Objection 1: It would seem that the condition of slavery is no
impediment to matrimony.
impediment to matrimony.
Summa Theologica
Consequently the right
answer to this question is that if pleasure be sought in such a way as
to exclude the honesty of marriage, so that, to wit, it is not as a
wife but as a woman that a man treats his wife, and that he is ready to
use her in the same way if she were not his wife, it is a mortal sin;
wherefore such a man is said to be too ardent a lover of his wife,
because his ardor carries him away from the goods of marriage. If,
however, he seek pleasure within the bounds of marriage, so that it
would not be sought in another than his wife, it is a venial sin.
Reply to Objection 1: A man seeks wanton pleasure in his wife when he
sees no more in her that he would in a wanton.
Reply to Objection 2: Consent to the pleasure of the intercourse that
is a mortal sin is itself a mortal sin; but such is not the consent to
the marriage act.
Reply to Objection 3: Although he does not actually refer the pleasure
to God, he does not place his will's last end therein; otherwise he
would seek it anywhere indifferently. Hence it does not follow that he
enjoys a creature; but he uses a creature actually for his own sake,
and himself habitually, though not actually, for God's sake.
Reply to Objection 4: The reason for this statement is not that man
deserves to be excommunicated for this sin, but because he renders
himself unfit for spiritual things, since in that act, he becomes flesh
and nothing more.
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OF THE IMPEDIMENTS OF MARRIAGE, IN GENERAL (ONE ARTICLE)
In the next place we must consider the impediments of marriage: (1) In
general; (2) In particular.
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Whether it is fitting that impediments should be assigned to marriage?
Objection 1: It would seem unfitting for impediments to be assigned to
marriage. For marriage is a sacrament condivided with the others. But
no impediments are assigned to the others. Neither therefore should
they be assigned to marriage.
Objection 2: Further, the less perfect a thing is the fewer its
obstacles. Now matrimony is the least perfect of the sacraments.
Therefore it should have either no impediments or very few.
Objection 3: Further, wherever there is disease, it is necessary to
have a remedy for the disease. Now concupiscence, a remedy for which is
permitted in matrimony (1 Cor. 7:6), is in all. Therefore there should
not be any impediment making it altogether unlawful for a particular
person to marry.
Objection 4: Further, unlawful means against the law. Now these
impediments that are assigned to matrimony are not against the natural
law, because they are not found to be the same in each state of the
human race, since more degrees of kindred come under prohibition at one
time than at another. Nor, seemingly, can human law set impediments
against marriage, since marriage, like the other sacraments, is not of
human but of Divine institution. Therefore impediments should not be
assigned to marriage, making it unlawful for a person to marry.
Objection 5: Further, lawful and unlawful differ as that which is
against the law from that which is not, and between these there is no
middle term, since they are opposed according to affirmation and
negation. Therefore there cannot be impediments to marriage, placing a
person in a middle position between those who are lawful and those who
are unlawful subjects of marriage.
Objection 6: Further, union of man and woman is unlawful save in
marriage. Now every unlawful union should be dissolved. Therefore if
anything prevent a marriage being contracted, it will "de facto"
dissolve it after it has been contracted; and thus impediments should
not be assigned to marriage, which hinder it from being contracted, and
dissolve it after it has been contracted.
Objection 7: Further, no impediment can remove from a thing that which
is part of its definition. Now indissolubility is part of the
definition of marriage. Therefore there cannot be any impediments which
annul a marriage already contracted.
Objection 8: On the other hand, it would seem that there should be an
infinite number of impediments to marriage. For marriage is a good. Now
good may be lacking in an infinite number of ways, as Dionysius says
(Div. Nom. iii). Therefore there is an infinite number of impediments
to marriage.
Objection 9: Further, the impediments to marriage arise from the
conditions of individuals. But such like conditions are infinite in
number. Therefore the impediments to marriage are also infinite.
I answer that, In marriage, as in other sacraments, there are certain
things essential to marriage, and others that belong to its
solemnization. And since even without the things that pertain to its
solemnization it is still a true sacrament, as also in the case of the
other sacraments, it follows that the impediments to those things that
pertain to the solemnization of this sacrament do not derogate from the
validity of the marriage. These impediments are said to hinder the
contracting of marriage, but they do not dissolve the marriage once
contracted; such are the veto of the Church, or the holy seasons. Hence
the verse:
"The veto of the Church and holy tide
Forbid the knot, but loose it not if tied. "
On the other hand, those impediments which regard the essentials of
marriage make a marriage invalid, wherefore they are said not only to
hinder the contracting of marriage, but to dissolve it if contracted;
and they are contained in the following verse:
"Error, station, vow, kinship, crime,
Difference of worship, force, holy orders,
Marriage bond, honesty, affinity, impotence,
All these forbid marriage, and annul it though
contracted. "
The reason for this number may be explained as follows: Marriage may be
hindered either on the part of the contract or in regard to the
contracting parties. If in the first way, since the marriage contract
is made by voluntary consent, and this is incompatible with either
ignorance or violence, there will be two impediments to marriage,
namely "force," i. e. compulsion, and "error" in reference to ignorance.
Wherefore the Master pronounced on these two impediments when treating
of the cause of matrimony (Sent. iv, DD 29,30). Here, however, he is
treating of the impediments as arising from the contracting parties,
and these may be differentiated as follows. A person may be hindered
from contracting marriage either simply, or with some particular
person. If simply, so that he be unable to contract marriage with any
woman, this can only be because he is hindered from performing the
marriage act. This happens in two ways. First, because he cannot "de
facto," either through being altogether unable---and thus we have the
impediment of "impotence"---or through being unable to do so freely,
and thus we have the impediment of the "condition of slavery. "
Secondly, because he cannot do it lawfully, and this because he is
bound to continence, which happens in two ways, either through his
being bound on account of the office he has undertaken to fulfill---and
thus we have the impediment of "Order"---or on account of his having
taken a vow---and thus "Vow" is an impediment.
If, however, a person is hindered from marrying, not simply but in
reference to a particular person, this is either because he is bound to
another person, and thus he who is married to one cannot marry another,
which constitutes the impediment of the "bond of marriage"---or through
lack of proportion to the other party, and this for three reasons.
First, on account of too great a distance separating them, and thus we
have "difference of worship"; secondly, on account of their being too
closely related, and thus we have three impediments, namely "kinship,"
then "affinity," which denotes the close relationship between two
persons, in reference to a third united to one of them by marriage, and
the "justice of public honesty," where we have a close relationship
between two persons arising out of the betrothal of one of them to a
third person; thirdly, on account of a previous undue union between him
and the woman, and thus the "crime of adultery" previously committed
with her is an impediment.
Reply to Objection 1: There may be impediments to the other sacraments
also in the omission either of that which is essential, or of that
which pertains to the solemnization of the sacrament, as stated above.
However, impediments are assigned to matrimony rather than to the other
sacraments for three reasons. First, because matrimony consists of two
persons, and consequently can be impeded in more ways than the other
sacraments which refer to one person taken individually; secondly,
because matrimony has its cause in us and in God, while some of the
other sacraments have their cause in God alone. Wherefore penance which
in a manner has a cause in us, is assigned certain impediments by the
Master (Sent. iv, D, 16), such as hypocrisy, the public games, and so
forth; thirdly, because other sacraments are objects of command or
counsel, as being more perfect goods, whereas marriage is a matter of
indulgence, as being a less perfect good (1 Cor. 7:6). Wherefore, in
order to afford an opportunity of proficiency towards a greater good,
more impediments are assigned to matrimony than to the other
sacraments.
Reply to Objection 2: The more perfect things can be hindered in more
ways, in so far as more conditions are required for them. And if an
imperfect thing requires more conditions, there will be more
impediments to it; and thus it is in matrimony.
Reply to Objection 3: This argument would hold, were there no other and
more efficacious remedies for the disease of concupiscence; which is
false.
Reply to Objection 4: Persons are said to be unlawful subjects for
marriage through being contrary to the law whereby marriage is
established. Now marriage as fulfilling an office of nature is
established by the natural law; as a sacrament, by the Divine law; as
fulfilling an office of society, by the civil law. Consequently a
person may be rendered an unlawful subject of marriage by any of the
aforesaid laws. Nor does the comparison with the other sacraments hold,
for they are sacraments only. And since the natural law is
particularized in various ways according to the various states of
mankind, and since positive law, too, varies according to the various
conditions of men, the Master (Sent. iv, D, 34) asserts that at various
times various persons have been unlawful subjects of marriage.
Reply to Objection 5: The law may forbid a thing either altogether, or
in part and in certain cases. Hence between that which is altogether
according to the law and that which is altogether against the law
(which are opposed by contrariety and not according to affirmation and
negation), that which is somewhat according to the law and somewhat
against the law is a middle term. For this reason certain persons hold
a middle place between those who are simply lawful subjects and those
who are simply unlawful.
Reply to Objection 6: Those impediments which do not annul a marriage
already contracted sometimes hinder a marriage from being contracted,
by rendering it not invalid but unlawful. And if it be contracted it is
a true marriage although the contracting parties sin; just as by
consecrating after breaking one's fast one would sin by disobeying the
Church's ordinance, and yet it would be a valid sacrament because it is
not essential to the sacrament that the consecrator be fasting.
Reply to Objection 7: When we say that the aforesaid impediments annul
marriage already contracted, we do not mean that they dissolve a
marriage contracted in due form, but that they dissolve a marriage
contracted "de facto" and not "de jure. " Wherefore if an impediment
supervene after a marriage has been contracted in due form, it cannot
dissolve the marriage.
Reply to Objection 8: The impediments that hinder a good accidentally
are infinite in number, like all accidental causes. But the causes
which of their own nature corrupt a certain good are directed to that
effect, and determinate, even as are the causes which produce that
good; for the causes by which a thing is destroyed and those by which
it is made are either contrary to one another, or the same but taken in
a contrary way.
Reply to Objection 9: The conditions of particular persons taken
individually are infinite in number, but taken in general, they may be
reduced to a certain number; as instanced in medicine and all operative
arts, which consider the conditions of particular persons in whom acts
are.
