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 CONSANGUINITY

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CONSANGUINITY

till the eighth century. \\"e then meet with tlic canon (c. 16, ('. 55, q. 2), attributed to various popes and em- bodied in a letter of Gregory III (732), which forbids marriage among the Gennans to the seventh degree of consanguinity. Wernz fjus Decretal., IV, p. 624), says that at this date so severe a prohibition cannot be based on the canonical computation, but rather on that of the Roman law; it is, therefore, no proof of so early an acceptance by the Church of the Germanic compiitation. For a fuller exposition of the theory that the canonical computation is borrowed from the Germanic system see Von Schcrer, "Handbuch des Kirchenrechts" (Graz, 1898), II, 291, and theexcel- Icnt expose of Wernz, "Jus Decretalium", IV, 616-25, especially p. 621, where he sets forth with moderation both the free and original action of the Church in es- talilishing the degrees within which it was forbidden relations to marry and her natural tendency, so often exhibited in other matters, to accept whatever was good or useful in the manners and institutions of newly converted peoples. Von Scherer calls attention (op. cit., II, 296-9) to the influence of the ninth-century Pseudo-Isidore (and the canonical collections based on him, e. g. the "Decretum" of Burchard) in familiariz- ing the West with the Germanic computation, and says that it docs not appear in any genuine papal de- cretals before Alexander TI, and that its exact charac- ter is not yet thoroughly ascertained. The Roman canonist De Angelis (Pra;lectionos Jur. Can., Bk. Ill, tit. xiv) holds rightly that the computation of degrees was originally the same as that of the Roman ci\-il law for inheritance. He states that in the eleventh cen- turj' Alexander II (c. 2, C. 35, q. 5) adopted the now- usual system of computation, which established for collateral consanguinity the principle that persons were remote from one another by as many degrees as they are remote from the common stock, omitting the common stock (Wernz, however, op. cit., IV, 623, be- lieves that this system, de facto the Germanic compu- tation was adopted at some earlier period, though doubtless not so earlj- as Gasparri maintains). In tliis way the degrees of relationship were determined by the number of generations on one side only; while in the Roman civil system the number of degrees re- Silted from the sum of the generations on both sides. In the Roman system (compuinlio Ramiinii cirilis) first (jousins would be in the fourth degree, while in the ijeW' computation they would be in the second degree of consanguinity. This, as is seen, would extend the ifnpediment of consanguinity.

J Some have called the new computation Germanic

xompulatio Gcrinanica) because it has a similarity to

Bie pecidiar Germanic system of determining inherits

iice, and whose technical terms were borrowed from

Oil' seven joints of the body (on both sides) from the

• i; to the finger-tips. But Santi-Leitner calls atten-

•d. 1905, III, 241, against Gasparri) to various

[lancies between the ecclesiastical (computalio

• ii-(i) and the Germanic systems which often led

nly-con verted Franks and other Germans to op-

ilie system of the Church. The latter system

niore directly coimected with the natural rela-

if marriage, and Alexamler II (1061-73) treated

peculiarly ecclesiastical law (c. 2, C. 35, q. 5) and

I tlir'atened severely all advocates of a return to the

Roman, or civil, calculation. The reception and ex-

1 tension of this severe discipline regarding the impedi-

j incut of consanguinity came about gradually and by

I custom, says Wernz, from the sixth anf Ravenna,

I'd in liis favour by .M-'xander II, helped to fix the

pDpular view in the sense of extreme strictness. It is,

however, doubtful whether the sixth and seventh de- grees of consanguinity were ever a diriment impedi- ment, at least everj-where. It is not improbable that even the fifth was only a preventive impediment (Wernz, op. cit., IV, 626). While in the twelfth cen- tury the theory of the remote degrees was strictly maintained by canonists, councils, and popes, in prac- tice marriages ignorantly contracted within them were healed by dispensation or dissiniuliition (Wernz, loc. cit.). Finally, in the Fourth Lati>ran Council (1215) Innocent III restricted consanguinity as a diriment impediment to the fourtli degree. lie explains that it was found difficult to carrj- out the extension to fur- ther degrees. In those days of imperfect registration it was, of course, often impossible to ascertain the dis- tant degrees of relationship. (For a defence of his il- lustrative reference to the current theory of the "four bodily hmnours", borrowed from the ancient physiol- ogy, see Santi-Leitner, op. cit. Ill, 248; cf. Wernz, op. cit., IV, 629.)

Gregory I (590-604), if the letter in question be truly hLs, granted to the newly converted Anglo- Saxons restriction of the impediment to the fourth de- gree of consanguinity (c. 20, C. 35, qq. 2, 3); Paul III restricted it to the second degree for .American Indians (Zitelli, Apparat. Jur. Eccl., 405), and also for natives of the Philippines. Benedict XIV (Letter "^Estas Anni", 11 Oct., 1757) states that the Roman pontiffs have never granted dispensation from the first degree of collateral consanguinity (brothers and sisters). For converted infidels it is recognized that the Church does not insist upon annulment of marriages beyond this first degree of consanguinity. (For further de- tails of the history of ecclesiastical legislation concern- ing this impediment see Esmein, " Le manage en droit canonique", Paris, 1891, I, 335-56; II, 258, 345; Santi-Leitner, o]3. cit. below, 247-48; and Wernz, "Jus Decretal", II, 614 sqq.)

MoTiVE.s OF Impediment. — The Church was prompted by various reasons first to recognize the pro- hibitive legislation of the Roman State and then to ex- tend the impeditnent of consanguinity beyond the limits of the civil legislation. The welfare of the social order, according to St. Augustine (De Civ. Dei, XV, xvi) and St. Thomas (Suppl. Q. liii, a. 3), de- manded the widest possible extension of friendship and love among all humankind, to which desirable aim the intennarriage of close blood-relations was opposed ; this was especially true in the first half of the Middle Ages, when the best interests of society required the unification of the numerous tribes and peoples which had .settled on the soil of the Roman Empire. By overthrowing the barriers between inimical families and races, ruinous internecine warfare was diminished and greater peace and harmony secured among the newly-converted Christians. In the moral order the l^rohibition of marriage between near relations served a.^ a barrier against early corruptio!i among yoimg per- sons of either .sex brought habitually into close inti- macy with one another; it tended also to strengthen the natural feeling of respect for closely related per- sons (St. Thomas, II-II, Q. cliv, a. 9; St. .\ugustine, De Civ. Dei, XV, x). Nature itself .seemed to abhor the marriage of close kin, since such unions are often childless and their offspring seem subject to grave physical and mental weakness (epilepsy, deaf-mute- ness, weak eyes, nervous disea.ses), and incur easily and transmit the defects, physical or moral, of their parents, especially when the interbreeding of blood- relations is repeated (Santi-Leitner, op. cit., IV, 252; Huth, "The Marriage of Near Kin, considered with re- spect to the Law of Nations, the results of Experience anil the teachings of Biology", London, 1S75; Sur- Ijled, "La morale dans .scs rapports avee la m<''decinc et I'hygiene", Paris, 1S92, II, 245-55; Eschbach, " Disputat. physiologico-theolog.", 99 sqq. ; Luckock, "The History of Marriage, Jewish and Christian, in