Dist. 34, Dubia
by St. Bonaventure
Source text: Public Domain Mark 1.0. English translation/apparatus/encoding: CC BY-NC 4.0, Wroot Press.
https://bonaventure.wrootpress.com/browse/4/d/34/q/bon-sent-IV-d34-dubia
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### Dub. I.

In this part there are doubts concerning the text, and first it is asked about this which he says: *They are fully legitimate whom no vow bars* etc. For it seems to be false to say [this]: because legitimacy is a habit, illegitimacy is a privation; but "privations are known through habits, not habits through privations": therefore legitimacy is ill-defined through illegitimate privation.

I respond: It must be said that, just as *loosing* in one way names a habit with respect to binding, in another way a privation; so in the matter at hand. For if the loosed and the bound are compared with respect to the act, in regard to which there is a freeing, the loosing names a *habit*; but if they are compared with respect to the bond, the loosing names *the privation of the bond*; and thus it can be defined in two ways. In this manner must *legitimacy* be understood.

### Dub. II.

Likewise it is asked about this which he says: *I wish to be a mother and to bear children* etc. For it seems to be badly said, because on account of the sterility of the wife the husband cannot allege against the wife that he wishes to be a *father*: therefore neither, on account of the frigidity of the husband, [can] the wife [allege] that she wishes to be a *mother*. — Likewise, marriage stands without the good of offspring: therefore, on account of this, that she wishes to be a mother, it ought not to be dissolved.

I respond: It must be said that the Saints speak courteously, insofar as women themselves are modest; for a woman cannot be separated from her husband on account of a defect of the power of *generating*, but of the power of *intercourse*; and in that circumlocution it is courteously understood that she wishes to be known by a man. And so it is clear that it is not similar in the case of *sterility*, but it is indeed similar in the case of *narrowness*. For if she is so narrow that she cannot be known, the husband can allege and say that he wishes to be a *father*, that is, that he does not wish to be continent, if he can have intercourse. And thus that is clear.

### Dub. III.

Likewise it is asked about this which he says: *If they should wish to sever the conjugal bond, let both remain unmarried*. For it seems that each is false: first, namely, concerning the *conjugal bond*; because, if there is a bond there, since it is an insoluble bond, it cannot be loosed; but if there is not, how is it severed? — *Again*, it seems false to say and ill to command, because, since one of them has no impediment whatever, he could licitly contract with another.

Alongside this it is asked whether, if he who is truly frigid seeks a divorce, he ought to be heard. And that he ought not, it seems: because a fornicator cannot seek a divorce, since it comes about through his own fault: therefore neither can such a frigid man, since he himself is the cause. — But *against* this is that, since there is no marriage there, it seems that neither is bound.

I respond: It must be said that divorce on account of impotence for intercourse sometimes comes about because the impotence is in one party; sometimes because the impotence is in both. If because it is in both, each ought to remain without hope of marriage. If because it is in one, whether in the husband  or in the wife, after the divorce that one, in whom the cause lies, ought to remain without hope of marriage as an illegitimate person; but if he should contract and be able, then he must return to his former vows.

That, then, which he says—that they should remain unmarried—refers to the one in whom the cause of illegitimacy is found, whether in the husband or in the wife.

As to what is objected concerning the *bond*, it must be said that although according to *truth* there is no conjugal bond there, nevertheless according to *appearance* or estimation it is there; or even a certain *betrothal and obligation*, since they can dwell together with marital affection; whence it is greatly to be praised in them that they remain together, unless they wish to pass over to a stricter life.

As to what is asked—whether, at the husband's petition, it ought to be done—it must be said that yes, if he can prove it; nevertheless, because he goes against himself and against the marriage, an evil suspicion is gathered concerning the husband. And therefore abundant proof is enjoined on such a husband, especially if the wife says that she was known by him; but if the wife should confess [it]; either it is necessary to prove it evidently, or they must both remain unmarried, or even never be separated; for which the Church ought to apply what diligence it can.

### Dub. IV.

Likewise it is asked about this which he says: *By the hand of seven kinsmen, the holy relics being touched, let him say on oath* etc. For it seems to be badly said, because no one ought to swear except concerning that of which he is certain; but no one of the kinsmen is certain, because that act requires concealment: therefore it seems that no one can swear. — Likewise, suppose that there is no kinsman, or few; will they not be able to be separated? — Likewise, why ought this rather to be done by the hand of kinsmen than of others?

