 4, de Ref. Matr.

To the 2nd. A dispensation in radice is a dispensation by which there is removed not only the incapacity of the person for contracting, or the defect of the form of the contract itself, but also the defect of consent, which is the root of marriage, is healed; whence, by that dispensation, no renewal of consent is needed, and it can be applied while either spouse or even both spouses are ignorant of it. Then by it offspring is rendered legitimate just as if it had been born from a legitimate marriage.

To the 3rd. Paulus did not act rightly; for he used knowledge from sacramental confession to the burden of the penitent himself. To the burden; for here one does not attend to whether the burden is irrational or rational, but the fact itself is inspected, namely that the penitent is in some way burdened; for the aforesaid burden is whatever could happen to the penitent that is not only harmful, but also troublesome or unwelcome, whether by right or by injury. Now it is clear that the revalidation of the marriage was altogether burdensome in the case for the penitent. Then the inconveniences of this revalidation, with each spouse ignorant of it, are clear; for if Titius, making confession with another confessor, comes to knowledge of the impediment, he will in reality be able to withdraw from the marriage, judging it null; which, if the circumstances have changed, and if there is no scandal and no damage to a third party, he could also licitly do.

2. "Doubt 2. Paulus, a Christian widower, took Balbina, an infidel, as wife, who desires to be enrolled in the number of Christians, so that she may contract marriage with him in the Christian manner. Meanwhile Demetrius, the son of Paulus, born from the former wife, declares that he has had relations with Balbina. It is asked whether, through copula of this sort with an infidel woman, there results an impediment of affinity in the first degree.

"Doubt 4. A faithful man took in marriage an infidel woman, whose blood-relative in the second degree, also an infidel, he had known previously. It is asked whether, after his wife has embraced the Christian faith, she needs a dispensation upon the second degree of affinity, so that she may be able to contract with him sacramentally.

"R. To the 2nd. Two things are to be distinguished: 1. whether Paulus took Balbina, an infidel, as wife with a previous apostolic dispensation upon disparity of cult, or without an apostolic dispensation; 2. whether Demetrius had relations with Balbina before Paulus took her to himself as wife, or afterward. If Paulus took Balbina with a previous apostolic dispensation, even if the copula of Demetrius with the same Balbina had preceded, the marriage must now be held as valid; since the impediment of affinity, especially from illicit copula, as in the case, since it is not held as of divine or natural law, but only of ecclesiastical law, does not affect infidels according to the mind of the Church, because they are not subjects of the Church; and the Church, by dispensing with the Catholic party upon disparity of cult, so that he may contract with an infidel, is understood also to dispense from those impediments from which the infidel party is exempt, so that, on account of the indivisibility of the contract, this exemption remains communicated also to the other party. Hence it follows that a marriage of this sort cannot be repeated after Balbina's conversion to the faith. For, once valid, it always perseveres in its validity; nor would it be weakened by subsequent copula which Demetrius might have had with Balbina, because the conjugal bond, which is indissoluble, would not thereby be dissolved. Therefore in this first case let missionaries take heed not to admit spouses of this sort, asking to contract in the Christian manner, to a new furnishing of consent; indeed let them warn them of the validity of the preceding marriage, so that they may know that through the sacred ceremonies of the nuptial blessing they are not entering a new marriage, but only sanctifying what they have already entered and what stands firm.

"But the contrary must be said in the second case, namely if Paulus contracted with Balbina without an apostolic dispensation upon disparity of cult. For then, since the marriage was null and void and as if it had not been contracted, Balbina herself, after baptism, would be bound by the impediment of affinity. Nor does it matter that Balbina, when she was carnally known by Demetrius, was still remaining in infidelity, and for that reason was not subject to an ecclesiastical impediment. For affinity in itself and regarded physically must be distinguished from the impediment of affinity. Now affinity is contracted even by infidels, because even among infidels it is true that man and woman are made one flesh through carnal copula. Therefore, as is had in cap. Fraternitas, 35, quaest. 10: 'If they shall have been one flesh, how will some relative of them be able to pertain to the one, unless he pertains to the other?' Therefore, because Paulus the father pertains to Demetrius the son, he must be said also to pertain to Balbina; and Balbina, because she has been made one flesh with Demetrius, must pertain to Paulus. The only difference is that affinity does not produce an ecclesiastical impediment for infidels, but it does produce one for the faithful. Therefore, since through baptism her affinity, already physically contracted with Paulus, is not removed from Balbina, this same affinity, radically inhering in her, which for that same infidel was not an impediment to contracting, becomes an impediment after baptism, by which she becomes subject to the Church, and consequently subject to its laws; and indeed an impediment in the first degree, and in the direct line, because Paulus the father and Demetrius the son touch one another in such a degree and line, and the degrees of affinity are taken from the degrees of consanguinity.

