3. Consanguinity
earlier law, marriage among cousins
was also prohibited, and this prohibition
was temporarily renewed by Christian
emperors under the influence of the Church,
which rejected such marriages, so that it
does not
exist in the Justinian code. In both Mosaic and
Roman law it was immaterial whether the relationship
was legitimate or illegitimate. According to
the Decretals, which in this respect are still authoritative
in the Roman Catholic Church, marriages
among collateral relations to the fourth degree
inclusive are prohibited, whereas formerly the
prohibition was extended to the seventh degree.
These relationships were computed by the Teutonic
theory, which assumed as many degrees of
relationship as acts of procreation were required to
bring about the relations of the one relative to the
other, the more distant line being taken in case of
an inequality of the collateral relatives. The Reformers
rejected the canon law and went back to
the Mosaic and Roman law, adopting from the latter
the impediment of "regard to kinship." Although
by no means uniform, the extension of the
impediment was generally made to the third degree
of canonical computation. With the theory prevailing
in the eighteenth century that the Mosaic
law was not to be considered divine in this regard,
the sovereign's right of dispensation gained wide
scope; but even after the State had greatly limited
the impediment of relationship, the Evangelical
Church maintained a portion of the former law in
the form of an impediment to religious marriage.
The relation of one of a married pair to the kin
of the other constitutes affinity. For this reason
the Mosaic law expressly prohibits
1
marriage with a stepmother, the wife
of a paternal uncle, a daughter-in-law,
the wife of a brother, a stepdaughter, and a stepgranddaughter.
Marriage with the wife's sister
was forbidden only during
the lifetime of the wife,
polygamy in itself still being permissible. Marriage
with the widow of a childless brother, the
levirate marriage, was required
(Deut. xxv. 5).
According to Roman law, affinity was an absolute
impediment. Marriage with brothers and sisters of
a deceased husband or wife was first prohibited by the
laws of Christian emperors. Even in the older laws
an impediment to marriage, based on a feeling of
honor, was felt to exist in the quasi-affinity between
one betrothed and the kin of the party of the other
part in a direct line, as well as between stepchildren
and step-parents, or between a man and his
divorced wife's daughter by a second marriage.
According to Roman law, legal marriage alone established
real affinity, whether the marriage was
consummated or not; and when marriage ceased,
affinity ceased, although it continued to be an impediment
to marriage. Unlawful sexual intercourse
generally formed no impediment for the
marriage of the one party with the relatives of the
other, only concubinage and marriage with slaves
effecting an impedimental affinity similar to that
of lawful marriage.
Canon law derived the impediment of affinity less
from marriage than from the "union of flesh"
effected by sexual intercourse, so that it made the
impediment of affinity coincide with that of kinship,
extending it even to marriages between the
kin of the husband and children by
2
the second wife. Even an affinitas secundi
generis, between one of the married
pair and the affines (primi generis)
of the other, and, in certain cases, an
affinitas tertii
generis (the relation to
the affines secundi generis of the other
party to the marriage) were considered an impediment.
Through non-matrimonial intercourse an
affinity also originated, whence arose an impediment
between the one guilty party and the kin of
the other (affinitas illegitima). The opinion likewise
prevailed that marriages should be annulled
for an affinitas superveniens, arising from adultery
on the part of one of the married pair with one of
the kin of the other. By the law of 1215 Innocent
III. entirely abolished the prohibitions of marriages
in secundo et tertio genere affinitas, and also permitted
marriage between kindred of the husband and children
by his wife's second
marriage, besides limiting
the prohibition of affinitas primi generis to the
fourth degree. He likewise decided that the affinitas
illegitima superveniens should entitle the injured
party only to refuse marital rights. The Council of
Trent limited the impediment of the affinitas illegitima (antecedens) to the second degree; while the
Roman quasi-affinity through betrothal was made
coterminous, under the name impedimentum quasi
affinitatis, with real affinity. The Council of Trent
limited the impediment to the first degree, but without
abolishing the extension of the impediment of
affinity ex matrimonio rato non consummato to the
fourth degree, although, as in the former case, it was only an
impedimentum publicæ honestatis. Early
Protestant church legislation, doctrine, and practise
appropriated the canonical concept of the impediment
of affinity, and in general likewise accepted
the resultant deductions of canon law, so
that legitimate and illegitimate affinity acted as
impediments to marriage within the same degrees
as consanguinity. At the same time, the prohibitions
of Roman law on account of quasi-affinity
were retained, and even sometimes extended, despite
their abolition by Innocent III. by the entire
abrogation of the impediment of the affinitas secundi
generis. After the regulation of the impediment
by civil law (see below), the Evangelical
Church went beyond it in establishing impediments
to religious marriage.
Imitative or artificial relationship is connoted by
legalis and spiritualis cognatio
