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Single Question. Whether Spiritual Kinship Impede Matrimony
1. “About the distinction of parental degrees” [Lombard, Sent. IV d.42 ch.1 n.1].
2. Forty second distinction. About this forty second distinction I ask whether spiritual kinship impede matrimony.
3. That it does not:
Gregory IX, Decretals IV tit.11 ch.2, ‘On spiritual kinship’: “If a woman or a man have ignorantly accepted [a spouse directly] from the sacred font [of baptism] etc.” and there follows: “It seems to us that whether they did it from ignorance or malice they are not to be separated from each other, nor ought one of them to take away from the other the debt [of matrimony].”
4. To the opposite:
Ibid.: “We command that, insofar as it has been established that the woman of the aforesaid man had raised the daughter from the sacred [of baptism] before he has betrothed her to be his wife, you are to celebrate [make public] a divorce between them.”
I. About Spiritual and Legal Kinship
5. I reply:
Spiritual kinship is a certain bond contracted, or a certain close kinship contracted, from dispensing or conferring of the sacraments, and especially of baptism and confirmation because, as is contained in Boniface VIII Decretals Book Six IV tit.3 ch.3, ‘Of spiritual kinship’, the last chapter, “From the giving of the other sacraments (supply: other than baptism and confirmation) a spiritual kinship in no way arises that may impede or dissolve matrimony.” And about this and its degrees diffuse treatment is found in Boniface VIII Decretals Book Six IV tit.3 ch.3.
6. As to the question asked, I say that if the kinship precede the matrimony, it simply impedes it, as is plain in the chapter alleged for the opposite [n.4, Gregory IX, Decretals IV tit.11 ch.2]. But if it follow the matrimony, it does not destroy it, as is plain in the alleged chapter [ibid. ch.1]. And the reason for the first is only the statute of the Church delegitimizing the persons in that case.
7. Connected thereto is also this to be noted, that legal kinship impedes matrimony, discussion of which is contained in Gregory IX, Decretals IV tit.12 ch.1, ‘On legal kinship’, “If in any way she has by adoption begun to be my sister, as long as the adoption between me and her remains, nuptials cannot stand.” And the gloss on that chapter [of the Decretals] says what is true, whether legal kinship be contracted through arrogation100 or through adoption: “We are said to arrogate him who is possessed of his own right and who passes through arrogation into our power. And arrogation happens by authority of the prince, but adoption through any magistrate, nor does the one adopted pass into the power of the one adopting, but remains in the power of his father. And both the adopted and the arrogated are called adoptive sons; and between adoptive and natural or legitimate brothers [siblings] matrimony is impeded as long as the adoption lasts, as is here said [in the Decretals].”
8. The authorities pro and con [nn.3-4, 6] are solved, because the one is speaking of kinship that precedes matrimony, the other of kinship that follows it.
II. About Impediments that Simply Impede Matrimony
9. From these points I bring together the impediments again, those to be sure that simply impede matrimony [cf. d.36 nn.6-17]. And I call an impediment simply one after which, if matrimony has been attempted, nothing is done (and I call an impediment not simply any prohibition because of which matrimony is illicitly done, but if it is done it is not invalid).
10. Now impediments simply are taken either from the nature of such contract or from a superadded statute of the Church.
A. About Such Impediments from the Nature of the Contract
11. If in the first way, then either from the conditions necessary for the contract, or from the conditions necessary on the side of the contracting parties. On the part of the contract, because its nature is that it is a giving of power over body for power over body of the contracting parties, and in perpetuity. Therefore what impedes such voluntary giving impedes the nature of this contract.
12. Now of such sort is, on the part of the will, involuntariness from fear that can befall a constant man, which fear comes from sufficient certitude of an impending evil that one should, according to right reason, more avoid than not contracting with this woman. Such is the evil of death, of major mutilation, of perpetual imprisonment, of servitude, of defilement, and the like. And this impediment is spoken of in d.29 [nn.27-31].
