I. Circumstance: Who

228. - One who is naturally sterile, indeed, as many hold, one who is impotent if it is that impotence which does not impede intercourse, whether the impotence be temporary or subsequent to marriage, is not prohibited from the complete use of marriage, insofar as he is capable of intercourse, that is, of penetration with seminal emission broadly so called.

In our opinion, no discussion of impotence subsequent to marriage is to be had here. For we judge all who are able to exercise intercourse to be potent; but concerning the others, that is, concerning those who are unable to copulate, the question of the lawfulness of intercourse is moved uselessly ¹. We have therefore mentioned impotent persons on account of the opinion of those who think that a wife who is unable to furnish an ovum, or a husband who is unable to furnish prolific semen because of a defect of an organ, is impotent.

¹ Concerning some, however, who, for example, at an advanced age, are able to pour out semen only at the opening of the vagina, something will be said below, no. 240, 4.

After marriage has been contracted, a man from whom both testicles are removed does indeed become impotent, but not immediately: he remains capable of fertilization for some days and of intercourse for some time.

229. - What if someone is doubtfully impotent?

R. 1. One who is doubtfully impotent does not lawfully contract marriage unless, after a diligent investigation, he has first found himself to be either certainly or at least probably potent ². For in a serious doubt concerning potency or impotence, the natural law seems to be interpreted in such a way that it does not impose celibacy, but permits access to a state lawful in itself for all, whose faculty is most useful to uprightness of morals. Moreover, sufficient provision is made here, as in other administrations, for the reverence owed to the sacrament through a conditional intention. This is now confirmed by canon 1068, § 2: "If the impediment of impotence is doubtful, whether by a doubt of law or by a doubt of fact, marriage is not to be impeded."

² St. Alphonsus, book 6, no. 1102; Lehmkuhl, II, 977.

A doubt is understood to be prudent ³, not that slight doubt which does not exclude moral certainty. Now a doubt of law will be present if it is disputed whether such a defect, for example, an occluded deferent canal, deprivation of the ovaries, or the necessity of undergoing a grave operation, renders someone impotent or sterile; a doubt of fact, if the necessity of the operation, or the capacity for erection and emission in the man, has not truly been established.

³ Cf. Wernz, vol. 4, part 2, no. 216, VIII.

Moreover, Lehmkuhl ⁴, following St. Alphonsus ⁵, wisely warns that a party whose potency alone is doubtful will be gravely injurious to the other unless he makes the other more certain concerning his condition.

⁴ Theologia moralis, II, 977, at the end.

⁵ Book 6, no. 1102.

2. After marriage has been contracted (even if an injury was committed against the other party), those who are doubtfully capable can, with the law of nature considered, attempt intercourse as long as some true hope of potency remains.

Formerly, at the petition of the other party, an ecclesiastical judge granted an experience of three years ⁶, to be computed from the sentence rendered or from the attempted intercourse, according as the complaint had been moved soon after the marriage or only later. If, after three years had elapsed, the impotence was at least morally established, the judge, sometimes after a supplementary oath and the testimony of the seventh hand had been requested, gave a sentence concerning the nullity of the marriage; this sentence, however, never passed into a res judicata, so that, if potency supervened, the marriage was to be restored of itself.

⁶ Cf. chapter Laudabilem, De frigidis et maleficiatis (IV, 15), or Sanchez, De matrimonio, book 9, disputation 17, no. 26, or Ballerini-Palmieri, vol. 6, no. 887.

But from the year 1817 the Holy See no longer had recourse to an experience of this kind, and this manner of proceeding was suppressed by the new Code.

Therefore, spouses of whom one is doubtfully potent will now be permitted to attempt intercourse (although a useless pollution is to be feared) as long as hope of potency remains. Likewise, for a just cause, either both by common consent or either one separately can petition for the dissolution of a ratified and nonconsummated marriage: where the nullity of the marriage is probable and nonconsummation certain, this is to be granted ad cautelam.

230. - N.B. A spouse whose impotence for having intercourse is certain at present, but perhaps temporary, cannot meanwhile attempt intercourse himself, since the matter would certainly fall into simple or double pollution ⁷. But if the impotence in the man is a defect of erection which it is hoped will gradually be corrected by repeated attempts, or in the wife is vaginismus which perhaps will admit penetration, the man will be able to make these attempts, provided that he procures the introduction of semen in the best manner he can. For the individual attempts will have the character of intercourse rightly begun.