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OF THE IMPEDIMENT OF ERROR (TWO ARTICLES)
We must now consider the impediments to matrimony in particular, and in
the first place the impediment of error. Under this head there are two
points of inquiry:
(1) Whether error of its very nature is an impediment to matrimony?
(2) What kind of error?
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Whether it is right to reckon error as an impediment to marriage?
Objection 1: It would seem that error should not be reckoned in itself
an impediment to marriage. For consent, which is the efficient cause of
marriage, is hindered in the same way as the voluntary. Now the
voluntary, according to the Philosopher (Ethic. iii, 1), may be
hindered by ignorance. But ignorance is not the same as error, because
ignorance excludes knowledge altogether, whereas error does not, since
"error is to approve the false as though it were true," according to
Augustine (De Trin. ix, 11). Therefore ignorance rather than error
should have been reckoned here as an impediment to marriage.
Objection 2: Further, that which of its very nature can be an
impediment to marriage is in opposition to the good of marriage. But
error is not a thing of this kind. Therefore error is not by its very
nature an impediment to marriage.
Objection 3: Further, just as consent is required for marriage, so is
intention required for baptism. Now if one were to baptize John,
thinking to baptize Peter, John would be baptized none the less.
Therefore error does not annul matrimony.
Objection 4: Further, there was true marriage between Lia and Jacob,
and yet, in this case, there was error. Therefore error does not annul
a marriage.
On the contrary, It is said in the Digests (Si per errorem, ff. De
jurisdic. omn. judic. ): "What is more opposed to consent than error? "
Now consent is required for marriage. Therefore error is an impediment
to matrimony.
Further, consent denotes something voluntary. Now error is an obstacle
to the voluntary, since "the voluntary," according to the Philosopher
(Ethic. iii, 1), Damascene (De Fide Orth. ii, 24), and Gregory of Nyssa
[*Nemesius] (De Nat. Hom. xxxii), "is that which has its principle in
one who has knowledge of singulars which are the matter of actions. "
But this does not apply to one who is in error. Therefore error is an
impediment to matrimony.
I answer that, Whatever hinders a cause, of its very nature hinders the
effect likewise. Now consent is the cause of matrimony, as stated above
([4956]Q[45], A[1]). Hence whatever voids the consent, voids marriage.
Now consent is an act of the will, presupposing an act of the
intellect; and if the first be lacking, the second must needs be
lacking also. Hence, when error hinders knowledge, there follows a
defect in the consent also, and consequently in the marriage. Therefore
it is possible according to the natural law for error to void marriage.
Reply to Objection 1: Speaking simply, ignorance differs from error,
because ignorance does not of its very nature imply an act of
knowledge, while error supposes a wrong judgment of reason about
something. However, as regards being an impediment to the voluntary, it
differs not whether we call it ignorance or error, since no ignorance
can be an impediment to the voluntary, unless it have error in
conjunction with it, because the will's act presupposes an estimate or
judgment about something which is the object of the will. Wherefore if
there be ignorance there must needs be error; and for this reason error
is set down as being the proximate cause.
Reply to Objection 2: Although error is not of itself contrary to
matrimony, it is contrary thereto as regards the cause of marriage.
Reply to Objection 3: The character of baptism is not caused directly
by the intention of the baptizer, but by the material element applied
outwardly; and the intention is effective only as directing the
material element to its effect; whereas the marriage tie is caused by
the consent directly. Hence the comparison fails.
Reply to Objection 4: According to the Master (Sent. iv, D, 30) the
marriage between Lia and Jacob was effected not by their coming
together, which happened through an error, but by their consent, which
followed afterwards. Yet both are clearly to be excused from sin (Sent.
iv, D, 30).
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Whether every error is an impediment to matrimony?
Objection 1: It would seem that every error is an impediment to
matrimony, and not, as stated in the text (Sent. iv, D, 30), only error
about the condition or the person. For that which applies to a thing as
such applies to it in all its bearings. Now error is of its very nature
an impediment to matrimony, as stated above [4957](A[1]). Therefore
every error is an impediment to matrimony.
Objection 2: Further, if error, as such, is an impediment to matrimony,
the greater the error the greater the impediment. Now the error
concerning faith in a heretic who disbelieves in this sacrament is
greater than an error concerning the person. Therefore it should be a
greater impediment than error about the person.
Objection 3: Further, error does not void marriage except as removing
voluntariness. Now ignorance about any circumstance takes away
voluntariness (Ethic. iii, 1). Therefore it is not only error about
condition or person that is an impediment to matrimony.
Objection 4: Further, just as the condition of slavery is an accident
affecting the person, so are bodily or mental qualities. But error
regarding the condition is an impediment to matrimony. Therefore error
concerning quality or fortune is equally an impediment.
Objection 5: Further, just as slavery or freedom pertains to the
condition of person, so do high and low rank, or dignity of position
and the lack thereof. Now error regarding the condition of slavery is
an impediment to matrimony. Therefore error about the other matters
mentioned is also an impediment.
Objection 6: Further, just as the condition of slavery is an
impediment, so are difference of worship and impotence, as we shall say
further on ([4958]Q[52], A[2];[4959] Q[58], A[1];[4960] Q[59], A[1]).
Therefore just as error regarding the condition is an impediment, so
also should error about those other matters be reckoned an impediment.
Objection 7: On the other hand, it would seem that not even error about
the person is an impediment to marriage. For marriage is a contract
even as a sale is. Now in buying and selling the sale is not voided if
one coin be given instead of another of equal value. Therefore a
marriage is not voided if one woman be taken instead of another.
Objection 8: Further, it is possible for them to remain in this error
for many years and to beget between them sons and daughters. But it
would be a grave assertion to maintain that they ought to be separated
then. Therefore their previous error did not void their marriage.
Objection 9: Further, it might happen that the woman is betrothed to
the brother of the man whom she thinks that she is consenting to marry,
and that she has had carnal intercourse with him; in which case,
seemingly, she cannot go back to the man to whom she thought to give
her consent, but should hold on to his brother. Thus error regarding
the person is not an impediment to marriage.
I answer that, Just as error, through causing involuntariness, is an
excuse from sin, so on the same count is it an impediment to marriage.
Now error does not excuse from sin unless it refer to a circumstance
the presence or absence of which makes an action lawful or unlawful.
For if a man were to strike his father with an iron rod thinking it to
be of wood, he is not excused from sin wholly, although perhaps in
part; but if a man were to strike his father, thinking to strike his
son to correct him, he is wholly excused provided he take due care.
Wherefore error, in order to void marriage, must needs be about the
essentials of marriage. Now marriage includes two things, namely the
two persons who are joined together, and the mutual power over one
another wherein marriage consists. The first of these is removed by
error concerning the person, the second by error regarding the
condition, since a slave cannot freely give power over his body to
another, without his master's consent. For this reason these two
errors, and no others, are an impediment to matrimony.
Reply to Objection 1: It is not from its generic nature that error is
an impediment to marriage, but from the nature of the difference added
thereto; namely from its being error about one of the essentials to
marriage.
Reply to Objection 2: An error of faith about matrimony is about things
consequent upon matrimony, for instance on the question of its being a
sacrament, or of its being lawful. Wherefore such error as these is no
impediment to marriage, as neither does an error about baptism hinder a
man from receiving the character, provided he intend to receive what
the Church gives, although he believe it to be nothing.
Reply to Objection 3: It is not any ignorance of a circumstance that
causes the involuntariness which is an excuse from sin, as stated
above; wherefore the argument does not prove.
Reply to Objection 4: Difference of fortune or of quality does not make
a difference in the essentials to matrimony, as the condition of
slavery does. Hence the argument does not prove.
Reply to Objection 5: Error about a person's rank, as such, does not
void a marriage, for the same reason as neither does error about a
personal quality. If, however, the error about a person's rank or
position amounts to an error about the person, it is an impediment to
matrimony. Hence, if the woman consent directly to this particular
person, her error about his rank does not void the marriage; but if she
intend directly to consent to marry the king's son, whoever he may be,
then, if another man than the king's son be brought to her, there is
error about the person, and the marriage will be void.
Reply to Objection 6: Error is an impediment to matrimony, although it
be about other impediments to marriage if it concern those things which
render a person an unlawful subject of marriage. But (the Master) does
not mention error about such things, because they are an impediment to
marriage whether there be error about them or not; so that if a woman
contract with a subdeacon, whether she know this or not, there is no
marriage; whereas the condition of slavery is no impediment if the
slavery be known. Hence the comparison fails.
Reply to Objection 7: In contracts money is regarded as the measure of
other things (Ethic. v, 5), and not as being sought for its own sake.
Hence if the coin paid is not what it is thought to be but another of
equal value, this does not void the contract. But if there be error
about a thing sought for its own sake, the contract is voided, for
instance if one were to sell a donkey for a horse; and thus it is in
the case in point.
Reply to Objection 8: No matter how long they have cohabited, unless
she be willing to consent again, there is no marriage.
Reply to Objection 9: If she did not consent previously to marry his
brother, she may hold to the one whom she took in error. Nor can she
return to his brother, especially if there has been carnal intercourse
between her and the man she took to husband. If, however, she had
previously consented to take the first one in words of the present, she
cannot have the second while the first lives. But she may either leave
the second or return to the first; and ignorance of the fact excuses
her from sin, just as she would be excused if after the consummation of
the marriage a kinsman of her husband were to know her by fraud since
she is not to be blamed for the other's deceit.
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OF THE IMPEDIMENT OF THE CONDITION OF SLAVERY (FOUR ARTICLES)
We must now consider the impediment of the condition of slavery. Under
this head there are four points of inquiry:
(1) Whether the condition of slavery is an impediment to matrimony?
(2) Whether a slave can marry without his master's consent?
(3) Whether a man who is already married can make himself a slave
without his wife's consent?
(4) Whether the children should follow the condition of their father or
of their mother?
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Whether the condition of slavery is an impediment to matrimony?
Objection 1: It would seem that the condition of slavery is no
impediment to matrimony. For nothing is an impediment to marriage
except what is in some way opposed to it. But slavery is in no way
opposed to marriage, else there could be no marriage among slaves.
Therefore slavery is no impediment to marriage.