13. And involuntariness from defect of preceding knowledge (since indeed knowledge of the thing willed is required for the voluntary, Ethics 3.3.1111a22-24) is either from total lack of intellectual knowledge, or with some sort of knowledge but defective knowledge, because erroneous.
If in the first way, such madness impedes the voluntary while it lasts, and so impedes this contract. If however he who is mad undergoes lucid intervals, he can, during the time of a lucid interval, contract [matrimony] and, if he has contracted it, he can in the same way ask [for the debt], and the debt is to be rendered to him - but not at a time of madness, because he does not then know how to ask by virtue of his right, but he is then like a brute; then too it would for the other be a danger to their person to render the debt.
14. Now if there be some knowledge, but erroneous because with some deception, a triple deception impedes simply, because each one is about what is necessarily required for a contract. First is error of person; second error of worse condition (as of servitude); third error of mutual giving (as that she gives believing he can give back or can exchange with her, and he does not give back, though he speak words in deceit of spirit to extort from her what he lusts). And this triple error was spoken of in d.30 [nn.9-12].
15. Now the penalty for this last error, which namely is deceit in the contract, is that he truly fulfill what he is fallaciously simulating, because he is bound to render to this woman that for the rendering of which she made exchange with him. And therefore in the forum of conscience it is to be enjoined on him that he truly contract with her.
16. But if he has already contracted with her truly and cannot, consequently, fulfill it with her, he is to be penitent about the impossibility but to procure, as much as he can, a restitution of the equivalent, namely so that by him be rendered to the woman power over the body of another man equivalent to his own body as far as concerns this contract, or at least make satisfaction in other things according to the judgment of a good man.
17. But in the contentious forum, if the exterior contract be proved deceitfully made by him, he should be compelled to keep it as a true contract. But if he have contracted with another in the meantime, the Church will command him still to keep to the first; but in the forum of conscience the opposite will be said, because the second is his true wife, not the first.
18. And therefore he must uphold the sentence of the Church by keeping the truth of the divine Law, and let him impute to himself that so great a penalty remains over him because of this so great fraud that he has committed - because, too, this contract is obligatory for other goods, as keeping faith and indissolubility and taking up and educating offspring, if it happen (which three things are called the goods of matrimony [d.31. n.18]).
19. And generally, in every contract, he who contracts under a condition opposite to the contract does nothing; therefore against the idea of this contract is an opposite condition repugnant to any good of matrimony. And so there are three impediments arising from a triple condition opposed to the contract - against the three goods of matrimony; and these were spoken about above d.31 [ibid].
20. Now on the side of the contracting parties is required that they be able to give the power over their bodies. But he who is simply impotent for union cannot give this power, because he does not have it. Impotent also by divine Law [is he who], because he is obligated by another bond of matrimony, cannot give power over his body because his body is not now his but his spouse’s.
21. Thus, therefore, impotence simply and matrimonial tie to another impede matrimony on the side of the contracting parties. And the impotence is spoken of in d.34 [nn.16-28], how one kind is natural and one by occasion, and neither, if not perpetual, impedes simply.
22. Now natural impotence in the man is through frigidity or lack of the necessary part; or in a woman by constriction simply, which ‘simply’ I state in contrast to constriction relative to someone. By occasion is through sorcery, and this either in respect of anyone or in respect of some determinate person. And to this impotence is reduced also the impediment of childhood, because although there not be perpetual impotence there, yet there is for that age no potency there, and so none can be given; and this impediment of childhood is spoken of in d.36 [nn.45-49].
23. So, therefore, we have on the part of the contract three impediments in kind: namely by fear, by defect of knowledge, and by emplacement of repugnant condition. And on the side of the contracting parties there are two in kind: impotence simply and impotence according to justice, because tied to another.
