Single Question. Whether in Matrimony it is Simply Necessary to Render the Conjugal Debt to the Other when Asked

1. “But what without consent     etc .” [Lombard, Sent. IV d.32 ch.2 n.1].

2. About the thirty second distinction I ask whether in matrimony it is simply necessary to render the conjugal debt to the other when asked.

3. That it is not:

No one is obligated simply to mortal sin; but to render that debt is mortal sin. Proof:

First because to deprive oneself of virtue is a mortal sin; therefore     , to deprive oneself of a greater good than is the good of virtue is a greater sin; but the use of reason is a greater good than the good of virtue, and one is deprived of the use in an act of rendering the debt;     therefore to render the debt is illicit.

The confirmation of this is that, if there were no contract of matrimony, such an act would be a mortal sin; but no one can license himself to such act, nor consequently will something be licit for him by his own proper act that was not licit before; but a contract of matrimony is an act of those who contract matrimony; therefore etc     .

4. Again, one who contracts matrimony and before he consummate it enters Religion is not bound to render the debt, and yet he is then a spouse. And if you say that he is then dead in civilian life, on the contrary: he is not thus dead before profession, and yet in the time from entry up to profession he is not bound to render it.

5 Again, in the sacred time of prayer and fasting one is not bound to render the debt, because then he would be indisposed to eating the flesh of the Lamb, as is contained in the text [Lombard, Sent. IV d.32 ch.3 n.2, quoting Jerome, On Exodus, in the Vigils of Easter]; but no one is made unfitted for the Eucharist on account of an act to which he is necessarily obligated.

6. Again, one is not obligated to render the debt in a sacred place, because a greater evil would happen than would be avoided; for an interdict of the place would occur, which is an evil common to a multitude, and an evil in some way against God, whose worship in that place is impeded.

7. To the opposite:

I Corinthians 7.3-5, “Do not cheat each other, save by consent for a time so as to be free for prayer; and let the man render the debt to his wife, and the wife to the man,” and he proves it there, because “a man does not have power of his body but the wife,” likewise conversely too.

I. To the Question

8. To the question I say that ‘to render the conjugal debt’ can be understood in a double way, or it can be for a double end, just as matrimony too was instituted by a double cause, as was said above in question 1 about matrimony [d.26 n.77]: namely as an office, for procuring offspring to be religiously educated, and as a remedy, for avoiding fornication, lest there be union with another than one’s own (and all other women, besides one’s wife, are not one’s own). Therefore, because all men after the Fall were prone to carnal concupiscence (by reason of which concupiscence was the flood also brought upon the earth), it was expedient for matrimony to be instituted as a remedy for mortal sin or carnal concupiscence, and thus each would have his own, and not sin with one not his own.

9. I say therefore that to render the debt because of the first end, namely because of the good of offspring, is doubly laudable: in one way, because it is for a praiseworthy end, because for the good of offspring; in another way, because in itself it is an act of justice, rendering to another what is their own, which is said to be for the end. In the second way it is not doubly laudable, but only from the second one, if however the thing justly rendered ought only to be hers and rendered to her because God had made dispensation on account of man’s proneness after the Fall.

10. Setting aside, then, the first good of praiseworthiness, namely the good of offspring, if the question be asked about rendering the debt universally. from the obligation of the spouses, I say that ‘to render the debt’ is an act of an affirmative precept, explaining commutative justice. Now an affirmative precept obligates always, but not at all times or for all times, but when the act can be circumstanced as it ought.

11. Now a defect of due circumstances in the issue at hand (when one is justly able not to render the debt to the spouse) is double in kind. In one way, if the spouse does not have the right to ask for it now; in another way, when there is an obligation with a stronger bond not to render it. And both can happen in many ways.

A. About the First Circumstance Excusing the Conjugal Debt Universally Taken

12. As to the first case, if one of the two has been suspended from or deprived of his right - and this can be because oneThe Latin is ambiguous and allows the pronoun, ‘he’ or ‘she’ (or ‘it’), to go unexpressed. Scotus presumably means ‘he’ or ‘she’ indifferently, and so the neutral word ‘one’ is here used instead. In what follows Scotus does sometimes make the genders of his pronouns explicit. ⁸⁴ does not have the right to ask immediately after a ratified matrimony (although one has still not lost their right, because still not sinned), then, because it is licit, after a ratified matrimony, to enter Religion, this does not have to be immediate, but it is possible for a time to remain in the world and deliberate. And if one were bound immediately to render the debt, one is bound to make oneself unsuitable for Religion.

13. And the reason why a spouseLatin word for ‘spouse’ here is coniunx, which can refer to wife or husband, but is more often used to refer to the wife, and Scotus so takes it in what follows. ⁸⁵ does not then have the right to ask, is because the use has still not been handed over, though the ownership has been. Hence before the handing over of use, one does not have the right to ask. For although one not sin if one hand oneself over for use, and if one does use it, one uses it well, however when the other wants it one is positively compelled. Nor do I believe that the Church suspends this use from them, but they are suspended from this right by Christ, or by Christ’s institution, otherwise anyone would have the use and the right of using immediately from when they have right and ownership.

