Nor
is he bound even to do this, according to some, if her affianced
husband is of much higher rank than she, or if there be some evident
sign of fraud, because it may be presumed that in all probability she
was not deceived but pretended to be.
is he bound even to do this, according to some, if her affianced
husband is of much higher rank than she, or if there be some evident
sign of fraud, because it may be presumed that in all probability she
was not deceived but pretended to be.
Summa Theologica
Now a vow is binding in God's sight, even
though it be not expressed in words. Therefore consent also makes a
marriage binding even without being expressed in words.
Objection 2: Further, there can be marriage between persons who are
unable to express their mutual consent in words, through being dumb or
of different languages. Therefore expression of the consent by words is
not required for matrimony.
Objection 3: Further, if that which is essential to a sacrament be
omitted for any reason whatever, there is no sacrament. Now there is a
case of marriage without the expression of words if the maid is silent
through bashfulness when her parents give her away to the bridegroom.
Therefore the expression of words is not essential to matrimony.
On the contrary, Matrimony is a sacrament. Now a sensible sign is
required in every sacrament. Therefore it is also required in
matrimony, and consequently there must needs be at least words by which
the consent is made perceptible to the senses.
Further, in matrimony there is a contract between husband and wife. Now
in every contract there must be expression of the words by which men
bind themselves mutually to one another. Therefore in matrimony also
the consent must be expressed in words.
I answer that, As stated above [4940](A[1]), the marriage union is
effected in the same way as the bond in material contracts. And since
material contracts are not feasible unless the contracting parties
express their will to one another in words, it follows that the consent
which makes a marriage must also be expressed in words, so that the
expression of words is to marriage what the outward washing is to
Baptism.
Reply to Objection 1: In a vow there is not a sacramental but only a
spiritual bond, wherefore there is no need for it to be done in the
same way as material contracts, in order that it be binding, as in the
case of matrimony.
Reply to Objection 2: Although the like cannot plight themselves to one
another in words, they can do so by signs, and such signs count for
words.
Reply to Objection 3: According to Hugh of S. Victor (Tract. vii, Sum.
Sent. ), persons who are being married should give their consent by
accepting one another freely. and this is judged to be the case if they
show no dissent when they are being wedded. Wherefore in such a case
the words of the parents are taken as being the maid's, for the fact
that she does not contradict them is a sign that they are her words.
__________________________________________________________________
Whether consent given in words expressive of the future makes a marriage?
Objection 1: It would seem that consent given in words expressive of
the future makes a marriage. For as present is to present, so is future
to future. But consent given in words expressive of the present makes a
marriage in the present. Therefore consent given in words expressive of
the future makes a marriage in the future.
Objection 2: Further, in other civil contracts, just as in matrimony, a
certain obligation results from the words expressing consent. Now in
other contracts it matters not whether the obligation is effected by
words of the present or of the future tense. Therefore neither does it
make any difference in matrimony.
Objection 3: Further, by the religious vow man contracts a spiritual
marriage with God. Now the religious vow is expressed in words of the
future tense, and is binding. Therefore carnal marriage also can be
effected by words of the future tense.
On the contrary, A man who consents in words of the future tense to
take a particular woman as his wife, and after, by words of the present
tense, consents to take another, according to law must take the second
for his wife (cap. Sicut ex Litteris, De spons. et matr. ). But this
would not be the case if consent given in words of the future tense
made a marriage, since from the very fact that his marriage with the
one is valid, he cannot, as long as she lives, marry another. Therefore
consent given in words of the future tense does not make a marriage.
Further, he who promises to do a certain thing does it not yet. Now he
who consents in words of the future tense, promises to marry a certain
woman. Therefore he does not marry her yet.
I answer that, The sacramental causes produce their effect by
signifying it; hence they effect what they signify. Since therefore
when a man expresses his consent by words of the future tense, he does
not signify that he is marrying, but promises that he will marry, it
follows that a consent expressed in this manner does not make a
marriage, but a promise [sponsionem] of marriage, and this promise is
known as a betrothal [sponsalia].
Reply to Objection 1: When consent is expressed in words of the present
tense, not only are the words actually present, but consent is directed
to the present, so that they coincide in point of time; but when
consent is given in words of the future tense, although the words are
actually present, the consent is directed to a future time, and hence
they do not coincide in point of time. For this reason the comparison
fails.
Reply to Objection 2: Even in other contracts, a man who uses words
referring to the future, does not transfer the power over his property
to another person---for instance if he were to say "I will give
thee"---but only when he uses words indicative of the present.
Reply to Objection 3: In the vow of religious profession it is not the
spiritual marriage itself that is expressed in words which refer to the
future, but an act of the spiritual marriage, namely obedience or
observance of the rule. If, however, a man vow spiritual marriage in
the future, it is not a spiritual marriage, for a man does not become a
monk by taking such a vow, but promises to become one.
__________________________________________________________________
Whether, in the absence of inward consent, a marriage is made by consent
given in words of the present?
Objection 1: It would seem that even in the absence of inward consent a
marriage is made by consent expressed in words of the present. For
"fraud and deceit should benefit no man," according to the law (cap. Ex
Tenore, De Rescrip. , cap. Si Vir, De cognat. spir. ). Now he who gives
consent in words without consenting in heart commits a fraud. Therefore
he should not benefit by it, through being released of the bond of
marriage.
Objection 2: Further, the mental consent of one person cannot be known
to another, except in so far as it is expressed in words. If then the
expression of the words is not enough, and inward consent is required
in both parties, neither of them will be able to know that he is truly
married to the other; and consequently whenever he uses marriage he
will commit fornication.
Objection 3: Further, if a man is proved to have consented to take a
certain woman to wife in words of the present tense, he is compelled
under pain of excommunication to take her as his wife, even though he
should say that he was wanting in mental consent, notwithstanding that
afterwards he may have contracted marriage with another woman by words
expressive of consent in the present. But this would not be the case if
mental consent were requisite for marriage. Therefore it is not
required.
On the contrary, Innocent III says in a Decretal (cap. Tua Nos, De
Spons. et matr. ) in reference to this case: "Other things cannot
complete the marriage bond in the absence of consent. "
Further, intention is necessary in all the sacraments. Now he who
consents not in his heart has no intention of contracting marriage; and
therefore he does not contract a marriage.
I answer that, The outward cleansing stands in the same relation to
baptism as the expression of words to this sacrament, as stated above
[4941](A[2]). Wherefore just as were a person to receive the outward
cleansing, with the intention, not of receiving the sacrament, but of
acting in jest or deceit, he would not be baptized; so, too, expression
of words without inward consent makes no marriage.
Reply to Objection 1: There are two things here, namely the lack of
consent---which benefits him in the tribunal of his conscience so that
he is not bound by the marriage tie, albeit not in the tribunal of the
Church where judgment is pronounced according to the evidence---and the
deceit in the words, which does not benefit him, neither in the
tribunal of his conscience nor in the tribunal of the Church, since in
both he is punished for this.
Reply to Objection 2: If mental consent is lacking in one of the
parties, on neither side is there marriage, since marriage consists in
a mutual joining together, as stated above ([4942]Q[44], A[1]). However
one may believe that in all probability there is no fraud unless there
be evident signs thereof; because we must presume good of everyone,
unless there be proof of the contrary. Consequently the party in whom
there is no fraud is excused from sin on account of ignorance.
Reply to Objection 3: In such a case the Church compels him to hold to
his first wife, because the Church judges according to outward
appearances; nor is she deceived in justice or right, although she is
deceived in the facts of the case. Yet such a man ought to bear the
excommunication rather than return to his first wife; or else he should
go far away into another country.
__________________________________________________________________
Whether consent given secretly in words of the present makes a marriage?
Objection 1: It would seem that consent given secretly in words of the
present does not make a marriage. For a thing that is in one person's
power is not transferred to the power of another without the consent of
the person in whose power it was. Now the maid is in her father's
power. Therefore she cannot by marriage be transferred to a husband's
power without her father's consent. Wherefore if consent be given
secretly, even though it should be expressed in words of the present,
there will be no marriage.
Objection 2: Further, in penance, just as in matrimony, our act is as
it were essential to the sacrament. But the sacrament of penance is not
made complete except by means of the ministers of the Church, who are
the dispensers of the sacraments. Therefore neither can marriage be
perfected without the priest's blessing.
Objection 3: Further, the Church does not forbid baptism to be given
secretly, since one may baptize either privately or publicly. But the
Church does forbid the celebration of clandestine marriages (cap. Cum
inhibitio, De clandest. despons. ). Therefore they cannot be done
secretly.
Objection 4: Further, marriage cannot be contracted by those who are
related in the second degree, because the Church has forbidden it. But
the Church has also forbidden clandestine marriages. Therefore they
cannot be valid marriages.