Objection 2: Further, that which is contrary to nature cannot be an
impediment to that which is according to nature. Now slavery is
contrary to nature, for as Gregory says (Pastor. ii, 6), "it is
contrary to nature for man to wish to lord it over another man"; and
this is also evident from the fact that it was said of man (Gn. 1:26)
that he should "have dominion over the fishes of the sea," but not that
he should have dominion over man. Therefore it cannot be an impediment
to marriage, which is a natural thing.
Objection 3: Further, if it is an impediment, this is either of natural
law or of positive law. But it is not of natural law, since according
to natural law all men are equal, as Gregory says (Pastor. ii, 6),
while it is stated at the beginning of the Digests (Manumissiones, ff.
de just. et jure. ) that slavery is not of natural law; and positive law
springs from the natural law, as Tully says (De Invent. ii). Therefore,
according to law, slavery is not an impediment to any marriage.
Objection 4: Further, that which is an impediment to marriage is
equally an impediment whether it be known or not, as in the case of
consanguinity. Now the slavery of one party, if it be known to the
other, is no impediment to their marriage. Therefore slavery,
considered in itself, is unable to void a marriage; and consequently it
should not be reckoned by itself as a distinct impediment to marriage.
Objection 5: Further, just as one may be in error about slavery, so as
to deem a person free who is a slave, so may one be in error about
freedom, so as to deem a person a slave whereas he is free. But freedom
is not accounted an impediment to matrimony. Therefore neither should
slavery be so accounted.
Objection 7: Further, leprosy is a greater burden to the fellowship of
marriage and is a greater obstacle to the good of the offspring than
slavery is. Yet leprosy is not reckoned an impediment to marriage.
Therefore neither should slavery be so reckoned.
On the contrary, A Decretal says (De conjug. servorum, cap. Ad nostram)
that "error regarding the condition hinders a marriage from being
contracted and voids that which is already contracted. "
Further, marriage is one of the goods that are sought for their own
sake, because it is qualified by honesty; whereas slavery is one of the
things to be avoided for their own sake. Therefore marriage and slavery
are contrary to one another; and consequently slavery is an impediment
to matrimony.
I answer that, In the marriage contract one party is bound to the other
in the matter of paying the debt; wherefore if one who thus binds
himself is unable to pay the debt, ignorance of this inability, on the
side of the party to whom he binds himself, voids the contract. Now
just as impotence in respect of coition makes a person unable to pay
the debt, so that he is altogether disabled, so slavery makes him
unable to pay it freely. Therefore, just as ignorance or impotence in
respect of coition is an impediment if not known but not if known, as
we shall state further on ([4961]Q[58]), so the condition of slavery is
an impediment if not known, but not if it be known.
Reply to Objection 1: Slavery is contrary to marriage as regards the
act to which marriage binds one party in relation to the other, because
it prevents the free execution of that act; and again as regards the
good of the offspring who become subject to the same condition by
reason of the parent's slavery. Since, however, it is free to everyone
to suffer detriment in that which is his due, if one of the parties
knows the other to be a slave, the marriage is none the less valid.
Likewise since in marriage there is an equal obligation on either side
to pay the debt, neither party can exact of the other a greater
obligation than that under which he lies; so that if a slave marry a
bondswoman, thinking her to be free, the marriage is not thereby
rendered invalid. It is therefore evident that slavery is no impediment
to marriage except when it is unknown to the other party, even though
the latter be in a condition of freedom; and so nothing prevents
marriage between slaves, or even between a freeman and a bondswoman.
Reply to Objection 2: Nothing prevents a thing being against nature as
to the first intention of nature, and yet not against nature as to its
second intention. Thus, as stated in De Coelo, ii, all corruption,
defect, and old age are contrary to nature, because nature intends
being and perfection, and yet they are not contrary to the second
intention of nature, because nature, through being unable to preserve
being in one thing, preserves it in another which is engendered of the
other's corruption. And when nature is unable to bring a thing to a
greater perfection it brings it to a lesser; thus when it cannot
produce a male it produces a female which is "a misbegotten male" (De
Gener. Animal. ii, 3). I say then in like manner that slavery is
contrary to the first intention of nature. Yet it is not contrary to
the second, because natural reason has this inclination, and nature has
this desire---that everyone should be good; but from the fact that a
person sins, nature has an inclination that he should be punished for
his sin, and thus slavery was brought in as a punishment of sin. Nor is
it unreasonable for a natural thing to be hindered by that which is
unnatural in this way; for thus is marriage hindered by impotence of
coition, which impotence is contrary to nature in the way mentioned.
Reply to Objection 3: The natural law requires punishment to be
inflicted for guilt, and that no one should be punished who is not
guilty; but the appointing of the punishment according to the
circumstances of person and guilt belongs to positive law. Hence
slavery which is a definite punishment is of positive law, and arises
out of natural law, as the determinate from that which is
indeterminate. And it arises from the determination of the same
positive law that slavery if unknown is an impediment to matrimony,
lest one who is not guilty be punished; for it is a punishment to the
wife to have a slave for husband, and "vice versa. "
Reply to Objection 4: Certain impediments render a marriage unlawful;
and since it is not our will that makes a thing lawful or unlawful, but
the law to which our will ought to be subject, it follows that the
validity or invalidity of a marriage is not affected either by
ignorance (such as destroys voluntariness) of the impediment or by
knowledge thereof; and such an impediment is affinity or a vow, and
others of the same kind. other impediments, however, render a marriage
ineffectual as to the payment of the debt; and since it is within the
competency of our will to remit a debt that is due to us, it follows
that such impediments, if known, do not invalidate a marriage, but only
when ignorance of them destroys voluntariness. Such impediments are
slavery and impotence of coition. And, because they have of themselves
the nature of an impediment, they are reckoned as special impediments
besides error; whereas a change of person is not reckoned a special
impediment besides error, because the substitution of another person
has not the nature of an impediment except by reason of the intention
of one of the contracting parties.
Reply to Objection 5: Freedom does not hinder the marriage act,
wherefore ignorance of freedom is no impediment to matrimony.
Reply to Objection 6: Leprosy does not hinder marriage as to its first
act, since lepers can pay the debt freely; although they lay a burden
upon marriage as to its secondary effects; wherefore it is not an
impediment to marriage as slavery is.
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Whether a slave can marry without his master's consent?
Objection 1: It would seem that a slave cannot marry without his
master's consent. For no one can give a person that which is another's
without the latter's consent. Now a slave is his master's chattel.
Therefore he cannot give his wife power over his body by marrying
without his master's consent.
Objection 2: Further, a slave is bound to obey his master. But his
master may command him not to consent to marry. Therefore he cannot
marry without his consent.
Objection 3: Further, after marriage, a slave is bound even by a
precept of the Divine law to pay the debt to his wife. But at the time
that his wife asks for the debt his master may demand of him a service
which he will be unable to perform if he wish to occupy himself in
carnal intercourse. Therefore if a slave can marry without his master's
consent, the latter would be deprived of a service due to him without
any fault of his; and this ought not to be.
Objection 4: Further, a master may sell his slave into a foreign
country, where the latter's wife is unable to follow him, through
either bodily weakness, or imminent danger to her faith; for instance
if he be sold to unbelievers, or if her master be unwilling, supposing
her to be a bondswoman; and thus the marriage will be dissolved, which
is unfitting. Therefore a slave cannot marry without his master's
consent.
Objection 5: Further, the burden under which a man binds himself to the
Divine service is more advantageous than that whereby a man subjects
himself to his wife. But a slave cannot enter religion or receive
orders without his master's consent. Much less therefore can he be
married without his consent.
On the contrary, "In Christ Jesus . . . there is neither bond nor free"
(Gal. 3:26, 28). Therefore both freeman and bondsman enjoy the same
liberty to marry in the faith of Christ Jesus.
Further, slavery is of positive law; whereas marriage is of natural and
Divine law. Since then positive law is not prejudicial to the natural
or the Divine law, it would seem that a slave can marry without his
master's consent.
I answer that, As stated above (A[1], ad 3), the positive law arises
out of the natural law, and consequently slavery, which is of positive
law, cannot be prejudicious to those things that are of natural law.
Now just as nature seeks the preservation of the individual, so does it
seek the preservation of the species by means of procreation; wherefore
even as a slave is not so subject to his master as not to be at liberty
to eat, sleep, and do such things as pertain to the needs of his body,
and without which nature cannot be preserved, so he is not subject to
him to the extent of being unable to marry freely, even without his
master's knowledge or consent.
Reply to Objection 1: A slave is his master's chattel in matters
superadded to nature, but in natural things all are equal. Wherefore,
in things pertaining to natural acts, a slave can by marrying give
another person power over his body without his master's consent.
Reply to Objection 2: A slave is bound to obey his master in those
things which his master can command lawfully; and just as his master
cannot lawfully command him not to eat or sleep, so neither can he
lawfully command him to refrain from marrying. For it is the concern of
the lawgiver how each one uses his own, and consequently if the master
command his slave not to marry, the slave is not bound to obey his
master.
Reply to Objection 3: If a slave has married with his master's consent,
he should omit the service commanded by his master and pay the debt to
his wife; because the master, by consenting to his slave's marriage,
implicitly consented to all that marriage requires. If, however, the
marriage was contracted without the master's knowledge or consent, he
is not bound to pay the debt, but in preference to obey his master, if
the two things are incompatible. Nevertheless in such matters there are
many particulars to be considered, as in all human acts, namely the
danger to which his wife's chastity is exposed, and the obstacle which
the payment of the debt places in the way of the service commanded, and
other like considerations, all of which being duly weighed it will be
possible to judge which of the two in preference the slave is bound to
obey, his master or his wife.
Reply to Objection 4: In such a case it is said that the master should
be compelled not to sell the slave in such a way as to increase the
weight of the marriage burden, especially since he is able to obtain
anywhere a just price for his slave.
Reply to Objection 5: By entering religion or receiving orders a man is
bound to the Divine service for all time; whereas a husband is bound to
pay the debt to his wife not always, but at a fitting time; hence the
comparison fails. Moreover, he who enters religion or receives orders
binds himself to works that are superadded to natural works, and in
which his master has power over him, but not in natural works to which
a man binds himself by marriage. Hence he cannot vow continence without
his master's consent.