14. Another case is when one is deprived of one’s right because of one’s own fault, as happens in fornication by the spouse, especially if only one of the two fornicated; for then the innocent party can repel him who fell,Scotus here, and following, uses a word in the male gender. ⁸⁶ whose sin stands publicly on his side. And he who fell loses the right to ask, because of the fact he did not keep faith, and therefore faith is not necessarily to be kept with him, at least affirmatively. Also, if both have fallen, then each is bound equally to render to the other, because equal crimes are destroyed by equal vengeance.

15. Another case in which one is deprived of one’s right without fault is when, if he is not unwilling but consenting, the other wants to be continent or enter Religion; for this is licit when one of the spouses renounces the right; for from the fact he has vowed chastity with the other’s permission and assent, the other does not have the right to ask of him the debt.

16. But let it be that, after the man’s entry into Religion,Here Scotus does make the gender of the parties clear with words explicitly for man (or husband) and wife. ⁸⁷ the woman, remaining in the world, is not continent, or fears that she does not want to be continent, is the man who has made profession to be withdrawn from Religion and returned to her? In Gratian,

Decretum, p.2 cause 33 q.5 ch.10 is expressly said, “he who has permitted his wife to take the veil, may not accept another, but let him be similarly converted.”

17. But the contrary seems to be expressly said in the first chapter of Gregory IX, Decretals III tit.22 ch.1, ‘On the Conversion of the Married’: “A married layman who, with the license and permission of his wife, has entered Religion and made profession, while his wife remains in secular habit and does not pass over into Religion or vow perpetual continence - we say that unless his wife pass over into Religion or promise to keep chastity perpetually, the man can and must be called back from the monastery.”

18. If it be said that this passage from the Decretals must be taken to mean ‘when the woman does not renounce her husband, or her right over her husband, save only for a time, so that her husband may be free for prayer’ - against this is the plainness of the letter, because there is contained: “he who, having entered Religion by the license and permission of his wife, has made profession.” But what by strict rigor should be done in this case - whether she should be compelled to continence or he withdrawn [from Religion] - the case, namely, when it was done without the knowledge of the bishop though in the presence of the monks and priests - is doubtful; because she seems to have renounced her right as to requesting the debt in perpetuity, by licensing him publicly to profession in Religion. For such renunciation does not necessarily require that it be done with the knowledge of the bishop; and if she made a sufficient renunciation, she has no right to ask for him back.

19. Likewise, the coercing of a woman to continence is something licit and, though penal, yet it is due from the license she gave to her husband; and coercing a husband, who has thus made profession, to stand with his wife seems to be inducing him to something illicit, because to mortal sin, by the fact he has vowed chastity; and he was able to make the vow, because he had been given license. At least this is touched on in the Rule of the Friars Minor [Rule ch.2], where, about those who wish to receive this life, it is said, “if they do not have wives, or if they do and their wives have already entered the monastery or have given license to them by the authority of the diocesan bishop, and a vow of continence has already been made, and their wives are of an age that no suspicion could arise about them, let them say to them the words of the Gospel etc.”

20. Hence, having set aside these conditions, namely about a vow of chastity made by the wife, or at least license given by authority of the diocesan bishop, it seems that today if would happen according to the above chapter [of the Decretals, n.17], namely that the man be withdrawn [from Religion] and returned to his wife.

21. And then, as to the fact that she is said to have renounced her right [n.18], I reply that she did not do so sufficiently and perfectly as to the forum of the Church, which has determined the due manner of this renunciation, by the making of a vow of continence and the giving of license by authority of the diocesan bishop.

22. And as to what is touched on about the mortal sin of the one withdrawn [from Religion, nn.14, 19], it could be said that sheHere Scotus’ pronouns become ambiguous, and they are made explicit in the English according to the way Scotus was using unambiguous pronouns in the immediately preceding paragraphs. ⁸⁸ is bound not to ask, because she was not able to renounce another’s right, and he thought he was absolved from that right, and therefore he did not at that time sin. However, when it is clear to him through the Church that he was not absolved from the right of his wife, he is bound to render to her what he was not able to renounce. I believe, however, that if she do give license, she sins mortally in calling him back, because she has obligated herself to a like continence.

B. About the Second Circumstance Excusing the Conjugal Debt Universally Taken

23. About the second main circumstance [n.11], which is, as I said, that one ceases to be obligated [to render the debt] by a stronger bond not to render it. I say that this has many cases:

First, if it tend toward the loss of one’s own well-being; for one is more properly bound to love one’s own well-being than to render the debt to the other spouse; for no one should make themselves useless as to human acts common to everyone; and always too should one ask for the debt in the way that one ought to want it to be rendered to oneself, and one would not want it to be rendered by oneself to one’s own harm and against the well-being of one’s own body.

