Chapter II: Who Can Contract Matrimony

Usefulness. It is manifest that very grave questions depend upon matrimonial capacity rightly understood. The controversies themselves of today confirm the importance of the matter.

I. Principle. "All can contract matrimony who are not prohibited by law" (c. 1035).

But the prohibition can be of natural law or of positive law.

II. Intellectual incapacity. They cannot validly marry who, on account of a defect of judgment, are incapable of every contract; for the nature of a contract is essentially in matrimony. The same must be said of those who are ignorant of, or do not sufficiently perceive, the common nature of that contract. We say the common nature, because ignorance of the sacramental dignity does not prejudice the validity of consent.

Therefore: "c. 1082, §1. That matrimonial consent can be had, it is necessary that the contracting parties at least not be ignorant that matrimony is a permanent society between a man and a woman for procreating children."

It is not required that the parties know the necessity of carnal copulation; it seems sufficient that they know that offspring is obtained and begotten by the mother by a certain concurrence and familiarity of the parents.

But although ignorance after puberty is not presumed, nevertheless care must diligently be taken that the contracting parties celebrate matrimony instructed concerning their whole right and office. (Cf. Epitome, II, n. 369).

Marriages made in lucid intervals are valid but illicit, unless the danger of an unsuitable education of the offspring is removed, and a grave cause is present. (Thus Wernz, Ius Decretalium, IV, n. 41).

In a positive doubt about capacity, the half-witted and deaf-mutes not perfectly instructed are not to be prohibited from matrimony, although such marriages are little to be desired.

By the natural law no age is required for the validity of the matrimony of those in whom neither judgment nor knowledge is lacking. But knowledge is not presumed in one impubescent. By the positive law of the Church and of every cultivated nation, however, a minimum age has been established, before which nuptials cannot validly be contracted.

Besides intellectual capacity, physical fitness of body is required, concerning which something must be said a little more fully on account of controversies which have arisen, and on account of the connection with the faculty of carnal and generative commerce.

III. Physical incapacity. 1. A twofold physical potency comes here to be considered: potency of coition, or of perfecting copulation, and potency of generating. But because it happens that the matrimony even of those in whom potency of generating is not lacking remains sterile, and because it helps to make a beginning of speaking from notions which abstract from the controversies of today, it is better to admit a generic description of sterility, which is the state or condition of spouses who do not generate children. This sterility in turn is then distinguished from its cause into sterility which flows from the very impotence of generating, and sterility which proceeds from other occult or manifest causes. But impotence itself can be either organic, which is more easily detected in the very defect of the organs, or functional, which is revealed by no defect of this kind.

Therefore the question is what physical impotence induces impotence of matrimony, and this from the natural law itself. For positive law, on account of a proportionate cause, can render persons unfit for matrimony who labor under no natural incapacity.

2. With what certitude must this capacity itself be present? There is no reason why we should recede from the general norm which demands that a positive aptitude for the state be present at least probably.

Indeed Sanchez, Matr., l. 7, d. 103, n. 10; Reiffenstuel, in l. 4 t. 15, n. 26; Schmalzgrueber, in the same title, n. 56 and 57, and several others said that he sins mortally who had not laid aside doubt concerning his potency before matrimony. And indeed examination of the doubt is necessary from the natural law. Nevertheless, if the doubt perseveres, from the Code itself c. 1068, §2, matrimony is not to be impeded. Moreover, as is clear, the party who doubts concerning his potency is bound by natural justice itself to manifest the probable defect to the other party, lest this latter be deceived in a most grave matter.

But when no serious contrary indication is had, moral certitude of capacity is gathered from the natural presumption itself. Nor is a physical examination of capacity then required. Nevertheless, where that presumption is lacking, especially where it is converted into a contrary moral certitude, a positive argument of capacity must be supplied.

3. Now indeed, the natural potency of coition perseveres of itself as long as the appetite of copulation itself is had; not likewise the potency of generating. After a certain age, old men no longer have prolific semen. The so-called process of "involution" occurs even earlier for women, so that it is morally certain that, some years after the critical age at which the menses cease, the ovaries are atrophied or even no longer found. Wherefore Sacred Scripture itself regards births in old age as miraculous. Think of the promise made to Sarah and Elizabeth.

With this moral certitude the presumption concerning capacity of generating cannot be composed.

4. What potency, whether of coition or of generating, is necessary so that matrimony can consist?

These things are certain: a) Generative force without the force of coition does not suffice. Fecundation indeed is possible without copulation; and by medical art it will perhaps be able to be made truly probable, even without any pollution. Nevertheless, a man and woman to whom the faculty of copulation is perpetually lacking must be declared, without ambiguity, incapable of contracting matrimony.