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Whether slavery can supervene to marriage?
Objection 1: It would seem that slavery cannot supervene to marriage,
by the husband selling himself to another as slave. Because what is
done by fraud and to another's detriment should not hold. But a husband
who sells himself for a slave, does so sometimes to cheat marriage, and
at least to the detriment of his wife. Therefore such a sale should not
hold as to the effect of slavery.
Objection 2: Further, two favorable things outweigh one that is not
favorable. Now marriage and freedom are favorable things and are
contrary to slavery, which in law is not a favorable thing. Therefore
such a slavery ought to be entirely annulled in marriage.
Objection 3: Further, in marriage husband and wife are on a par with
one another. Now the wife cannot surrender herself to be a slave
without her husband's consent. Therefore neither can the husband
without his wife's consent.
Objection 4: Further, in natural things that which hinders a thing
being generated destroys it after it has been generated. Now bondage of
the husband, if unknown to the wife, is an impediment to the act of
marriage before it is performed. Therefore if it could supervene to
marriage it would dissolve it; which is unreasonable.
On the contrary, Everyone can give another that which is his own. Now
the husband is his own master since he is free. Therefore he can
surrender his right to another.
Further, a slave can marry without his master's consent, as stated
above [4962](A[2]). Therefore a husband can in like manner subject
himself to a master, without his wife's consent.
I answer that, A husband is subject to his wife in those things which
pertain to the act of nature; in these things they are equal, and the
subjection of slavery does not extend thereto. Wherefore the husband,
without his wife's knowledge, can surrender himself to be another's
slave. Nor does this result in a dissolution of the marriage, since no
impediment supervening to marriage can dissolve it, as stated above
([4963]Q[50], A[1], ad 7).
Reply to Objection 1: The fraud can indeed hurt the person who has
acted fraudulently, but it cannot be prejudicial to another person:
wherefore if the husband, to cheat his wife, surrender himself to be
another's slave, It will be to his own prejudice, through his losing
the inestimable good of freedom; whereas this can nowise be prejudicial
to the wife, and he is bound to pay her the debt when she asks, and to
do all that marriage requires of him for he cannot be taken away from
these obligations by his master's command.
Reply to Objection 2: In so far as slavery is opposed to marriage,
marriage is prejudicial to slavery, since the slave is bound then to
pay the debt to his wife, though his master be unwilling.
Reply to Objection 3: Although husband and wife are considered to be on
a par in the marriage act and in things relating to nature, to which
the condition of slavery does not extend, nevertheless as regards the
management of the household, and other such additional matters the
husband is the head of the wife and should correct her, and not "vice
versa. " Hence the wife cannot surrender herself to be a slave without
her husband's consent.
Reply to Objection 4: This argument considers corruptible things; and
yet even in these there are many obstacles to generation that are not
capable of destroying what is already generated. But in things which
have stability it is possible to have an impediment which prevents a
certain thing from beginning to be, yet does not cause it to cease to
be; as instanced by the rational soul. It is the same with marriage,
which is a lasting tie so long as this life lasts.
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Whether children should follow the condition of their father?
Objection 1: It would seem that children should follow the condition of
their father. Because dominion belongs to those of higher rank. Now in
generating the father ranks above the mother. Therefore, etc.
Objection 2: Further, the being of a thing depends on the form more
than on the matter. Now in generation the father gives the form, and
the mother the matter (De Gener. Animal. ii, 4). Therefore the child
should follow the condition of the father rather than of the mother.
Objection 3: Further, a thing should follow that chiefly to which it is
most like. Now the son is more like the father than the mother, even as
the daughter is more like the mother. Therefore at least the son should
follow the father in preference, and the daughter the mother.
Objection 4: Further, in Holy Writ genealogies are not traced through
the women but through the men. Therefore the children follow the father
rather than the mother.
On the contrary, If a man sows on another's land, the produce belongs
to the owner of the land. Now the woman's womb in relation to the seed
of man is like the land in relation to the sower. Therefore, etc.
Further, we observe that in animals born from different species the
offspring follows the mother rather that the father, wherefore mules
born of a mare and an ass are more like mares than those born of a
she-ass and a horse. Therefore it should be the same with men.
I answer that, According to civil law (XIX, ff. De statu hom. vii, cap.
De rei vendit. ) the offspring follows the womb: and this is reasonable
since the offspring derives its formal complement from the father, but
the substance of the body from the mother. Now slavery is a condition
of the body, since a slave is to the master a kind of instrument in
working; wherefore children follow the mother in freedom and bondage;
whereas in matters pertaining to dignity as proceeding from a thing's
form, they follow the father, for instance in honors, franchise,
inheritance and so forth. The canons are in agreement with this (cap.
Liberi, 32, qu. iv, in gloss. : cap. Inducens, De natis ex libero
ventre) as also the law of Moses (Ex. 21).
In some countries, however, where the civil law does not hold, the
offspring follows the inferior condition, so that if the father be a
slave the children will be slaves although the mother be free; but not
if the father gave himself up as a slave after his marriage and without
his wife's consent; and the same applies if the case be reversed. And
if both be of servile condition and belong to different masters, the
children, if several, are divided among the latter, or if one only, the
one master will compensate the other in value and will take the child
thus born for his slave. However it is incredible that this custom have
as much reason in its favor as the decision of the time-honored
deliberations of many wise men. Moreover in natural things it is the
rule that what is received is in the recipient according to the mode of
the recipient and not according to the mode of the giver; wherefore it
is reasonable that the seed received by the mother should be drawn to
her condition.
Reply to Objection 1: Although the father is a more noble principle
than the mother, nevertheless the mother provides the substance of the
body, and it is to this that the condition of slavery attaches.
Reply to Objection 2: As regards things pertaining to the specific
nature the son is like the father rather than the mother, but in
material conditions should be like the mother rather than the father,
since a thing has its specific being from its form, but material
conditions from matter.
Reply to Objection 3: The son is like the father in respect of the form
which is his, and also the father's, complement. Hence the argument is
not to the point.
Reply to Objection 4: It is because the son derives honor from his
father rather than from his mother that in the genealogies of
Scripture, and according to common custom, children are named after
their father rather than from their mother. But in matters relating to
slavery they follow the mother by preference.
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OF THE IMPEDIMENT OF VOWS AND ORDERS (FOUR ARTICLES)
We must now consider the impediment of vows and orders. Under this head
there are four points of inquiry:
(1) Whether a simple vow is a diriment impediment to matrimony?
(2) Whether a solemn vow is a diriment impediment?
(3) Whether order is an impediment to matrimony?
(4) Whether a man can receive a sacred order after being married?
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Whether marriage already contracted should be annulled by the obligation of
a simple vow?
Objection 1: It would seem that a marriage already contracted ought to
be annulled by the obligation of a simple vow. For the stronger tie
takes precedence of the weaker. Now a vow is a stronger tie than
marriage, since the latter binds man to man, but the former binds man
to God. Therefore the obligation of a vow takes precedence of the
marriage tie.
Objection 2: Further, God's commandment is no less binding than the
commandment of the Church. Now the commandment of the Church is so
binding that a marriage is void if contracted in despite thereof; as
instanced in the case of those who marry within the degrees of kindred
forbidden by the Church. Therefore, since it is a Divine commandment to
keep a vow, it would seem that if a person marry in despite of a vow
his marriage should be annulled for that reason.
Objection 3: Further, in marriage a man may have carnal intercourse
without sin. Yet he who has taken a simple vow of chastity can never
have carnal intercourse with his wife without sin. Therefore a simple
vow annuls marriage. The minor is proved as follows. It is clear that
it is a mortal sin to marry after taking a simple vow of continence,
since according to Jerome [*Cf. St. Augustine, De Bono Viduit, ix] "for
those who vow virginity it is damnable not only to marry, but even to
wish to marry. " Now the marriage contract is not contrary to the vow of
continence, except by reason of carnal intercourse: and therefore he
sins mortally the first time he has intercourse with his wife, and for
the same reason every other time, because a sin committed in the first
instance cannot be an excuse for a subsequent sin.
Objection 4: Further, husband and wife should be equal in marriage,
especially as regards carnal intercourse. But he who has taken a simple
vow of continence can never ask for the debt without a sin, for this is
clearly against his vow of continence, since he is bound to continence
by vow. Therefore neither can he pay the debt without sin.
On the contrary, Pope Clement [*Alexander III] says (cap. Consuluit, De
his qui cler. vel vovent. ) that a "simple vow is an impediment to the
contract of marriage, but does not annul it after it is contracted. "
I answer that, A thing ceases to be in one man's power from the fact
that it passes into the power of another. Now the promise of a thing
does not transfer it into the power of the person to whom it is
promised, wherefore a thing does not cease to be in a person's power
for the reason that he has promised it. Since then a simple vow
contains merely a simple promise of one's body to the effect of keeping
continence for God's sake, a man still retains power over his own body
after a simple vow, and consequently can surrender it to another,
namely his wife; and in this surrender consists the sacrament of
matrimony, which is indissoluble. Therefore although a simple vow is an
impediment to the contracting of a marriage, since it is a sin to marry
after taking a simple vow of continence, yet since the contract is
valid, the marriage cannot be annulled on that account.
Reply to Objection 1: A vow is a stronger tie than matrimony, as
regards that to which man is tied, and the obligation under which he
lies. because by marriage a man is tied to his wife, with the
obligation of paying the debt, whereas by a vow a man is tied to God,
with the obligation of remaining continent. But as to the manner in
which he is tied marriage is a stronger tie than a simple vow, since by
marriage a man surrenders himself actually to the power of his wife,
but not by a simple vow as explained above: and the possessor is always
in the stronger position. In this respect a simple vow binds in the
same way as a betrothal; wherefore a betrothal must be annulled on
account of a simple vow.