24. Similarly, one is bound by a stronger bond not to kill a fetus in the womb of a pregnant woman, or not to be cause of an abortion, than to render this debt; therefore, where the danger of extinguishing a fetus or causing abortion is probable, one is not bound to render the debt.

25. Similarly, one is bound by a greater precept not to act in a way that offspring, which could otherwise be procreated healthy, would be born leprous than to satisfy in the now the will of a woman; and for the most part a child born at the time of menstruation is born a leper. Hence not without cause in the Mosaic Law ought he to die who goes to a menstruating woman, nor was death there inflicted save for a mortal and grave sin. It is not therefore probable that in the Gospel Law, which is the law of chastity, going to a menstruating woman would be less prohibited.

26. If you object, ‘    therefore a healthy person should not render the debt to someone leprous, because this would be both against the good of the offspring, which would be born leprous, and against one’s own well-being, which could incur leprosy from such an act, the opposite of which is contained in Gregory IX, Decretals IV tit.8 ch.1, where is written: “We thus far command that wives follow their husbands, and husbands their wives, who incur the disease of leprosy, and minister to them with conjugal affection, and that you [sc. canon lawyer etc     .] do not put off inducing them [to do this] with solicitous exhortation; but if they cannot be induced to it, you are more strictly to impose on them that they each observe continence while the other lives. But if they despise keeping the command, you are to constrain them with the bonds of excommunication;” and in the following chapter, “If a husband or a wife happen to become leprous, and the sick one demand the carnal debt from the healthy one,Scotus here, interestingly, puts both Latin adjectives for ‘healthy’ and ‘sick’ into the same masculine gender. ⁸⁹ then, by the general precept of the Apostle [Romans 7.2-3, I Corinthians 7.27-28, 39-40], ‘what is demanded must be paid’, to which precept no exception in this case is found” -

27. I reply that although a healthy or leprous spouse should render the debt to a leprous spouse according to these chapters [of the Decretals], yet it does not follow that the debt is bound to be paid to a woman at the time of menstruation, because there it is not only against the good of offspring, which would be procreated leprous, but it would be more against the good of offspring that they were never procreated; but from this mother it will never be procreated if she is avoided because of leprosy; and although this offspring not be procreated at the time of menstruation, it can be procreated afterwards at a fitting time, and then healthy; at the present time procreated leprous.

28. If you also object about the risk of leprosy in the case of a healthy spouse rendering the debt, it could be said that from that brief union it is not probable for leprosy to be incurred; but a long cohabitation is not prescribed, because a healthy spouse can from that be infected by a sick one. Let it also be that from such union infection of leprosy would be an object of fear in the healthy spouse, at least when rendering the debt frequently as often as the leprous one asked - I say that to such penalty has one obligated oneself in a contract of matrimony; hence too priests express the fact somewhere expressly on the door of the church.

II. To the Initial Arguments

29. As to the first argument [n.3] I deny the minor.

To the first proof [n.3] I say that perpetual use of reason is a greater good than an act of virtue; and therefore he who has by some act deprived himself of the perpetual use of reason would sin mortally, indeed most mortally. But the lack of the use of reason for a moment is not as great an evil as an act opposed to an act of virtue; nor is anything that takes away the use of reason for a time a sin, for extreme torments, even minimal ones, impede thus the use of reason just as pleasures do, and yet the martyrs, when knowingly exposing themselves to such torments, did not sin but merited.

30. To the confirmation [n.3] I concede that such an act would not be licit for them before the contract, but it is licit after the contract, not because they can license themselves, but because they do a certain act upon which God licenses them for a certain subsequent act that would otherwise not be licit for them. Hence this proof seems to give conviction that not from the justice alone by which they mutually give themselves is this use licit on their own authority, but on the added approbation of the superior.

31. As to the next [n.4] the answer is plain from the solution of the question [n.13], because a spouse does not at that time have the right to ask.

32. As to the next [n.5], the Apostle does not say absolutely that one should abstain at a sacred time, but he counsels it for a time, so that they may be free for prayer, and so that they may again go back to it lest Satan tempt them. And as to what is added about Jerome, and it is in Gratian, Decretum, p.2 cause 33 q.4 ch.1, “Whoever renders the debt to his wife cannot eat the flesh of the Lamb” - I reply: he cannot at all do it with due reverence. And when you say he is not excluded from receiving communion because of an act of a precept, I deny it, for an act is prescribed on account of which he is less disposed to receive reverently. If however you speak of being excluded by necessity of the precept I concede the fact, because I do not see how he would, for this alone, sin mortally if he received the body of Christ.

33. To the last one [n.6] I say that one should regularly abstain in a sacred place, because the danger of fornication does not threaten with such immediacy that it would not be possible for the debt to be rendered in advance in a non-sacred place. If however it were necessary for them to remain together for a long time in a sacred place, one might deny he sins if he render the debt when asked. And what is added about the interdict of a place, perhaps he would say that a place is not, because of a hidden act, so under interdict, at least publicly, that divine worship should be publicly foregone in the same place.