On the contrary, Given the cause the effect follows. Now the sufficient
cause of matrimony is consent expressed in words of the present.
Therefore whether this be done in public or in private the result is a
marriage.
Further, wherever there is the due matter and the due form of a
sacrament there is the sacrament. Now in a secret marriage there is the
due matter, since there are persons who are able lawfully to
contract---and the due form, since there are the words of the present
expressive of consent. Therefore there is a true marriage.
I answer that, Just as in the other sacraments certain things are
essential to the sacrament, and if they are omitted there is no
sacrament, while certain things belong to the solemnization of the
sacrament, and if these be omitted the sacrament is nevertheless
validly performed, although it is a sin to omit them; so, too, consent
expressed in words of the present between persons lawfully qualified to
contract makes a marriage, because these two conditions are essential
to the sacrament; while all else belongs to the solemnization of the
sacrament, as being done in order that the marriage may be more
fittingly performed. Hence if these be omitted it is a true marriage,
although the contracting parties sin, unless they have a lawful motive
for being excused. [*Clandestine marriages have since been declared
invalid by the Council of Trent (sess. xxiv). It must be borne in mind
that throughout the treatise on marriage St. Thomas gives the Canon Law
of his time. ]
Reply to Objection 1: The maid is in her father's power, not as a
female slave without power over her own body, but as a daughter, for
the purpose of education. Hence, in so far as she is free, she can give
herself into another's power without her father's consent, even as a
son or daughter, since they are free, may enter religion without their
parent's consent.
Reply to Objection 2: In penance our act, although essential to the
sacrament, does not suffice for producing the proximate effect of the
sacrament, namely forgiveness of sins, and consequently it is necessary
that the act of the priest intervene in order that the sacrament be
perfected. But in matrimony our acts are the sufficient cause for the
production of the proximate effect, which is the marriage bond, because
whoever has the right to dispose of himself can bind himself to
another. Consequently the priest's blessing is not required for
matrimony as being essential to the sacrament.
Reply to Objection 3: It is also forbidden to receive baptism otherwise
than from a priest, except in a case of necessity. But matrimony is not
a necessary sacrament: and consequently the comparison fails. However,
clandestine marriages are forbidden on account of the evil results to
which they are liable, since it often happens that one of the parties
is guilty of fraud in such marriages; frequently, too, they have
recourse to other nuptials when they repent of having married in haste;
and many other evils result therefrom, besides which there is something
disgraceful about them.
Reply to Objection 4: Clandestine marriages are not forbidden as though
they were contrary to the essentials of marriage, in the same way as
the marriages of unlawful persons, who are undue matter for this
sacrament; and hence there is no comparison.
__________________________________________________________________
OF THE CONSENT TO WHICH AN OATH OR CARNAL INTERCOURSE IS APPENDED (TWO
ARTICLES)
We must now consider the consent to which an oath or carnal intercourse
is appended. Under this head there are two points of inquiry:
(1) Whether an oath added to the consent that is expressed in words of
the future tense makes a marriage?
(2) Whether carnal intercourse supervening to such a consent makes a
marriage?
__________________________________________________________________
Whether an oath added to the consent that is expressed in words of the
future tense makes a marriage?
Objection 1: It would seem that if an oath be added to a consent that
is expressed in words of the future tense it makes a marriage. For no
one can bind himself to act against the Divine Law. But the fulfilling
of an oath is of Divine law according to Mat. 5:33, "Thou shalt perform
thy oaths to the Lord. " Consequently no subsequent obligation can
relieve a man of the obligation to keep an oath previously taken. If,
therefore, after consenting to marry a woman by words expressive of the
future and confirming that consent with an oath, a man binds himself to
another woman by words expressive of the present, it would seem that
none the less he is bound to keep his former oath. But this would not
be the case unless that oath made the marriage complete. Therefore an
oath affixed to a consent expressed in words of the future tense makes
a marriage.
Objection 2: Further, Divine truth is stronger than human truth. Now an
oath confirms a thing with the Divine truth. Since then words
expressive of consent in the present in which there is mere human truth
complete a marriage, it would seem that much more is this the case with
words of the future confirmed by an oath.
Objection 3: Further, according to the Apostle (Heb. 6:16), "An oath
for confirmation is the end of all . . . controversy"; wherefore in a
court of justice at any rate one must stand by an oath rather than by a
mere affirmation. Therefore if a man consent to marry a woman by a
simple affirmation expressed in words of the present, after having
consented to marry another in words of the future confirmed by oath, it
would seem that in the judgment of the Church he should be compelled to
take the first and not the second as his wife.
Objection 4: Further, the simple uttering of words relating to the
future makes a betrothal. But the addition of an oath must have some
effect. Therefore it makes something more than a betrothal. Now beyond
a betrothal there is nothing but marriage. Therefore it makes a
marriage.
On the contrary, What is future is not yet. Now the addition of an oath
does not make words of the future tense signify anything else than
consent to something future. Therefore it is not a marriage yet.
Further, after a marriage is complete, no further consent is required
for the marriage. But after the oath there is yet another consent which
makes the marriage, else it would be useless to swear to a future
marriage. Therefore it does not make a marriage.
I answer that, An oath is employed in confirmation of one's words;
wherefore it confirms that only which is signified by the words, nor
does it change their signification. Consequently, since it belongs to
words of the future tense, by their very signification, not to make a
marriage, since what is promised in the future is not done yet, even
though an oath be added to the promise, the marriage is not made yet,
as the Master says in the text (Sent. iv, D, 28).
Reply to Objection 1: The fulfilling of a lawful oath is of Divine law,
but not the fulfilling of an unlawful oath. Wherefore if a subsequent
obligation makes that oath unlawful, whereas it was lawful before, he
who does not keep the oath he took previously does not disobey the
Divine law. And so it is in the case in point; since he swears
unlawfully who promises unlawfully; and a promise about another's
property is unlawful. Consequently the subsequent consent by words of
the present, whereby a man transfers the power over his body to another
woman, makes the previous oath unlawful which was lawful before.
Reply to Objection 2: The Divine truth is most efficacious in
confirming that to which it is applied. Hence the Reply to the Third
Objection is clear.
Reply to Objection 4: The oath has some effect, not by causing a new
obligation, but confirming that which is already made, and thus he who
violates it sins more grievously.
__________________________________________________________________
Whether carnal intercourse after consent expressed in words of the future
makes a marriage?
Objection 1: It would seem that carnal intercourse after consent
expressed in words of the future makes a marriage. For consent by deed
is greater than consent by word. But he who has carnal intercourse
consents by deed to the promise he has previously made. Therefore it
would seem that much more does this make a marriage than if he were to
consent to mere words referring to the present.
Objection 2: Further, not only explicit but also interpretive consent
makes a marriage. Now there can be no better interpretation of consent
than carnal intercourse. Therefore marriage is completed thereby.
Objection 3: Further, all carnal union outside marriage is a sin. But
the woman, seemingly, does not sin by admitting her betrothed to carnal
intercourse. Therefore it makes a marriage.
Objection 4: Further, "Sin is not forgiven unless restitution be made,"
as Augustine says (Ep. cliii ad Macedon. ). Now a man cannot reinstate a
woman whom he has violated under the pretense of marriage unless he
marry her. Therefore it would seem that even if, after his carnal
intercourse, he happen to contract with another by words of the present
tense, he is bound to return to the first; and this would not be the
case unless he were married to her. Therefore carnal intercourse after
consent referring to the future makes a marriage.
On the contrary, Pope Nicholas I says (Resp. ad Consult. Bulg. iii;
Cap. Tuas dudum, De clandest. despons. ), "Without the consent to
marriage, other things, including coition, are of no effect. "
Further, that which follows a thing does not make it. But carnal
intercourse follows the actual marriage, as effect follows cause.
Therefore it cannot make a marriage.
I answer that, We may speak of marriage in two ways. First, in
reference to the tribunal of conscience, and thus in very truth carnal
intercourse cannot complete a marriage the promise of which has
previously been made in words expressive of the future, if inward
consent is lacking, since words, even though expressive of the present,
would not make a marriage in the absence of mental consent, as stated
above ([4943]Q[45], A[4]). Secondly, in reference to the judgment of
the Church; and since in the external tribunal judgment is given in
accordance with external evidence, and since nothing is more expressly
significant of consent than carnal intercourse, it follows that in the
judgment of the Church carnal intercourse following on betrothal is
declared to make a marriage, unless there appear clear signs of deceit
or fraud [*According to the pre-Tridentine legislation] (De sponsal. et
matrim. , cap. Is qui fidem).
Reply to Objection 1: In reality he who has carnal intercourse consents
by deed to the act of sexual union, and does not merely for this reason
consent to marriage except according to the interpretation of the law.