Reply to Objection 2: The contracting of a marriage between blood
relations is annulled by the commandment forbidding such marriages, not
precisely because it is a commandment of God or of the Church, but
because it makes it impossible for the body of a kinswoman to be
transferred into the power of her kinsman: whereas the commandment
forbidding marriage after a simple vow has not this effect, as already
stated. Hence the argument is void for it assigns as a cause that which
is not cause.
answer to this question is that if pleasure be sought in such a way as
to exclude the honesty of marriage, so that, to wit, it is not as a
wife but as a woman that a man treats his wife, and that he is ready to
use her in the same way if she were not his wife, it is a mortal sin;
wherefore such a man is said to be too ardent a lover of his wife,
because his ardor carries him away from the goods of marriage. If,
however, he seek pleasure within the bounds of marriage, so that it
would not be sought in another than his wife, it is a venial sin.
Reply to Objection 1: A man seeks wanton pleasure in his wife when he
sees no more in her that he would in a wanton.
Reply to Objection 2: Consent to the pleasure of the intercourse that
is a mortal sin is itself a mortal sin; but such is not the consent to
the marriage act.
Reply to Objection 3: Although he does not actually refer the pleasure
to God, he does not place his will's last end therein; otherwise he
would seek it anywhere indifferently. Hence it does not follow that he
enjoys a creature; but he uses a creature actually for his own sake,
and himself habitually, though not actually, for God's sake.
Reply to Objection 4: The reason for this statement is not that man
deserves to be excommunicated for this sin, but because he renders
himself unfit for spiritual things, since in that act, he becomes flesh
and nothing more.
__________________________________________________________________
OF THE IMPEDIMENTS OF MARRIAGE, IN GENERAL (ONE ARTICLE)
In the next place we must consider the impediments of marriage: (1) In
general; (2) In particular.
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Whether it is fitting that impediments should be assigned to marriage?
Objection 1: It would seem unfitting for impediments to be assigned to
marriage. For marriage is a sacrament condivided with the others. But
no impediments are assigned to the others. Neither therefore should
they be assigned to marriage.
Objection 2: Further, the less perfect a thing is the fewer its
obstacles. Now matrimony is the least perfect of the sacraments.
Therefore it should have either no impediments or very few.
Objection 3: Further, wherever there is disease, it is necessary to
have a remedy for the disease. Now concupiscence, a remedy for which is
permitted in matrimony (1 Cor. 7:6), is in all. Therefore there should
not be any impediment making it altogether unlawful for a particular
person to marry.
Objection 4: Further, unlawful means against the law. Now these
impediments that are assigned to matrimony are not against the natural
law, because they are not found to be the same in each state of the
human race, since more degrees of kindred come under prohibition at one
time than at another. Nor, seemingly, can human law set impediments
against marriage, since marriage, like the other sacraments, is not of
human but of Divine institution. Therefore impediments should not be
assigned to marriage, making it unlawful for a person to marry.
Objection 5: Further, lawful and unlawful differ as that which is
against the law from that which is not, and between these there is no
middle term, since they are opposed according to affirmation and
negation. Therefore there cannot be impediments to marriage, placing a
person in a middle position between those who are lawful and those who
are unlawful subjects of marriage.
Objection 6: Further, union of man and woman is unlawful save in
marriage. Now every unlawful union should be dissolved. Therefore if
anything prevent a marriage being contracted, it will "de facto"
dissolve it after it has been contracted; and thus impediments should
not be assigned to marriage, which hinder it from being contracted, and
dissolve it after it has been contracted.
Objection 7: Further, no impediment can remove from a thing that which
is part of its definition. Now indissolubility is part of the
definition of marriage. Therefore there cannot be any impediments which
annul a marriage already contracted.
Objection 8: On the other hand, it would seem that there should be an
infinite number of impediments to marriage. For marriage is a good. Now
good may be lacking in an infinite number of ways, as Dionysius says
(Div. Nom. iii). Therefore there is an infinite number of impediments
to marriage.
Objection 9: Further, the impediments to marriage arise from the
conditions of individuals. But such like conditions are infinite in
number. Therefore the impediments to marriage are also infinite.
I answer that, In marriage, as in other sacraments, there are certain
things essential to marriage, and others that belong to its
solemnization. And since even without the things that pertain to its
solemnization it is still a true sacrament, as also in the case of the
other sacraments, it follows that the impediments to those things that
pertain to the solemnization of this sacrament do not derogate from the
validity of the marriage. These impediments are said to hinder the
contracting of marriage, but they do not dissolve the marriage once
contracted; such are the veto of the Church, or the holy seasons. Hence
the verse:
"The veto of the Church and holy tide
Forbid the knot, but loose it not if tied. "
On the other hand, those impediments which regard the essentials of
marriage make a marriage invalid, wherefore they are said not only to
hinder the contracting of marriage, but to dissolve it if contracted;
and they are contained in the following verse:
"Error, station, vow, kinship, crime,
Difference of worship, force, holy orders,
Marriage bond, honesty, affinity, impotence,
All these forbid marriage, and annul it though
contracted. "
The reason for this number may be explained as follows: Marriage may be
hindered either on the part of the contract or in regard to the
contracting parties. If in the first way, since the marriage contract
is made by voluntary consent, and this is incompatible with either
ignorance or violence, there will be two impediments to marriage,
namely "force," i. e. compulsion, and "error" in reference to ignorance.
Wherefore the Master pronounced on these two impediments when treating
of the cause of matrimony (Sent. iv, DD 29,30). Here, however, he is
treating of the impediments as arising from the contracting parties,
and these may be differentiated as follows. A person may be hindered
from contracting marriage either simply, or with some particular
person. If simply, so that he be unable to contract marriage with any
woman, this can only be because he is hindered from performing the
marriage act. This happens in two ways. First, because he cannot "de
facto," either through being altogether unable---and thus we have the
impediment of "impotence"---or through being unable to do so freely,
and thus we have the impediment of the "condition of slavery. "
Secondly, because he cannot do it lawfully, and this because he is
bound to continence, which happens in two ways, either through his
being bound on account of the office he has undertaken to fulfill---and
thus we have the impediment of "Order"---or on account of his having
taken a vow---and thus "Vow" is an impediment.
If, however, a person is hindered from marrying, not simply but in
reference to a particular person, this is either because he is bound to
another person, and thus he who is married to one cannot marry another,
which constitutes the impediment of the "bond of marriage"---or through
lack of proportion to the other party, and this for three reasons.
First, on account of too great a distance separating them, and thus we
have "difference of worship"; secondly, on account of their being too
closely related, and thus we have three impediments, namely "kinship,"
then "affinity," which denotes the close relationship between two
persons, in reference to a third united to one of them by marriage, and
the "justice of public honesty," where we have a close relationship
between two persons arising out of the betrothal of one of them to a
third person; thirdly, on account of a previous undue union between him
and the woman, and thus the "crime of adultery" previously committed
with her is an impediment.
Reply to Objection 1: There may be impediments to the other sacraments
also in the omission either of that which is essential, or of that
which pertains to the solemnization of the sacrament, as stated above.
However, impediments are assigned to matrimony rather than to the other
sacraments for three reasons. First, because matrimony consists of two
persons, and consequently can be impeded in more ways than the other
sacraments which refer to one person taken individually; secondly,
because matrimony has its cause in us and in God, while some of the
other sacraments have their cause in God alone. Wherefore penance which
in a manner has a cause in us, is assigned certain impediments by the
Master (Sent. iv, D, 16), such as hypocrisy, the public games, and so
forth; thirdly, because other sacraments are objects of command or
counsel, as being more perfect goods, whereas marriage is a matter of
indulgence, as being a less perfect good (1 Cor. 7:6). Wherefore, in
order to afford an opportunity of proficiency towards a greater good,
more impediments are assigned to matrimony than to the other
sacraments.
Reply to Objection 2: The more perfect things can be hindered in more
ways, in so far as more conditions are required for them. And if an
imperfect thing requires more conditions, there will be more
impediments to it; and thus it is in matrimony.
Reply to Objection 3: This argument would hold, were there no other and
more efficacious remedies for the disease of concupiscence; which is
false.
Reply to Objection 4: Persons are said to be unlawful subjects for
marriage through being contrary to the law whereby marriage is
established. Now marriage as fulfilling an office of nature is
established by the natural law; as a sacrament, by the Divine law; as
fulfilling an office of society, by the civil law. Consequently a
person may be rendered an unlawful subject of marriage by any of the
aforesaid laws. Nor does the comparison with the other sacraments hold,
for they are sacraments only. And since the natural law is
particularized in various ways according to the various states of
mankind, and since positive law, too, varies according to the various
conditions of men, the Master (Sent. iv, D, 34) asserts that at various
times various persons have been unlawful subjects of marriage.
Reply to Objection 5: The law may forbid a thing either altogether, or
in part and in certain cases. Hence between that which is altogether
according to the law and that which is altogether against the law
(which are opposed by contrariety and not according to affirmation and
negation), that which is somewhat according to the law and somewhat
against the law is a middle term. For this reason certain persons hold
a middle place between those who are simply lawful subjects and those
who are simply unlawful.
Reply to Objection 6: Those impediments which do not annul a marriage
already contracted sometimes hinder a marriage from being contracted,
by rendering it not invalid but unlawful. And if it be contracted it is
a true marriage although the contracting parties sin; just as by
consecrating after breaking one's fast one would sin by disobeying the
Church's ordinance, and yet it would be a valid sacrament because it is
not essential to the sacrament that the consecrator be fasting.
Reply to Objection 7: When we say that the aforesaid impediments annul
marriage already contracted, we do not mean that they dissolve a
marriage contracted in due form, but that they dissolve a marriage
contracted "de facto" and not "de jure. " Wherefore if an impediment
supervene after a marriage has been contracted in due form, it cannot
dissolve the marriage.
Reply to Objection 8: The impediments that hinder a good accidentally
are infinite in number, like all accidental causes. But the causes
which of their own nature corrupt a certain good are directed to that
effect, and determinate, even as are the causes which produce that
good; for the causes by which a thing is destroyed and those by which
it is made are either contrary to one another, or the same but taken in
a contrary way.
Reply to Objection 9: The conditions of particular persons taken
individually are infinite in number, but taken in general, they may be
reduced to a certain number; as instanced in medicine and all operative
arts, which consider the conditions of particular persons in whom acts
are.
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OF THE IMPEDIMENT OF ERROR (TWO ARTICLES)
We must now consider the impediments to matrimony in particular, and in
the first place the impediment of error. Under this head there are two
points of inquiry:
(1) Whether error of its very nature is an impediment to matrimony?