24. And specifically the first impediment [sc. by fear] can be multiple thus, how many the evils are that are justly feared. The second impediment is triple, according to a triple error, and a fourth according to defect of use of reason. The third impediment contains under it three things repugnant to the three goods of matrimony. The fourth impediment contains a double natural impediment, namely frigidity and mutilation of the man, and a single impediment of the woman, namely restriction simply (for frigidity in a woman does not simply impede, as neither does sterility); and one general to both sexes, namely childhood, and this general one contains under it impotence by occasion in both sexes, provided however it is permanent. The final impediment stays undivided; and the reason for this impediment is plain from d.33 [n.20], where it is said that in the Gospel
Law bigamy is not licit, nor is it licit to dismiss a wife; therefore in no way while she lives, whether dismissed in fact or not dismissed, is it licit to contract with another.
B. About Such Impediments by Statute of the Church
25. By statute of the Church there are impediments only on the part of the persons, because the Church has determined nothing about the form and matter of this contract, but has only delegitimized certain persons, making them not capable of this contract: either then because of their closeness, or because of their special association with the divine cult, or because of the enormity of some crime one should be horrified at.
26. In the first way has the Church delegitimized those of the same blood in the fourth degree and under; and those affinal in the same degree, and this either properly speaking, namely whose affinity is contracted by carnal union of someone consanguineous with the woman, or those, in an extended sense, whose bond was contracted not by carnal union but only through matrimony or betrothals, which is called the justice of public honorableness. And these impediments were spoken of: in d.40 [nn.9-21] about the first distinction, in d.41 [n.15] about the second and third distinctions. About this last impediment there is Boniface VIII Decretals Book Six IV tit.1 ch.1, “From betrothals pure and certain, provided they are not null by defect of consent, arises an effective impediment for impeding and destroying consequent betrothals or matrimonies, but not for dissolving preceding ones, namely the impediment of the justice of public honorableness.”
27. Along with this too is a certain closeness that is as it were a mixed carnal and spiritual one, of which sort is spiritual kinship and legal kinship, and these were spoken of in d.42 [nn.5-7]. And about this is Boniface VIII ibid. tit.3 ch.1, “Much more between a baptized woman and he who received her from baptism [=the sponsor], or between the same baptized woman and the sons of the one who received her and the wife known carnally before reception by the same man, indeed also between the receiver and father of the baptized woman and the mother, is it clear that a spiritual kinship is by law contracted in baptism; and this kinship impedes the contracting of matrimony, and destroys a matrimony already contracted. And the same things that are said about the receiver are also to be reckoned about the baptizer. By confirmation too, or anointing on the forehead, is a spiritual kinship contracted in the same ways, which kinship simply impedes contracting of matrimony and destroys one contracted afterwards.” “But persons other than those aforesaid from baptism or confirmation are, we have decreed, not impeded from contracting matrimony, nor is a matrimony they have contracted afterwards destroyed.
28. Ibid. ch.2: “Spiritual kinship is contracted through the catechizing that precedes baptism, by which kinship the contracting of matrimony is impeded; however, by that kinship is not at all severed a matrimony contracted afterwards.”
29. And ibid. ch.3, “If several have come to the receiving of an infant from baptism, a spiritual kinship is contracted that afterwards impedes contracting matrimonies and dissolves those contracted. As to confirmation additionally is, in this respect, the same judgment to be held. But from the giving of the other sacraments a spiritual kinship in no way arises that would impede or dissolve a matrimony.
30. And there is an order to these closenesses: for consanguinity is a purely carnal closeness; affinity arises from purely carnal closeness and from carnal union; and the justice of public honorableness arises from carnal closeness and matrimonial and betrothal contract; spiritual kinship arises from carnal closeness and reception or giving of the sacrament of baptism or confirmation; legal closeness from carnal closeness and from another bond according to law, by adoption of course.
31. Because of special association with the divine cult has the Church delegitimized him who has solemnly vowed continence, and him who has received Sacred Orders. The first was talked of in d.38 [nn.7-26] and the second in d.37 [nn.19-22].
32. Now this impediment from solemn vow (if however a handing over of the power of body for keeping chastity be done there to the Church herself or to a prelate, in whose hand the vow is made, and thereby can he not give that power over his body for the conjugal act, because he does not have it) - this impediment can be reduced to the nature of a contract, as is also that about someone tied to matrimony.