"To the 4th. From those things which were said in response to the 2nd doubt, the response to the 4th is clear. For in each case there is question of the impediment of affinity from illicit copula, except that there the discussion was of the somewhat passive affinity of Paulus the faithful, which namely he had contracted with Balbina, not from his own act, but from the act of another, namely Demetrius; but here there is question of active affinity, of which namely the Catholic man himself is the author, who wishes to contract with a woman whose blood-relative in the second degree he carnally knew. Therefore all the more must it be said that the impediment results on the part of the man, and indeed in the second degree, because consanguinity and affinity proceed and are computed in the same degree, and that the woman too is similarly held by the same impediment when she has embraced the Catholic faith. Therefore, if an apostolic dispensation upon disparity of cult preceded the marriage contracted by the faithful man with the infidel woman, it must be held as valid, and therefore, after the baptism of the woman, it must not be repeated by a furnishing of new consent; but if it was entered without a dispensation of this sort, because then it would have been null and void, the impediment of pre-existing affinity would affect, after the reception of baptism, the woman also, so that she too would need a dispensation for contracting validly and sacramentally." S. O., Sept. 16, 1824; Enchir. Moral. 1002; I. M. 1002.

810. • Affinity is the relationship which one contracts with the blood relatives of a person with whom one has carnal intercourse; or, it is the relationship arising from carnal intercourse between one person and the blood relatives of the other. Hence affinity arises between the man and the blood relatives of the woman, and conversely.

Hence:

1. Affinity arises both from licit intercourse, that is, conjugal intercourse, and from illicit intercourse, namely, from fornication, adultery, incest, etc.

2. Affinity can also be contracted between the spouses themselves if either has intercourse with one of the other's blood relatives.

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.

812. Rules. - 1. Persons who are carnally joined are not properly related by affinity to each other, but are the source of affinity and occupy, as it were, the place of the stock.

2. Affinity cannot exist between two persons neither of whom has had intercourse with a blood relative of the other; therefore the blood relatives of one spouse have no affinity with the blood relatives of the other.

3. Two brothers can marry two sisters; a father and son can marry a mother and daughter; indeed, the son can marry the mother and the father her daughter. Hence the axiom: Affinity does not beget affinity ³.

³ Formerly affinity begot affinity; hence a threefold kind of affinity prevailed and indeed invalidated matrimony. Innocent III abolished affinities of the second and third kinds in the Lateran Council. See canon Non debet 8, On Consanguinity and Affinity. What these affinities were and how they arose, see Schmalzgrueber, book 4, title 14, nos. 74-75.

4. The degrees of affinity are computed in the same manner as the degrees of consanguinity; indeed, affinity has no degrees of itself, but only by reason of consanguinity. Therefore, whatever the degree of consanguinity is with one person, such is the degree of affinity with the other.

5. One who has sinned with two sisters, or with first cousins, or with a mother and daughter, can marry none of them.

6. A man who has sinned with the sister, first cousin, or paternal aunt of his spouse is bound to render the debt when his spouse asks, although he himself cannot ask it. The reason is that, since there is question of a merely prohibiting law, the innocent person ought not to suffer from the fault of the guilty person.

7. One who sins with his own blood relatives is not deprived of the right to ask the debt, because he thereby contracts no affinity with his wife.

8. If each spouse has contracted affinity with the other through incest, neither can ask the debt, because each has lost his or her right; and therefore neither is bound, indeed neither can render the debt to the other. - St. Ligorius, no. 1069 and following.

813. Questions. - QUESTION 1. By what law does affinity invalidate matrimony?

Reply 1. According to the certain opinion of all, it invalidates by the law of the Church alone in the collateral line, and much more probably also in the direct line, if perhaps you except the first degree.

Reply 2. It is disputed as regards the first degree of the direct line ⁴. Nevertheless, although repeatedly and earnestly petitioned, the Church has never wished to dispense if the affinity arises from legitimate matrimony, as Benedict XIV also

⁴ Several theologians and canonists of great name who universally denied that matrimony with one related by affinity in the first degree of the direct line is invalid by the law of nature are cited by Schmalzgrueber (book 4, title 14, no. 103), who calls this opinion the more probable.

2. The lines drawn from one center to the opposite degrees exhibit the affinity of one spouse with the blood relatives of the other, and conversely.

The printed diagram places the man (VIR) and woman (MULIER) at its center. From each, direct lines ascend through degrees 1, 2, 3, and 4 to the other's blood relatives in the ascending line, and descend through degrees 1, 2, 3, and 4 to the other's blood relatives in the descending line. The crossed lines exhibit the man's affinity with the woman's blood relatives and the woman's affinity with the man's blood relatives.

NOTE. 1. This table presents the blood relatives of the man and woman in the direct line through the fourth degree. You will easily add the collateral lines, for example, brothers, first cousins, etc. testifies (On the Diocesan Synod, book 1, chapter 9), although it has not rarely dispensed in an affinity of this kind arising from illicit intercourse ⁵, for example, if someone should marry a wife after he has fornicated with her daughter or mother ⁶.

⁵ The reason for this difference of practice is manifest; for affinity from fornicarious intercourse is not as perfect as that proceeding from legitimate and consummated matrimony, as Lugo observes with others (Moral Responses, book 1, doubt 40, no. 29), since in the former there is only a union of bodies, while in the latter there is also a partnership in a common life, as St. Thomas notes (In IV Sentences, distinction 41, question 1, article 1, minor question 3); but matrimony, as St. Thomas adds (l.c., minor question 4, reply to objection 2), causes affinity not only by reason of carnal intercourse, but also by reason of conjugal partnership, according to which matrimony is also natural.