(2) What kind of error?
__________________________________________________________________
Whether it is right to reckon error as an impediment to marriage?
Objection 1: It would seem that error should not be reckoned in itself
an impediment to marriage. For consent, which is the efficient cause of
marriage, is hindered in the same way as the voluntary. Now the
voluntary, according to the Philosopher (Ethic. iii, 1), may be
hindered by ignorance. But ignorance is not the same as error, because
ignorance excludes knowledge altogether, whereas error does not, since
"error is to approve the false as though it were true," according to
Augustine (De Trin. ix, 11). Therefore ignorance rather than error
should have been reckoned here as an impediment to marriage.
Objection 2: Further, that which of its very nature can be an
impediment to marriage is in opposition to the good of marriage. But
error is not a thing of this kind. Therefore error is not by its very
nature an impediment to marriage.
Objection 3: Further, just as consent is required for marriage, so is
intention required for baptism. Now if one were to baptize John,
thinking to baptize Peter, John would be baptized none the less.
Therefore error does not annul matrimony.
Objection 4: Further, there was true marriage between Lia and Jacob,
and yet, in this case, there was error. Therefore error does not annul
a marriage.
On the contrary, It is said in the Digests (Si per errorem, ff. De
jurisdic. omn. judic. ): "What is more opposed to consent than error? "
Now consent is required for marriage. Therefore error is an impediment
to matrimony.
Further, consent denotes something voluntary. Now error is an obstacle
to the voluntary, since "the voluntary," according to the Philosopher
(Ethic. iii, 1), Damascene (De Fide Orth. ii, 24), and Gregory of Nyssa
[*Nemesius] (De Nat. Hom. xxxii), "is that which has its principle in
one who has knowledge of singulars which are the matter of actions. "
But this does not apply to one who is in error. Therefore error is an
impediment to matrimony.
I answer that, Whatever hinders a cause, of its very nature hinders the
effect likewise. Now consent is the cause of matrimony, as stated above
([4956]Q[45], A[1]). Hence whatever voids the consent, voids marriage.
Now consent is an act of the will, presupposing an act of the
intellect; and if the first be lacking, the second must needs be
lacking also. Hence, when error hinders knowledge, there follows a
defect in the consent also, and consequently in the marriage. Therefore
it is possible according to the natural law for error to void marriage.
Reply to Objection 1: Speaking simply, ignorance differs from error,
because ignorance does not of its very nature imply an act of
knowledge, while error supposes a wrong judgment of reason about
something. However, as regards being an impediment to the voluntary, it
differs not whether we call it ignorance or error, since no ignorance
can be an impediment to the voluntary, unless it have error in
conjunction with it, because the will's act presupposes an estimate or
judgment about something which is the object of the will. Wherefore if
there be ignorance there must needs be error; and for this reason error
is set down as being the proximate cause.
Reply to Objection 2: Although error is not of itself contrary to
matrimony, it is contrary thereto as regards the cause of marriage.
Reply to Objection 3: The character of baptism is not caused directly
by the intention of the baptizer, but by the material element applied
outwardly; and the intention is effective only as directing the
material element to its effect; whereas the marriage tie is caused by
the consent directly. Hence the comparison fails.
Reply to Objection 4: According to the Master (Sent. iv, D, 30) the
marriage between Lia and Jacob was effected not by their coming
together, which happened through an error, but by their consent, which
followed afterwards. Yet both are clearly to be excused from sin (Sent.
iv, D, 30).
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Whether every error is an impediment to matrimony?
Objection 1: It would seem that every error is an impediment to
matrimony, and not, as stated in the text (Sent. iv, D, 30), only error
about the condition or the person. For that which applies to a thing as
such applies to it in all its bearings. Now error is of its very nature
an impediment to matrimony, as stated above [4957](A[1]). Therefore
every error is an impediment to matrimony.
Objection 2: Further, if error, as such, is an impediment to matrimony,
the greater the error the greater the impediment. Now the error
concerning faith in a heretic who disbelieves in this sacrament is
greater than an error concerning the person. Therefore it should be a
greater impediment than error about the person.
Objection 3: Further, error does not void marriage except as removing
voluntariness. Now ignorance about any circumstance takes away
voluntariness (Ethic. iii, 1). Therefore it is not only error about
condition or person that is an impediment to matrimony.
Objection 4: Further, just as the condition of slavery is an accident
affecting the person, so are bodily or mental qualities. But error
regarding the condition is an impediment to matrimony. Therefore error
concerning quality or fortune is equally an impediment.
Objection 5: Further, just as slavery or freedom pertains to the
condition of person, so do high and low rank, or dignity of position
and the lack thereof. Now error regarding the condition of slavery is
an impediment to matrimony. Therefore error about the other matters
mentioned is also an impediment.
Objection 6: Further, just as the condition of slavery is an
impediment, so are difference of worship and impotence, as we shall say
further on ([4958]Q[52], A[2];[4959] Q[58], A[1];[4960] Q[59], A[1]).
Therefore just as error regarding the condition is an impediment, so
also should error about those other matters be reckoned an impediment.
Objection 7: On the other hand, it would seem that not even error about
the person is an impediment to marriage. For marriage is a contract
even as a sale is. Now in buying and selling the sale is not voided if
one coin be given instead of another of equal value. Therefore a
marriage is not voided if one woman be taken instead of another.
Objection 8: Further, it is possible for them to remain in this error
for many years and to beget between them sons and daughters. But it
would be a grave assertion to maintain that they ought to be separated
then. Therefore their previous error did not void their marriage.
Objection 9: Further, it might happen that the woman is betrothed to
the brother of the man whom she thinks that she is consenting to marry,
and that she has had carnal intercourse with him; in which case,
seemingly, she cannot go back to the man to whom she thought to give
her consent, but should hold on to his brother. Thus error regarding
the person is not an impediment to marriage.
I answer that, Just as error, through causing involuntariness, is an
excuse from sin, so on the same count is it an impediment to marriage.
Now error does not excuse from sin unless it refer to a circumstance
the presence or absence of which makes an action lawful or unlawful.
For if a man were to strike his father with an iron rod thinking it to
be of wood, he is not excused from sin wholly, although perhaps in
part; but if a man were to strike his father, thinking to strike his
son to correct him, he is wholly excused provided he take due care.
Wherefore error, in order to void marriage, must needs be about the
essentials of marriage. Now marriage includes two things, namely the
two persons who are joined together, and the mutual power over one
another wherein marriage consists. The first of these is removed by
error concerning the person, the second by error regarding the
condition, since a slave cannot freely give power over his body to
another, without his master's consent. For this reason these two
errors, and no others, are an impediment to matrimony.
Reply to Objection 1: It is not from its generic nature that error is
an impediment to marriage, but from the nature of the difference added
thereto; namely from its being error about one of the essentials to
marriage.
Reply to Objection 2: An error of faith about matrimony is about things
consequent upon matrimony, for instance on the question of its being a
sacrament, or of its being lawful. Wherefore such error as these is no
impediment to marriage, as neither does an error about baptism hinder a
man from receiving the character, provided he intend to receive what
the Church gives, although he believe it to be nothing.
Reply to Objection 3: It is not any ignorance of a circumstance that
causes the involuntariness which is an excuse from sin, as stated
above; wherefore the argument does not prove.
Reply to Objection 4: Difference of fortune or of quality does not make
a difference in the essentials to matrimony, as the condition of
slavery does. Hence the argument does not prove.
Reply to Objection 5: Error about a person's rank, as such, does not
void a marriage, for the same reason as neither does error about a
personal quality. If, however, the error about a person's rank or
position amounts to an error about the person, it is an impediment to
matrimony. Hence, if the woman consent directly to this particular
person, her error about his rank does not void the marriage; but if she
intend directly to consent to marry the king's son, whoever he may be,
then, if another man than the king's son be brought to her, there is
error about the person, and the marriage will be void.
Reply to Objection 6: Error is an impediment to matrimony, although it
be about other impediments to marriage if it concern those things which
render a person an unlawful subject of marriage. But (the Master) does
not mention error about such things, because they are an impediment to
marriage whether there be error about them or not; so that if a woman
contract with a subdeacon, whether she know this or not, there is no
marriage; whereas the condition of slavery is no impediment if the
slavery be known. Hence the comparison fails.
Reply to Objection 7: In contracts money is regarded as the measure of
other things (Ethic. v, 5), and not as being sought for its own sake.
Hence if the coin paid is not what it is thought to be but another of
equal value, this does not void the contract. But if there be error
about a thing sought for its own sake, the contract is voided, for
instance if one were to sell a donkey for a horse; and thus it is in
the case in point.
Reply to Objection 8: No matter how long they have cohabited, unless
she be willing to consent again, there is no marriage.
Reply to Objection 9: If she did not consent previously to marry his
brother, she may hold to the one whom she took in error. Nor can she
return to his brother, especially if there has been carnal intercourse
between her and the man she took to husband. If, however, she had
previously consented to take the first one in words of the present, she
cannot have the second while the first lives. But she may either leave
the second or return to the first; and ignorance of the fact excuses
her from sin, just as she would be excused if after the consummation of
the marriage a kinsman of her husband were to know her by fraud since
she is not to be blamed for the other's deceit.
__________________________________________________________________
OF THE IMPEDIMENT OF THE CONDITION OF SLAVERY (FOUR ARTICLES)
We must now consider the impediment of the condition of slavery. Under
this head there are four points of inquiry:
(1) Whether the condition of slavery is an impediment to matrimony?
(2) Whether a slave can marry without his master's consent?
(3) Whether a man who is already married can make himself a slave
without his wife's consent?
(4) Whether the children should follow the condition of their father or
of their mother?
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Whether the condition of slavery is an impediment to matrimony?
Objection 1: It would seem that the condition of slavery is no
impediment to matrimony. For nothing is an impediment to marriage
except what is in some way opposed to it. But slavery is in no way
opposed to marriage, else there could be no marriage among slaves.
Therefore slavery is no impediment to marriage.
