§ 1. On The Liceity Of The Conjugal Act

2093. That the conjugal act is of itself licit and honorable is already established from the things said concerning the honorableness of matrimony (cf. n. 1967). But that such an act, from every part, be licit and legitimate, it ought to be clothed with certain conditions, which refer both to the persons using matrimony, and to the end and circumstances of the act itself.

For the liceity of the conjugal act there is required on the part of the persons a true right, and this unimpeded.

It is said 1. a true right, that is, a right which arises from valid matrimony; otherwise the conjugal act would be true fornication. Whence: if matrimony is certainly null, it is never licit for the party knowing this either to seek or to render the debt to the other who is ignorant.⁹ - It is said 2. an unimpeded right; for spouses can be deprived of conjugal right on account of certain prohibiting impediments, which either preceded matrimony or followed after. The principal ones concerning which we must treat here are FOUR, namely: 1. Doubt concerning the value of matrimony; 2. Impotence of body; 3. Simple vow of chastity; 4. Affinity contracted after matrimony was entered. Concerning these, therefore, the following are established.¹⁰

2094. Principles. I. A spouse DOUBTING concerning the value of his matrimony CAN and OUGHT to RENDER the debt to a coparty seeking in good faith; but he CANNOT SEEK it, unless he prudently has put aside his doubt after due diligence has been made. The reason of the first is that if, after the first two-month period, or after consummation of the matrimony, he refused to obey the coparty seeking in good faith, he would commit himself to grave danger of violating that one's right. Whence, as long as from valid reasons it has not been established with moral certitude concerning the nullity of the matrimony, the certain possession of the coparty presses. - The reason of the second is that in the one doubting the right of possession is suspended until the truth has been diligently investigated, as was seen in n. 46; but with doubt persevering after diligence has been made, possession remains for the value of the matrimony, and therefore for the use of it.¹¹

St. Alphonsus with others, against many, admits these same things as sufficiently probable, even if the matrimony had been contracted in bad faith or in doubt; because although the one doubting cannot put aside doubt by title of possession, since he began to possess in bad faith, nevertheless he can put it aside from another principle, namely from the principle that in doubt one must stand for the value of matrimony, in favor of which, in the forum both internal and external, judgment must always be made, by reason of the common good of society.¹²

Yet two cases are to be excepted, in which doubt cannot be put aside from the aforesaid principles, namely: - 1. If someone prudently doubts concerning the death of a prior spouse; for then the prior matrimony possesses, until it is established as morally certain concerning its dissolution; meanwhile, however, the debt must be rendered to the coparty seeking in good faith, as we said above.¹³ - 2. If it is established concerning an impediment of ecclesiastical law, and it is not established concerning a dispensation having been obtained; for then likewise the impediment possesses. But otherwise, if it is established concerning the dispensation and there is doubt concerning its value; because one must stand for the value of the act¹⁴ (cf. n. 1810).

IT IS ASKED. What in the case of a matrimony contracted in GOOD FAITH, if it is PROBABLY invalid, no probability standing for the value?

Resp. It is controverted. The first opinion DENIES the right of seeking the debt; because possession indeed suffragates for one doubting, but not for one opining for the nullity of matrimony. - The second opinion, sufficiently probable, AFFIRMS; because possession confers a certain right of seeking, until it is established concerning the nullity of matrimony. It is confirmed from cap. Laudabilem, de frigid. et malef.; for if, after two years, spouses have not yet been able to consummate, it is surely most probable that the matrimony is invalid; and nevertheless they can attempt intercourse until the end of the third year, certainly for no other reason, except because the nullity of matrimony is not yet certain (cf. n. 45).¹⁵

2095. II. Certain impotence SUPERVENING upon matrimony renders the use of it illicit, insofar as danger of pollution underlies.¹⁶ The reason is that the pouring out of seed is not licit except in an act of itself apt for generation. Authors commonly agree.

It is said 1. certain impotence; for if it is doubtful, it is licit to try intercourse for so long as there is probable hope of completing it as nature requires (cf. n. 2011, Resp. 2).

