I answer that, The sacramental causes produce their effect by
signifying it; hence they effect what they signify.
signifying it; hence they effect what they signify.
Summa Theologica
Therefore it cannot be
dissolved.
I answer that, In all the cases mentioned above the betrothal that has
been contracted is dissolved, but in different ways. For in two of
them---namely when a party enters religion, and when either of the
affianced spouses contracts with another party by words expressive of
the present---the betrothal is dissolved by law, whereas in the other
cases it has to be dissolved according to the judgment of the Church.
Reply to Objection 1: The like promise is dissolved by spiritual death,
for that promise is purely spiritual, as we shall state further on
([4933]Q[61], A[2]).
Reply to Objection 2: This doubt is solved by either party not putting
in an appearance at the time fixed for completing the marriage.
Wherefore if it was no fault of that party that the marriage was not
completed, he or she can lawfully marry without any sin. But if he or
she was responsible for the non-completion of the marriage, this
responsibility involves the obligation of doing penance for the broken
promise---or oath if the promise was confirmed by oath---and he or she
can contract with another if they wish it, subject to the judgment of
the Church.
Reply to Objection 3: If either of the betrothed parties incur an
infirmity which notably weakens the subject (as epilepsy or paralysis),
or causes a deformity (as loss of the nose or eyes, and the like), or
is contrary to the good of the offspring (as leprosy, which is wont to
be transmitted to the children), the betrothal can be dissolved, lest
the betrothed be displeasing to one another, and the marriage thus
contracted have an evil result. Nor is one punished for being under a
penalty, although one incurs a loss from one's penalty, and this is not
unreasonable.
Reply to Objection 4: If the affianced bridegroom has carnal knowledge
of a kinswoman of his spouse, or "vice versa," the betrothal must be
dissolved; and for proof it is sufficient that the fact be the common
talk, in order to avoid scandal; for causes whose effects mature in the
future are voided of their effects, not only by what actually is, but
also by what happens subsequently. Hence just as affinity, had it
existed at the time of the betrothal, would have prevented that
contract, so, if it supervene before marriage, which is an effect of
the betrothal, the previous contract is voided of its effect. Nor does
the other party suffer in consequence, indeed he or she gains, being
set free from one who has become hateful to God by committing
fornication.
Reply to Objection 5: Some do not admit this case. Yet they have
against them the Decretal (cap. Praeterea, De spons. et matr. ) which
says expressly: "Just as those who enter into a contract of fellowship
by pledging their faith to one another and afterwards give it back, so
it may be patiently tolerated that those who are betrothed to one
another should set one another free. " Yet to this they say that the
Church allows this lest worse happen rather than because it is
according to strict law. But this does not seem to agree with the
example quoted by the Decretal.
Accordingly we must reply that it is not always a proof of fickleness
to rescind an agreement, since "our counsels are uncertain" (Wis.
9:14).
Reply to Objection 6: Although when they become betrothed they have not
yet given one another power over one another's body, yet if this
[*Referring to the contention of the Objection] were to happen it would
make them suspicious of one another's fidelity; and so one can ensure
himself against the other by breaking off the engagement.
Reply to Objection 7: This argument would hold if each contract were of
the same kind; whereas the second contract of marriage has greater
force than the first, and consequently dissolves it.
Reply to Objection 8: Although it was not a true betrothal, there was a
betrothal of a kind; and consequently, lest approval should seem to be
given when they come to the lawful age, they should seek a dissolution
of the betrothal by the judgment of the Church, for the sake of a good
example.
__________________________________________________________________
OF THE DEFINITION OF MATRIMONY (THREE ARTICLES)
We must now consider the nature of matrimony. Under this head there are
three points of inquiry:
(1) Whether matrimony is a kind of joining?
(2) Whether it is fittingly named?
(3) Whether it is fittingly defined?
__________________________________________________________________
Whether matrimony is a kind of joining?
Objection 1: It would seem that matrimony is not a kind of joining.
Because the bond whereby things are tied together differs from their
joining, as cause from effect. Now matrimony is the bond whereby those
who are joined in matrimony are tied together. Therefore it is not a
kind of joining.
Objection 2: Further, every sacrament is a sensible sign. But no
relation is a sensible accident. Therefore since matrimony is a
sacrament, it is not a kind of relation, and consequently neither is it
a kind of joining.
Objection 3: Further, a joining is a relation of equiparance as well as
of equality. Now according to Avicenna the relation of equality is not
identically the same in each extreme. Neither therefore is there an
identically same joining; and consequently if matrimony is a kind of
joining, there is not only one matrimony between man and wife.
On the contrary, It is by relation that things are related to one
another. Now by matrimony certain things are related to one another;
for the husband is the wife's husband, and the wife is the husband's
wife. Therefore matrimony is a kind of relation, nor is it other than a
joining.
Further, the union of two things into one can result only from their
being joined. Now such is the effect of matrimony (Gn. 2:24): "They
shall be two in one flesh. " Therefore matrimony is a kind of joining.
I answer that, A joining denotes a kind of uniting, and so wherever
things are united there must be a joining. Now things directed to one
purpose are said to be united in their direction thereto, thus many men
are united in following one military calling or in pursuing one
business, in relation to which they are called fellow-soldiers or
business partners. Hence, since by marriage certain persons are
directed to one begetting and upbringing of children, and again to one
family life, it is clear that in matrimony there is a joining in
respect of which we speak of husband and wife; and this joining,
through being directed to some one thing, is matrimony; while the
joining together of bodies and minds is a result of matrimony.