33. But if such vow not so deprive him that he not have power over his own body, then by statute of the Church delegitimization and invalidation is not only because one has handed oneself over to the Church for such act, but because Christ, by calling away John from nuptials [d.31 n.30], has preferred the vow of continence to the conjugal bond; and therefore justly has the Church delegitimized him who is in a higher degree from accepting a lower degree, or from apostatizing.
34. Finally has the Church delegitimized persons justly because of the enormity of a twofold crime only:
Because of the enormity of infidelity the Church has delegitimized a believer for contracting matrimony, not simply, but in respect of an unbeliever; and this was spoken of in d.39 [nn.31-32].
35. The other enormous crime is adultery along with contrivance in the death of the legitimate spouse, or with pledging faith about contracting matrimony after the death of the legitimate husband, and this impediment was spoken of in d.35 [n.6].
36. Thus in general, therefore, are persons by statute of the Church delegitimized by a twofold crime and a twofold attachment to the divine cult, and by a closeness of consanguinity, by a bond of affinity and by the justice of public honorableness, by kinship too, spiritual and legal.
37. And these impediments are touched on in these verses [cf. d.36 n.9]:
Error, condition, vow, kinship, and crime
Other in cult, force, Orders, tie, honor
If affinal, if perhaps impotent,
These forbid marriage make; made do they stop.
38. But in these verses all the impediments are contained without any rational order. Therefore they can be explicated in due order and more in particular in these verses:
Force; person, slave, giving mistook; mad too;
Added condition robs marriage goods three;
Frigid, constricted, child, defect, bewitched,
Spouse of another - joint gift all prevent.
Vow, Orders, twin cults, adulterous spouse,
Kinship religious, legal, and carnal,
Affinal, honor - does precept forbid.
39. These first four verses contain the impediments that are repugnant to the nature of the matrimonial contract. The first line contains five in particular, the second three, the third five, the fourth one. And so there are fourteen impediments. After these is added at the end of the fourth line “joint gift all prevent” - understand that in a contract of matrimony the aforesaid are all the obstacles.
40. The three other verses contain the impediments by statute of the Church: the first contains four, the second three, the third two, and so there are nine. And this is what is said at the beginning of the third line [end of the line in the translation] “does precept forbid,” namely by precept of the Church do they impede matrimony.
41. And so there are in particular twenty-three impediments simply.
42. Now the other common verses [n.37] only contain twelve, but under ‘error’ must be understood a fourfold impediment in particular; under ‘condition’ a triple impediment about the conditions added against the three goods of matrimony. Hence, he who refers ‘error’ to error of person, and ‘condition’ to error of condition, shows himself ignorant enough in canon law. ‘Vow’ is as it stands; ‘kinship’ is understood for carnal and spiritual and legal kinship; ‘crime’ for adultery with giving of faith or contrivance in the death of a legitimate spouse. And it could sometimes be distinguished, according to what was said in d.35 [nn.6-12], because sometimes the former two of the three and sometimes the latter two are combined [sc. in impeding], and sometimes one of them impedes; but this impediment is not distinct in these verses by a more distinct expression.
43. The other impediments are not distinguished save the last, which contains five specific impediments according to the other verses [first line thereof].
44. Nor is it a wonder that the Church has applied so much care in ordering matrimony, because the community of Christians uses matrimony, through whose use too the Christian people is multiplied. And therefore should it thus be ordered, because in its contract and use may be avoided the things that get in the way of charity either toward God or toward one’s neighbor. And the things that are fitting to honorableness should be kept, so that thus may honorable Christian matrimony fittingly signify the blessed union of Christ and the Church, of which the Apostle says [Ephesians 5.32], “This is a great sacrament; and I mean in Christ and the Church.”
45. This union now is by faith and some sort of love, but in the fatherland it will be by vision and perfect enjoyment of the Spouse, who has “neither spot nor wrinkle,” with the Spouse “fair before the sons of men,” [Ephesians 5.27, Psalm 44/45.3], to whom be honor and glory for ever and ever. Amen.