For the handing over of bodies, which is the object of matrimony, is made immediately not for generating offspring, but for carnal commerce, which is the natural way to that generation;

b) As long as old persons preserve the faculty of copulation, they are not to be prohibited from matrimony. The perpetual practice of the Church proves this, which reason confirms. For a great propensity toward copulation has not been taken away. Moreover it seems to repugn to the order of nature that a natural propensity, or a mingling of bodies, be deprived of every lawful use for a great part of men;

c) Eunuchs or castrated men, who lack both testes or have been deprived of them, are incapable of matrimony. This was declared by Sixtus V in the celebrated response to the nuncio of Spain and afterward admitted by all Catholic doctors. The matter was previously disputed, and, according to Ledesma (De magno sacramento matrimonii, q. 58, art. 1), on account of the controversy itself their marriages were permitted;

d) Those who wish to impede the fruit of sexual conjunction and contract de futuro under this condition place a condition contrary to the substance of matrimony and therefore marry invalidly. For they introduce, as R. P. Ojetti very well observes (Synopsis, n. 2113), into the very act of celebrating matrimony an obligation which, as contrary, destroys another obligation which is necessarily undertaken from that same act. St. Bonaventure himself already acutely discerns what difference there is between those who by a pact concerning the sterility of offspring directly attack the institution of matrimony, and those who by nature or art have been made sterile: these can marry. (Cf. in 4 S. d. 31, art. 1, q. 3.)

But it is less certain how far the very power of generating must be present. For if we consider matrimony simply as an institution primarily ordered, by means of acts of sexual conjunction, to generating offspring, its fundamental law or even constitution seems able to be conceived in various ways. For:

a) Only those acts of copulation could be permitted to the spouses which could be positively useful for human generation. This severity in the first centuries, indeed also afterward, had patrons, so that they prohibited copulation with a pregnant or nursing wife. Today the more benign opinion has altogether prevailed. This alone is disputed, whether, after impotence consequent upon a valid matrimony, it prohibits the use, at least completed in a broad sense, or not;

b) This also could have been established by God, that habitual potency of generating, and therefore of attaining the primary end of matrimony, should be essential;

c) But the sole essential capacity could also have been the potency of truly coiting. For with this power had, and its right use commanded, the due multiplication of the human race is sufficiently provided for, and provision is made for the honesty of morals by the expedient faculty of satisfying the immense propensity to carnal commerce.

The modern style of the Curia is adapted to the third explanation. For a woman whose ovaries have been removed is not barred from matrimony.

Speculatively, three opinions are freely proposed.

Some, adhering to doctrines which for many centuries were admitted in the Church, call those only and all those impotent who are incapable of copulation apt in itself for generation. Wherefore they think a man impotent who, incapable of erection, cannot penetrate the female vessel; a eunuch and one who has undergone vasectomy, because he cannot pour forth prolific semen; a woman who is deprived of a vagina or bears it occluded, because in her the faculty of any copulation is lacking. But a woman from whom both ovaries, even perhaps with the uterus, have been removed, they call merely sterile, because the contribution of the ovary and uterus follows copulation.

This opinion is perfectly adapted to the present use of the Curia.

Others, whose line Dr. Antonelli leads, call impotent for matrimony not only those who are incapable of copulation, but all who, on account of a physical defect of organs, cannot generate through copulation. Therefore for them an excised woman is impotent. They argue from this, that matrimony, with the primary end excluded, cannot be had; and against the patrons of the former opinion they object that these are not very coherent in demanding on the part of the man a semination fecund in itself, while they call potent a woman who can supply no seed, that is, ovule. But the responses of the Holy See they explain either because, since the matter is controversial, in doubt the marriage of these persons is not to be impeded, or because there was question of a woman not perfectly excised¹.

R. P. Arendt, with the long tradition of the school, holds that only those labor under the impediment of impotence who are incapable of copulation apt in itself for generation. Nevertheless those who know with physical certitude that they are impotent for generating cannot validly consent to matrimony, as he himself thinks, because their consent cannot be borne toward the primary end of matrimony, or the end of the work. But if that physical incapacity is unknown, they validly contract matrimony, on account of the natural presumption of capacity for generating, which perseveres until the contrary is most certainly manifested. Nor does it hinder the validity of matrimony if after the celebration of matrimony an incapacity of generating, even if it precedes matrimony, is detected, because the spouses were not affected by the impediment of impotence, and, on account of presumed capacity, consent reached the very end of the work, that is, of matrimony.

Against the first opinion there can be objected the defect of consequence noted above; it is not so clear what the classical doctors would have thought if they had known that the ovule necessary for fecundation is supplied not in the very heat but afterward.