Reply to Objection 1: Matrimony is the bond by which they are tied
formally, not effectively, and so it need not be distinct from the
joining.
Reply to Objection 2: Although relation is not itself a sensible
accident, its causes may be sensible. Nor is it necessary in a
sacrament for that which is both reality and sacrament [*Cf. [4934]TP,
Q[66], A[1]] to be sensible (for such is the relation of the aforesaid
joining to this sacrament), whereas the words expressive of consent,
which are sacrament only and are the cause of that same joining, are
sensible.
Reply to Objection 3: A relation is founded on something as its
cause---for instance likeness is founded on quality---and on something
as its subject---for instance in the things themselves that are like;
and on either hand we may find unity and diversity of relation. Since
then it is not the same identical quality that conduces to likeness,
but the same specific quality in each of the like subjects, and since,
moreover, the subjects of likeness are two in number, and the same
applies to equality, it follows that both equality and likeness are in
every way numerically distinct in either of the like or equal subjects.
But the relations of matrimony, on the one hand, have unity in both
extremes, namely on the part of the cause, since it is directed to the
one identical begetting; whereas on the part of the subject there is
numerical diversity. The fact of this relation having a diversity of
subjects is signified by the terms "husband" and "wife," while its
unity is denoted by its being called matrimony.
__________________________________________________________________
Whether matrimony is fittingly named?
Objection 1: It would seem that matrimony is unfittingly named. Because
a thing should be named after that which ranks higher. But the father
ranks above the mother. Therefore the union of father and mother should
rather be named after the father.
Objection 2: Further, a thing should be named from that which is
essential to it, since a "definition expresses the nature signified by
a name" (Metaph. iv, 28). Now nuptials are not essential to matrimony.
Therefore matrimony should not be called nuptials.
Objection 3: Further, a species cannot take its proper name from that
which belongs to the genus. Now a joining [conjunctio] is the genus of
matrimony. Therefore it should not be called a conjugal union.
On the contrary, stands the common use of speech.
I answer that, Three things may be considered in matrimony. First, its
essence, which is a joining together, and in reference to this it is
called the "conjugal union"; secondly, its cause, which is the wedding,
and in reference to this it is called the "nuptial union" from "nubo"
[*The original meaning of 'nubo' is 'to veil'], because at the wedding
ceremony, whereby the marriage is completed, the heads of those who are
wedded are covered with a veil [*This is still done in some countries];
thirdly, the effect, which is the offspring, and in reference to this
it is called "matrimony," as Augustine says (Contra Faust. xix, 26),
because "a woman's sole purpose in marrying should be motherhood. "
Matrimony may also be resolved into "matris munium" [*i. e. munus], i. e.
a mother's duty, since the duty of bringing up the children chiefly
devolves on the women; or into "matrem muniens," because it provides
the mother with a protector and support in the person of her husband;
or into "matrem monens," as admonishing her not to leave her husband
and take up with another man; or into "materia unius," because it is a
joining together for the purpose of providing the matter of one
offspring as though it were derived from {monos} and "materia"; or into
"matre" and "nato," as Isidore says (Etym. ix), because it makes a
woman the mother of a child.
Reply to Objection 1: Although the father ranks above the mother, the
mother has more to do with the offspring than the father has. or we may
say that woman was made chiefly in order to be man's helpmate in
relation to the offspring, whereas the man was not made for this
purpose. Wherefore the mother has a closer relation to the nature of
marriage than the father has.
Reply to Objection 2: Sometimes essentials are known by accidentals,
wherefore some things can be named even after their accidentals, since
a name is given to a thing for the purpose that it may become known.
Reply to Objection 3: Sometimes a species is named after something
pertaining to the genus on account of an imperfection in the species,
when namely it has the generic nature completely, yet adds nothing
pertaining to dignity; thus the accidental property retains the name of
property, which is common to it and to the definition. Sometimes,
however, it is on account of a perfection, when we find the generic
nature completely in one species and not in another; thus animal is
named from soul [anima], and this belongs to an animate body, which is
the genus of animal; yet animation is not found perfectly in those
animate beings that are not animals. It is thus with the case in point.
for the joining of husband and wife by matrimony is the greatest of all
joinings, since it is a joining of soul and body, wherefore it is
called a "conjugal" union.
__________________________________________________________________
Whether matrimony is fittingly defined in the text?
Objection 1: It would seem that matrimony is unfittingly defined in the
text* (Sent. iv, D, 27). [*The definition alluded to is as follows:
"Marriage is the marital union of man and woman involving living
together in undivided partnership. "] For it is necessary to mention
matrimony in defining a husband, since it is the husband who is joined
to the woman in matrimony. Now "marital union" is put in the definition
of matrimony. Therefore in these definitions there would seem to be a
vicious circle.
Objection 2: Further, matrimony makes the woman the man's wife no less
than it makes the man the woman's husband. Therefore it should not be
described as a "marital union" rather than an uxorial union.
Objection 3: Further, habit [consuetudo] pertains to morals. Yet it
often happens that married persons differ very much in habit. Therefore
the words "involving their living together [consuetudinem] in undivided
partnership" should have no place in the definition of matrimony.