⁷ Wernz, vol. 4, part 2, no. 346.

But if the wife suffers from a narrowness of the vagina which can be opened more by an easy operation, will the spouses be permitted, before the operation is performed, to use marriage, taking care that the semen be placed at the opening of the vagina? This depends upon the more general question whether such a use of marriage is ever lawful: this we shall see below, no. 240. For we cannot approve the distinction which Alberti ⁸, speaking of subsequent impotence, makes between those temporarily and perpetually impotent, as though more were permitted to the former than to the latter.

⁸ De sexto et nono, etc., no. 121.

231. - But what if sterility has been procured by artifice?

Alberti simply permits the use of marriage, because it makes no difference "whether sterility has proceeded from nature itself or from art ⁹." But a distinction seems necessary.

⁹ Ibid., no. 160.

If fecundity is now impeded by a perpetual impediment (suppose, in our opinion, that the ovaries have been removed), the use of marriage remains honorable. It will therefore suffice that, if any have been authors of or accomplices in sin in this matter, they do penance for the sin committed.

But if they have placed a temporary impediment (for example, if the oviducts have been tied), they must remove that impediment as soon as possible; without this sincere will, intercourse cannot be honorable: it would be infected with the vice of onanism. But if, for a few days, the matter is incapable of remedy, the guilty party per se, apart from a grave cause, for example, the danger of incontinence, ought to abstain from requesting intercourse. For the will for sterility of this kind, for example, for tying the oviducts, could not have been honorable except with the intention of abstaining from intercourse in the meantime. Therefore, if it was evil, it must be recalled to honesty through the intention of an abstinence not excessively difficult. Or, if this other form of reasoning is more pleasing, the positive duty of taking care by ordinary means that generation not be impeded by one using marriage contains that obligation. Nor can malice make for him who intended formally to procure sterile intercourses for himself a better con- dition than is that of one who, with the will of abstaining from intercourse, placed a temporary impediment to generation. But if only one was or remains guilty, the innocent spouse who did not participate in the offense is not deprived of his right of requesting the conjugal debt.

232. - One who, by a promise made to the other, renounced his right of requesting cannot exact the debt; he is not prohibited from asking amicably, since the other can remit the pact. This promise can be contained in a unilateral pact (by which someone wished to bind himself in justice) or in a bilateral pact. Each is valid of itself. Each can be removed by common consent. Indeed, where the other seems to be situated in an excessive danger of incontinence, charity of itself will oblige one to meet the need of the spouse by admitting some intercourses or by renouncing the pact itself. Cf. Sanchez, De matrimonio, book 9, disputation 37, nos. 18-23.

233. - What if one requesting or rendering is bound by a vow of chastity? Various cases must be considered here.

1. A vow per se changes no rights. Wherefore, one who, bound by a vow, has unlawfully requested the debt nevertheless exacts his own right. The other ought therefore prudently to turn him away from this intention out of charity; or, if he himself is free from a vow, by requesting the debt he can very well render the act of the other lawful. Yet if the one requesting perseveres in his intention, the other is permitted to render the debt. He ought neither to render judgment nor to respond concerning the subjective guilt which the one requesting contracts before God. Cf. St. Alphonsus, book 6, no. 944; Lehmkuhl, II, 1089.

And the same is to be said if each, with the assent of the other party, has separately been bound by such a vow. By a vow of this kind no right is removed. Cf. St. Alphonsus, book 6, nos. 994 and 948.

2. But a request is of itself impeded by a vow which was made before marriage, or which is emitted within marriage with the assent of the other spouse.

A vow made during marriage without the assent of the other, whether of not requesting or of not rendering, is null; a vow simply of not requesting is valid in the wife alone, because the husband by a similar vow would render the use of marriage excessively impeded for his wife: for wives are accustomed, because of timidity and modesty, to shrink from requesting the debt. Furthermore, a probable opin- ion adds to the husband the faculty of directly invalidating the vow of his wife.

3. But a simultaneous vow of chastity emitted by both with mutual consent contains of itself a pact by which each renounces his right of requesting (at least as regards its exercise or use). Wherefore, per se, neither can then either request or render the debt, since the one requesting now requests without a right. By the vow itself, however, the spouses are prohibited from rescinding the pact by mutual consent. Yet the husband, using his probable power of invalidating, is not prohibited from removing the vow of his wife. She can then remit the pact and indirectly invalidate the vow of her husband, since, unless the husband can request the debt, she is not judged to have the unimpeded use of marriage. Cf. Sanchez, De matrimonio, book 9, disputation 37, nos. 9, 10, 15-17, 24; Ballerini-Palmieri, Opus theologicum, vol. 2, nos. 689-693; vol. 6, no. 404.

