Dist. 34
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-littera
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### DISTINCTION XXXIV.

### Chapter I. *On legitimate persons.*

It now remains to consider which persons are *legitimate* for contracting matrimony. Persons are judged *legitimate* according to the statutes of the fathers, which are diverse. For some were legitimate *before* the Law, others *under* the Law, others in the *time of grace*. Likewise, in the primitive Church certain persons were legitimate who now are not. But of those who now are legitimate, or illegitimate, some are *fully legitimate*, some *wholly illegitimate*, some *intermediate*. *Fully legitimate* are those against whom there stands no vow of continence, nor sacred order, nor kinship, nor disparity of worship, nor condition, nor coldness of nature, and whatever else there may be. But *wholly illegitimate* are those [barred] by a vow, by [holy] order, by kinship, by disparity of worship. And *intermediate* are those neither fully legitimate nor wholly illegitimate, [barred] by coldness, or by condition. For if such persons are joined in ignorance, they can remain together, and, upon certain causes supervening—and these same failing—be divided.

### Chapter II. *On cold [i.e. impotent] persons, whether they are to be separated or not.*

For concerning those who, by reason of coldness, cannot render the [conjugal] debt, blessed Gregory counsels that they remain [together]. But if the woman pleads, saying: I wish to be a mo-

ther and to beget children; he decrees that each of them swear, with the seventh hand of kinsmen, that they never came together carnally; and then let the woman contract a second marriage, but let the man, who is of cold nature, remain without hope of wedlock. For he speaks thus: « You have asked concerning those who are joined in matrimony and cannot marry, whether he may take another, or she another; concerning whom it is written: A man and a woman, if they have joined themselves, and afterward the woman has said of the man that he cannot have intercourse with her; if what she says can be proved by a just judgment, let her take another; but if he has taken another, let them be separated ». Likewise: « You have inquired concerning those who, by reason of cold nature, say that they cannot have mutual intercourse, giving themselves to the flesh. But let this man, if he cannot use her as a wife, have her as a sister. But if they wish to break the conjugal bond; let both remain unmarried; for if he could not naturally accord with this one, how will he suit another? If therefore the man wishes to take another wife; the reason is manifestly plain, that, the devil suggesting the kindling of hatred, he has held her hateful, and therefore contrives to dismiss her by the falsehood of a lie. But if the woman pleads and says: I wish to be a mother and to beget children; let each of them, with the seventh hand of kinsmen, touching the sacred relics, declare by oath that they had never, joined by the commingling of flesh, been made one flesh. Then the woman seems able to contract a second marriage; *I say this as a human [concession] on account of the weakness of their flesh*. But let the man, who is of cold nature, remain without a spouse. But if he too has taken another union; then let those who had sworn be held liable for the crime of perjury, and, penance being performed, let them be compelled to resume the former wedlock ». « This is to be observed, when both confess the same thing. But if the man asserts that he has rendered the debt to his wife, and she denies it; which is rather to be believed is deservedly asked ». Concerning this it has been thus decreed: « If anyone has taken a wife and had her for some time, and the woman herself says that he had never come together with her, and the man says that he did so; let it stand upon the truth of the man, because *the man is the head of the woman* ». « This has been decreed concerning natural impossibility ».

### Chapter III. *On those who, impeded by sorcery, are unable to have intercourse.*

But concerning the impediment of sorcery this is to be held as decreed, that « if through sorceresses and witches intercourse does not follow, those to whom these things happen are to be exhorted, that with *a contrite spirit* and *humbled* they make confession of all their sins to God and to the priest, and satisfy the Lord with tears and alms, with prayers and fasts; and through exorcisms and the other safeguards of ecclesiastical discipline let the ministers of the Church procure to heal such persons. But if they cannot, they may be separated. Yet after they have sought other marriages, while those are living to whom they were joined—the former ones, whom they had left—even if the possibility of intercourse be restored to them, they cannot be reconciled ». — What is contained at the end of this chapter is to be understood as said rather from rigor than from canonical equity; or it is to be understood that they cannot be reconciled to the former [spouses] except by the judgment of the Church, by which the divorce had been made.

### Chapter IV. *On the insane.*

Madmen also, while they are in insanity, are not able to contract matrimony. Whence Fabian: « Neither a madman nor a madwoman can contract matrimony; but if it has been contracted, let them not be separated ». Likewise Nicholas: « Those who have contracted matrimony while sane, and to one of the two, or to both, insanity or madness or some infirmity has come; on account of this infirmity the marriages of such persons cannot be dissolved. Likewise it is to be known concerning those who are blinded by adversaries, or have their members mutilated, or have been castrated by barbarians ».

### Chapter V. *On those who sleep with two sisters.*

Concerning those also who sleep with two sisters, or [the women] who sleep with two brothers, it is to be seen what the canons judge. « Whoever has slept with two sisters, and one of them was previously his wife, let him have neither of them; nor let the adulterers themselves ever be joined in wedlock ». Likewise: « Nor is it lawful for a man to render the debt to his own wife, whom he has made unlawful to himself by knowing her sister. Nor even after the death of the wife is it lawful for him to be joined in marriage either to her or to the adulteress ». Likewise Zacharias the Pope: « You have lain with the sister of your wife; if you have done so, have neither of them, and let your wife, if she was not conscious of the crime and does not wish to continue [in continence], marry in the Lord, whomever she wishes. But you and the adulteress, remain without hope of wedlock, and while you live, do penance ». As to what he says: let her marry whom she wishes; it is to be understood after the death of the husband. Whence Gregory: « Those who catch their wives in adultery, let neither he nor she take another wife or another husband, so long as both are living. But if the adulteress has died, her husband, if he wishes, may marry; the adulteress, however, never, even if her husband has died, but let her pay the laments of penance all the days of her life ». — Here it treats of that adultery which is committed with a kinsman of the husband, or a kinswoman of the wife.

### Chapter VI. *That a wife is not to be dismissed on account of any bodily blemish.*

This too is to be known, that on account of any infirmity or bodily blemish it is not lawful for a man to dismiss his wife, and vice versa, but each ought to provide supports for the other. Whence Augustine: « If a man has a wife barren, or deformed in body, or weak in limbs, or blind, or lame, or deaf, or [afflicted with] anything else, or worn out by sicknesses or labors and pains, and whatever, fornication excepted, can be devised as exceedingly horrible, let him bear it for the sake of fellowship and fidelity ».

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