Nevertheless, since very grave Doctors, as was said in the preceding note, deny that matrimony with a person so related by affinity is invalid by the law of nature, therefore, if two unbelievers who had contracted such a matrimony came to the faith, it would not be safe to separate them without a dispensation of the Pontiff, unless perhaps such marriages are invalidated among unbelievers by positive law. This is readily admitted, because, as the Doctors acknowledge, marriages of this kind were held to be shameful and abominable even among the Gentiles. See Schmalzgrueber, book 4, title 14, nos. 101-105.

Nevertheless, as Lugo observes (l.c.), since affinity from matrimony, whether or not it is a diriment impediment by the law of nature, is most certainly natural affinity, a person after Baptism could not therefore contract with the daughter or mother of the wife whom he had legitimately had during the time of his unbelief. Indeed, from the final chapter On Divorces, the Doctors extend this even to persons related by affinity in the fourth degree. The reason is that, since affinity from legitimate matrimony is, according to what has been said, a natural bond - see also St. Thomas, In IV Sentences, distinction 41, question 1, article 1, minor question 1 - it arises even among unbelievers and remains even after Baptism; but after Baptism they are now subject to the law of the Church invalidating marriages through the fourth degree. See Schmalzgrueber, l.c., nos. 86-89.

Indeed, according to those Doctors who teach with St. Thomas (l.c., minor questions 3 and 4) that this natural bond of affinity also arises from illicit intercourse, since according to Paul they then also become one flesh, it would further have to be said that if someone during the time of unbelief carnally knew a woman through fornication, after Baptism he could not marry her mother, daughter, or sister, because he contracted affinity with them. Although this affinity did not obstruct his matrimony while he was an unbeliever and was not bound by the laws of the Church, nevertheless, since it perseveres after Baptism, it also assumes the character of an impediment. Schmalzgrueber, l.c., nos. 86-89. But since Sanchez (book 7, disputation 65, no. 9), and with him Cardinal de Lugo (l.c.), Gonzalez, Navarrus, and others deny this natural affinity from illicit intercourse, this would be a doubtful impediment.

⁶ When there is question of one who wishes to marry a daughter after he has fornicated with her mother, the condition is usually added in the dispensation, provided that intercourse with the mother did not precede the birth of the daughter, namely, so that the danger that someone might marry his own daughter may be guarded against. But the condition can be considered sufficiently fulfilled if intercourse with the mother preceded at such a time that this danger is entirely absent.

814. • QUESTION 2. Who are the various relatives by affinity?

Reply. They are the following:

• SOCER, a father by reason of affinity, whether of the married man or of the married woman (beau-pere).
• SOCRUS, a mother by affinity, as above (belle-mere).
• PROSOCER, a grandfather by affinity (aieul par affinite).
• PROSOCRUS, a grandmother by affinity (aieule par affinite). - GENER, the husband of a daughter (gendre).
• NURUS, the wife of a son (bru, belle-fille).
• PROGENER, the husband of a granddaughter (mari de la petite-fille).
• PRONURUS, the wife of a grandson (femme du petit-fils).
• LEVIR, the brother of a husband or wife (beau-frere).
• GLOS, the sister of a husband (belle-soeur).
• FRATRIA, the wife of a brother (belle-soeur).
• SORORUS, the husband of a sister (beau-frere).
• VITRICUS, the husband of one's mother (beau-pere).
• PRIVIGNUS, a son from the first matrimony of one's father or mother (beau-fils).
• NOVERCA, the wife of one's father (belle-mere, maratre).

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.

839. Notion. Affinity is the proximity of persons arising from a valid matrimony, whether merely 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.¹⁹⁵

Explanation. Before the new Code of Canon Law, the efficient cause of affinity was carnal intercourse of itself apt for generation; and therefore affinity arising from matrimonial intercourse (diriming matrimony up to and including the fourth degree) and from fornicarious intercourse (diriming matrimony up to and including the second degree) was distinguished. But now the efficient cause of affinity is every and only a valid matrimony, at least ratified, and it makes no difference whether carnal intercourse intervened or not. Therefore, the modern discipline must be carefully distinguished from the ancient discipline. For affinity now does not arise a) from fornicarious intercourse, b) from an invalid matrimony (although putative), c) from the legitimate, consummated matrimony of two pagans, since it is not a ratified matrimony. But if two pagans joined in legitimate matrimony are afterward baptized, the impediment of affinity certainly arises; indeed, it probably arises if either one is baptized, or if matrimony is contracted between a baptized and a non-baptized person.¹⁹⁶

¹⁹⁵ Code of Canon Law, can. 97. Concerning the history of the impediment of affinity, see Freisen, Gesch. d. kan. Eherechtes, § 39 f. The Code of Canon Law adopted the notion of affinity as it was employed in old Roman law and is employed in modern civil laws. Roman law established (L. 4, § 3, D. 38, 10): "Affines are the blood relatives of husband and wife, so called from this, that two relationships which are diverse from each other are joined through nuptials, and one approaches the boundary of the other's relationship; for the cause of affinity to be joined arises from nuptials."