Objection 2: Further, that which is contrary to nature cannot be an
impediment to that which is according to nature. Now slavery is
contrary to nature, for as Gregory says (Pastor. ii, 6), "it is
contrary to nature for man to wish to lord it over another man"; and
this is also evident from the fact that it was said of man (Gn. 1:26)
that he should "have dominion over the fishes of the sea," but not that
he should have dominion over man. Therefore it cannot be an impediment
to marriage, which is a natural thing.
Objection 3: Further, if it is an impediment, this is either of natural
law or of positive law. But it is not of natural law, since according
to natural law all men are equal, as Gregory says (Pastor. ii, 6),
while it is stated at the beginning of the Digests (Manumissiones, ff.
de just. et jure. ) that slavery is not of natural law; and positive law
springs from the natural law, as Tully says (De Invent. ii). Therefore,
according to law, slavery is not an impediment to any marriage.
Objection 4: Further, that which is an impediment to marriage is
equally an impediment whether it be known or not, as in the case of
consanguinity. Now the slavery of one party, if it be known to the
other, is no impediment to their marriage. Therefore slavery,
considered in itself, is unable to void a marriage; and consequently it
should not be reckoned by itself as a distinct impediment to marriage.
Objection 5: Further, just as one may be in error about slavery, so as
to deem a person free who is a slave, so may one be in error about
freedom, so as to deem a person a slave whereas he is free. But freedom
is not accounted an impediment to matrimony. Therefore neither should
slavery be so accounted.
Objection 7: Further, leprosy is a greater burden to the fellowship of
marriage and is a greater obstacle to the good of the offspring than
slavery is. Yet leprosy is not reckoned an impediment to marriage.
Therefore neither should slavery be so reckoned.
On the contrary, A Decretal says (De conjug. servorum, cap. Ad nostram)
that "error regarding the condition hinders a marriage from being
contracted and voids that which is already contracted. "
Further, marriage is one of the goods that are sought for their own
sake, because it is qualified by honesty; whereas slavery is one of the
things to be avoided for their own sake. Therefore marriage and slavery
are contrary to one another; and consequently slavery is an impediment
to matrimony.
I answer that, In the marriage contract one party is bound to the other
in the matter of paying the debt; wherefore if one who thus binds
himself is unable to pay the debt, ignorance of this inability, on the
side of the party to whom he binds himself, voids the contract. Now
just as impotence in respect of coition makes a person unable to pay
the debt, so that he is altogether disabled, so slavery makes him
unable to pay it freely. Therefore, just as ignorance or impotence in
respect of coition is an impediment if not known but not if known, as
we shall state further on ([4961]Q[58]), so the condition of slavery is
an impediment if not known, but not if it be known.
Reply to Objection 1: Slavery is contrary to marriage as regards the
act to which marriage binds one party in relation to the other, because
it prevents the free execution of that act; and again as regards the
good of the offspring who become subject to the same condition by
reason of the parent's slavery. Since, however, it is free to everyone
to suffer detriment in that which is his due, if one of the parties
knows the other to be a slave, the marriage is none the less valid.
Likewise since in marriage there is an equal obligation on either side
to pay the debt, neither party can exact of the other a greater
obligation than that under which he lies; so that if a slave marry a
bondswoman, thinking her to be free, the marriage is not thereby
rendered invalid. It is therefore evident that slavery is no impediment
to marriage except when it is unknown to the other party, even though
the latter be in a condition of freedom; and so nothing prevents
marriage between slaves, or even between a freeman and a bondswoman.
Reply to Objection 2: Nothing prevents a thing being against nature as
to the first intention of nature, and yet not against nature as to its
second intention. Thus, as stated in De Coelo, ii, all corruption,
defect, and old age are contrary to nature, because nature intends
being and perfection, and yet they are not contrary to the second
intention of nature, because nature, through being unable to preserve
being in one thing, preserves it in another which is engendered of the
other's corruption. And when nature is unable to bring a thing to a
greater perfection it brings it to a lesser; thus when it cannot
produce a male it produces a female which is "a misbegotten male" (De
Gener. Animal. ii, 3). I say then in like manner that slavery is
contrary to the first intention of nature. Yet it is not contrary to
the second, because natural reason has this inclination, and nature has
this desire---that everyone should be good; but from the fact that a
person sins, nature has an inclination that he should be punished for
his sin, and thus slavery was brought in as a punishment of sin. Nor is
it unreasonable for a natural thing to be hindered by that which is
unnatural in this way; for thus is marriage hindered by impotence of
coition, which impotence is contrary to nature in the way mentioned.
Reply to Objection 3: The natural law requires punishment to be
inflicted for guilt, and that no one should be punished who is not
guilty; but the appointing of the punishment according to the
circumstances of person and guilt belongs to positive law. Hence
slavery which is a definite punishment is of positive law, and arises
out of natural law, as the determinate from that which is
indeterminate. And it arises from the determination of the same
positive law that slavery if unknown is an impediment to matrimony,
lest one who is not guilty be punished; for it is a punishment to the
wife to have a slave for husband, and "vice versa. "
Reply to Objection 4: Certain impediments render a marriage unlawful;
and since it is not our will that makes a thing lawful or unlawful, but
the law to which our will ought to be subject, it follows that the
validity or invalidity of a marriage is not affected either by
ignorance (such as destroys voluntariness) of the impediment or by
knowledge thereof; and such an impediment is affinity or a vow, and
others of the same kind. other impediments, however, render a marriage
ineffectual as to the payment of the debt; and since it is within the
competency of our will to remit a debt that is due to us, it follows
that such impediments, if known, do not invalidate a marriage, but only
when ignorance of them destroys voluntariness. Such impediments are
slavery and impotence of coition. And, because they have of themselves
the nature of an impediment, they are reckoned as special impediments
besides error; whereas a change of person is not reckoned a special
impediment besides error, because the substitution of another person
has not the nature of an impediment except by reason of the intention
of one of the contracting parties.
Reply to Objection 5: Freedom does not hinder the marriage act,
wherefore ignorance of freedom is no impediment to matrimony.
Reply to Objection 6: Leprosy does not hinder marriage as to its first
act, since lepers can pay the debt freely; although they lay a burden
upon marriage as to its secondary effects; wherefore it is not an
impediment to marriage as slavery is.
__________________________________________________________________
Whether a slave can marry without his master's consent?
Objection 1: It would seem that a slave cannot marry without his
master's consent. For no one can give a person that which is another's
without the latter's consent. Now a slave is his master's chattel.
Therefore he cannot give his wife power over his body by marrying
without his master's consent.
Objection 2: Further, a slave is bound to obey his master. But his
master may command him not to consent to marry. Therefore he cannot
marry without his consent.
Objection 3: Further, after marriage, a slave is bound even by a
precept of the Divine law to pay the debt to his wife. But at the time
that his wife asks for the debt his master may demand of him a service
which he will be unable to perform if he wish to occupy himself in
carnal intercourse. Therefore if a slave can marry without his master's
consent, the latter would be deprived of a service due to him without
any fault of his; and this ought not to be.
Objection 4: Further, a master may sell his slave into a foreign
country, where the latter's wife is unable to follow him, through
either bodily weakness, or imminent danger to her faith; for instance
if he be sold to unbelievers, or if her master be unwilling, supposing
her to be a bondswoman; and thus the marriage will be dissolved, which
is unfitting. Therefore a slave cannot marry without his master's
consent.
Objection 5: Further, the burden under which a man binds himself to the
Divine service is more advantageous than that whereby a man subjects
himself to his wife. But a slave cannot enter religion or receive
orders without his master's consent. Much less therefore can he be
married without his consent.
On the contrary, "In Christ Jesus . . . there is neither bond nor free"
(Gal. 3:26, 28). Therefore both freeman and bondsman enjoy the same
liberty to marry in the faith of Christ Jesus.
Further, slavery is of positive law; whereas marriage is of natural and
Divine law. Since then positive law is not prejudicial to the natural
or the Divine law, it would seem that a slave can marry without his
master's consent.
I answer that, As stated above (A[1], ad 3), the positive law arises
out of the natural law, and consequently slavery, which is of positive
law, cannot be prejudicious to those things that are of natural law.
Now just as nature seeks the preservation of the individual, so does it
seek the preservation of the species by means of procreation; wherefore
even as a slave is not so subject to his master as not to be at liberty
to eat, sleep, and do such things as pertain to the needs of his body,
and without which nature cannot be preserved, so he is not subject to
him to the extent of being unable to marry freely, even without his
master's knowledge or consent.
Reply to Objection 1: A slave is his master's chattel in matters
superadded to nature, but in natural things all are equal. Wherefore,
in things pertaining to natural acts, a slave can by marrying give
another person power over his body without his master's consent.
Reply to Objection 2: A slave is bound to obey his master in those
things which his master can command lawfully; and just as his master
cannot lawfully command him not to eat or sleep, so neither can he
lawfully command him to refrain from marrying. For it is the concern of
the lawgiver how each one uses his own, and consequently if the master
command his slave not to marry, the slave is not bound to obey his
master.
Reply to Objection 3: If a slave has married with his master's consent,
he should omit the service commanded by his master and pay the debt to
his wife; because the master, by consenting to his slave's marriage,
implicitly consented to all that marriage requires. If, however, the
marriage was contracted without the master's knowledge or consent, he
is not bound to pay the debt, but in preference to obey his master, if
the two things are incompatible. Nevertheless in such matters there are
many particulars to be considered, as in all human acts, namely the
danger to which his wife's chastity is exposed, and the obstacle which
the payment of the debt places in the way of the service commanded, and
other like considerations, all of which being duly weighed it will be
possible to judge which of the two in preference the slave is bound to
obey, his master or his wife.
Reply to Objection 4: In such a case it is said that the master should
be compelled not to sell the slave in such a way as to increase the
weight of the marriage burden, especially since he is able to obtain
anywhere a just price for his slave.
Reply to Objection 5: By entering religion or receiving orders a man is
bound to the Divine service for all time; whereas a husband is bound to
pay the debt to his wife not always, but at a fitting time; hence the
comparison fails. Moreover, he who enters religion or receives orders
binds himself to works that are superadded to natural works, and in
which his master has power over him, but not in natural works to which
a man binds himself by marriage. Hence he cannot vow continence without
his master's consent.
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Whether slavery can supervene to marriage?