What if a husband vows that he will not use the faculty of invalidating a vow of chastity made by the wife alone, or in common by himself and his wife?

By a vow of this kind he cannot take away from himself the power of invalidating. Hence, even if such a vow is violated, the invalidation will be valid. But if there is a just reason for freeing the wife from her vow, we do not think the use of the power is then prohibited by the vow itself, because a vow in which this case would be included would not have concerned a better good. Nevertheless, it will be more suitable for the husband, before he invalidates the vow of his wife, first himself to be dispensed from his vow not to invalidate.

But since they cannot cast off the conjugal state by their vow, spouses who, having neglected the vow, have unlawfully requested or rendered intercourse sin against religion, but not against chastity.

And it is manifest of itself that spouses ought not to make vows unless seriously and prudently: seriously, lest God seem to be mocked; prudently or circumspectly, lest of themselves they give place to a reasonable penance. Spouses are, however, to be turned away from an unreasonable penance, or from inconstancy of soul in a good resolution.

234. - By the former law, chapter Si quis, 1, De eo qui cognovit consanguineam uxoris suae vel sponsae suae (IV, 13), incest consummated by either spouse with a blood relative of the other in the first or second degree deprived the guilty spouse, at least if he was not ignorant of the penalty, of the right and faculty of requesting the perfect debt. The law established nothing concerning imperfect acts.

But that penalty was removed by the new Code and therefore must no longer be attended to.

235. - A graver question must be raised concerning those who have a doubt not to be disregarded about the validity of their marriage: what use of marriage can they make, and what must they avoid?

Here we examine only a doubt concerning the validity of the marriage contract. For in our treatise, which is not about marriage but about chastity, the question does not come up for consideration as to how far it is permitted to enter the matrimonial covenant with a doubtful impediment.

The difficulty and obscurity of the question, as must also be observed in the argument of probabilism in general, proceeds from this: while three states of mind - affirming, denying, and doubting - are clearly distinguished, there can be only two resolutions of the will: I shall act or I shall not act, so that no mean can be placed between action and omission. Wherefore, the practical conclusion cannot be perfectly adapted to the cognition of the intellect, but at first appearance will seem either more severe or more benign: more severe, if, in the case, you say to Titius, "You are forbidden to dismiss Caia, who perhaps is your wife, yet you cannot have carnal intercourse with her"; more benign, if you answer the same man, "You can freely use a woman who perhaps is not yours, who perhaps belongs to another."

But if the other spouse requests the conjugal debt, especially if he is in good faith and does not doubt, a perplexing case arises: for by denying the debt, the danger of injustice is incurred; by conceding the debt, the danger of fornication or adultery (and therefore also of injustice) is incurred.

A prudent use of a reflex principle is therefore to be applied here. Now, in order that we may distinguish the cases:

1. Before a serious investigation of the matter, or unless he can render the marriage certain by a dispensation (which he must then do), the one doubting, on his own part, must abstain from every active use of marriage, perfect or imperfect; for with a conscience which would be vitiated by a vincible doubt, he would expose himself to fornication or adultery.

In the meantime, however, he can and must render the debt to the other party who is in good faith. "When conscience strikes the soul from a probable and discreet belief, although not an evident and manifest one, he can indeed render the debt, but he ought not to request it, lest in either matter he commit an offense either against the law of marriage or against the judgment of conscience." Thus Innocent III himself authentically resolved the case in chapter Inquisitioni, 44, De sent. excomm. (V, 39).

Nor is he bound to disturb the good faith of the other party by an admonition which would often be full of inconveniences.

As the rationale for the reply, Sanchez alleges a perplexing case in which the lesser evil, that is, the danger of fornication, is to be chosen before the greater evil, or the danger of injustice ¹⁰. This rationale seems to have less force when the cause of the doubt is a preceding marriage perhaps not dissolved by death. For then the danger of injustice toward the prior spouse is added to the danger of fornicatory intercourse ¹¹. But possession in good faith gives to the spouse requesting a certain right which, according to the opinion of Sanchez, prevails over the right of the prior spouse, which he calls uncertain because it belongs to an uncertain subject, that is, one perhaps not living (De matrimonio, book 2, disputation 42, no. 6). Wherefore, concerning one who contracted a second marriage before the death of the prior spouse was established for him, the Pontiff decreed: "If anyone... still thinks that the death of the prior spouse is to be doubted by him, let him not deny the debt to the one who married him when she requests it, yet let him know that it is by no means to be exacted by himself" [chapter Dominus, 2, De secundis nuptiis (IV, 21)].