It is said 2. insofar as danger of pollution underlies; because short of such danger, the conjugal act is licit, no otherwise than touches, concerning which below n. 2110.

Whence spouses are not to be prohibited from the use of matrimony if, on account of old age or another cause, it generally happens that the seed is poured out outside the vessel, "provided there is probable hope of emitting seed within the vessel; because whenever such hope is present, they have a right to intercourse, and if seed is poured out, this happens by accident."¹⁷

2096. III. He who VOWED chastity after matrimony CANNOT SEEK the debt; nevertheless he is BOUND to RENDER it to one seeking. The reason of the first is sufficiently clear from the obligation of the vow. - The reason of the second is that a vow cannot prejudice the right of the other spouse.¹

But if the spouse not only permitted the coparty's vow, but consented to it, intending to yield his right, now neither is permitted the seeking or rendering of the debt. But if "they have vowed mutually, not intending to yield their right, the one is still bound to render to the other seeking," as is commonly taught. And the reason is that the seeking is still just, and on the part of the act honorable, although on the part of the one seeking illicit; and because thus to one seeking there can never be denied a thing which is owed to him from justice² (cf. n. 216 and 519). But if the vow preceded matrimony, recall the things said in n. 1992, Hence 2.

IT IS ASKED. Whether a spouse bound by a vow can ever seek the debt?

Resp. HE CAN, indeed HE OUGHT, in a twofold case: - 1. If the other is in danger of incontinence; because then the obligation arises from the very end of matrimony, which commands that one assist the other. - 2. If the other seeks tacitly, for instance when a wife does not dare to seek because of modesty, and the husband perceives intercourse to be desired by her; because then the seeking is really a rendering. Thus commonly³ (cf. n. 1992).

2097. IV. A spouse who, during matrimony, contracted AFFINITY with his consort, namely by perpetrating complete and formal incest with a blood relative of the consort, male or female, in the first or second degree, is deprived of the right of seeking the debt until he has obtained a legitimate dispensation. - Recall the things said in n. 2031, q. 3.

Note. Concerning adultery, insofar as it deprives of the right of seeking the debt, see n. 2031, question 3.

That the conjugal act be licit and honorable, it must be exercised FOR AN HONORABLE END. This is clear from the things said concerning the honorableness of human acts (cf. n. 306 and 307). - Whence,

2098. I. It is licit to exercise the conjugal act for VARIOUS ENDS which COHONESTATE matrimony, namely: - 1. For generating offspring; because this is the end intended by the very Author of matrimony. Nor, however, must the generation of offspring necessarily be intended, provided it is not positively impeded; indeed it is licit for spouses with a simple affection to wish that offspring not be born, for instance because of the difficulty of nourishing it. - 2. For rendering the debt; because this rendering is an act of justice emanating from the institution itself of matrimony. - 3. For avoiding incontinence in oneself or in the coparty; because after the fall of the first parents, matrimony was also ordained as a remedy of concupiscence. - Indeed, if it is a question of avoiding the coparty's incontinence, the act is not only licit, but also obligatory by precept of charity. - And these are the PRIMARY ends.

Moreover, it is licitly exercised for any honorable end whatever, e.g. for fostering conjugal love, for the health of the body; because nothing prevents a means licit in itself, and useful for that end, from being applied to an honorable end.⁴

2099. II. It is not licit to exercise the conjugal act FOR PLEASURE ALONE. This is clear from the ninth proposition condemned by Innocent XI: "The work of marriage exercised for pleasure alone is entirely without any fault or venial defect." The reason for the condemnation is given because it is a certain perversion of order to intend delight as an end, which nature intends as a means. But there is only VENIAL fault, because the inordinate use of a thing licit in itself is not grave, unless someone rests in it as in an ultimate end (cf. n. 342, q. 3).

It was said: for pleasure alone, i.e. any other end whatever being excluded; because unless such an exclusion is made, the act, apprehended as licit and duly exercised, is referred virtually and by its nature to its proper intrinsic ends. Wherefore it is also without any fault, although the appetite of delight impels one to it (cf. n. 1966).