¹⁹⁶ Thus the more common and truer opinion. Cf. Wernz-Vidal, loc. cit., n. 367. Nevertheless, some contradict it, for example, Blat, Commentar. III, 475; Ojetti.

840. Division. According to the discipline now in force, only simple and multiple affinity is distinguished, according as it rests upon one or several causes. Multiple affinity arises only:

1. whenever the impediment of consanguinity from which it proceeds is multiplied. How consanguinity is multiplied was said above, n. 833.

2. by successive matrimony repeated with a blood relative of the deceased spouse.¹⁹⁷ For example, if Caius successively marries Paula and Anna, who are sisters, he contracts a double affinity with Theresia, the cousin of Paula and Anna.

¹⁹⁷ Code of Canon Law, can. 1077, § 2.

841. Origin and suitability of this impediment. Although from matrimony a certain natural bond arises with the blood relatives of one's spouse, nevertheless it does not yet follow therefrom that the impediment of affinity arises from natural law itself. There were indeed several weighty authors (St. Antoninus, Reiffenstuel, Bellarmine, Pirhing, and others) who taught that at least affinity in the first degree of the direct line dirimes matrimony by natural law itself, and therefore that the Pope cannot dispense in such affinity, and also that a matrimony of pagans entered between such persons related by affinity is invalid; but the far more common and probable opinion teaches that no affinity whatsoever dirimes matrimony by natural law.¹⁹⁸ On September 4, 1743, the Holy Office declared that "there is no reason to doubt the power of the Pontiff to grant a dispensation in the first degree of affinity in the direct line, even from licit intercourse between a stepfather and stepdaughter."

The Supreme Pontiff is not wont to dispense from the impediment of affinity in the first degree of the direct line, at least if it is a question of a matrimony to be contracted and if the affinity arose from a consummated matrimony. Indeed, several Supreme Pontiffs, for example, Urban VIII, Alexander VII, Innocent X, and Benedict XIII, expressly denied such a requested dispensation.¹⁹⁹ The matter is otherwise if carnal intercourse was exercised in paganism and matrimony is contracted after baptism has been received. On August 26, 1891, the Holy Office determined generally that "affinity which is naturally contracted in unbelief from intercourse, both licit and illicit, is not an impediment for marriages entered in unbelief, but becomes an impediment for marriages entered after baptism, by the reception of which unbelievers become subjects of the Church and therefore subject to her laws."²⁰⁰

¹⁹⁸ Cf. Billuart, De matrim., diss. 7, a. 5, § 3.

¹⁹⁹ In Leitner, Lehrb. d. kirchl. Eherechtes, § 31, p. 223. Cappello, De sacr. III, nn. 537 and 539, asserts that dispensations of this kind have been granted in our age.

²⁰⁰ The same Holy Office applied this rule on December 16, 1898, in the following practical case: Andrew, formerly a pagan but now baptized, wishes to marry Clara, who is still a catechumen but is about to receive baptism in the near future. Clara was Andrew's stepmother, that is, the second wife of Andrew's father; indeed, she had been the concubine both of Andrew's maternal uncle and of Andrew's grandfather. Therefore, Clara was related by affinity to Andrew in three ways (namely, in the first degree, in the second touching the first, and in the second degree of the direct line). The Holy Office responded: "If both betrothed parties, related by affinity in unbelief, ask to be joined in matrimony after receiving baptism, petition is to be made to the Most Holy One for a dispensation." - If Andrew and Clara, while existing in paganism, had contracted matrimony, no dispensation would have been necessary after baptism was received by each party. But if Andrew, baptized, had contracted with Clara, non-baptized, a dispensation from the impediment of disparity of worship would have been necessary; that dispensation would at the same time have removed the impediments of affinity. Cf. above, n. 809.

842. The impediment of affinity was most suitably established by the Church. For through matrimony the man and woman are united so intimately that the man contracts a certain close relation also with the blood relatives of the woman, and conversely the woman with the blood relatives of the man. Hence, just as it is fitting that matrimony not be contracted between blood relatives, so likewise it is not expedient that marriage occur between persons related by affinity. In addition, otherwise, namely, if such a matrimony were licit, grave dangers to chastity would arise, since the man is wont to associate familiarly with the blood relatives of the woman, and the woman with the blood relatives of the man. - Already in the Old Testament matrimony with a stepmother, stepdaughter, son’s stepdaughter, or daughter’s stepdaughter was prohibited.²⁰¹ - Although general laws concerning the impediment of affinity are not found in the first centuries of the Church, nevertheless from particular Councils²⁰² the existence of this impediment is clearly perceived, which at that time extended much more widely than now. Innocent III brought about its first limitation at the Fourth Lateran Council (A.D. 1215), decreeing that affinity arising from both licit and illicit intercourse dirimed matrimony up to the fourth degree.²⁰³ The Council of Trent²⁰⁴ brought about another limitation, establishing that affinity from fornicarious intercourse dirimed matrimony up to the second degree. Today the extent of this impediment is still more limited, as will be said below.