Against the other opinion stands the very novelty of the theory, and the perversion of the classical notion of the impediment of impotence, which, with common voice, the doctors professed to flow not from impotence of generating but from impotence of coition. Add the too many and occult causes of nullity, and, in this most grave matter, the logical necessity, hitherto unknown, of a bodily examination before nuptials, so that provision may be sufficiently made for the validity of matrimony.

Against the third opinion it will be conceded with difficulty that in wholly the same objective circumstances a valid consent can or cannot be given according as impotence of generating was unknown or manifest. For in neither case is that consent vitiated by a direction positively opposed to the primary end of matrimony; indeed, by the argument of c. 1085, it is not repugnant that by affection it embrace generation itself, just as knowledge of the nullity of matrimony does not necessarily exclude matrimonial consent. But if you argue not from a subjective defect but from the objective term of it, the ignorance or knowledge of the parties does not change that objective reason. And if you insist by saying that the conditions of the generative function are such that manifest defects alone can shake the validity of matrimony, will not others answer that this is an indication why potency of generating ought not to be essential to the validity of matrimony?

But each opinion labors in explaining the marriages which are permitted to old persons. Even if we admit the rarest cases of senile fertility, these do not take away the moral certitude of impotence of generating among old persons, so that individual persons cannot, without further examination, say that they are probably potent. Nor did the ancients flee to these subtle explanations; but several at least, and these most excellent, affirmed impotence of generating among old persons, and at the same time taught that their marriages nevertheless were valid, because, in the present order, marriages can be contracted honorably either for the sake of receiving offspring or for the sake of calming concupiscence. This, according to the most erudite Esmein¹, is the common doctrine of the Middle Ages. Nor did they understand St. Thomas otherwise, to whom St. Bonaventure can be added. Both Tancred and St. Raymund, in order to exclude from matrimony those who are incapable of copulation, reason thus: "For since every matrimony comes about either for the sake of receiving offspring or for the sake of incontinence, the impossibility of coiting removes each cause" (In Summa). "What if a man cannot generate or a woman conceive, can they contract matrimony?" To this interrogation Goffredus of Trani responds: "I respond thus; for although in the matrimony of such persons both causes of matrimony do not have place, nevertheless it suffices that the other is not lacking."

"As is clear from the universal tradition of the Church," says Ledesma, De magno matrimonii sacramento, q. 58, art. 1, "the marriages of old persons are valid, nevertheless old persons have impotence of generating, as is manifestly clear." Sanchez, De matrimonio, l. VII, d. 92, n. 26: "The Church everywhere admits old persons to entering it," that is, matrimony, "although it is certain that their seed is sterile... Because, although that matrimony is frustrated of the primary end, which is the generation of offspring, nevertheless it obtains the secondary end, namely satisfying concupiscence, true copulation being had; which suffices for its validity. And thus St. Thomas maintains in 4 d. 34, q. un., art. 2 ad 3, received everywhere by all theologians and professors of pontifical law, with a few excepted... whom Barbosa very well attacks, L. 1, p. 1, n. 98, De solut. matrim."

Schmalzgrueber, in L. 4, t. 15, n. 2, says: "Impotence for generating can be given without the former," impotence for copulation, "as happens in old persons."

What of the fact that Laymann (L. 5, tr. 1, p. 4, c. 11, n. 1) and several other distinguished doctors used these or similar words: "Impotence is one thing for generating offspring, which is called sterility, and this, if it alone is present, brings no impediment to matrimony."

As regards us, we would not wish to propose as it were a fourth opinion. Nevertheless we advert that all things in the first opinion can be said more coherently, if the reason why castrated men are incapable of matrimony is gathered not precisely from the lack of seed strictly so called, but from the fact that, on account of cutting away, the internal secretion itself which fosters the very faculty of copulation is suppressed, so that, on account of a lethal wound of that faculty, they cannot undertake the perpetual obligation of copulation. Nor did Sixtus V himself give this reason for his opinion, that castrated men could not generate, but because "from marriages of this kind no utility comes, but rather the allurements of temptations and incentives of lust arise." For they thought that castrated men were not sated by copulation but excited. (Cf. Ojetti, l. c., n. 2399.)

¹ This subtle evasion is shown to be sufficiently futile also by this reason, that no solicitude was had concerning whether the fallopian tubes were excised or not. But when the way is suppressed, impotence of generating remains.

¹ Marriage in Canon Law, I, p. 249, 250. "One of the ends of marriage was attained, and this sufficed to render it valid."

Impotent and sterile persons. 1. From what has been said thus far we gather that those are undoubtedly impotent who, on account of a defect of structure or disease, or even on account of psychic causes, are incapable of copulation. Thus the man is impotent whose penis so opens that he cannot pour seed into the vessel, or the woman who lacks a vagina or whose vagina is not penetrable; he is impotent who, on account of disease or weakness or even aversion of soul, cannot erect himself, just as the woman is impotent who, on account of vaginismus, or spasmodic constriction of the muscle or sphincter of the vagina, holds the opening firmly closed and does not tolerate contact.