Reply to Objection 2: This interpretation does not alter the truth of
the matter, but changes the judgment which is about external things.
Reply to Objection 3: If the woman admit her betrothed, thinking that
he wishes to consummate the marriage, she is excused from the sin,
unless there be clear signs of fraud; for instance if they differ
considerably in birth or fortune, or some other evident sign appear.
Nevertheless the affianced husband is guilty of fornication, and should
be punished for this fraud he has committed.
Reply to Objection 4: In a case of this kind the affianced husband,
before his marriage with the other woman, is bound to marry the one to
whom he was betrothed, if she be his equal or superior in rank. But if
he has married another woman, he is no longer able to fulfill his
obligation, wherefore it suffices if he provide for her marriage.
Nor
is he bound even to do this, according to some, if her affianced
husband is of much higher rank than she, or if there be some evident
sign of fraud, because it may be presumed that in all probability she
was not deceived but pretended to be.
__________________________________________________________________
OF COMPULSORY AND CONDITIONAL CONSENT (SIX ARTICLES)
We must now consider compulsory and conditional consent. Under this
head there are six points of inquiry:
(1) Whether compulsory consent is possible?
(2) Whether a constant man can be compelled by fear?
(3) Whether compulsory consent invalidates marriage?
(4) Whether compulsory consent makes a marriage as regards the party
using compulsion?
(5) Whether conditional consent makes a marriage?
(6) Whether one can be compelled by one's father to marry?
__________________________________________________________________
Whether a compulsory consent is possible?
Objection 1: It would seem that no consent can be compulsory. For, as
stated above (Sent. ii, D, 25 [*[4944]FS, Q[6], A[4]]) the free-will
cannot be compelled. Now consent is an act of the free-will. Therefore
it cannot be compulsory.
Objection 2: Further, violent is the same as compulsory. Now, according
to the Philosopher (Ethic. iii, 1), "a violent action is one the
principle of which is without, the patient concurring not at all. " But
the principle of consent is always within. Therefore no consent can be
compulsory.
Objection 3: Further, every sin is perfected by consent. But that which
perfects a sin cannot be compulsory, for, according to Augustine (De
Lib. Arb. iii, 18), "no one sins in what he cannot avoid. " Since then
violence is defined by jurists (i, ff. de eo quod vi metusve) as the
"force of a stronger being that cannot be repulsed," it would seem that
consent cannot be compulsory or violent.
Objection 4: Further, power is opposed to liberty. But compulsion is
allied to power, as appears from a definition of Tully's in which he
says that "compulsion is the force of one who exercises his power to
detain a thing outside its proper bounds. " Therefore the free-will
cannot be compelled, and consequently neither can consent which is an
act thereof.
On the contrary, That which cannot be, cannot be an impediment. But
compulsory consent is an impediment to matrimony, as stated in the text
(Sent. iv, D, 29). Therefore consent can be compelled.
Further, in marriage there is a contract. Now the will can be compelled
in the matter of contracts; for which reason the law adjudges that
restitution should be made of the whole, for it does not ratify "that
which was done under compulsion or fear" (Sent. iv, D[29]). Therefore
in marriage also it is possible for the consent to be compulsory.
I answer that, Compulsion or violence is twofold. One is the cause of
absolute necessity, and violence of this kind the Philosopher calls
(Ethic. iii, 1) "violent simply," as when by bodily strength one forces
a person to move; the other causes conditional necessity, and the
Philosopher calls this a "mixed violence," as when a person throws his
merchandise overboard in order to save himself. In the latter kind of
violence, although the thing done is not voluntary in itself, yet
taking into consideration the circumstances of place and time it is
voluntary. And since actions are about particulars, it follows that it
is voluntary simply, and involuntary in a certain respect (Cf.
[4945]FS, Q[6], A[6]). Wherefore this latter violence or compulsion is
consistent with consent, but not the former. And since this compulsion
results from one's fear of a threatening danger, it follows that this
violence coincides with fear which, in a manner, compels the will,
whereas the former violence has to do with bodily actions. Moreover,
since the law considers not merely internal actions, but rather
external actions, consequently it takes violence to mean absolute
compulsion, for which reason it draws a distinction between violence
and fear. Here, however, it is a question of internal consent which
cannot be influenced by compulsion or violence as distinct from fear.
Therefore as to the question at issue compulsion and fear are the same.
Now, according to lawyers fear is "the agitation of the mind occasioned
by danger imminent or future" (Ethic. iii, 1).
This suffices for the Replies to the Objections; for the first set of
arguments consider the first kind of compulsion, and the second set of
arguments consider the second.
__________________________________________________________________
Whether a constant man can be compelled by fear?
Objection 1: It would seem that "a constant man" [*Cap. Ad audientiam,
De his quae vi. ] cannot be compelled by fear. Because the nature of a
constant man is not to be agitated in the midst of dangers. Since then
fear is "agitation of the mind occasioned by imminent danger," it would
seem that he is not compelled by fear.
Objection 2: Further, "Of all fearsome things death is the limit,"
according to the Philosopher (Ethic. iii, 6), as though it were the
most perfect of all things that inspire fear. But the constant man is
not compelled by death, since the brave face even mortal dangers.
Therefore no fear influences a constant man.
Objection 3: Further, of all dangers a good man fears most that which
affects his good name. But the fear of disgrace is not reckoned to
influence a constant man, because, according to the law (vii, ff, de eo
quod metus, etc. ), "fear of disgrace is not included under the
ordinance, 'That which is done through fear'" [*Dig. iv, 2, Quod metus
causa]. Therefore neither does any other kind of fear influence a
constant man.
Objection 4: Further, in him who is compelled by fear, fear leaves a
sin, for it makes him promise what he is unwilling to fulfill, and thus
it makes him lie. But a constant man does not commit a sin, not even a
very slight one, for fear. Therefore no fear influences a constant man.
On the contrary, Abraham and Isaac were constant. Yet they were
influenced by fear, since on account of fear each said that his wife
was his sister (Gn. 12:12; 26:7).
Further, wherever there is mixed violence, it is fear that compels. But
however constant a man may be he may suffer violence of that kind, for
if he be on the sea, he will throw his merchandise overboard if menaced
with shipwreck. Therefore fear can influence a constant man.
I answer that, By fear influencing a man we mean his being compelled by
fear. A man is compelled by fear when he does that which otherwise he
would not wish to do, in order to avoid that which he fears. Now the
constant differs from the inconstant man in two respects. First, in
respect of the quality of the danger feared, because the constant man
follows right reason, whereby he knows whether to omit this rather than
that, and whether to do this rather than that. Now the lesser evil or
the greater good is always to be chosen in preference; and therefore
the constant man is compelled to bear with the lesser evil through fear
of the greater evil, but he is not compelled to bear with the greater
evil in order to avoid the lesser. But the inconstant man is compelled
to bear with the greater evil through fear of a lesser evil, namely to
commit sin through fear of bodily suffering; whereas on the contrary
the obstinate man cannot be compelled even to permit or to do a lesser
evil, in order to avoid a greater. Hence the constant man is a mean
between the inconstant and the obstinate. Secondly, they differ as to
their estimate of the threatening evil, for a constant man is not
compelled unless for grave and probable reasons, while the inconstant
man is compelled by trifling motives: "The wicked man seeth when no man
pursueth" (Prov. 28:1).
Reply to Objection 1: The constant man, like the brave man, is
fearless, as the Philosopher states (Ethic. iii, 4), not that he is
altogether without fear, but because he fears not what he ought not to
fear, or where, or when he ought not to fear.
Reply to Objection 2: Sin is the greatest of evils, and consequently a
constant man can nowise be compelled to sin; indeed a man should die
rather than suffer the like, as again the Philosopher says (Ethic. iii,
6,9). Yet certain bodily injuries are less grievous than certain
others; and chief among them are those which relate to the person, such
as death, blows, the stain resulting from rape, and slavery. Wherefore
the like compel a constant man to suffer other bodily injuries. They
are contained in the verse: "Rape, status, blows, and death. " Nor does
it matter whether they refer to his own person, or to the person of his
wife or children, or the like.
Reply to Objection 3: Although disgrace is a greater injury it is easy
to remedy it. Hence fear of disgrace is not reckoned to influence a
constant man according to law.
Reply to Objection 4: The constant man is not compelled to lie, because
at the time he wishes to give; yet afterwards he wishes to ask for
restitution, or at least to appeal to the judge, if he promised not to
ask for restitution. But he cannot promise not to appeal, for since
this is contrary to the good of justice, he cannot be compelled
thereto, namely to act against justice.
__________________________________________________________________
Whether compulsory consent invalidates a marriage?