Names of Persons Related by Affinity in Certain Languages

1. Direct Line

2. Collateral Line

Sororius (a sister's husband) and fratria (a brother's wife) are named in the same manner in the vernacular languages as levir and glos, unless for the sake of clarity the entire phrase is given, that is, der Mann der Schwester [the sister's husband].

Note. If more remote degrees of affinity are present, the names of consanguinity must be employed, for example, the wife's grandmother or the husband's great-grandmother, etc.

²⁰¹ Cf. Lev. 18:8 ff.; Deut. 27:20.

²⁰² For example, the Council of Elvira around A.D. 300; the Council of Neocaesarea around A.D. 314.

²⁰³ c. 8, X, 4, 14.

²⁰⁴ Sess. 24, c. 4, De reform. matrim.

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.

154. • I. Notion.

a) Affinity, in the new law, is the propinquity of persons which "arises from a valid matrimony, whether ratified only or ratified and consummated," and which "exists only between the man and the blood-relatives of the woman, and likewise between the woman and the blood-relatives of the man." (Can. 97, §§ 1 and 2.)

b) "It is so computed that those who are consanguineous with the man are, in the same line and degree, affinities of the woman, and vice versa." (ibid., § 3.)

155. • II. Extension of the impediment.

a) "Affinity in the direct line makes matrimony diriment in any degree; in the collateral line up to the second degree inclusive."

b) "The impediment of affinity is multiplied:

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

That is, as often as between the counterpart and his or her blood-relatives there is a multiple common stock.

"2° By matrimony being repeated successively with blood-relatives of the deceased spouse." (Can. 1077.)

156. • III. By what law affinity is an impediment.

a) Without any doubt it is of merely ecclesiastical law, even in the first degree of the direct line.

b) This is clear both from the modern concept of affinity, which constitutes a merely legal bond, and from declarations of the S.S.C.C. already issued under the prior law and which have greater force concerning affinity as it is now established in law.

c) Therefore unbelievers contracting among themselves are not held by such an impediment, as being immune from ecclesiastical law, unless nevertheless the civil law establishes a similar impediment.

157. • IV. From what matrimony affinity arises.

a) Although some contradict, it seems certain that affinity does not arise from the matrimony of non-baptized persons. This is gathered from the tenor of the law itself. For it "arises from a valid matrimony, whether ratified only or ratified and consummated." (Can. 97, § 1.) But the Code itself, by the name of ratified matrimony, designates only the matrimony of baptized persons. (Cfr. Can. 1015, § 1.)

b) From the matrimony of a faithful party with an unbeliever, even when celebrated with the impediment of disparity of worship dispensed, affinity does not arise, since, as we said above at n. 23, such a matrimony is not a sacrament.

And, notwithstanding the contrary opinion of several, this sentence is altogether safe in practice, since a doubt of law makes the impediment null. (Can. 15.)

c) If from two unbelieving spouses only one is converted, affinity does not arise on that account. But it arises by the fact itself when both have been converted and baptized, because the matrimony by that very fact becomes ratified and a sacrament.

158. • V. Dispensation.

a) In the first degree of the direct line, when the matrimony has been consummated, and with legitimate blood-relatives of the deceased spouse, the Church never dispenses.

b) In the collateral line it is easily dispensed. And with regard to affinity in the second degree, the law counts that impediment among the lesser ones. (Can. 1053.) Cfr. above n. 97.

c) A dispensation is valid if, in the petition or concession, an error concerning the degree has crept in, provided that the degree really existing is inferior, or even though the multiplicity of the impediment in an equal or inferior degree has been passed over. (Can. 1052.)

VI. Law before the Code.

159. • a) For the pastor of souls and for the confessor, knowledge of the ancient law still remains necessary. For although the impediment of affinity, such as the law in force before the Code had established, has now been altogether abolished, nevertheless its force in some way perseveres with respect to matrimonies celebrated before the day 19 May 1918. For these matrimonies, if they were celebrated with a diriment impediment then existing, are and remain invalid. To convalidate such a matrimony invalid from law now suppressed, no dispensation indeed is required, but renewal of consent from the part at least of the spouse who is conscious of the impediment.

160. • b) Notion of affinity.

1. It was the propinquity of persons arising from perfect copula alone, licit or illicit, and existing between the man and the blood-relatives of the woman, and vice versa between the woman and the blood-relatives of the man.

2. Perfect copula is that by which the man penetrates the woman's vaginal passage and pours forth true semen in it.

161. • c) Extension of the impediment.

It made matrimony diriment in any degree of the direct line. In the collateral line, to the fourth degree inclusive if from licit copula; to the second inclusive, if from illicit copula.

Copula had in a putative matrimony most certainly, and more probably also in a union which had the species and figure of matrimony, was equated with licit copula with respect to the generation of the impediment.

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.

Canon XIX. He who has married two sisters successively, or the daughter of a brother (another reading: a cousin; Ebediesu adds, or the daughter of a sister), cannot be a cleric.