I respond: It must be said that although concerning that act certainty is scarcely ever had through the evidence of the fact, nevertheless it is had for the most part through probable signs and through conjectures, which, although they do not suffice to generate *knowledge*, nevertheless suffice to generate *faith* or belief, which affords some strength. I say therefore that, for this—that a divorce be granted—each ought to swear that they have never come together carnally nor have been able to come together, and that they have taken pains, and that each has not, by his own part, stood in the way; and the kinsmen ought to swear that they so believe; and then, since they have dwelt together for a sufficient time, they can be divided. But if one of them, namely the wife, says that she was not known, and the husband says that she was; one must stand by the husband, because *the man is the head of the woman*, and because he also speaks for the matrimonial cause, which is most favorable. But if the wife wishes to offer and to reply that he has lied, by the showing of [her intact] enclosures; one must stand by the wife's proof. But if the husband seeks division and says that he did not know [her], and the wife says that she was known; although *the man is the head of the woman*, nevertheless one must not stand by the husband's oath, because he himself acts against the marriage, and many abandon their wives. Whence, if there are no other proofs, one must not stand by him, but by the marriage.

As to what is asked—why by the hand of kinsmen—it must be said that this is for a twofold reason: both because it is more evident to them, and also because it is probable that they stand rather for the marriage.

### Dub. V.

Likewise it is asked about this which he says: *Then let those who had sworn be held guilty of the crime of perjury*. For it seems to be badly said, because they swore that they so believed; but although it is not so, they did not on that account swear falsely nor against their mind: therefore they are not perjurers.

I respond: It must be said that stress must be laid on the word. For he does not say that *they are perjurers*, but that *they are held guilty*, because the sentence of divorce passed through those oaths must be retracted just as if it had been passed through false oaths, because the evidence of the fact shows those oaths to have been null as regards the strengthening of that sentence; nor did they furnish strengthening, but rather an occasion of erring.

### Dub. VI.

Likewise it is asked about this which he says, that *they will not be able to be reconciled to their former [spouses]* etc. For it seems to be badly said, because, if they are joined to others and come together with one another, then it is clear that the bewitchment has been dissolved; therefore it seems that it was not perpetual: therefore etc.

I respond: It must be said that when it is said that they cannot be reconciled, this is understood when it is presumed that that bewitchment was *personal*; and then each is able to be joined to another, because that one does not have illegitimacy except with respect to *this one*; and therefore, when he is joined to another, he is truly joined, and therefore he cannot return to the first. But if that bewitchment had been *universal*, so that he could know no woman; then, if the power of knowing should return, and they should wish to return, they could and ought to be reconciled to one another.  But who can test this, or grant license for proving it? Nevertheless these things and much greater happen and occur daily.

### Dub. VII.

Likewise it is asked about this which Fabianus says: *Neither a madman nor a madwoman can contract marriage; but if it has been contracted, let them not be separated*. For it seems to be badly said, because, if they are not separated, they contract; and if they contract, they can contract.

I respond: It must be said that a madman in act cannot contract, neither *by right* nor *in fact*. But a madman in *habit* cannot contract *by right*, because he does not know how to rear offspring; but nevertheless, if he is of sound mind in act, he can contract *in fact*; and if he contracts, it is contracted. Whence the first negation does not deprive [him] of the power *absolutely*, but only *by right*; or if it deprives [him] of the power *absolutely*, then it is understood of madness *in act*. And thus the word of the Master is understood, and the following word is understood adversatively of the mad *in habit*, of sound mind *in act*, who can contract at least *in fact*.

### Dub. VIII.

Likewise it is asked about this which he says: *Nor let it be permitted to render the debt to his own wife* etc. For it seems to be badly said, because he cannot deprive her of her own right.

I respond: This does not hold now, but that [saying] must be understood [thus]: that it is not permitted him to *ask* nor even to *render* [the debt], so as to *satisfy his own concupiscence*; but nevertheless he is bound to *render the debt to his wife*, since the sin supervened after the marriage was legitimately contracted. Whence, although the marriage does not limp as regards the *bond*, nevertheless as regards the *rendering of the debt* it can limp; just as is clear in the case of one who enters religion without his wife's license and makes solemn vow; understand it so in the matter at hand. Whence those decrees which are here alleged have been abrogated.

### Dub. IX.

Likewise it is asked about this which he says, that *for some bodily infirmity it is not permitted a man to dismiss his wife*. For it seems to be badly said: because for the most part the fault of *fornication* can rather be endured, in which there can be the use of marriage, than *that infirmity*, in which the use cannot exist: therefore if [a wife] is dismissed on account of fornication, it seems that she may also be dismissed on account of such an infirmity.

I respond: It must be said that separation is not made after the consummation of the marriage, unless it be made as a penalty on the other party; and since no one is punished except for fault, and affliction is not to be added to one afflicted, hence it is that for any penalty whatever, or for infirmity, the wife is not to be cast off.

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