Objection 1: It would seem that compulsory consent does not invalidate
a marriage. For just as consent is necessary for matrimony, so is
intention necessary for Baptism. Now one who is compelled by fear to
receive Baptism, receives the sacrament. Therefore one who is compelled
by fear to consent is bound by his marriage.
Objection 2: Further, according to the Philosopher (Ethic. iii, 1),
that which is done on account of mixed violence is more voluntary than
involuntary. Now consent cannot be compelled except by mixed violence.
Therefore it is not entirely involuntary, and consequently the marriage
is valid.
Objection 3: Further, seemingly he who has consented to marriage under
compulsion ought to be counseled to stand to that marriage; because to
promise and not to fulfill has an "appearance of evil," and the Apostle
wishes us to refrain from all such things (1 Thess 5:22). But that
would not be the case if compulsory consent invalidated a marriage
altogether. Therefore, etc.
On the contrary, A Decretal says (cap. Cum locum, De sponsal. et
matrim. ): "Since there is no room for consent where fear or compulsion
enters in, it follows that where a person's consent is required, every
pretext for compulsion must be set aside. " Now mutual contract is
necessary in marriage. Therefore, etc.
Further, Matrimony signifies the union of Christ with the Church, which
union is according to the liberty of love. Therefore it cannot be the
result of compulsory consent.
I answer that, The marriage bond is everlasting. Hence whatever is
inconsistent with its perpetuity invalidates marriage. Now the fear
which compels a constant man deprives the contract of its perpetuity,
since its complete rescission can be demanded. Wherefore this
compulsion by fear which influences a constant man, invalidates
marriage, but not the other compulsion. Now a constant man is reckoned
a virtuous man who, according to the Philosopher (Ethic. iii, 4), is a
measure in all human actions.
However, some say that if there be consent although compulsory, the
marriage is valid in conscience and in God's sight, but not in the eyes
of the Church, who presumes that there was no inward consent on account
of the fear. But this is of no account, because the Church should not
presume a person to sin until it be proved; and he sinned if he said
that he consented whereas he did not consent. Wherefore the Church
presumes that he did consent, but judges this compulsory consent to be
insufficient for a valid marriage.
Reply to Objection 1: The intention is not the efficient cause of the
sacrament in baptism, it is merely the cause that elicits the action of
the agent; whereas the consent is the efficient cause in matrimony.
Hence the comparison fails.
Reply to Objection 2: Not any kind of voluntariness suffices for
marriage: it must be completely voluntary, because it has to be
perpetual; and consequently it is invalidated by violence of a mixed
nature.
Reply to Objection 3: He ought not always to be advised to stand to
that marriage, but only when evil results are feared from its
dissolution. Nor does he sin if he does otherwise, because there is no
appearance of evil in not fulfilling a promise that one has made
unwillingly.
__________________________________________________________________
Whether compulsory consent makes a marriage as regards the party who uses
compulsion?
Objection 1: It would seem that compulsory consent makes a marriage, at
least as regards the party who uses compulsion. For matrimony is a sign
of a spiritual union. But spiritual union which is by charity may be
with one who has not charity. Therefore marriage is possible with one
who wills it not.
Objection 2: Further, if she who was compelled consents afterwards, it
will be a true marriage. But he who compelled her before is not bound
by her consent. Therefore he was married to her by virtue of the
consent he gave before.
On the contrary, Matrimony is an equiparant relation. Now a relation of
that kind is equally in both terms. Therefore if there is an impediment
on the part of one, there will be no marriage on the part of the other.
I answer that, Since marriage is a kind of relation, and a relation
cannot arise in one of the terms without arising in the other, it
follows that whatever is an impediment to matrimony in the one, is an
impediment to matrimony in the other; since it is impossible for a man
to be the husband of one who is not his wife, or for a woman to be a
wife without a husband, just as it is impossible to be a mother without
having a child. Hence it is a common saying that "marriage is not
lame. "
Reply to Objection 1: Although the act of the lover can be directed to
one who loves not, there can be no union between them, unless love be
mutual. Wherefore the Philosopher says (Ethic. viii, 2) that friendship
which consists in a kind of union requires a return of love.
Reply to Objection 2: Marriage does not result from the consent of her
who was compelled before, except in so far as the other party's
previous consent remains in force; wherefore if he were to withdraw his
consent there would be no marriage.
__________________________________________________________________
Whether conditional consent makes a marriage?
Objection 1: It would seem that not even a conditional consent makes a
marriage, because a statement is not made simply if it is made subject
to a condition. But in marriage the words expressive of consent must be
uttered simply. Therefore a conditional consent makes no marriage.
Objection 2: Further, marriage should be certain. But where a statement
is made under a condition it is rendered doubtful. Therefore a like
consent makes no marriage.
On the contrary, In other contracts an obligation is undertaken
conditionally, and holds so long as the condition holds. Therefore
since marriage is a contract, it would seem that it can be made by a
conditional consent.
I answer that, The condition made is either of the present or of the
future. If it is of the present and is not contrary to marriage,
whether it be moral or immoral, the marriage holds if the condition is
verified, and is invalid if the condition is not verified. If, however,
it be contrary to the marriage blessings, the marriage is invalid, as
we have also said in reference to betrothals ([4946]Q[43], A[1]). But
if the condition refer to the future, it is either necessary, as that
the sun will rise tomorrow---and then the marriage is valid, because
such future things are present in their causes---or else it is
contingent, as the payment of a sum of money, or the consent of the
parents, and then the judgment about a consent of this kind is the same
as about a consent expressed in words of the future tense; wherefore it
makes no marriage.
This suffices for the Replies to the Objections.
__________________________________________________________________
Whether one can be compelled by one's father's command to marry?
Objection 1: It would seem that one can be compelled by one's father's
command to marry. For it is written (Col. 3:20): "Children, obey your
parents in all things. " Therefore they are bound to obey them in this
also.
Objection 2: Further, Isaac charged Jacob (Gn. 28:1) not to take a wife
from the daughters of Chanaan. But he would not have charged him thus
unless he had the right to command it. Therefore a son is bound to obey
his father in this.
Objection 3: Further, no one should promise, especially with an oath,
for one whom he cannot compel to keep the promise. Now parents promise
future marriages for their children, and even confirm their promise by
oath. Therefore they can compel their children to keep that promise.
Objection 4: Further, our spiritual father, the Pope to wit, can by his
command compel a man to a spiritual marriage, namely to accept a
bishopric. Therefore a carnal father can compel his son to marriage.
On the contrary, A son may lawfully enter religion though his father
command him to marry. Therefore he is not bound to obey him in this.
Further, if he were bound to obey, a betrothal contracted by the
parents would hold good without their children's consent. But this is
against the law (cap. Ex litteris, De despon. impub. ). Therefore, etc.
I answer that, Since in marriage there is a kind of perpetual service,
as it were, a father cannot by his command compel his son to marry,
since the latter is of free condition: but he may induce him for a
reasonable cause; and thus the son will be affected by his father's
command in the same way as he is affected by that cause, so that if the
cause be compelling as indicating either obligation or fitness, his
father's command will compel him in the same measure: otherwise he may
not compel him.
Reply to Objection 1: The words of the Apostle do not refer to those
matters in which a man is his own master as the father is. Such is
marriage by which the son also becomes a father.
Reply to Objection 2: There were other motives why Jacob was bound to
do what Isaac commanded him, both on account of the wickedness of those
women, and because the seed of Chanaan was to be cast forth from the
land which was promised to the seed of the patriarchs. Hence Isaac
could command this.
Reply to Objection 3: They do not swear except with the implied
condition "if it please them"; and they are bound to induce them in
good faith.
Reply to Objection 4: Some say that the Pope cannot command a man to
accept a bishopric, because consent should be free. But if this be
granted there would be an end of ecclesiastical order, for unless a man
can be compelled to accept the government of a church, the Church could
not be preserved, since sometimes those who are qualified for the
purpose are unwilling to accept unless they be compelled. Therefore we
must reply that the two cases are not parallel; for there is no bodily
service in a spiritual marriage as there is in the bodily marriage;
because the spiritual marriage is a kind of office for dispensing the
public weal: "Let a man so account of us as of the ministers of Christ,
and the dispensers of the mysteries of God" (1 Cor. 4:1).
__________________________________________________________________
OF THE OBJECT OF THE CONSENT (TWO ARTICLES)
We must now consider the object of the consent. Under this head there
are two points of inquiry:
(1) Whether the consent that makes a marriage is a consent to carnal
intercourse?
(2) Whether consent to marry a person for an immoral motive makes a
marriage?
__________________________________________________________________
Whether the consent that makes a marriage is a consent to carnal
intercourse?