Now Roman laws had already forbidden certain marriages because of affinity, but not for this cause. In the year 295 Diocletian and Maximian had enacted a law (Cod. Iust., book V, title 4, law 18): Let no one be permitted to contract marriage with a daughter, granddaughter, or great-granddaughter; likewise with a mother, grandmother, or great-grandmother; and, from the side, with a paternal aunt and maternal aunt, sister, a sister's daughter and granddaughter from her; moreover with a brother's daughter and granddaughter from her; and likewise from among affines, with a stepdaughter, stepmother, daughter-in-law, mother-in-law, and the rest who are prohibited by ancient right, from whom we will that all abstain (cf. Institutes, book I, title 10).

Canon LXVI. If anyone has married his stepdaughter as wife, because it is incest, it pleased the council that communion is not to be given to him even at the end.

If it is called incest, the marriage is declared null from this affinity. That is, the Fathers approve the Roman law cited above and propose it to the faithful by their own authority.

Canon II. If a woman has married two brothers, let her be cast out until death. Nevertheless at the end, because of mercy, if she has promised that, when made whole, she will dissolve the bonds of this union, let her obtain the fruit of penance.

Cf. Canon LXI of Elvira. For just as there a man is prohibited from receiving successively two sisters, so here a woman is prohibited from having two brothers by the same agreement. Besides, this marriage is declared void, without whose dissolution pardon is not granted. Cf. Canon XXIII of Basil following. But by imperial law these nuptials were first forbidden only in the year 355 by Constantine and Constans, Augusti (Cod. Theod., book III, title 12, law 2): "Although the ancients believed it lawful, when the nuptials of a brother had been dissolved, to marry the wife of the brother, and lawful also, after the death of a woman or divorce, to contract marriage with the sister of the same woman, let all abstain from nuptials of this sort and not judge that legitimate children can be procreated from this union; for it is fitting that those who shall be born be bastards." Thus again Honorius and Theodosius in the year 415 (ibid., law 4).

Canon XXIII. But concerning those who marry two sisters, or concerning those women who marry two brothers, a letter has been issued by us, a copy of which we have sent to your piety. But he who has taken his brother's wife is not to be admitted before he has withdrawn from her.

The letter to which he appeals is CLX (another numbering: 197) to Diodorus. There, after the question has been proposed whether it is lawful for a man to marry the sister of his dead wife, which Basil had already prohibited at the beginning of his episcopate, he defends his negative opinion. The first argument of this defense is: "First, what is greatest in things of this sort, we can put forward our custom as having the force of law, because the rules have been handed down to us by holy men. But that custom is of this sort: that if anyone, at some time overcome by the vice of impurity, has fallen into the illicit union of two sisters, neither is that judged a marriage, nor are they at all admitted into the assembly of the Church before they are separated from one another." Cf. Canon II of the Council of Neocaesarea.

Canon LXXV. He who has been polluted with his sister from his father or mother (that is, the daughter of a stepmother or stepfather) is not to be permitted to approach the house of prayer until he has desisted from the wicked and nefarious action. But after he has come to the sense and recognition of the horrid sin, let him weep for three years, etc.

Between you and the daughter of your stepmother there is not affinity of the first kind, but of the other; nevertheless Basil wished this marriage to be null.

Nuptials with a daughter-in-law are judged illicit by Basil by reason of affinity. Cf. the law of Diocletian recited at Canon LXI of Elvira.

Canon LXXVIII. The same form is also to be observed toward those who marry two sisters, even at diverse times.

Canon LXXIX. But those who are mad for their stepmothers are liable to the same canon as those who are mad for their sisters.

Decree XII. Concerning him who has married the sister of his wife as wife, in the law of the Old Testament it is written that, for raising up seed for a deceased brother, one ought to marry the wife ... But now the Testament does not allow this to be done, where integrity is treated more fully and chastity is praised while Christ teaches.

Marriage of this sort, forbidden because of affinity, does not stand expressly expressed in the law above cited of Diocletian.

Canon LXI. (This canon seems to have been added to the canons of this council from the Council of Epaon, A.D. 517. The Synod of Cologne in A.D. 887 cites this canon from the Synod of Agde and confirms it.) Concerning incestuous unions we reserve absolutely nothing of pardon unless they have healed the adultery by separation. But those incestuous persons whom it is even deadly to designate, and who are to be counted by no name of marriage, we judge to be these. If anyone has polluted by carnal union the widow of his brother, who almost before had been a sister (cf. Canon II of Neocaesarea); if any brother has received the sister of his wife (cf. Canon LXI of Elvira, Decree XII of Siricius in the letter to the Gauls, and Canon XXVIII of Basil); if anyone has married his stepmother (cf. 1 Cor. V, 1, and Canon XXIII of Basil); if anyone has associated himself to a female cousin; if anyone is mixed with the widow or daughter of a maternal uncle (cf. the decree of Siricius in the same place, XIV), or the daughter of a paternal uncle, or with his stepdaughter (cf. Canon LXVI of Elvira), or he who has polluted by intercourse someone from his own consanguinity, or her whom a blood-relative had, or has married her as wife ... which we prohibit at the present time in such a way that we do not dissolve those things which have been instituted up to now.