Objection 4: Further, we find other definitions given of matrimony, for
according to Hugh (Sum. Sent. vii, 6), "matrimony is the lawful consent
of two apt persons to be joined together. " Also, according to some,
"matrimony is the fellowship of a common life and a community regulated
by Divine and human law"; and we ask how these definitions differ.
I answer that, As stated above [4935](A[2]), three things are to be
considered in matrimony, namely its cause, its essence, and its effect;
and accordingly we find three definitions given of matrimony. For the
definition of Hugh indicates the cause, namely the consent, and this
definition is self-evident. The definition given in the text indicates
the essence of matrimony, namely the "union," and adds determinate
subjects by the words "between lawful persons. " It also points to the
difference of the contracting parties in reference to the species, by
the word "marital," for since matrimony is a joining together for the
purpose of some one thing, this joining together is specified by the
purpose to which it is directed, and this is what pertains to the
husband [maritum]. It also indicates the force of this joining---for it
is indissoluble---by the words "involving," etc.
The remaining definition indicates the effect to which matrimony is
directed, namely the common life in family matters. And since every
community is regulated by some law, the code according to which this
community is directed, namely Divine and human law, finds a place in
this definition. while other communities, such as those of traders or
soldiers, are established by human law alone.
Reply to Objection 1: Sometimes the prior things from which a
definition ought to be given are not known to us, and consequently
certain things are defined from things that are posterior simply, but
prior to us; thus in the definition of quality the Philosopher employs
the word "such" [quale] when he says (Cap. De Qualitate) that "quality
is that whereby we are said to be such. " Thus, too, in defining
matrimony we say that it is a "marital union," by which we mean that
matrimony is a union for the purpose of those things required by the
marital office, all of which could not be expressed in one word.
Reply to Objection 2: As stated [4936](A[2]), this difference indicates
the end of the union. And since, according to the Apostle (1 Cor.
11:9), the "man is not [Vulg. : 'was not created'] for the woman, but
the woman for the man," it follows that this difference should be
indicated in reference to the man rather than the woman.
Reply to Objection 3: Just as the civic life denotes not the individual
act of this or that one, but the things that concern the common action
of the citizens, so the conjugal life is nothing else than a particular
kind of companionship pertaining to that common action. wherefore as
regards this same life the partnership of married persons is always
indivisible, although it is divisible as regards the act belonging to
each party.
The Reply to the Fourth Objection is clear from what has been said
above.
__________________________________________________________________
OF THE MARRIAGE CONSENT CONSIDERED IN ITSELF (FIVE ARTICLES)
In the next place we have to consider the consent; and the first point
to discuss is the consent considered in itself; the second is the
consent confirmed by oath or by carnal intercourse; the third is
compulsory consent and conditional consent; and the fourth is the
object of the consent.
Under the first head there are five points of inquiry:
(1) Whether the consent is the efficient cause of matrimony?
(2) Whether the consent needs to be expressed in words?
(3) Whether consent given in words expressive of the future makes a
marriage?
(4) Whether consent given in words expressive of the present, without
inward consent, makes a true marriage outwardly?
(5) Whether consent given secretly in words expressive of the present
makes a marriage?
__________________________________________________________________
Whether consent is the efficient cause of matrimony?
Objection 1: It would seem that consent is not the efficient cause of
matrimony. For the sacraments depend not on the human will but on the
Divine institution, as shown above (Sent. iv, D, 2; [4937]TP, Q[64],
A[2]). But consent belongs to the human will. Therefore it is no more
the cause of matrimony than of the other sacraments.
Objection 2: Further, nothing is its own cause. But seemingly matrimony
is nothing else than the consent, since it is the consent which
signifies the union of Christ with the Church.
Objection 3: Further, of one thing there should be one cause. Now there
is one marriage between two persons, as stated above ([4938]Q[44],
A[1]); whereas the consents of the two parties are distinct, for they
are given by different persons and to different things, since on the
one hand there is consent to take a husband, and on the other hand
consent to take a wife. Therefore mutual consent is not the cause of
matrimony.
On the contrary, Chrysostom [*Hom. xxxii in the Opus Imperfectum,
falsely ascribed to St. John Chrysostom] says: "It is not coition but
consent that makes a marriage. "
Further, one person does not receive power over that which is at the
free disposal of another, without the latter's consent. Now by marriage
each of the married parties receives power over the other's body (1
Cor. 7:4), whereas hitherto each had free power over his own body.
Therefore consent makes a marriage.
I answer that, In every sacrament there is a spiritual operation by
means of a material operation which signifies it; thus in Baptism the
inward spiritual cleansing is effected by a bodily cleansing.
Wherefore, since in matrimony there is a kind of spiritual joining
together, in so far as matrimony is a sacrament, and a certain material
joining together, in so far as it is directed to an office of nature
and of civil life, it follows that the spiritual joining is the effect
of the Divine power by means of the material joining. Therefore seeing
that the joinings of material contracts are effected by mutual consent,
it follows that the joining together of marriage is effected in the
same way.
Reply to Objection 1: The first cause of the sacraments is the Divine
power which works in them the welfare of the soul; but the second or
instrumental causes are material operations deriving their efficacy
from the Divine institution, and thus consent is the cause in
matrimony.