Objection 1: It would seem that the consent which makes a marriage is a
consent to carnal intercourse. For Jerome [*The words quoted are found
implicitly in St. Augustine (De Bono Viduit ix)] says that "for those
who have vowed virginity it is wicked, not only to marry, but even to
wish to marry. " But it would not be wicked unless it were contrary to
virginity, and marriage is not contrary to virginity except by reason
of carnal intercourse. Therefore the will's consent in marriage is a
consent to carnal intercourse.
though it be not expressed in words. Therefore consent also makes a
marriage binding even without being expressed in words.
Objection 2: Further, there can be marriage between persons who are
unable to express their mutual consent in words, through being dumb or
of different languages. Therefore expression of the consent by words is
not required for matrimony.
Objection 3: Further, if that which is essential to a sacrament be
omitted for any reason whatever, there is no sacrament. Now there is a
case of marriage without the expression of words if the maid is silent
through bashfulness when her parents give her away to the bridegroom.
Therefore the expression of words is not essential to matrimony.
On the contrary, Matrimony is a sacrament. Now a sensible sign is
required in every sacrament. Therefore it is also required in
matrimony, and consequently there must needs be at least words by which
the consent is made perceptible to the senses.
Further, in matrimony there is a contract between husband and wife. Now
in every contract there must be expression of the words by which men
bind themselves mutually to one another. Therefore in matrimony also
the consent must be expressed in words.
I answer that, As stated above [4940](A[1]), the marriage union is
effected in the same way as the bond in material contracts. And since
material contracts are not feasible unless the contracting parties
express their will to one another in words, it follows that the consent
which makes a marriage must also be expressed in words, so that the
expression of words is to marriage what the outward washing is to
Baptism.
Reply to Objection 1: In a vow there is not a sacramental but only a
spiritual bond, wherefore there is no need for it to be done in the
same way as material contracts, in order that it be binding, as in the
case of matrimony.
Reply to Objection 2: Although the like cannot plight themselves to one
another in words, they can do so by signs, and such signs count for
words.
Reply to Objection 3: According to Hugh of S. Victor (Tract. vii, Sum.
Sent. ), persons who are being married should give their consent by
accepting one another freely. and this is judged to be the case if they
show no dissent when they are being wedded. Wherefore in such a case
the words of the parents are taken as being the maid's, for the fact
that she does not contradict them is a sign that they are her words.
__________________________________________________________________
Whether consent given in words expressive of the future makes a marriage?
Objection 1: It would seem that consent given in words expressive of
the future makes a marriage. For as present is to present, so is future
to future. But consent given in words expressive of the present makes a
marriage in the present. Therefore consent given in words expressive of
the future makes a marriage in the future.
Objection 2: Further, in other civil contracts, just as in matrimony, a
certain obligation results from the words expressing consent. Now in
other contracts it matters not whether the obligation is effected by
words of the present or of the future tense. Therefore neither does it
make any difference in matrimony.
Objection 3: Further, by the religious vow man contracts a spiritual
marriage with God. Now the religious vow is expressed in words of the
future tense, and is binding. Therefore carnal marriage also can be
effected by words of the future tense.
On the contrary, A man who consents in words of the future tense to
take a particular woman as his wife, and after, by words of the present
tense, consents to take another, according to law must take the second
for his wife (cap. Sicut ex Litteris, De spons. et matr. ). But this
would not be the case if consent given in words of the future tense
made a marriage, since from the very fact that his marriage with the
one is valid, he cannot, as long as she lives, marry another. Therefore
consent given in words of the future tense does not make a marriage.
Further, he who promises to do a certain thing does it not yet. Now he
who consents in words of the future tense, promises to marry a certain
woman. Therefore he does not marry her yet.
I answer that, The sacramental causes produce their effect by
signifying it; hence they effect what they signify. Since therefore
when a man expresses his consent by words of the future tense, he does
not signify that he is marrying, but promises that he will marry, it
follows that a consent expressed in this manner does not make a
marriage, but a promise [sponsionem] of marriage, and this promise is
known as a betrothal [sponsalia].
Reply to Objection 1: When consent is expressed in words of the present
tense, not only are the words actually present, but consent is directed
to the present, so that they coincide in point of time; but when
consent is given in words of the future tense, although the words are
actually present, the consent is directed to a future time, and hence
they do not coincide in point of time. For this reason the comparison
fails.
Reply to Objection 2: Even in other contracts, a man who uses words
referring to the future, does not transfer the power over his property
to another person---for instance if he were to say "I will give
thee"---but only when he uses words indicative of the present.
Reply to Objection 3: In the vow of religious profession it is not the
spiritual marriage itself that is expressed in words which refer to the
future, but an act of the spiritual marriage, namely obedience or
observance of the rule. If, however, a man vow spiritual marriage in
the future, it is not a spiritual marriage, for a man does not become a
monk by taking such a vow, but promises to become one.
__________________________________________________________________
Whether, in the absence of inward consent, a marriage is made by consent
given in words of the present?
Objection 1: It would seem that even in the absence of inward consent a
marriage is made by consent expressed in words of the present. For
"fraud and deceit should benefit no man," according to the law (cap. Ex
Tenore, De Rescrip. , cap. Si Vir, De cognat. spir. ). Now he who gives
consent in words without consenting in heart commits a fraud. Therefore
he should not benefit by it, through being released of the bond of
marriage.
Objection 2: Further, the mental consent of one person cannot be known
to another, except in so far as it is expressed in words. If then the
expression of the words is not enough, and inward consent is required
in both parties, neither of them will be able to know that he is truly
married to the other; and consequently whenever he uses marriage he
will commit fornication.
Objection 3: Further, if a man is proved to have consented to take a
certain woman to wife in words of the present tense, he is compelled
under pain of excommunication to take her as his wife, even though he
should say that he was wanting in mental consent, notwithstanding that
afterwards he may have contracted marriage with another woman by words
expressive of consent in the present. But this would not be the case if
mental consent were requisite for marriage. Therefore it is not
required.
On the contrary, Innocent III says in a Decretal (cap. Tua Nos, De
Spons. et matr. ) in reference to this case: "Other things cannot
complete the marriage bond in the absence of consent. "
Further, intention is necessary in all the sacraments. Now he who
consents not in his heart has no intention of contracting marriage; and
therefore he does not contract a marriage.
I answer that, The outward cleansing stands in the same relation to
baptism as the expression of words to this sacrament, as stated above
[4941](A[2]). Wherefore just as were a person to receive the outward
cleansing, with the intention, not of receiving the sacrament, but of
acting in jest or deceit, he would not be baptized; so, too, expression
of words without inward consent makes no marriage.
Reply to Objection 1: There are two things here, namely the lack of
consent---which benefits him in the tribunal of his conscience so that
he is not bound by the marriage tie, albeit not in the tribunal of the
Church where judgment is pronounced according to the evidence---and the
deceit in the words, which does not benefit him, neither in the
tribunal of his conscience nor in the tribunal of the Church, since in
both he is punished for this.
Reply to Objection 2: If mental consent is lacking in one of the
parties, on neither side is there marriage, since marriage consists in
a mutual joining together, as stated above ([4942]Q[44], A[1]). However
one may believe that in all probability there is no fraud unless there
be evident signs thereof; because we must presume good of everyone,
unless there be proof of the contrary. Consequently the party in whom
there is no fraud is excused from sin on account of ignorance.
Reply to Objection 3: In such a case the Church compels him to hold to
his first wife, because the Church judges according to outward
appearances; nor is she deceived in justice or right, although she is
deceived in the facts of the case. Yet such a man ought to bear the
excommunication rather than return to his first wife; or else he should
go far away into another country.
__________________________________________________________________
Whether consent given secretly in words of the present makes a marriage?
Objection 1: It would seem that consent given secretly in words of the
present does not make a marriage. For a thing that is in one person's
power is not transferred to the power of another without the consent of
the person in whose power it was. Now the maid is in her father's
power. Therefore she cannot by marriage be transferred to a husband's
power without her father's consent. Wherefore if consent be given
secretly, even though it should be expressed in words of the present,
there will be no marriage.
Objection 2: Further, in penance, just as in matrimony, our act is as
it were essential to the sacrament. But the sacrament of penance is not
made complete except by means of the ministers of the Church, who are
the dispensers of the sacraments. Therefore neither can marriage be
perfected without the priest's blessing.
Objection 3: Further, the Church does not forbid baptism to be given
secretly, since one may baptize either privately or publicly. But the
Church does forbid the celebration of clandestine marriages (cap. Cum
inhibitio, De clandest. despons. ). Therefore they cannot be done
secretly.
Objection 4: Further, marriage cannot be contracted by those who are
related in the second degree, because the Church has forbidden it. But
the Church has also forbidden clandestine marriages. Therefore they
cannot be valid marriages.
On the contrary, Given the cause the effect follows. Now the sufficient
cause of matrimony is consent expressed in words of the present.