Cf. Canon IV of the second Council of Toledo below. Gratian, causa 35, question 3, canon 8, in place of the words, "if any brother has received the sister of his wife," reads: "if any brother has received his own sister as wife," which he seized upon in support of his own opinion; Schmalzg., book IV, title 14, n. 47. You see that no certain norm is handed down here for recognizing the limits of consanguinity and affinity, but that the norm itself, already known from elsewhere, is rather supposed. You see likewise that affinity is extended as far as consanguinity.

Canon IV. Let no one of the faithful desire to be coupled to a blood-relative of his own, so far as he knows the lineaments of affinity by succession of kind, in marriage ... and let him be separated by a so much longer time of excommunication from the body of Christ and the fellowship of brotherhood, as he has been polluted by the contagion of nearer blood.

Here indeed there is not presented a distinct enumeration of the degrees of consanguinity or affinity between which it is not lawful to enter marriage; yet the formula of speaking is so general that of itself it comprehends all degrees of propinquity which are wont to be reckoned among men. Yet that the Spaniards had established some limit below which it would not be lawful to enter marriages is not permitted to be doubted by the series of generations which shortly afterward flourished in Spain, Isidore of Seville, who brings consanguinity down to the sixth generation (see below under Gregory the Great). But by a certain limit, received from the common mode of reckoning, that general formula of the Fathers of Toledo, as also of the Fathers of Agde (cf. above), was putting on a determinate sense. Cf. what we shall say after Gregory the Great.

Likewise observe that this formula: "so far as he knows the lineaments of affinity by succession of kind" can comprehend not only consanguinity, but also affinity properly so called, and that manifoldly.

Canon X. Let no one be joined by any coupling to his own stepmother, that is, to the wife of his father. But if anyone has presumed this, let him know that he is to be struck with the punishment of anathema.

Canon XII. If anyone has believed that the widow of his brother, the sister of his wife, his stepdaughter, his female cousin or cousin's daughter, or the widow of his paternal or maternal uncle, is to be violated by the consortship of carnal contagion, and with sacrilegious daring has broken through the authority of the divine law and the rights of nature, and to her to whom he ought to have shown the consolations of charity and pious affection, has attempted to bring force, as an enemy of his own and an assailant of chastity, let him be struck by the sentence of the apostolic constitution. And so long as he is engaged in so great a crime, let him be deprived of the Christian assembly and banquet, and at the same time of the communion of Mother Church.

Canon X. Concerning incestuous unions, let those things which have been established be kept in such a way that for those who either now come to baptism or to whom the statutes of the Fathers have not previously come to notice by priestly preaching, we believe that counsel should be given because of the newness of their conversion and faith, so that contracted unions of this sort up to now not be dissolved; but in future, that which has been forbidden concerning incestuous unions in the earlier canons is to be observed: that is, that no one shall presume to associate to himself under the name of marriage the widow of his father (that is, she who was his stepmother), the daughter of his wife (whom she, namely, had had from another husband, his stepdaughter), the widow of his brother, the sister of his wife, a female cousin or cousin's daughter, the widow of a maternal or paternal uncle. But if any have been associated in this incestuous adultery rather than in marriage, so long as they have not separated themselves, let them be repelled from ecclesiastical communion.

Canon IV. Let no one presume to draw illicit marriages contrary to the commandment of the Lord, that is, let him not dare to associate to himself the widow of his brother, nor his own stepmother, nor the widow of his paternal uncle, nor the sister of his wife; nor let him possess himself of the marriage of his daughter-in-law or maternal aunt. Under like condition we command that one abstain from unions with an aunt, a stepdaughter, and the daughter of a stepdaughter.

Canon XXVII. It is not lawful that anyone accept his own stepmother as wife.

Canon XXX. It is not lawful to accept two sisters, if one has died, the other into marriage.

Canon XXXI. It is not lawful to accept as wife a female cousin, that is, one who is procreated from two brothers or from two sisters, nor may those who are born from them be associated in marriage.

Question 6. To what generation ought the faithful to be coupled in marriage with their own relatives, and whether it is lawful to be coupled in marriage with stepmothers and kinswomen.

Response. A certain earthly law in the Roman republic permitted that the son and daughter, whether of a brother or of a sister, or of two full brothers or two sisters (paternal cousins, first cousins, cousins' daughters) be mingled. But we have learned by experience that offspring cannot grow up from such a marriage. And the sacred law (of Moses) forbids revealing the shame of your kinship. Hence it is necessary that now the third (the children of cousins) or fourth generation of the faithful ought licitly to be joined to one another. Alexander II, in his epistle to the clerics of Naples on computing the degrees of consanguinity, reads: whence it is necessary that now four or five generations be coupled to each other. For the second, which we have mentioned, must abstain entirely from each other. But to be mingled with a stepmother is a grave crime, because it is written also in the law: You shall not reveal the shame of your father. That also signifies that another thing too is implicitly called forth, namely, to the words of the Apostle, 1 Cor. ... With a kinswoman (that is, the wife of a brother) also it is forbidden to be mingled; because through the prior union she has been made the flesh of the brother.