Reply to Objection 2: Matrimony is not the consent itself, but the
union of persons directed to one purpose, as stated above ([4939]Q[44],
A[1]), and this union is the effect of the consent. Moreover, the
consent, properly speaking, signifies not the union of Christ with the
Church, but His will whereby His union with the Church was brought
about.
Reply to Objection 3: Just as marriage is one on the part of the object
to which the union is directed, whereas it is more than one on the part
of the persons united, so too the consent is one on the part of the
thing consented to, namely the aforesaid union, whereas it is more than
one on the part of the persons consenting. Nor is the direct object of
consent a husband but union with a husband on the part of the wife,
even as it is union with a wife on the part of the husband.
__________________________________________________________________
Whether the consent needs to be expressed in words?
Objection 1: It would seem that there is no need for the consent to be
expressed in words. For a man is brought under another's power by a vow
just as he is by matrimony. Now a vow is binding in God's sight, even
though it be not expressed in words. Therefore consent also makes a
marriage binding even without being expressed in words.
Objection 2: Further, there can be marriage between persons who are
unable to express their mutual consent in words, through being dumb or
of different languages. Therefore expression of the consent by words is
not required for matrimony.
Objection 3: Further, if that which is essential to a sacrament be
omitted for any reason whatever, there is no sacrament. Now there is a
case of marriage without the expression of words if the maid is silent
through bashfulness when her parents give her away to the bridegroom.
Therefore the expression of words is not essential to matrimony.
On the contrary, Matrimony is a sacrament. Now a sensible sign is
required in every sacrament. Therefore it is also required in
matrimony, and consequently there must needs be at least words by which
the consent is made perceptible to the senses.
Further, in matrimony there is a contract between husband and wife. Now
in every contract there must be expression of the words by which men
bind themselves mutually to one another. Therefore in matrimony also
the consent must be expressed in words.
I answer that, As stated above [4940](A[1]), the marriage union is
effected in the same way as the bond in material contracts. And since
material contracts are not feasible unless the contracting parties
express their will to one another in words, it follows that the consent
which makes a marriage must also be expressed in words, so that the
expression of words is to marriage what the outward washing is to
Baptism.
Reply to Objection 1: In a vow there is not a sacramental but only a
spiritual bond, wherefore there is no need for it to be done in the
same way as material contracts, in order that it be binding, as in the
case of matrimony.
Reply to Objection 2: Although the like cannot plight themselves to one
another in words, they can do so by signs, and such signs count for
words.
Reply to Objection 3: According to Hugh of S. Victor (Tract. vii, Sum.
Sent. ), persons who are being married should give their consent by
accepting one another freely. and this is judged to be the case if they
show no dissent when they are being wedded. Wherefore in such a case
the words of the parents are taken as being the maid's, for the fact
that she does not contradict them is a sign that they are her words.
__________________________________________________________________
Whether consent given in words expressive of the future makes a marriage?
Objection 1: It would seem that consent given in words expressive of
the future makes a marriage. For as present is to present, so is future
to future. But consent given in words expressive of the present makes a
marriage in the present. Therefore consent given in words expressive of
the future makes a marriage in the future.
Objection 2: Further, in other civil contracts, just as in matrimony, a
certain obligation results from the words expressing consent. Now in
other contracts it matters not whether the obligation is effected by
words of the present or of the future tense. Therefore neither does it
make any difference in matrimony.
Objection 3: Further, by the religious vow man contracts a spiritual
marriage with God. Now the religious vow is expressed in words of the
future tense, and is binding. Therefore carnal marriage also can be
effected by words of the future tense.
On the contrary, A man who consents in words of the future tense to
take a particular woman as his wife, and after, by words of the present
tense, consents to take another, according to law must take the second
for his wife (cap. Sicut ex Litteris, De spons. et matr. ). But this
would not be the case if consent given in words of the future tense
made a marriage, since from the very fact that his marriage with the
one is valid, he cannot, as long as she lives, marry another. Therefore
consent given in words of the future tense does not make a marriage.
Further, he who promises to do a certain thing does it not yet. Now he
who consents in words of the future tense, promises to marry a certain
woman. Therefore he does not marry her yet.
I answer that, The sacramental causes produce their effect by
signifying it; hence they effect what they signify. Since therefore
when a man expresses his consent by words of the future tense, he does
not signify that he is marrying, but promises that he will marry, it
follows that a consent expressed in this manner does not make a
marriage, but a promise [sponsionem] of marriage, and this promise is
known as a betrothal [sponsalia].
Reply to Objection 1: When consent is expressed in words of the present
tense, not only are the words actually present, but consent is directed
to the present, so that they coincide in point of time; but when
consent is given in words of the future tense, although the words are
actually present, the consent is directed to a future time, and hence
they do not coincide in point of time. For this reason the comparison
fails.
Reply to Objection 2: Even in other contracts, a man who uses words
referring to the future, does not transfer the power over his property
to another person---for instance if he were to say "I will give
thee"---but only when he uses words indicative of the present.
Reply to Objection 3: In the vow of religious profession it is not the
spiritual marriage itself that is expressed in words which refer to the
future, but an act of the spiritual marriage, namely obedience or
observance of the rule. If, however, a man vow spiritual marriage in
the future, it is not a spiritual marriage, for a man does not become a
monk by taking such a vow, but promises to become one.
__________________________________________________________________
Whether, in the absence of inward consent, a marriage is made by consent
given in words of the present?