Objection 1: It would seem that slavery cannot supervene to marriage,
by the husband selling himself to another as slave. Because what is
done by fraud and to another's detriment should not hold. But a husband
who sells himself for a slave, does so sometimes to cheat marriage, and
at least to the detriment of his wife. Therefore such a sale should not
hold as to the effect of slavery.
Objection 2: Further, two favorable things outweigh one that is not
favorable. Now marriage and freedom are favorable things and are
contrary to slavery, which in law is not a favorable thing. Therefore
such a slavery ought to be entirely annulled in marriage.
Objection 3: Further, in marriage husband and wife are on a par with
one another. Now the wife cannot surrender herself to be a slave
without her husband's consent. Therefore neither can the husband
without his wife's consent.
Objection 4: Further, in natural things that which hinders a thing
being generated destroys it after it has been generated. Now bondage of
the husband, if unknown to the wife, is an impediment to the act of
marriage before it is performed. Therefore if it could supervene to
marriage it would dissolve it; which is unreasonable.
On the contrary, Everyone can give another that which is his own. Now
the husband is his own master since he is free. Therefore he can
surrender his right to another.
Further, a slave can marry without his master's consent, as stated
above [4962](A[2]). Therefore a husband can in like manner subject
himself to a master, without his wife's consent.
I answer that, A husband is subject to his wife in those things which
pertain to the act of nature; in these things they are equal, and the
subjection of slavery does not extend thereto. Wherefore the husband,
without his wife's knowledge, can surrender himself to be another's
slave. Nor does this result in a dissolution of the marriage, since no
impediment supervening to marriage can dissolve it, as stated above
([4963]Q[50], A[1], ad 7).
Reply to Objection 1: The fraud can indeed hurt the person who has
acted fraudulently, but it cannot be prejudicial to another person:
wherefore if the husband, to cheat his wife, surrender himself to be
another's slave, It will be to his own prejudice, through his losing
the inestimable good of freedom; whereas this can nowise be prejudicial
to the wife, and he is bound to pay her the debt when she asks, and to
do all that marriage requires of him for he cannot be taken away from
these obligations by his master's command.
Reply to Objection 2: In so far as slavery is opposed to marriage,
marriage is prejudicial to slavery, since the slave is bound then to
pay the debt to his wife, though his master be unwilling.
Reply to Objection 3: Although husband and wife are considered to be on
a par in the marriage act and in things relating to nature, to which
the condition of slavery does not extend, nevertheless as regards the
management of the household, and other such additional matters the
husband is the head of the wife and should correct her, and not "vice
versa. " Hence the wife cannot surrender herself to be a slave without
her husband's consent.
Reply to Objection 4: This argument considers corruptible things; and
yet even in these there are many obstacles to generation that are not
capable of destroying what is already generated. But in things which
have stability it is possible to have an impediment which prevents a
certain thing from beginning to be, yet does not cause it to cease to
be; as instanced by the rational soul. It is the same with marriage,
which is a lasting tie so long as this life lasts.
__________________________________________________________________
Whether children should follow the condition of their father?
Objection 1: It would seem that children should follow the condition of
their father. Because dominion belongs to those of higher rank. Now in
generating the father ranks above the mother. Therefore, etc.
Objection 2: Further, the being of a thing depends on the form more
than on the matter. Now in generation the father gives the form, and
the mother the matter (De Gener. Animal. ii, 4). Therefore the child
should follow the condition of the father rather than of the mother.
Objection 3: Further, a thing should follow that chiefly to which it is
most like. Now the son is more like the father than the mother, even as
the daughter is more like the mother. Therefore at least the son should
follow the father in preference, and the daughter the mother.
Objection 4: Further, in Holy Writ genealogies are not traced through
the women but through the men. Therefore the children follow the father
rather than the mother.
On the contrary, If a man sows on another's land, the produce belongs
to the owner of the land. Now the woman's womb in relation to the seed
of man is like the land in relation to the sower. Therefore, etc.
Further, we observe that in animals born from different species the
offspring follows the mother rather that the father, wherefore mules
born of a mare and an ass are more like mares than those born of a
she-ass and a horse. Therefore it should be the same with men.
I answer that, According to civil law (XIX, ff. De statu hom. vii, cap.
De rei vendit. ) the offspring follows the womb: and this is reasonable
since the offspring derives its formal complement from the father, but
the substance of the body from the mother. Now slavery is a condition
of the body, since a slave is to the master a kind of instrument in
working; wherefore children follow the mother in freedom and bondage;
whereas in matters pertaining to dignity as proceeding from a thing's
form, they follow the father, for instance in honors, franchise,
inheritance and so forth. The canons are in agreement with this (cap.
Liberi, 32, qu. iv, in gloss. : cap. Inducens, De natis ex libero
ventre) as also the law of Moses (Ex. 21).
In some countries, however, where the civil law does not hold, the
offspring follows the inferior condition, so that if the father be a
slave the children will be slaves although the mother be free; but not
if the father gave himself up as a slave after his marriage and without
his wife's consent; and the same applies if the case be reversed. And
if both be of servile condition and belong to different masters, the
children, if several, are divided among the latter, or if one only, the
one master will compensate the other in value and will take the child
thus born for his slave. However it is incredible that this custom have
as much reason in its favor as the decision of the time-honored
deliberations of many wise men. Moreover in natural things it is the
rule that what is received is in the recipient according to the mode of
the recipient and not according to the mode of the giver; wherefore it
is reasonable that the seed received by the mother should be drawn to
her condition.
Reply to Objection 1: Although the father is a more noble principle
than the mother, nevertheless the mother provides the substance of the
body, and it is to this that the condition of slavery attaches.
Reply to Objection 2: As regards things pertaining to the specific
nature the son is like the father rather than the mother, but in
material conditions should be like the mother rather than the father,
since a thing has its specific being from its form, but material
conditions from matter.
Reply to Objection 3: The son is like the father in respect of the form
which is his, and also the father's, complement. Hence the argument is
not to the point.
Reply to Objection 4: It is because the son derives honor from his
father rather than from his mother that in the genealogies of
Scripture, and according to common custom, children are named after
their father rather than from their mother. But in matters relating to
slavery they follow the mother by preference.
__________________________________________________________________
OF THE IMPEDIMENT OF VOWS AND ORDERS (FOUR ARTICLES)
We must now consider the impediment of vows and orders. Under this head
there are four points of inquiry:
(1) Whether a simple vow is a diriment impediment to matrimony?
(2) Whether a solemn vow is a diriment impediment?
(3) Whether order is an impediment to matrimony?
(4) Whether a man can receive a sacred order after being married?
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Whether marriage already contracted should be annulled by the obligation of
a simple vow?
Objection 1: It would seem that a marriage already contracted ought to
be annulled by the obligation of a simple vow. For the stronger tie
takes precedence of the weaker. Now a vow is a stronger tie than
marriage, since the latter binds man to man, but the former binds man
to God. Therefore the obligation of a vow takes precedence of the
marriage tie.
Objection 2: Further, God's commandment is no less binding than the
commandment of the Church. Now the commandment of the Church is so
binding that a marriage is void if contracted in despite thereof; as
instanced in the case of those who marry within the degrees of kindred
forbidden by the Church. Therefore, since it is a Divine commandment to
keep a vow, it would seem that if a person marry in despite of a vow
his marriage should be annulled for that reason.
Objection 3: Further, in marriage a man may have carnal intercourse
without sin. Yet he who has taken a simple vow of chastity can never
have carnal intercourse with his wife without sin. Therefore a simple
vow annuls marriage. The minor is proved as follows. It is clear that
it is a mortal sin to marry after taking a simple vow of continence,
since according to Jerome [*Cf. St. Augustine, De Bono Viduit, ix] "for
those who vow virginity it is damnable not only to marry, but even to
wish to marry. " Now the marriage contract is not contrary to the vow of
continence, except by reason of carnal intercourse: and therefore he
sins mortally the first time he has intercourse with his wife, and for
the same reason every other time, because a sin committed in the first
instance cannot be an excuse for a subsequent sin.
Objection 4: Further, husband and wife should be equal in marriage,
especially as regards carnal intercourse. But he who has taken a simple
vow of continence can never ask for the debt without a sin, for this is
clearly against his vow of continence, since he is bound to continence
by vow. Therefore neither can he pay the debt without sin.
On the contrary, Pope Clement [*Alexander III] says (cap. Consuluit, De
his qui cler. vel vovent. ) that a "simple vow is an impediment to the
contract of marriage, but does not annul it after it is contracted. "
I answer that, A thing ceases to be in one man's power from the fact
that it passes into the power of another. Now the promise of a thing
does not transfer it into the power of the person to whom it is
promised, wherefore a thing does not cease to be in a person's power
for the reason that he has promised it. Since then a simple vow
contains merely a simple promise of one's body to the effect of keeping
continence for God's sake, a man still retains power over his own body
after a simple vow, and consequently can surrender it to another,
namely his wife; and in this surrender consists the sacrament of
matrimony, which is indissoluble. Therefore although a simple vow is an
impediment to the contracting of a marriage, since it is a sin to marry
after taking a simple vow of continence, yet since the contract is
valid, the marriage cannot be annulled on that account.
Reply to Objection 1: A vow is a stronger tie than matrimony, as
regards that to which man is tied, and the obligation under which he
lies. because by marriage a man is tied to his wife, with the
obligation of paying the debt, whereas by a vow a man is tied to God,
with the obligation of remaining continent. But as to the manner in
which he is tied marriage is a stronger tie than a simple vow, since by
marriage a man surrenders himself actually to the power of his wife,
but not by a simple vow as explained above: and the possessor is always
in the stronger position. In this respect a simple vow binds in the
same way as a betrothal; wherefore a betrothal must be annulled on
account of a simple vow.
Reply to Objection 2: The contracting of a marriage between blood
relations is annulled by the commandment forbidding such marriages, not
precisely because it is a commandment of God or of the Church, but
because it makes it impossible for the body of a kinswoman to be
transferred into the power of her kinsman: whereas the commandment
forbidding marriage after a simple vow has not this effect, as already
stated. Hence the argument is void for it assigns as a cause that which
is not cause.