Therefore whether this be done in public or in private the result is a
marriage.
Further, wherever there is the due matter and the due form of a
sacrament there is the sacrament. Now in a secret marriage there is the
due matter, since there are persons who are able lawfully to
contract---and the due form, since there are the words of the present
expressive of consent. Therefore there is a true marriage.
I answer that, Just as in the other sacraments certain things are
essential to the sacrament, and if they are omitted there is no
sacrament, while certain things belong to the solemnization of the
sacrament, and if these be omitted the sacrament is nevertheless
validly performed, although it is a sin to omit them; so, too, consent
expressed in words of the present between persons lawfully qualified to
contract makes a marriage, because these two conditions are essential
to the sacrament; while all else belongs to the solemnization of the
sacrament, as being done in order that the marriage may be more
fittingly performed. Hence if these be omitted it is a true marriage,
although the contracting parties sin, unless they have a lawful motive
for being excused. [*Clandestine marriages have since been declared
invalid by the Council of Trent (sess. xxiv). It must be borne in mind
that throughout the treatise on marriage St. Thomas gives the Canon Law
of his time. ]
Reply to Objection 1: The maid is in her father's power, not as a
female slave without power over her own body, but as a daughter, for
the purpose of education. Hence, in so far as she is free, she can give
herself into another's power without her father's consent, even as a
son or daughter, since they are free, may enter religion without their
parent's consent.
Reply to Objection 2: In penance our act, although essential to the
sacrament, does not suffice for producing the proximate effect of the
sacrament, namely forgiveness of sins, and consequently it is necessary
that the act of the priest intervene in order that the sacrament be
perfected. But in matrimony our acts are the sufficient cause for the
production of the proximate effect, which is the marriage bond, because
whoever has the right to dispose of himself can bind himself to
another. Consequently the priest's blessing is not required for
matrimony as being essential to the sacrament.
Reply to Objection 3: It is also forbidden to receive baptism otherwise
than from a priest, except in a case of necessity. But matrimony is not
a necessary sacrament: and consequently the comparison fails. However,
clandestine marriages are forbidden on account of the evil results to
which they are liable, since it often happens that one of the parties
is guilty of fraud in such marriages; frequently, too, they have
recourse to other nuptials when they repent of having married in haste;
and many other evils result therefrom, besides which there is something
disgraceful about them.
Reply to Objection 4: Clandestine marriages are not forbidden as though
they were contrary to the essentials of marriage, in the same way as
the marriages of unlawful persons, who are undue matter for this
sacrament; and hence there is no comparison.
__________________________________________________________________
OF THE CONSENT TO WHICH AN OATH OR CARNAL INTERCOURSE IS APPENDED (TWO
ARTICLES)
We must now consider the consent to which an oath or carnal intercourse
is appended. Under this head there are two points of inquiry:
(1) Whether an oath added to the consent that is expressed in words of
the future tense makes a marriage?
(2) Whether carnal intercourse supervening to such a consent makes a
marriage?
__________________________________________________________________
Whether an oath added to the consent that is expressed in words of the
future tense makes a marriage?
Objection 1: It would seem that if an oath be added to a consent that
is expressed in words of the future tense it makes a marriage. For no
one can bind himself to act against the Divine Law. But the fulfilling
of an oath is of Divine law according to Mat. 5:33, "Thou shalt perform
thy oaths to the Lord. " Consequently no subsequent obligation can
relieve a man of the obligation to keep an oath previously taken. If,
therefore, after consenting to marry a woman by words expressive of the
future and confirming that consent with an oath, a man binds himself to
another woman by words expressive of the present, it would seem that
none the less he is bound to keep his former oath. But this would not
be the case unless that oath made the marriage complete. Therefore an
oath affixed to a consent expressed in words of the future tense makes
a marriage.
Objection 2: Further, Divine truth is stronger than human truth. Now an
oath confirms a thing with the Divine truth. Since then words
expressive of consent in the present in which there is mere human truth
complete a marriage, it would seem that much more is this the case with
words of the future confirmed by an oath.
Objection 3: Further, according to the Apostle (Heb. 6:16), "An oath
for confirmation is the end of all . . . controversy"; wherefore in a
court of justice at any rate one must stand by an oath rather than by a
mere affirmation. Therefore if a man consent to marry a woman by a
simple affirmation expressed in words of the present, after having
consented to marry another in words of the future confirmed by oath, it
would seem that in the judgment of the Church he should be compelled to
take the first and not the second as his wife.
Objection 4: Further, the simple uttering of words relating to the
future makes a betrothal. But the addition of an oath must have some
effect. Therefore it makes something more than a betrothal. Now beyond
a betrothal there is nothing but marriage. Therefore it makes a
marriage.
On the contrary, What is future is not yet. Now the addition of an oath
does not make words of the future tense signify anything else than
consent to something future. Therefore it is not a marriage yet.
Further, after a marriage is complete, no further consent is required
for the marriage. But after the oath there is yet another consent which
makes the marriage, else it would be useless to swear to a future
marriage. Therefore it does not make a marriage.
I answer that, An oath is employed in confirmation of one's words;
wherefore it confirms that only which is signified by the words, nor
does it change their signification. Consequently, since it belongs to
words of the future tense, by their very signification, not to make a
marriage, since what is promised in the future is not done yet, even
though an oath be added to the promise, the marriage is not made yet,
as the Master says in the text (Sent. iv, D, 28).
Reply to Objection 1: The fulfilling of a lawful oath is of Divine law,
but not the fulfilling of an unlawful oath. Wherefore if a subsequent
obligation makes that oath unlawful, whereas it was lawful before, he
who does not keep the oath he took previously does not disobey the
Divine law. And so it is in the case in point; since he swears
unlawfully who promises unlawfully; and a promise about another's
property is unlawful. Consequently the subsequent consent by words of
the present, whereby a man transfers the power over his body to another
woman, makes the previous oath unlawful which was lawful before.
Reply to Objection 2: The Divine truth is most efficacious in
confirming that to which it is applied. Hence the Reply to the Third
Objection is clear.
Reply to Objection 4: The oath has some effect, not by causing a new
obligation, but confirming that which is already made, and thus he who
violates it sins more grievously.
__________________________________________________________________
Whether carnal intercourse after consent expressed in words of the future
makes a marriage?
Objection 1: It would seem that carnal intercourse after consent
expressed in words of the future makes a marriage. For consent by deed
is greater than consent by word. But he who has carnal intercourse
consents by deed to the promise he has previously made. Therefore it
would seem that much more does this make a marriage than if he were to
consent to mere words referring to the present.
Objection 2: Further, not only explicit but also interpretive consent
makes a marriage. Now there can be no better interpretation of consent
than carnal intercourse. Therefore marriage is completed thereby.
Objection 3: Further, all carnal union outside marriage is a sin. But
the woman, seemingly, does not sin by admitting her betrothed to carnal
intercourse. Therefore it makes a marriage.
Objection 4: Further, "Sin is not forgiven unless restitution be made,"
as Augustine says (Ep. cliii ad Macedon. ). Now a man cannot reinstate a
woman whom he has violated under the pretense of marriage unless he
marry her. Therefore it would seem that even if, after his carnal
intercourse, he happen to contract with another by words of the present
tense, he is bound to return to the first; and this would not be the
case unless he were married to her. Therefore carnal intercourse after
consent referring to the future makes a marriage.
On the contrary, Pope Nicholas I says (Resp. ad Consult. Bulg. iii;
Cap. Tuas dudum, De clandest. despons. ), "Without the consent to
marriage, other things, including coition, are of no effect. "
Further, that which follows a thing does not make it. But carnal
intercourse follows the actual marriage, as effect follows cause.
Therefore it cannot make a marriage.
I answer that, We may speak of marriage in two ways. First, in
reference to the tribunal of conscience, and thus in very truth carnal
intercourse cannot complete a marriage the promise of which has
previously been made in words expressive of the future, if inward
consent is lacking, since words, even though expressive of the present,
would not make a marriage in the absence of mental consent, as stated
above ([4943]Q[45], A[4]). Secondly, in reference to the judgment of
the Church; and since in the external tribunal judgment is given in
accordance with external evidence, and since nothing is more expressly
significant of consent than carnal intercourse, it follows that in the
judgment of the Church carnal intercourse following on betrothal is
declared to make a marriage, unless there appear clear signs of deceit
or fraud [*According to the pre-Tridentine legislation] (De sponsal. et
matrim. , cap. Is qui fidem).
Reply to Objection 1: In reality he who has carnal intercourse consents
by deed to the act of sexual union, and does not merely for this reason
consent to marriage except according to the interpretation of the law.
Reply to Objection 2: This interpretation does not alter the truth of
the matter, but changes the judgment which is about external things.