Objection 1: It would seem that even in the absence of inward consent a
marriage is made by consent expressed in words of the present. For
"fraud and deceit should benefit no man," according to the law (cap. Ex
Tenore, De Rescrip. , cap. Si Vir, De cognat. spir. ). Now he who gives
consent in words without consenting in heart commits a fraud. Therefore
he should not benefit by it, through being released of the bond of
marriage.
Objection 2: Further, the mental consent of one person cannot be known
to another, except in so far as it is expressed in words. If then the
expression of the words is not enough, and inward consent is required
in both parties, neither of them will be able to know that he is truly
married to the other; and consequently whenever he uses marriage he
will commit fornication.
Objection 3: Further, if a man is proved to have consented to take a
certain woman to wife in words of the present tense, he is compelled
under pain of excommunication to take her as his wife, even though he
should say that he was wanting in mental consent, notwithstanding that
afterwards he may have contracted marriage with another woman by words
expressive of consent in the present. But this would not be the case if
mental consent were requisite for marriage. Therefore it is not
required.
On the contrary, Innocent III says in a Decretal (cap. Tua Nos, De
Spons. et matr. ) in reference to this case: "Other things cannot
complete the marriage bond in the absence of consent. "
Further, intention is necessary in all the sacraments. Now he who
consents not in his heart has no intention of contracting marriage; and
therefore he does not contract a marriage.
I answer that, The outward cleansing stands in the same relation to
baptism as the expression of words to this sacrament, as stated above
[4941](A[2]). Wherefore just as were a person to receive the outward
cleansing, with the intention, not of receiving the sacrament, but of
acting in jest or deceit, he would not be baptized; so, too, expression
of words without inward consent makes no marriage.
Reply to Objection 1: There are two things here, namely the lack of
consent---which benefits him in the tribunal of his conscience so that
he is not bound by the marriage tie, albeit not in the tribunal of the
Church where judgment is pronounced according to the evidence---and the
deceit in the words, which does not benefit him, neither in the
tribunal of his conscience nor in the tribunal of the Church, since in
both he is punished for this.
Reply to Objection 2: If mental consent is lacking in one of the
parties, on neither side is there marriage, since marriage consists in
a mutual joining together, as stated above ([4942]Q[44], A[1]). However
one may believe that in all probability there is no fraud unless there
be evident signs thereof; because we must presume good of everyone,
unless there be proof of the contrary. Consequently the party in whom
there is no fraud is excused from sin on account of ignorance.
Reply to Objection 3: In such a case the Church compels him to hold to
his first wife, because the Church judges according to outward
appearances; nor is she deceived in justice or right, although she is
deceived in the facts of the case. Yet such a man ought to bear the
excommunication rather than return to his first wife; or else he should
go far away into another country.
__________________________________________________________________
Whether consent given secretly in words of the present makes a marriage?
Objection 1: It would seem that consent given secretly in words of the
present does not make a marriage. For a thing that is in one person's
power is not transferred to the power of another without the consent of
the person in whose power it was. Now the maid is in her father's
power. Therefore she cannot by marriage be transferred to a husband's
power without her father's consent. Wherefore if consent be given
secretly, even though it should be expressed in words of the present,
there will be no marriage.
Objection 2: Further, in penance, just as in matrimony, our act is as
it were essential to the sacrament. But the sacrament of penance is not
made complete except by means of the ministers of the Church, who are
the dispensers of the sacraments. Therefore neither can marriage be
perfected without the priest's blessing.
Objection 3: Further, the Church does not forbid baptism to be given
secretly, since one may baptize either privately or publicly. But the
Church does forbid the celebration of clandestine marriages (cap. Cum
inhibitio, De clandest. despons. ). Therefore they cannot be done
secretly.
Objection 4: Further, marriage cannot be contracted by those who are
related in the second degree, because the Church has forbidden it. But
the Church has also forbidden clandestine marriages. Therefore they
cannot be valid marriages.
On the contrary, Given the cause the effect follows. Now the sufficient
cause of matrimony is consent expressed in words of the present.
Therefore whether this be done in public or in private the result is a
marriage.
Further, wherever there is the due matter and the due form of a
sacrament there is the sacrament. Now in a secret marriage there is the
due matter, since there are persons who are able lawfully to
contract---and the due form, since there are the words of the present
expressive of consent. Therefore there is a true marriage.
I answer that, Just as in the other sacraments certain things are
essential to the sacrament, and if they are omitted there is no
sacrament, while certain things belong to the solemnization of the
sacrament, and if these be omitted the sacrament is nevertheless
validly performed, although it is a sin to omit them; so, too, consent
expressed in words of the present between persons lawfully qualified to
contract makes a marriage, because these two conditions are essential
to the sacrament; while all else belongs to the solemnization of the
sacrament, as being done in order that the marriage may be more
fittingly performed. Hence if these be omitted it is a true marriage,
although the contracting parties sin, unless they have a lawful motive
for being excused. [*Clandestine marriages have since been declared
invalid by the Council of Trent (sess. xxiv). It must be borne in mind
that throughout the treatise on marriage St. Thomas gives the Canon Law
of his time. ]
Reply to Objection 1: The maid is in her father's power, not as a
female slave without power over her own body, but as a daughter, for
the purpose of education. Hence, in so far as she is free, she can give
herself into another's power without her father's consent, even as a
son or daughter, since they are free, may enter religion without their
parent's consent.
