Single Question. Whether Physical Kinship Impede Matrimony

1. “Now it remains to speak of kinship etc.” [Lombard, Sent. IV d.40 ch.1 n.1].

2. Fortieth distinction. About this fortieth distinction I ask whether physical kinship impede matrimony.

3. That it does not:

Because matrimony seems most strictly to have been keep and to need to have been keep in the law of nature. But Cain contracted with his sister [Genesis 4.17], and would have contracted with her also in the state of innocence, because with someone and not with his mother, from the precept “A man will leave father and mother” [Genesis 2.24], namely lest union be made with them matrimonially; and there was no one else save his sister, because a daughter of Adam;     therefore etc     .

4. Again, friendship strengthens a house,     therefore it confers strength on a marriage; but those of the same blood are attached to each other with a more special friendship than with others; therefore etc     .

5. Again, it is not against any good of matrimony - this is plain from running through them;     therefore etc     .

6. To the opposite:

In Leviticus 18.6-12 many persons are excluded because of consanguinity.

7. Again the Master in the text [ibid., ch.1 n.2-ch.3 n.3] and Gregory IX, Decretals IV tit.14 ch.8, “One should not.”

I. To the Question

8. Here I set down certain things in advance: first descriptions of certain names, second the question needs to be solved.

A. Descriptions of Certain Names

9. As to the first, let this be the first description: consanguinity is a tie between persons descending by propagation from the same physical person.

10. Second: a person from whom several descend by physical propagation is called a stem.

11. Third: a line of consanguinity is an ordered collection of persons joined by consanguinity.

12. Fourth: this line is divided into ascending and descending and transverse [lateral] lines. A descending line goes from the propagating person to the propagated persons; an ascending line conversely goes from a propagated person to those from whom he descended. And although there is the same line for ascenders as for descenders, like the road from Athens to Thebes and conversely [Ord. d.27 n.4; d.13 n.68], yet they are different in ascending, as father, grandfather, great grandfather, etc., and different in descending, as son, grandson etc. Transverse is when both persons descend from the same person but neither from the other.

13. Fifth: a degree is a determinate closeness of person to person or a closeness coming from physical propagation. And a degree properly is found in an ascending and descending line, because there properly is there superior and inferior as to position; but it is less proper in a transverse line. However, by taking degree generally, although he who is close to another in transverse line is not properly inferior to him (for he does not descend from him), yet he is under someone else who is of the same position or degree as he; and so in a transverse line degrees are spoken of insofar as this one is under someone who is of the same position as himself, namely when in a like degree this one is in this line in some sort of degree and the other in that one.

14. First rule: in a straight line there are as many degrees as there are persons, minus one. The proof of this is that there are as many degrees as there are propagations, since a degree is a relation or closeness between person and person; and the persons are one more than the propagations, because the person presupposed to the whole collection is not propagated in it. Hence if Enoch was the seventh from Adam [Genesis 5.1-18], there are only six generations from Adam to Enoch, because Adam is set down as ungenerated.

15. Second rule: in a transverse line the degrees are computed according to greater remoteness from the stem, Gregory IX, Decretals IV tit.14 ch.9, ‘On consanguinity’, “According to the approved rule, by what number of degrees a man who is from the stem is more remote in distance from the stem, by that number is he also remote from anyone else in another descending line.” And the reason for this is that persons who are in a transverse line do not have closeness with each other save because they are in the stem or back to the stem; and therefore they cannot be more closely joined to each other than the more remote of them may be united to the stem.

16. As to the issue at hand there is also a rule that a degree in a descending line is stronger than in a transverse line. And the natural reason is that offspring are more joined to the parent than offspring to offspring; and therefore it is more against the law of nature to be conjoined in the first degree in a direct line than in a transverse line; for that conjunction was always against matrimony, and more the conjunction of son with mother than of father with daughter, because there is a greater irreverence.