¹⁰ De matrimonio, book 2, disputation 41, no. 45.

¹¹ St. Alphonsus, book 6, no. 903.

But if, as Sanchez rightly excepts, the spouse who does not doubt has been deprived of the right of requesting, for example, because of adultery, the doubting spouse cannot assent when that spouse requests.

For then the danger of injustice disappears; only the danger of fornication remains, and this can and must be avoided by denying intercourse.

It is evident that, if the doubt is common to both, every use of marriage must be suspended before an investigation or an obtained dispensation.

2. After the inquiry has been made, if the doubt has become invincible - and the matter stands in the same way if from the beginning it is demonstrated that an inquiry will be fruitless or useless ¹² - the opin- ion which St. Alphonsus ¹³ judges by far the more common and more probable permits every use of marriage, even active and spontaneous use, to those who married in good faith; and this on account of the right of possession, which, according to the opinion that St. Alphonsus ¹⁴ holds sufficiently probable and defends with arguments, is admitted to remain even if, apart from possession, another probable rationale for the validity of the marriage is lacking, provided it is not morally established that the marriage is null. Therefore, the force of a positive argument for nullity will have to be weighed.

¹² Sanchez, De matrimonio, book 2, disputation 41, no. 47.

¹³ Book 6, no. 904. But, from the sixth edition, he seems to hold otherwise concerning one who doubts, even on account of probable reasons, the death of the prior spouse, because the prior marriage then possesses.

¹⁴ Ibid., no. 905.

3. If a marriage was contracted with a doubt concerning an impediment, or in bad faith, so long as it is not a question of the impediment of a bond, after a fruitless investigation a probable opinion permits the use of marriage to persons married in this way. Although they cannot allege good possession, they are nevertheless protected by the principle: "In doubt, one must stand for the validity of the act"; this has greater force concerning a favorable cause such as marriage. This seems sufficiently proved even to St. Alphonsus, book 6, no. 906.

This opinion becomes common when a probable rationale for the validity of the marriage can be adduced. Thus Sanchez and others cited by St. Alphonsus, loc. cit. For it is manifest that the possession itself, formally begun badly, confers no advantage.

4. But if it is a question of a doubtful impediment of a bond, many ¹⁵ deny active use to either one who doubts, or every use of marriage to both when both doubt.

¹⁵ For example, Lehmkuhl, Theologia moralis, II, 1076, 1077; De Smet, De sponsalibus, etc., no. 238.

Yet not a few concede use in an invincible doubt if a probable rationale for validity can be alleged. "Because," says Sanchez ¹⁶ - who, according to Lugo ¹⁷, treated this whole matter excellently - "in morals it is enough to embrace a probable opinion." For even if - thus we think the argument should be perfected somewhat - the probability of the death of the prior spouse is only a probability of fact, from it comes about that the spouses have a probable right, and weighty authors permit that probable right to be satisfied. For we are dealing with a matter of justice. It is a question of a thing which cannot be divided among several, so that the solution by division must also be excluded.

¹⁶ De matrimonio, book 2, disputation 42, no. 9.

¹⁷ De iustitia, disputation 17, no. 87.

Come now, in a matter of justice, a probable right, although it does not excuse occult compensation, or does not permit a thing to be taken from another who possesses it, nevertheless permits one who holds the thing to enjoy it, provided he is prepared to return it, in the state in which it is found, to him who proves a certain right ¹⁸.

¹⁸ Lugo, De iustitia, disputation 17, no. 91.