Reply to Objection 2: In penance our act, although essential to the
sacrament, does not suffice for producing the proximate effect of the
sacrament, namely forgiveness of sins, and consequently it is necessary
that the act of the priest intervene in order that the sacrament be
perfected. But in matrimony our acts are the sufficient cause for the
production of the proximate effect, which is the marriage bond, because
whoever has the right to dispose of himself can bind himself to
another. Consequently the priest's blessing is not required for
matrimony as being essential to the sacrament.
Reply to Objection 3: It is also forbidden to receive baptism otherwise
than from a priest, except in a case of necessity. But matrimony is not
a necessary sacrament: and consequently the comparison fails. However,
clandestine marriages are forbidden on account of the evil results to
which they are liable, since it often happens that one of the parties
is guilty of fraud in such marriages; frequently, too, they have
recourse to other nuptials when they repent of having married in haste;
and many other evils result therefrom, besides which there is something
disgraceful about them.
Reply to Objection 4: Clandestine marriages are not forbidden as though
they were contrary to the essentials of marriage, in the same way as
the marriages of unlawful persons, who are undue matter for this
sacrament; and hence there is no comparison.
__________________________________________________________________
OF THE CONSENT TO WHICH AN OATH OR CARNAL INTERCOURSE IS APPENDED (TWO
ARTICLES)
We must now consider the consent to which an oath or carnal intercourse
is appended. Under this head there are two points of inquiry:
(1) Whether an oath added to the consent that is expressed in words of
the future tense makes a marriage?
(2) Whether carnal intercourse supervening to such a consent makes a
marriage?
__________________________________________________________________
Whether an oath added to the consent that is expressed in words of the
future tense makes a marriage?
Objection 1: It would seem that if an oath be added to a consent that
is expressed in words of the future tense it makes a marriage. For no
one can bind himself to act against the Divine Law. But the fulfilling
of an oath is of Divine law according to Mat. 5:33, "Thou shalt perform
thy oaths to the Lord. " Consequently no subsequent obligation can
relieve a man of the obligation to keep an oath previously taken. If,
therefore, after consenting to marry a woman by words expressive of the
future and confirming that consent with an oath, a man binds himself to
another woman by words expressive of the present, it would seem that
none the less he is bound to keep his former oath. But this would not
be the case unless that oath made the marriage complete. Therefore an
oath affixed to a consent expressed in words of the future tense makes
a marriage.
Objection 2: Further, Divine truth is stronger than human truth. Now an
oath confirms a thing with the Divine truth. Since then words
expressive of consent in the present in which there is mere human truth
complete a marriage, it would seem that much more is this the case with
words of the future confirmed by an oath.
Objection 3: Further, according to the Apostle (Heb. 6:16), "An oath
for confirmation is the end of all . . . controversy"; wherefore in a
court of justice at any rate one must stand by an oath rather than by a
mere affirmation. Therefore if a man consent to marry a woman by a
simple affirmation expressed in words of the present, after having
consented to marry another in words of the future confirmed by oath, it
would seem that in the judgment of the Church he should be compelled to
take the first and not the second as his wife.
Objection 4: Further, the simple uttering of words relating to the
future makes a betrothal. But the addition of an oath must have some
effect. Therefore it makes something more than a betrothal. Now beyond
a betrothal there is nothing but marriage. Therefore it makes a
marriage.
On the contrary, What is future is not yet. Now the addition of an oath
does not make words of the future tense signify anything else than
consent to something future. Therefore it is not a marriage yet.
Further, after a marriage is complete, no further consent is required
for the marriage. But after the oath there is yet another consent which
makes the marriage, else it would be useless to swear to a future
marriage. Therefore it does not make a marriage.
I answer that, An oath is employed in confirmation of one's words;
wherefore it confirms that only which is signified by the words, nor
does it change their signification. Consequently, since it belongs to
words of the future tense, by their very signification, not to make a
marriage, since what is promised in the future is not done yet, even
though an oath be added to the promise, the marriage is not made yet,
as the Master says in the text (Sent. iv, D, 28).
Reply to Objection 1: The fulfilling of a lawful oath is of Divine law,
but not the fulfilling of an unlawful oath. Wherefore if a subsequent
obligation makes that oath unlawful, whereas it was lawful before, he
who does not keep the oath he took previously does not disobey the
Divine law. And so it is in the case in point; since he swears
unlawfully who promises unlawfully; and a promise about another's
property is unlawful. Consequently the subsequent consent by words of
the present, whereby a man transfers the power over his body to another
woman, makes the previous oath unlawful which was lawful before.
Reply to Objection 2: The Divine truth is most efficacious in
confirming that to which it is applied. Hence the Reply to the Third
Objection is clear.
Reply to Objection 4: The oath has some effect, not by causing a new
obligation, but confirming that which is already made, and thus he who
violates it sins more grievously.
__________________________________________________________________
Whether carnal intercourse after consent expressed in words of the future
makes a marriage?
Objection 1: It would seem that carnal intercourse after consent
expressed in words of the future makes a marriage. For consent by deed
is greater than consent by word. But he who has carnal intercourse
consents by deed to the promise he has previously made. Therefore it
would seem that much more does this make a marriage than if he were to
consent to mere words referring to the present.
