Dist. 41, 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/41/q/bon-sent-IV-d41-dubia
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### DOUBTS CONCERNING THE TEXT OF THE MASTER.

### Doubt I.

In this part there are doubts concerning the text, and first about this which he says, that *the Church separates [spouses] within the aforesaid degrees.* Suppose that the Church, deceived, separates certain persons, and afterwards the deception is made manifest; it is asked whether such persons are to be rejoined. And that they are, it seems: because the separation was made through injustice: therefore it seems that it can in no way stand, since it is made manifest that the preceding judgment was unjust. — On the contrary is this, that it is possible that someone, after the separation, becomes in the face of the Church a priest or a religious; but such a one cannot have the use of marriage: therefore it ought not to be restored to him.

Alongside this it is asked, when and in what manner restitution of the husband is to be made to the wife, or conversely.

**I respond:** It must be said that in such a case restitution is to be made: because the Church was deceived, and one of the persons unjustly despoiled; and because the Church can and ought to correct an error and ought not to deprive any person of his right: therefore, once the deception is known, if the other, who was unjustly despoiled, seeks it, he ought to make restitution; and if he entered religion and made a vow, he can *render* the debt, but he neither ought nor is able to *exact* it, since he bound himself to continence, so far as in him lies.

As to what is asked, when and how the wife ought to be restored to the husband, or conversely; it must be said that the wife acts either by the right of *petition* or of *possession*. She acts by *petition* when she says that someone is to be adjudged to her as husband, since he *contracted* with her. She acts by *possessory* judgment when she asks that someone be restored to her, on the ground that he was her husband and *cohabited* with her. — If she acts by *petition,* and the husband raises an exception; the husband's exception will first be treated, before restitution is made or the petition satisfied, on the ground that, the husband's exception being proved, if it is sound, the principal question is quashed. If, however, she acts by *possession,* she is to be restored to the woman even before the exception is proved, X, "On the restitution of the despoiled", *Litteras,* and X, "On divorces," *Porro*; with five cases excepted. — The first is, if public fornication is charged against the woman, and this has been proved, unless she herself excepts to the contrary against the husband concerning fornication, X, "On divorces", *Significasti.* — The second case is, if consanguinity forbidden by divine law is charged, to be proved *forthwith;* restitution is to be deferred, nor ought [the party] to be compelled by sentence, lest perhaps perplexity be brought on. But if it is *deferred,* restitution must be made by sentence, yet the debt need not be rendered, if he has [a scruple of] conscience about the consanguinity, X, "On the restitution of the despoiled", *Litteras.* — The third case is, if the exception of a matter adjudged, from which there is no appeal, is charged; the argument from "On the office of the delegate", *Causam matrimonii.* — The fourth case is, when the savagery of the husband is so great that sufficient security cannot be furnished, inasmuch as he pursues his wife with mortal hatred, X, "On the restitution of the despoiled," *Litteras,* at the end. — The fifth case is, when he who brings the action has despoiled the other without cause; it is said that restitution ought not to be made, Cause the thirty-second, question the first, *De Benedicto*; yet that is not everywhere true, because then, when he wishes to return, and the other does not wish, if he has nothing to charge openly, from then on he begins to despoil.

### Doubt II.

Likewise it is asked about this which he says: *If two or three [prove] consanguinity* etc. For it seems ill said, because near persons are suspect: therefore they ought not to be admitted to testify. — Alongside this it is asked: who can accuse a marriage?

**I respond:** It must be said that the accusation on account of which a divorce ought to be made is either concerning *sin* or concerning the bond of consanguinity. If it is concerning the *sin* of fornication, then only the spouses can accuse each other — but others are not admitted, because then injury is done to the husband — and they can stand together without sin. — But if the accusation is made concerning the *bond of consanguinity,* then first the consanguinei ought to be admitted, if they are surviving, especially when the accusation is about dissolving the marriage, because it is not presumed that they would wish [it]; and besides, they know the genealogy better than others; and therefore in this cause especially the consanguinei are admitted. Yet if the question is about a marriage to be contracted or already contracted, so that they are to be rejected as suspect, where he whose son or daughter is said to be joined [in marriage] is superior in riches, power, and honor. But if consanguinei are not present to testify, then aged and mature strangers can be admitted. But if not even these are willing to testify, then all strangers can accuse, unless something else stands in the way, as for instance if a denunciation has been made that whoever knows should accuse the marriage; if he was present and is silent, from then on he cannot accuse. But if he was absent, or afterwards learned the impediment of the marriage; if he confirms this by oath, he is to be admitted, X, "On those who can accuse a marriage", *Cum in tua,* and below. Somewhere, however, without distinction, everyone who wishes to accuse is admitted, because this pertains to fair dealing, namely to preserve the order previously stated.

### Doubt III.

Likewise about this which he says, that *fornication is one thing, defilement (stuprum) another* etc.; it is asked whether these are diverse sins according to *species* and as to the *genus* of sin. And that they are not, it seems: because they are against the same precept, namely *thou shalt not commit adultery*, and about the act of one virtue, only the circumstance differing, in which there is nothing but an accidental difference. In the *opposite* [sense] it stands: the first sin takes its account from a defect of circumstance; but it is called adultery because someone knows a married woman, but fornication because [he knows] an unmarried one: therefore they are diverse genera of sins.

**I respond:** It must be said that these do not merely differ by *accident,* but rather are *diverse genera* of sins; and such things must be confessed, since, even though they seem to differ only by a circumstance, which is judged to be an accidental property; nevertheless that very circumstance, compared to the *sin,* is essential, although compared to the *act* it is accidental: and therefore it does not vary the *genus of the act,* but the *sin.* As to what he objects, that it is against the same precept and about the same act; it must be said that this does not prevent them from being able to be diverse sins, on the ground that about the same act and against the same good it happens that one is deflected in manifold ways.

### Doubt IV.

Likewise upon this which he says, that *stuprum is the illicit deflowering of virgins;* it is asked which is the greater sin, whether stuprum or adultery. And that adultery is the greater is clear from the order of the Master, because he sets the lesser first and gradually ascends. — *Further,* by adultery one does injury to a husband, by stuprum not. Hence a virgin, who is not bound to another, does not sin except against God; but an adulteress against God and against her neighbor: therefore etc. — *On the contrary:* virginal chastity is nobler than conjugal: therefore the sin which is against the virginal is graver than that which is against the conjugal; but stuprum is against the virginal: therefore etc. — Likewise, he who corrupts a virgin takes from her an irrecoverable good; but not he who commits adultery: therefore etc.

**I respond:** It must be said that for the most part sins compared to one another are related as exceeding and exceeded. Hence if we compare intercourse with a married woman to intercourse with an unmarried virgin; it is more unseemly to deflower a virgin than to know one [already] deflowered; yet he who commits adultery sins more gravely, because he more injures the commonwealth and more offends the husband and more begets infamy. — But the objections proceed by diverse ways.