It therefore seems consonant with reason that we concede the same in this matter. Certainly, the danger of intercourse with one who is not one's own is not excluded; but even if they contracted in good faith, that danger fully subsists. Therefore, by what certain argument will you bring it about that spouses ought to neglect their probably acquired right because of the uncertain right of another? Why would you afflict the other party, who for the most part exists free from every other bond, with that severe penalty by which, since he is permitted neither to leave the spouse nor to enjoy that spouse, he is compelled to observe perfect continence? Does not the very rationale of the common good demand that continence not be imposed upon the unwilling beyond what is strictly required? Wherefore, that indulgence by which, after a sinful celebration, the use of marriage is permitted to those who have a probable right and are situated in invincible doubt is not a mere favor granted to one who sins, but is that rationale of composing rights which does not omit to provide for the common utility. Sanchez ¹⁹, Bonacina ²⁰, Sporer ²¹, Roncaglia ²², and the Salmanticenses ²³ did not see an argument by which these spouses ought to abstain from the use of marriage; St. Alphonsus did not see one in the first five editions of his moral theology, nor in his work Homo apostolicus ²⁴; Ballerini did not see one ²⁵. R. P. Noldin ²⁶ likewise, with another distinc- tion omitted, judges that the use of marriage is lawful for those who are situated in invincible doubt.

¹⁹ De matrimonio, book 2, disputation 42, no. 9.

²⁰ De matrimonio, question 4, point 4, no. 10.

²¹ Treatise 1, chapter 1, no. 77.

²² Treatise 21, last question, sole chapter, question 6, response 2.

²³ De matrimonio, treatise 9, chapter 15, no. 48.

²⁴ Cf. the note of Gaude's edition at no. 906.

²⁵ Opus theologicum morale, vol. 6, treatise 10, no. 424.

²⁶ De sexto praecepto et usu matrimonii, no. 98.

Observe finally, if only one contracted with doubtful faith, how little severity benefits the prior spouse (if he exists). For then all permit the debt to be rendered to the other when requesting. But once the unilateral active use of marriage has been conceded, how will it benefit the prior spouse if the other is prohibited from requesting the debt?

And this restriction of rights will often be inconvenient and unwelcome to the other spouse; indeed, if a wife in good faith is protected by the privilege, it does not suffice that she be able to make a request from which she is of herself impeded by modesty.

236. - When a suit concerning the validity of the marriage has been moved, from the words of chapter Laudabilem, 2, Ut lite pendente nihil innovetur (II, 16): "That either one of the spouses who has been accused cannot, before the accusation is proved, be deprived of the right which he has in the other," Sanchez ²⁷ gathers that "the same right to request or to render which the spouses had before the suit was moved" remains. Indeed, that right perseveres until a twofold sentence for nullity has been rendered.

²⁷ De matrimonio, book 2, disputation 41, no. 50.

237. - This question is proposed chiefly when it is uncertain whether or not a prior marriage, certainly valid, was dissolved by the death of either spouse. Wherefore, the conclusions drawn will have greater force if that union was of uncertain validity. But it also happens that, after a marriage of uncertain validity but both of whose parties certainly live, another is contracted in good or bad faith, whose validity depends entirely upon the nullity of the prior marriage. The same principles must be used to resolve this knot. But whereas, in the case which we were considering above, the right of the prior spouse was certain, while possession, because of his uncertain life, was uncertain, in the present case the possession of the prior spouse is certain, but the right is uncertain.

But for both fora, "in an equal cause, the condition of the possessor is stronger ²⁸." Wherefore, the prior marriage is per se to be preferred. Nor could the privilege of that marriage be diminished by the departure of a spouse. Hence, per se, always supposing an inextricable doubt, the one departing ought to restore the prior marriage if he can do so; or observe its rights if he is prohibited physically or morally from returning. For in this cause of marriage, the fault or consent of one party of itself can do nothing to change the rights, since these are inalienable. Therefore, he will not be able to use the second marriage after departing. Nevertheless:

²⁸ Rule 65, De regulis Iuris, in the Liber Sextus.

1. If the person whom he married second was ignorant of the matter and contracted in good faith, possession favors this person and, because it is more closely joined to the present fact, seems to be preferred to the other possession, that of the prior marriage.

Wherefore, the bigamist, who cannot request the debt, can and must render the debt to this person.

2. If the second marriage is valid by a far greater probability, it can be preferred, since approved authors admit that the cause is then no longer equal. And thus a marriage which a converted unbeliever contracts after baptism will be preferred to nuptials which he had probably contracted in unbelief; a marriage contracted in legitimate form before a sacred minister will not rarely be preferred to a doubtful clandestine marriage.

Moreover, that one who contracted doubtfully in unbelief can contract new nuptials with a Christian party after baptism is permitted by a positive disposition of the Holy See ²⁹.

²⁹ Cf. canon 1127: "In a doubtful matter, the privilege of the faith enjoys the favor of law."