"What I wrote to Augustine, bishop of the English race, to your alumnus, namely, as you remember, concerning the union of consanguinity, you should know that I wrote to him specially, and not generally to others, for the race of the Angles itself, which had recently come to the faith, lest from fear of things more austere it withdraw from the good which it had begun. Whence also every Roman city stood forth as witness for me (perhaps a synod, in which this concession was made by decree, is indicated); nor were these things commanded by me to them in that intention that, after they have been strengthened in faith by a firm root, if they have been found within their own consanguinity, they should not be separated, or that within the line of affinity (consanguinity), that is, down to the seventh generation, they should be joined. But while those neophytes are still existent, it is necessary very often first to teach them to avoid unlawful things and to instruct them by words and examples; and the things which afterward they may have done concerning such matters must reasonably and faithfully be excluded."

But it is certain that before Gregory the Great, Justinian made that law Celebrandis his own, inserting it into his Code, L. V, Tit. IV, l. 19: The license of celebrating marriages among cousins has been granted by the healthfulness of this law; so that, the authority of the old law being revoked and the incentives of calumnies extinguished, marriage among cousins is held legitimate, whether they were born from two brothers, or from two sisters, or from a brother and sister; and those brought forth from that marriage are to be held legitimate and successors to their parents.

Canon XIV. We have judged that incestuous unions are specially to be cut away from the whole Christian people, so that if anyone has believed that the widow of his brother, the sister of his wife, his stepdaughter, a female cousin, a cousin's daughter, or likewise the widow of his paternal and maternal uncle, or one given in the habit of religion, is to be violated by the consortship of marriage, let him be segregated from the grace of communion so long as he ought to abstain by most manifest separation from unlawful unions.

Appeal is made to the canons already in force. Namely, those published in the preceding synods of the Gauls were held as the common law of the Church in the Gauls. There is no mention of laws proceeding from civil authority. Rather, the civil law followed the decree of the bishops. For in the Capitular of King Dagobert, who in the year 729 (according to Petavius) began his reign, both in the second for the Alamanni, n. 39, and in the third for the Bavarians, Tit. 6, n. 1, it is decreed: We prohibit incestuous nuptials. And so it is not lawful to have as wife a mother-in-law, daughter-in-law, stepdaughter, stepmother, daughter of a brother, daughter of a sister, brother's wife, wife's sister. Sons of brothers and sons of sisters shall by no presumption be joined among themselves. If anyone has done contrary to these things, let him be separated by the judges of the place and lose all his goods, which the fisc shall acquire.

Canon VII. If anyone has led his stepmother or daughter-in-law into marriage, let him be anathema.

Response I. In the first place it was read in what degree of the stock of relatives marriage is coupled. We say that indeed it was fitting that, so long as they recognize themselves as relatives by affinity, they should not approach the society of this copulation. But because tempering, and especially in so barbarous a nation (namely, the Germans), is more pleasing than the strictness of censure, it must be granted that they be joined after the fourth generation.

Response XXII. Concerning those women who have married two brothers, or those men who have accepted two sisters, in the Council of Neocaesarea, Canon II, it is contained, etc. (cf. above). But we, with divine grace supporting us, confirming much more according to the decrees of our predecessor Pontiffs, say that so long as generation has known itself, according to the rite and norm of Christianity and the religion of the Romans, marriages are not to be coupled.

Canon VI. That no one shall presume to couple in marriage a female cousin, a niece, a stepmother, a brother's wife, or also one from his own kinship.

Canon V. If anyone has held his stepson or stepdaughter before the bishop for confirmation, let him be separated from his wife and not accept another (from Fulbert of Chartres, Epistle 33).

Canon II. If anyone remains with his stepdaughter (privigna), he can have neither her mother nor her daughter; neither he nor she will be able to join themselves to others at any time. Yet to his wife, if she so wishes, if she cannot contain herself, if after she knew that her husband was in adultery with her daughter, she has not had carnal commerce with him, unless she abstains by her own will, she can marry another.

When it is said that such a man, being an adulterer, cannot have the mother of his stepdaughter, of whose mother he himself is the husband, that word have is to be understood of conjugal copula, or even of cohabitation, which is forbidden on account of the supervening affinity.

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

Resp. Negatively, affinity arises from valid marriage alone.

XXV. QUESTION XI. What is the impediment of affinity? ANSWER. Affinity is a nearness of persons proceeding from carnal copulation. That copulation is necessary which suffices for the consummation of matrimony. Affinity arises from copulation whether lawful or fornicating, and lasts in perpetuity. The blood-relations of a man do not become through his carnal copulation affines to the blood-relations of the woman with whom he had copulation, nor conversely, because affinity does not beget affinity. Only therefore he who had carnal copulation becomes affine to the blood-relations of the woman, and the woman affine to the blood-relations of the man. The impediment of affinity dissolves matrimony, and arises from lawful copulation up to the fourth degree, from unlawful up to the second inclusively, as Trent determined.

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).