Objection 2: Further, not only explicit but also interpretive consent
makes a marriage. Now there can be no better interpretation of consent
than carnal intercourse. Therefore marriage is completed thereby.
Objection 3: Further, all carnal union outside marriage is a sin. But
the woman, seemingly, does not sin by admitting her betrothed to carnal
intercourse. Therefore it makes a marriage.
Objection 4: Further, "Sin is not forgiven unless restitution be made,"
as Augustine says (Ep. cliii ad Macedon. ). Now a man cannot reinstate a
woman whom he has violated under the pretense of marriage unless he
marry her. Therefore it would seem that even if, after his carnal
intercourse, he happen to contract with another by words of the present
tense, he is bound to return to the first; and this would not be the
case unless he were married to her. Therefore carnal intercourse after
consent referring to the future makes a marriage.
On the contrary, Pope Nicholas I says (Resp. ad Consult. Bulg. iii;
Cap. Tuas dudum, De clandest. despons. ), "Without the consent to
marriage, other things, including coition, are of no effect. "
Further, that which follows a thing does not make it. But carnal
intercourse follows the actual marriage, as effect follows cause.
Therefore it cannot make a marriage.
I answer that, We may speak of marriage in two ways. First, in
reference to the tribunal of conscience, and thus in very truth carnal
intercourse cannot complete a marriage the promise of which has
previously been made in words expressive of the future, if inward
consent is lacking, since words, even though expressive of the present,
would not make a marriage in the absence of mental consent, as stated
above ([4943]Q[45], A[4]). Secondly, in reference to the judgment of
the Church; and since in the external tribunal judgment is given in
accordance with external evidence, and since nothing is more expressly
significant of consent than carnal intercourse, it follows that in the
judgment of the Church carnal intercourse following on betrothal is
declared to make a marriage, unless there appear clear signs of deceit
or fraud [*According to the pre-Tridentine legislation] (De sponsal. et
matrim. , cap. Is qui fidem).
Reply to Objection 1: In reality he who has carnal intercourse consents
by deed to the act of sexual union, and does not merely for this reason
consent to marriage except according to the interpretation of the law.
Reply to Objection 2: This interpretation does not alter the truth of
the matter, but changes the judgment which is about external things.
Reply to Objection 3: If the woman admit her betrothed, thinking that
he wishes to consummate the marriage, she is excused from the sin,
unless there be clear signs of fraud; for instance if they differ
considerably in birth or fortune, or some other evident sign appear.
Nevertheless the affianced husband is guilty of fornication, and should
be punished for this fraud he has committed.
Reply to Objection 4: In a case of this kind the affianced husband,
before his marriage with the other woman, is bound to marry the one to
whom he was betrothed, if she be his equal or superior in rank. But if
he has married another woman, he is no longer able to fulfill his
obligation, wherefore it suffices if he provide for her marriage. Nor
is he bound even to do this, according to some, if her affianced
husband is of much higher rank than she, or if there be some evident
sign of fraud, because it may be presumed that in all probability she
was not deceived but pretended to be.
__________________________________________________________________
OF COMPULSORY AND CONDITIONAL CONSENT (SIX ARTICLES)
We must now consider compulsory and conditional consent. Under this
head there are six points of inquiry:
(1) Whether compulsory consent is possible?
(2) Whether a constant man can be compelled by fear?
(3) Whether compulsory consent invalidates marriage?
(4) Whether compulsory consent makes a marriage as regards the party
using compulsion?
(5) Whether conditional consent makes a marriage?
(6) Whether one can be compelled by one's father to marry?
__________________________________________________________________
Whether a compulsory consent is possible?
Objection 1: It would seem that no consent can be compulsory. For, as
stated above (Sent. ii, D, 25 [*[4944]FS, Q[6], A[4]]) the free-will
cannot be compelled. Now consent is an act of the free-will. Therefore
it cannot be compulsory.
Objection 2: Further, violent is the same as compulsory. Now, according
to the Philosopher (Ethic. iii, 1), "a violent action is one the
principle of which is without, the patient concurring not at all. " But
the principle of consent is always within. Therefore no consent can be
compulsory.
Objection 3: Further, every sin is perfected by consent. But that which
perfects a sin cannot be compulsory, for, according to Augustine (De
Lib. Arb. iii, 18), "no one sins in what he cannot avoid. " Since then
violence is defined by jurists (i, ff. de eo quod vi metusve) as the
"force of a stronger being that cannot be repulsed," it would seem that
consent cannot be compulsory or violent.
Objection 4: Further, power is opposed to liberty. But compulsion is
allied to power, as appears from a definition of Tully's in which he
says that "compulsion is the force of one who exercises his power to
detain a thing outside its proper bounds. " Therefore the free-will
cannot be compelled, and consequently neither can consent which is an
act thereof.
On the contrary, That which cannot be, cannot be an impediment. But
compulsory consent is an impediment to matrimony, as stated in the text
(Sent. iv, D, 29). Therefore consent can be compelled.
Further, in marriage there is a contract. Now the will can be compelled
in the matter of contracts; for which reason the law adjudges that
restitution should be made of the whole, for it does not ratify "that
which was done under compulsion or fear" (Sent. iv, D[29]). Therefore
in marriage also it is possible for the consent to be compulsory.