17. Hence in History of Animals 9.47.631a1-7 Aristotle says that, after a blindfolded horse knew its mother and later discovered the fact, it threw itself down headlong; and it is read elsewhere about an elephant [ibid. 630b31-631a1, cited in Richard of Middleton, Sent. IV d.40 q.2], that was engineered into knowing its mother, and afterwards, when it perceived the fact, killed the one who engineered it. From which it is apparent that this is also against the law of nature, as it belongs to the brutes; hence a degree descending by propagation, and most especially of mother to son, impedes matrimony most of all.

B. Solution of the Question

18. About the second article [n.8] I say that in every law some closeness has been an impediment.

In the law of nature, as was said [n.16], only the closeness in the first degree in the descending line, from the word of Adam [Genesis 2.24], “a man will leave father and mother” (supply: as to conjugal union). Nor is this understood only of the immediate father, but of anyone in the direct line, so that if Adam were alive today, he could not marry another wife [sc. in the direct line]; perhaps too after the multiplication of the human race, if it had stood in its innocence, there would have been prohibition of certain further degrees; but at the beginning it could not be so, because there were no other women than sisters.

19. In the Mosaic Law there was prohibition as to certain further degrees, as is plain in Leviticus 18.8-18.

20. And in the Gospel Law there was at some time prohibition up to the seventh degree, as is plain from the Master in the text [Lombard, Sent. IV d.40 ch.1 n.2], but under Innocent III it was restricted to the fourth degree inclusively, Gregory IX, Decretals IV tit.14 ch.8, ‘Of consanguinity’, “Let the prohibition of conjugal union for the rest not exceed the fourth degree of consanguinity;” and it assigns the reason, “since in the further degrees it cannot now be observed without grave cost;” and afterwards it approves and ratifies it for the future, “Since, therefore,” it says, “prohibition of conjugal union is already extended up to the fourth degree (namely by us here in the Council [Lateran Council IV, 1215],” and later, “thus do we wish it to be perpetual, notwithstanding the Constitutions published some time before this, whether by others or by us.” It also revokes, in the same chapter, all “prohibitions about contracting marriage in the second and third degree of affinity, and about offspring got from second nuptials not being permitted to unite with a relative of the first father - which prohibitions brought in many difficulties and,” as it says, “sometimes the peril of souls.”

21. But whence is it that such or such closeness impedes matrimony simply?

I reply: in the Gospel Law no other prohibition about this from Christ is found beyond the prohibition of the law of nature; nor did Christ explicitly confirm the prohibition about this made in the Mosaic Law. But the Church has sometimes delegitimized persons in remoter degrees, but later in the fourth degree; and the reason for delegitimization [sc. up to the fourth degree and not further] was for preserving peace and friendship in the Church; for up to the fourth degree there does remain friendship by reason of consanguinity, and from then on, as it were, people begin to be extraneous and to weaken in love; and therefore was it fitting to call back the weakening friendship by another bond, namely the conjugal bond.

II. To the Initial Arguments

22. To the first argument [n.3] it is plain that that was necessary at the beginning of the human race, namely that a contract be made in the first degree, yet in transverse line, not in direct line.

23. To the second [n.4] I say that the friendship of those of the same blood is different from the friendship of spouses. The friendship of those of the same blood, especially in the direct line, is one of reverence, as to descendants in respect of superiors, and in respect of a certain rule and presidency. Conversely, the friendship of spouses is without such reverence, rather with irreverence, so much so that he who more sincerely loves his spouse more hates that reverence in her, not only from himself but from anyone else; and therefore I concede that friendship does dispose to marriage, but friendship of a different idea altogether from that which is between those of the same blood.Scotus gives no response to the third argument [n.5], perhaps because it is in effect answered by the answer to the second argument [n.23], that the friendship of those of the same blood is not the friendship required for the good of matrimony that is faith or fidelity. Or, it could be said that another good of matrimony, the good of offspring, is harmed if the parents are close relatives, because of inbreeding, whose effects must have been known in Scotus’ day (they can be very obvious, in other animals as well as humans), though not the biological causes in the genes. In the case of Adam and Eve, however, on the supposition (which Scotus of course makes) that they were the first humans and were made perfect, because made directly by God, there would be no defects in the gene pool, which would have taken time to emerge. So Cain and others of Adam’s and Eve’s children could have children together without fear of such defects. ⁹⁹