C. Corollaries and Scholia

65. - 1. From the demonstrated thesis we have the means of knowing who are to be called impotent and who sterile. But because of the importance and use of the matter, we shall give a distinct paragraph to this corollary. From here we now turn aside to a few scholia.

66. - 2. The three goods by which the nuptials of the faithful are said by St. Augustine ¹ to be rendered honorable are essential in very different ways. For the sacrament, or indissolubility, is so essential that you strive against it in vain, for a valid dissolution is impossible. The positive duty of fidelity cannot be cast off, but it can be physically violated by sin. Spouses can, however, legitimately abstain from generating offspring; yet spouses are prohibited from using marriage in a manner which is opposed to this positive good. In a not dissimilar manner St. Bonaventure ² wrote: "One, namely the sacrament, is of the necessity of matrimony... but the other two goods belong in one manner to being, and in another manner to well-being."

¹ De Genesi ad litteram, book 9, chapter 7.

² In IV Sent., dist. 31, art. 1, q. 3.

67. - 3. The formula sufficiently customary today, by which, for the validity of matrimony, they require the capacity for copulation which of itself is apt for generation, seems to us to suffer from some ambiguity.

68. - 4. The canonical Code wisely abstains from defining impotence and sterility.

Canon 1068 teaches these things concerning this argument: 1. Any antecedent and perpetual impotence invalidates matrimony by the very law of nature. 2. "If the impediment of impotence is doubtful, whether by a doubt of law or a doubt of fact, the marriage is not to be impeded." 3. "Sterility neither invalidates nor impedes matrimony."

The Code of France, which is still in force in Belgium, is silent concerning impotence. The authors of the Code judged this proof too difficult and scandalous to admit this impediment formally. A difficulty of this kind can have some force in the civil forum, but none in the ecclesiastical forum, which touches conscience more closely: for difficulty of investigation and danger of scandal do not dispense from the natural law.

But does impotence furnish a legitimate cause for civil divorce? This is controverted. Nevertheless, there are some who think that, where impotence for intercourse is manifest, the marriage can be civilly invalidated as lacking its object or vitiated by substantial error. Compare Aubry and Rau (Droit civil), who embrace the stricter position, vol. 5, p. 100 ff.

The Codes of Germany, Switzerland, and Hungary are also silent concerning impotence. Nevertheless, since the Code of Germany grants annulment on account of error in articles 1333 and 1334, it offers a means of invalidating a marriage which was contracted with an impotent person in ignorance. And in this indirect manner there is restored the opinion, abandoned today, which was held by many, for example the Master of the Sentences ³ and St. Thomas ⁴, and which equated the impediment of impotence with the impediment of servile condition, insofar as marriages contracted in ignorance with an impotent person or a slave, and those alone, would be null. But when the ability to use marriage is excluded, the very handing over of bodies is at the same time excluded, so that a covenant of common life can in no way be called matrimonial. Compare Sanchez, De Matrimonio, book 7, disputation 97.

³ In IV Sent., dist. 34, chapter 1.

⁴ Supplementum, III, q. 58, art. 1, ad 4.

The Code of Austria, § 60, recognizes the impediment of antecedent and perpetual impotence for performing the conjugal debt. A suit can be brought only by a spouse. Impotence is not presumed. In a doubt concerning perpetuity, the spouses must cohabit for a year (§§ 96, 99, 100).

The Code of Spain places among the diriment impediments physical impotence for procreating, absolute or relative, which is antecedent, manifest, perpetual, and incurable (article 83).

The Code of Italy, article 107, permits one spouse to petition for a declaration of the nullity of marriage because of manifest, prior, and perpetual impotence.

The Code of Portugal, although it does not itself mention this impediment, nevertheless holds valid the decisions of the ecclesiastical forum by which the marriage of Catholics is invalidated. Compare articles 1086-1088.

69. The argumentation of those who deny the potency of an excised woman seems to us to be vitiated by this twofold error. And since each is frequently committed in moral matters, we note them both briefly here.

1. They transfer to the end of nature the care which human beings ought to exercise concerning the preservation of the order of nature.

2. They abuse the distinction between per se and per accidens, as the Reverend Father Ojetti also shows ⁵.

⁵ Synopsis, no. 2419.

When all requisites concur, then indeed the effect will be impeded only per accidens. Thus it happens that the good intended through the order of nature - for example, the right formation of offspring - is frustrated per accidens, with that order preserved, as for example in conjugal copulation. But if an element required for validity or lawfulness is lacking, the act deprived of that element is per se null or prohibited, although it happens per accidens that the element is lacking. Nor does this assertion hold: the act is lawful because an element required for me is lacking per accidens.

In a similar manner in the present cause, if one who can never generate is to be called impotent, one who is now unable to exercise a copulation which is expected to be fecund labors under temporary impotence; nor can one who is unable to generate for a time be held merely sterile. And if the formal rationale of the impediment is the frustration of the primary end of nature, whenever that frustration is certain, the same conclusion ought to hold. Wherefore the distinction by which Dr. Antonelli separates organic or "constitutional" causes from others seems arbitrary to us.

Indeed, if impossibility of generation takes away the faculty for marriage, it also takes away, so long as it lasts, the faculty for truly conjugal copulation.