Reply to Objection 3: If the woman admit her betrothed, thinking that
he wishes to consummate the marriage, she is excused from the sin,
unless there be clear signs of fraud; for instance if they differ
considerably in birth or fortune, or some other evident sign appear.
Nevertheless the affianced husband is guilty of fornication, and should
be punished for this fraud he has committed.
Reply to Objection 4: In a case of this kind the affianced husband,
before his marriage with the other woman, is bound to marry the one to
whom he was betrothed, if she be his equal or superior in rank. But if
he has married another woman, he is no longer able to fulfill his
obligation, wherefore it suffices if he provide for her marriage.
Nor
is he bound even to do this, according to some, if her affianced
husband is of much higher rank than she, or if there be some evident
sign of fraud, because it may be presumed that in all probability she
was not deceived but pretended to be.
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OF COMPULSORY AND CONDITIONAL CONSENT (SIX ARTICLES)
We must now consider compulsory and conditional consent. Under this
head there are six points of inquiry:
(1) Whether compulsory consent is possible?
(2) Whether a constant man can be compelled by fear?
(3) Whether compulsory consent invalidates marriage?
(4) Whether compulsory consent makes a marriage as regards the party
using compulsion?
(5) Whether conditional consent makes a marriage?
(6) Whether one can be compelled by one's father to marry?
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Whether a compulsory consent is possible?
Objection 1: It would seem that no consent can be compulsory. For, as
stated above (Sent. ii, D, 25 [*[4944]FS, Q[6], A[4]]) the free-will
cannot be compelled. Now consent is an act of the free-will. Therefore
it cannot be compulsory.
Objection 2: Further, violent is the same as compulsory. Now, according
to the Philosopher (Ethic. iii, 1), "a violent action is one the
principle of which is without, the patient concurring not at all. " But
the principle of consent is always within. Therefore no consent can be
compulsory.
Objection 3: Further, every sin is perfected by consent. But that which
perfects a sin cannot be compulsory, for, according to Augustine (De
Lib. Arb. iii, 18), "no one sins in what he cannot avoid. " Since then
violence is defined by jurists (i, ff. de eo quod vi metusve) as the
"force of a stronger being that cannot be repulsed," it would seem that
consent cannot be compulsory or violent.
Objection 4: Further, power is opposed to liberty. But compulsion is
allied to power, as appears from a definition of Tully's in which he
says that "compulsion is the force of one who exercises his power to
detain a thing outside its proper bounds. " Therefore the free-will
cannot be compelled, and consequently neither can consent which is an
act thereof.
On the contrary, That which cannot be, cannot be an impediment. But
compulsory consent is an impediment to matrimony, as stated in the text
(Sent. iv, D, 29). Therefore consent can be compelled.
Further, in marriage there is a contract. Now the will can be compelled
in the matter of contracts; for which reason the law adjudges that
restitution should be made of the whole, for it does not ratify "that
which was done under compulsion or fear" (Sent. iv, D[29]). Therefore
in marriage also it is possible for the consent to be compulsory.
I answer that, Compulsion or violence is twofold. One is the cause of
absolute necessity, and violence of this kind the Philosopher calls
(Ethic. iii, 1) "violent simply," as when by bodily strength one forces
a person to move; the other causes conditional necessity, and the
Philosopher calls this a "mixed violence," as when a person throws his
merchandise overboard in order to save himself. In the latter kind of
violence, although the thing done is not voluntary in itself, yet
taking into consideration the circumstances of place and time it is
voluntary. And since actions are about particulars, it follows that it
is voluntary simply, and involuntary in a certain respect (Cf.
[4945]FS, Q[6], A[6]). Wherefore this latter violence or compulsion is
consistent with consent, but not the former. And since this compulsion
results from one's fear of a threatening danger, it follows that this
violence coincides with fear which, in a manner, compels the will,
whereas the former violence has to do with bodily actions. Moreover,
since the law considers not merely internal actions, but rather
external actions, consequently it takes violence to mean absolute
compulsion, for which reason it draws a distinction between violence
and fear. Here, however, it is a question of internal consent which
cannot be influenced by compulsion or violence as distinct from fear.
Therefore as to the question at issue compulsion and fear are the same.
Now, according to lawyers fear is "the agitation of the mind occasioned
by danger imminent or future" (Ethic. iii, 1).
This suffices for the Replies to the Objections; for the first set of
arguments consider the first kind of compulsion, and the second set of
arguments consider the second.
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Whether a constant man can be compelled by fear?
Objection 1: It would seem that "a constant man" [*Cap. Ad audientiam,
De his quae vi. ] cannot be compelled by fear. Because the nature of a
constant man is not to be agitated in the midst of dangers. Since then
fear is "agitation of the mind occasioned by imminent danger," it would
seem that he is not compelled by fear.
Objection 2: Further, "Of all fearsome things death is the limit,"
according to the Philosopher (Ethic. iii, 6), as though it were the
most perfect of all things that inspire fear. But the constant man is
not compelled by death, since the brave face even mortal dangers.
Therefore no fear influences a constant man.
Objection 3: Further, of all dangers a good man fears most that which
affects his good name. But the fear of disgrace is not reckoned to
influence a constant man, because, according to the law (vii, ff, de eo
quod metus, etc. ), "fear of disgrace is not included under the
ordinance, 'That which is done through fear'" [*Dig. iv, 2, Quod metus
causa]. Therefore neither does any other kind of fear influence a
constant man.
Objection 4: Further, in him who is compelled by fear, fear leaves a
sin, for it makes him promise what he is unwilling to fulfill, and thus
it makes him lie. But a constant man does not commit a sin, not even a
very slight one, for fear. Therefore no fear influences a constant man.
On the contrary, Abraham and Isaac were constant. Yet they were
influenced by fear, since on account of fear each said that his wife
was his sister (Gn. 12:12; 26:7).
Further, wherever there is mixed violence, it is fear that compels. But
however constant a man may be he may suffer violence of that kind, for
if he be on the sea, he will throw his merchandise overboard if menaced
with shipwreck. Therefore fear can influence a constant man.
I answer that, By fear influencing a man we mean his being compelled by
fear. A man is compelled by fear when he does that which otherwise he
would not wish to do, in order to avoid that which he fears. Now the
constant differs from the inconstant man in two respects. First, in
respect of the quality of the danger feared, because the constant man
follows right reason, whereby he knows whether to omit this rather than
that, and whether to do this rather than that. Now the lesser evil or
the greater good is always to be chosen in preference; and therefore
the constant man is compelled to bear with the lesser evil through fear
of the greater evil, but he is not compelled to bear with the greater
evil in order to avoid the lesser. But the inconstant man is compelled
to bear with the greater evil through fear of a lesser evil, namely to
commit sin through fear of bodily suffering; whereas on the contrary
the obstinate man cannot be compelled even to permit or to do a lesser
evil, in order to avoid a greater. Hence the constant man is a mean
between the inconstant and the obstinate. Secondly, they differ as to
their estimate of the threatening evil, for a constant man is not
compelled unless for grave and probable reasons, while the inconstant
man is compelled by trifling motives: "The wicked man seeth when no man
pursueth" (Prov. 28:1).
Reply to Objection 1: The constant man, like the brave man, is
fearless, as the Philosopher states (Ethic. iii, 4), not that he is
altogether without fear, but because he fears not what he ought not to
fear, or where, or when he ought not to fear.
Reply to Objection 2: Sin is the greatest of evils, and consequently a
constant man can nowise be compelled to sin; indeed a man should die
rather than suffer the like, as again the Philosopher says (Ethic. iii,
6,9). Yet certain bodily injuries are less grievous than certain
others; and chief among them are those which relate to the person, such
as death, blows, the stain resulting from rape, and slavery. Wherefore
the like compel a constant man to suffer other bodily injuries. They
are contained in the verse: "Rape, status, blows, and death. " Nor does
it matter whether they refer to his own person, or to the person of his
wife or children, or the like.
Reply to Objection 3: Although disgrace is a greater injury it is easy
to remedy it. Hence fear of disgrace is not reckoned to influence a
constant man according to law.
Reply to Objection 4: The constant man is not compelled to lie, because
at the time he wishes to give; yet afterwards he wishes to ask for
restitution, or at least to appeal to the judge, if he promised not to
ask for restitution. But he cannot promise not to appeal, for since
this is contrary to the good of justice, he cannot be compelled
thereto, namely to act against justice.
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Whether compulsory consent invalidates a marriage?
Objection 1: It would seem that compulsory consent does not invalidate
a marriage. For just as consent is necessary for matrimony, so is
intention necessary for Baptism. Now one who is compelled by fear to
receive Baptism, receives the sacrament. Therefore one who is compelled
by fear to consent is bound by his marriage.