Here also in passing we note that a spouse sins gravely who exercises marital intercourse with an adulterous affection toward another person, whom he imagines or wishes to be present to himself⁵ (cf. n. 356).

From these things you will resolve: - 1. The conjugal act is licit, although because of sterility there is no hope of offspring; for this happens by accident, and the other ends of matrimony cohonestate the act.

2. Spouses who assume the pleasure of intercourse as a remedy of concupiscence, or for avoiding incontinence, act rather from love of virtue than from love of pleasure, since they intend to preserve continence and avoid sin. But those who desire pleasure for its own sake are led by love, not of virtue, but of pleasure, which is not honorable.⁶

3. In practice, as regards the use of matrimony for delight alone, spouses are customarily in good faith, nor usually can fruit be hoped for from admonition. Whence it is more advisable that the confessor leave them in their good faith.⁷

2100. The due circumstances of the conjugal act look especially to its manner, place, and time.

I. The natural manner or position in the use of matrimony is that the woman be beneath and the man above, since it is more apt for pouring out and receiving seed; whence, of itself it is unlawful to change this position, since such a change is an inversion of the order of nature. Yet authors commonly say with St. Thomas that it is not of itself mortal if the act is exercised in an improper position, either standing, or sitting, or from behind after the manner of beasts, or with the man beneath, provided it always takes place in the natural vessel. For a change of position ordinarily does not impede generation, since the male seed is of itself naturally drawn into the woman's matrix. - And therefore there will be no sin if the natural manner is changed on account of some just cause, e.g. of danger of abortion, scandal, or difficulty.⁸

We said 1. that of itself it is not mortal; for the Angelic Doctor teaches that by accident one can sin gravely in this, if it is done from depraved concupiscence, e.g. from an affection of bestiality or sodomy.⁹ 2. Provided it always takes place in the natural vessel; otherwise the order of nature would be essentially violated, and the end of matrimony would be entirely frustrated (cf. n. 2112).

You will ask whether it is mortal to change position if, because of this, some part of the seed is lost? Doctors more commonly deny it; because if seed is poured into the vessel, a partial loss of it after infusion, which can occur in some positions, happens by chance, nor does it forestall conception. For it is clear that a small amount of seed suffices for generation. - On the contrary, if it were established by experience that the woman retains none of the seed because of the natural position having been changed, then it would be mortal; but this very rarely happens. And therefore the confessor ought not to ask about this danger.¹⁰

2101. II. The place suitable for the conjugal act cannot be, as natural modesty itself dictates, except secret. In a public place or before others, and especially before children, the conjugal act would be a most grave scandal. But if it were done in a sacred place, apart from the case of necessity, according to the more probable and more common opinion it would be a grave and sacrilegious irreverence (cf. n. 788).¹¹

Note. Spouses are to be admonished not to allow children capable of reason, or already capable of some malice, to lie down with them in bed or in the bedroom.¹² But if on account of poverty they are compelled to this, let them at least take care lest the children perceive anything.

2102. III. TIME, of itself, is an indifferent circumstance; nevertheless sometimes, by reason of other adjuncts, it can render the conjugal act lightly or gravely illicit. Thus more commonly with St. Bonaventure. - The reason of the first is that no law can be assigned by which an act of this kind is ever prohibited, and the prescriptions of the ancient Mosaic law have been entirely abrogated by the New Law. Whence if the canons and the holy Fathers seem to prohibit the use of marriage on feast days or in times of penance, the prohibition is to be understood as of counsel, not of precept. Concerning the days of Communion, see n. 1561, 2. - The reason of the second is had from the natural law, because the use of conjugal right can be suspended or impeded on account of the concurrence of another predominant right, e.g. on account of danger of abortion or harm to health, especially in the time of menstruation, pregnancy, purification after birth, lactation, and sickness. - Whence YOU WILL RESOLVE:

1. In the time of menstrual flow conjugal intercourse is forbidden, under venial fault, as the most common and more probable opinion holds; both because it involves a certain indecency, and because, as physicians testify, it can harm the genital parts of the woman and thence, if she conceives, afterward bring on some danger of abortion; and because it is a certain intemperance not to await the suitable time which will shortly be present. In the time of an extraordinary flow of blood, which proceeds from disease and is long-lasting or perpetual, intercourse can then become illicit when it is established by experience that the flow is increased after intercourse; if this happens, intercourse will ordinarily harm somewhat, yet rarely gravely. If it will be only lightly harmful, intercourse will become licit, because otherwise the husband would have to abstain perpetually, which would bring him both grave inconvenience and ordinarily grave danger of incontinence; these two things certainly prevail over a slight harm to the wife.¹³

2. In the time of pregnancy, intercourse, the danger of abortion being excluded, is more commonly judged licit; because it is prohibited by no law, and it would be a most grave burden if spouses were held to contain themselves for so long a time. - Nevertheless, the opinion of those who judge that intercourse with a pregnant woman, speaking of itself, is not without venial fault, is more pleasing to St. Alphonsus; because the seed is frustrated of its end; yet by accident it is cohonestated when an honorable cause accedes, e.g. danger of incontinence, or another cause; and since this is hardly ever absent, in practice this opinion nearly coincides with the former.¹⁴

The danger of abortion will be so much the less, the farther intercourse is distant from the day of conception. Whence it can exist only within the first months of pregnancy, and in this time only then when intercourse is performed either more often or more impetuously; wherefore moderation as to number and manner is to be recommended to spouses. - Moreover, on account of the danger of abortion, intercourse can by no means be forbidden; both because no one knows anything concerning beginning pregnancy, at least nothing certain; and because abortions much more often proceed from a morbid disposition than from a direct cause.¹⁵

3. In the time of purgation, according to the more common and more probable opinion, intercourse is illicit; both because of indecency and because of danger of harm for the wife. - If slight harm is feared, there will be venial fault; if grave, mortal fault. A new conception is not to be feared except after about six weeks, namely when the uterus is restored and menstruation recurs.¹⁶ Moreover, according to the opinion of St. Alphonsus,¹⁷ who consulted a very skilled physician, grave harm can prudently be feared within two days after birth; and, according to more recent physicians, still longer, for one or perhaps two weeks, namely while the puerperal flow, or the woman's great weakness or sickness, persists.

4. In the time of lactation, it is most commonly affirmed that intercourse is licit; because although milk for the most part, when a new pregnancy begins, is soon diluted and shortly ceases, offspring can be nursed in another way, lest spouses be compelled to abstain for so long with so great difficulty. To this there accedes that a woman commonly does not conceive in the time of lactation.¹⁸

5. In the time of sickness, the conjugal act is illicit when notable harm to health can prudently be feared from it. Therefore, A DISTINCTION MUST BE MADE between contagious and non-contagious diseases.

1. In the contagious disease of one spouse, if it is a venereal disease or syphilis, intercourse is gravely illicit, on account of the horrendous consequences which it brings with it for the coparty and for offspring. The infected party is not bound to manifest this disease to the coparty, on account of infamy, provided that, while he remains silent, he neither seeks nor renders the debt. Yet see n. 2108, 2.

In other diseases, intercourse is likewise prohibited if they are apt to bring death shortly; but otherwise, if they are chronic or longer-lasting, because the danger of incontinence, which for so long a time can scarcely be absent, seems to prevail. Moreover, the infected party is bound to manifest the disease to the coparty.

It must be admonished in this place that phthisis is not a contagious disease, but hereditary; but it would be better for offspring to be infirm than not to be at all. - On the contrary, the flow of seed which in men is called gonorrhea is for the most part a certain species of syphilis, and therefore contagious, as physicians testify. - Leucorrhea, or white flow, from which pregnant women often suffer, does not forbid intercourse, since it is not harmful.

2. In a non-contagious disease, intercourse is very harmful in a disease that greatly debilitates, joined with fever and the greatest pain. In a slight disease, intercourse is not harmful; nevertheless diseases of the genitals are excepted, which in a woman can be aggravated by intercourse and afterward be healed with difficulty.

Note. After a bath, bloodletting, lunch, or dinner, intercourse is not customarily notably dangerous, as present-day physicians testify.¹⁹