The man who has been deprived of both testicles is also impotent.

Most place among the impotent those who have undergone section of each deferent canal or double vasectomy. This is less explored by us, because the excitatory internal secretion is not suppressed, nor, in our opinion, has sufficient attention been given to that difference by which a man after vasectomy differs from a eunuch.

Are men impotent who pour forth aspermatic semen, such as those who have kept very small testicles, similar to little peas? This is disputed. You may say the same of him who emits only dead zoosperms.

For a woman whose ovaries, indeed whose uterus, have been removed, nuptials are permitted, although, as we have seen, there are not lacking those who pronounce the same woman either impotent or incapable of matrimonial consent.

2. Impotence, whether it is explained by a physical or psychic cause, can be absolute, with respect to any person of the other sex, and can be relative.

3. Sterility for some is merely a defect of fecundation which experience demonstrates, but which no cause at least organic explains; while others hold the very impotence of generating as sterility.

Impediment of impotence. Nevertheless, impotence does not dirimently impede a matrimony to which it is subsequent; nor does it take away the habilitation for contracting nuptials, unless it was perpetual, i.e. unless it cannot in any way or at least without a grave operation be healed.

Nevertheless, when the operation has been done, the impotence ceases, as is clear. What therefore if one who will certainly and soon admit the surgeon's hand contracts matrimony? We judge that this matrimony is not valid, because until it has been removed by the surgeon's hand, that man must be said to labor under perpetual impotence.

A positively doubtful impotence is practically none. Nevertheless it is necessary that potency be present probably. The presumption itself supplies a sufficient probability indeed. But if the very potency of generating is required, this in old persons is no longer probable, so that not even from presumption can matrimonial capacity be attributed to them. Therefore by the very necessity of having at least probable capacity the first opinion is confirmed.

Impotence can be absolute toward all or relative.

To the point the Code, c. 1068: "§1. Antecedent and perpetual impotence, whether on the part of the man or on the part of the woman, whether known to the other party or not, whether absolute or relative, dirimently impedes matrimony by the law of nature itself.

"§2. If the impediment of impotence is doubtful, whether by doubt of law or doubt of fact, matrimony is not to be impeded.

"§3. Sterility neither dirimently impedes nor impedes matrimony."

I. All can contract matrimony who are prohibited neither by natural nor by positive law (c. 1035).

II. Intellectual capacity. By natural law those are barred who are incapable of every contract, or who do not sufficiently perceive the common object of this contract.

Marriages are valid, although of themselves illicit, which are celebrated in lucid intervals of the insane.

And in a positive and probable doubt, matrimony cannot be impeded.

III. Concerning bodily capacity. 1. A twofold impotence is to be attended to: of coiting and of generating.

The potency of coiting is essential to matrimony. Most are content with this potency, while nevertheless requiring that the organs of the man permit copulation apt in itself for generation.

Some more recent authors furthermore require potency at least organic of generating.

R. P. Arendt denies that they can consent to valid matrimony who, at the time when they contract, labor under manifest impotence of generating.

The first opinion rests upon a long juridic tradition, upon the general permission given to old persons of contracting matrimony, and upon the secondary end of matrimony subsisting.

The other opinion appeals to the primary end of matrimony, with which excluded, as they say, matrimony cannot be had.

The third opinion invokes the necessity of consent to the primary end. This consent cannot be given unless, at least from natural presumption, some capacity of generating can be gathered.

We judge that the first opinion stands better if the incapacity of eunuchs is drawn rather from the defect of perpetual potency of coition.

A positive doubt of impotence is practically none. Nevertheless it is necessary that potency probably be present. The presumption itself supplies a sufficient probability indeed. But if the very potency of generating is required, this in old persons is no longer probable, so that not even from presumption can matrimonial capacity be attributed to them. Therefore by the very necessity of having at least probable capacity the first opinion is confirmed.

Impotence can be absolute toward all or relative.

2. Sterility for some is the mere fact of those who do not have children; while for others it is also the very impotence of generating joined with the power of coiting.

3. But the impediment of impotence is not had except by antecedent and perpetual impotence.

4. Certainly impotent are all those who, on account of a defect of structure or disease or even on account of psychic causes, are incapable of copulation. Also impotent is the man who lacks both testicles. For most, he also is impotent who has undergone vasectomy; concerning this conclusion we doubt. Concerning the man who pours forth aspermatic semen or semen without living zoosperms, and concerning the woman whose ovaries have been removed, the matter is theoretically disputed.

Moreover, even that impotence to which an end can be put only by a grave operation is judged perpetual.