Objection 2: Further, according to the Philosopher (Ethic. iii, 1),
that which is done on account of mixed violence is more voluntary than
involuntary. Now consent cannot be compelled except by mixed violence.
Therefore it is not entirely involuntary, and consequently the marriage
is valid.
Objection 3: Further, seemingly he who has consented to marriage under
compulsion ought to be counseled to stand to that marriage; because to
promise and not to fulfill has an "appearance of evil," and the Apostle
wishes us to refrain from all such things (1 Thess 5:22). But that
would not be the case if compulsory consent invalidated a marriage
altogether. Therefore, etc.
On the contrary, A Decretal says (cap. Cum locum, De sponsal. et
matrim. ): "Since there is no room for consent where fear or compulsion
enters in, it follows that where a person's consent is required, every
pretext for compulsion must be set aside. " Now mutual contract is
necessary in marriage. Therefore, etc.
Further, Matrimony signifies the union of Christ with the Church, which
union is according to the liberty of love. Therefore it cannot be the
result of compulsory consent.
I answer that, The marriage bond is everlasting. Hence whatever is
inconsistent with its perpetuity invalidates marriage. Now the fear
which compels a constant man deprives the contract of its perpetuity,
since its complete rescission can be demanded. Wherefore this
compulsion by fear which influences a constant man, invalidates
marriage, but not the other compulsion. Now a constant man is reckoned
a virtuous man who, according to the Philosopher (Ethic. iii, 4), is a
measure in all human actions.
However, some say that if there be consent although compulsory, the
marriage is valid in conscience and in God's sight, but not in the eyes
of the Church, who presumes that there was no inward consent on account
of the fear. But this is of no account, because the Church should not
presume a person to sin until it be proved; and he sinned if he said
that he consented whereas he did not consent. Wherefore the Church
presumes that he did consent, but judges this compulsory consent to be
insufficient for a valid marriage.
Reply to Objection 1: The intention is not the efficient cause of the
sacrament in baptism, it is merely the cause that elicits the action of
the agent; whereas the consent is the efficient cause in matrimony.
Hence the comparison fails.
Reply to Objection 2: Not any kind of voluntariness suffices for
marriage: it must be completely voluntary, because it has to be
perpetual; and consequently it is invalidated by violence of a mixed
nature.
Reply to Objection 3: He ought not always to be advised to stand to
that marriage, but only when evil results are feared from its
dissolution. Nor does he sin if he does otherwise, because there is no
appearance of evil in not fulfilling a promise that one has made
unwillingly.
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Whether compulsory consent makes a marriage as regards the party who uses
compulsion?
Objection 1: It would seem that compulsory consent makes a marriage, at
least as regards the party who uses compulsion. For matrimony is a sign
of a spiritual union. But spiritual union which is by charity may be
with one who has not charity. Therefore marriage is possible with one
who wills it not.
Objection 2: Further, if she who was compelled consents afterwards, it
will be a true marriage. But he who compelled her before is not bound
by her consent. Therefore he was married to her by virtue of the
consent he gave before.
On the contrary, Matrimony is an equiparant relation. Now a relation of
that kind is equally in both terms. Therefore if there is an impediment
on the part of one, there will be no marriage on the part of the other.
I answer that, Since marriage is a kind of relation, and a relation
cannot arise in one of the terms without arising in the other, it
follows that whatever is an impediment to matrimony in the one, is an
impediment to matrimony in the other; since it is impossible for a man
to be the husband of one who is not his wife, or for a woman to be a
wife without a husband, just as it is impossible to be a mother without
having a child. Hence it is a common saying that "marriage is not
lame. "
Reply to Objection 1: Although the act of the lover can be directed to
one who loves not, there can be no union between them, unless love be
mutual. Wherefore the Philosopher says (Ethic. viii, 2) that friendship
which consists in a kind of union requires a return of love.
Reply to Objection 2: Marriage does not result from the consent of her
who was compelled before, except in so far as the other party's
previous consent remains in force; wherefore if he were to withdraw his
consent there would be no marriage.
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Whether conditional consent makes a marriage?
Objection 1: It would seem that not even a conditional consent makes a
marriage, because a statement is not made simply if it is made subject
to a condition. But in marriage the words expressive of consent must be
uttered simply. Therefore a conditional consent makes no marriage.
Objection 2: Further, marriage should be certain. But where a statement
is made under a condition it is rendered doubtful. Therefore a like
consent makes no marriage.
On the contrary, In other contracts an obligation is undertaken
conditionally, and holds so long as the condition holds. Therefore
since marriage is a contract, it would seem that it can be made by a
conditional consent.
I answer that, The condition made is either of the present or of the
future. If it is of the present and is not contrary to marriage,
whether it be moral or immoral, the marriage holds if the condition is
verified, and is invalid if the condition is not verified. If, however,
it be contrary to the marriage blessings, the marriage is invalid, as
we have also said in reference to betrothals ([4946]Q[43], A[1]). But
if the condition refer to the future, it is either necessary, as that
the sun will rise tomorrow---and then the marriage is valid, because
such future things are present in their causes---or else it is
contingent, as the payment of a sum of money, or the consent of the
parents, and then the judgment about a consent of this kind is the same
as about a consent expressed in words of the future tense; wherefore it
makes no marriage.
This suffices for the Replies to the Objections.
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Whether one can be compelled by one's father's command to marry?
Objection 1: It would seem that one can be compelled by one's father's
command to marry. For it is written (Col. 3:20): "Children, obey your
parents in all things. " Therefore they are bound to obey them in this
also.
Objection 2: Further, Isaac charged Jacob (Gn. 28:1) not to take a wife
from the daughters of Chanaan. But he would not have charged him thus
unless he had the right to command it. Therefore a son is bound to obey
his father in this.
Objection 3: Further, no one should promise, especially with an oath,
for one whom he cannot compel to keep the promise. Now parents promise
future marriages for their children, and even confirm their promise by
oath. Therefore they can compel their children to keep that promise.
Objection 4: Further, our spiritual father, the Pope to wit, can by his
command compel a man to a spiritual marriage, namely to accept a
bishopric. Therefore a carnal father can compel his son to marriage.
On the contrary, A son may lawfully enter religion though his father
command him to marry. Therefore he is not bound to obey him in this.
Further, if he were bound to obey, a betrothal contracted by the
parents would hold good without their children's consent. But this is
against the law (cap. Ex litteris, De despon. impub. ). Therefore, etc.
I answer that, Since in marriage there is a kind of perpetual service,
as it were, a father cannot by his command compel his son to marry,
since the latter is of free condition: but he may induce him for a
reasonable cause; and thus the son will be affected by his father's
command in the same way as he is affected by that cause, so that if the
cause be compelling as indicating either obligation or fitness, his
father's command will compel him in the same measure: otherwise he may
not compel him.
Reply to Objection 1: The words of the Apostle do not refer to those
matters in which a man is his own master as the father is. Such is
marriage by which the son also becomes a father.
Reply to Objection 2: There were other motives why Jacob was bound to
do what Isaac commanded him, both on account of the wickedness of those
women, and because the seed of Chanaan was to be cast forth from the
land which was promised to the seed of the patriarchs. Hence Isaac
could command this.
Reply to Objection 3: They do not swear except with the implied
condition "if it please them"; and they are bound to induce them in
good faith.
Reply to Objection 4: Some say that the Pope cannot command a man to
accept a bishopric, because consent should be free. But if this be
granted there would be an end of ecclesiastical order, for unless a man
can be compelled to accept the government of a church, the Church could
not be preserved, since sometimes those who are qualified for the
purpose are unwilling to accept unless they be compelled. Therefore we
must reply that the two cases are not parallel; for there is no bodily
service in a spiritual marriage as there is in the bodily marriage;
because the spiritual marriage is a kind of office for dispensing the
public weal: "Let a man so account of us as of the ministers of Christ,
and the dispensers of the mysteries of God" (1 Cor. 4:1).
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OF THE OBJECT OF THE CONSENT (TWO ARTICLES)
We must now consider the object of the consent. Under this head there
are two points of inquiry:
(1) Whether the consent that makes a marriage is a consent to carnal
intercourse?
(2) Whether consent to marry a person for an immoral motive makes a
marriage?
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Whether the consent that makes a marriage is a consent to carnal
intercourse?
Objection 1: It would seem that the consent which makes a marriage is a
consent to carnal intercourse. For Jerome [*The words quoted are found
implicitly in St. Augustine (De Bono Viduit ix)] says that "for those
who have vowed virginity it is wicked, not only to marry, but even to
wish to marry. " But it would not be wicked unless it were contrary to
virginity, and marriage is not contrary to virginity except by reason
of carnal intercourse. Therefore the will's consent in marriage is a
consent to carnal intercourse.