I answer that, Compulsion or violence is twofold. One is the cause of
absolute necessity, and violence of this kind the Philosopher calls
(Ethic. iii, 1) "violent simply," as when by bodily strength one forces
a person to move; the other causes conditional necessity, and the
Philosopher calls this a "mixed violence," as when a person throws his
merchandise overboard in order to save himself. In the latter kind of
violence, although the thing done is not voluntary in itself, yet
taking into consideration the circumstances of place and time it is
voluntary. And since actions are about particulars, it follows that it
is voluntary simply, and involuntary in a certain respect (Cf.
[4945]FS, Q[6], A[6]). Wherefore this latter violence or compulsion is
consistent with consent, but not the former. And since this compulsion
results from one's fear of a threatening danger, it follows that this
violence coincides with fear which, in a manner, compels the will,
whereas the former violence has to do with bodily actions. Moreover,
since the law considers not merely internal actions, but rather
external actions, consequently it takes violence to mean absolute
compulsion, for which reason it draws a distinction between violence
and fear.
dissolved.
I answer that, In all the cases mentioned above the betrothal that has
been contracted is dissolved, but in different ways. For in two of
them---namely when a party enters religion, and when either of the
affianced spouses contracts with another party by words expressive of
the present---the betrothal is dissolved by law, whereas in the other
cases it has to be dissolved according to the judgment of the Church.
Reply to Objection 1: The like promise is dissolved by spiritual death,
for that promise is purely spiritual, as we shall state further on
([4933]Q[61], A[2]).
Reply to Objection 2: This doubt is solved by either party not putting
in an appearance at the time fixed for completing the marriage.
Wherefore if it was no fault of that party that the marriage was not
completed, he or she can lawfully marry without any sin. But if he or
she was responsible for the non-completion of the marriage, this
responsibility involves the obligation of doing penance for the broken
promise---or oath if the promise was confirmed by oath---and he or she
can contract with another if they wish it, subject to the judgment of
the Church.
Reply to Objection 3: If either of the betrothed parties incur an
infirmity which notably weakens the subject (as epilepsy or paralysis),
or causes a deformity (as loss of the nose or eyes, and the like), or
is contrary to the good of the offspring (as leprosy, which is wont to
be transmitted to the children), the betrothal can be dissolved, lest
the betrothed be displeasing to one another, and the marriage thus
contracted have an evil result. Nor is one punished for being under a
penalty, although one incurs a loss from one's penalty, and this is not
unreasonable.
Reply to Objection 4: If the affianced bridegroom has carnal knowledge
of a kinswoman of his spouse, or "vice versa," the betrothal must be
dissolved; and for proof it is sufficient that the fact be the common
talk, in order to avoid scandal; for causes whose effects mature in the
future are voided of their effects, not only by what actually is, but
also by what happens subsequently. Hence just as affinity, had it
existed at the time of the betrothal, would have prevented that
contract, so, if it supervene before marriage, which is an effect of
the betrothal, the previous contract is voided of its effect. Nor does
the other party suffer in consequence, indeed he or she gains, being
set free from one who has become hateful to God by committing
fornication.
Reply to Objection 5: Some do not admit this case. Yet they have
against them the Decretal (cap. Praeterea, De spons. et matr. ) which
says expressly: "Just as those who enter into a contract of fellowship
by pledging their faith to one another and afterwards give it back, so
it may be patiently tolerated that those who are betrothed to one
another should set one another free. " Yet to this they say that the
Church allows this lest worse happen rather than because it is
according to strict law. But this does not seem to agree with the
example quoted by the Decretal.
Accordingly we must reply that it is not always a proof of fickleness
to rescind an agreement, since "our counsels are uncertain" (Wis.
9:14).
Reply to Objection 6: Although when they become betrothed they have not
yet given one another power over one another's body, yet if this
[*Referring to the contention of the Objection] were to happen it would
make them suspicious of one another's fidelity; and so one can ensure
himself against the other by breaking off the engagement.
Reply to Objection 7: This argument would hold if each contract were of
the same kind; whereas the second contract of marriage has greater
force than the first, and consequently dissolves it.
Reply to Objection 8: Although it was not a true betrothal, there was a
betrothal of a kind; and consequently, lest approval should seem to be
given when they come to the lawful age, they should seek a dissolution
of the betrothal by the judgment of the Church, for the sake of a good
example.
__________________________________________________________________
OF THE DEFINITION OF MATRIMONY (THREE ARTICLES)
We must now consider the nature of matrimony. Under this head there are
three points of inquiry:
(1) Whether matrimony is a kind of joining?
(2) Whether it is fittingly named?
(3) Whether it is fittingly defined?
__________________________________________________________________
Whether matrimony is a kind of joining?
Objection 1: It would seem that matrimony is not a kind of joining.
Because the bond whereby things are tied together differs from their
joining, as cause from effect. Now matrimony is the bond whereby those
who are joined in matrimony are tied together. Therefore it is not a
kind of joining.
Objection 2: Further, every sacrament is a sensible sign. But no
relation is a sensible accident. Therefore since matrimony is a
sacrament, it is not a kind of relation, and consequently neither is it
a kind of joining.
Objection 3: Further, a joining is a relation of equiparance as well as
of equality. Now according to Avicenna the relation of equality is not
identically the same in each extreme. Neither therefore is there an
identically same joining; and consequently if matrimony is a kind of
joining, there is not only one matrimony between man and wife.
On the contrary, It is by relation that things are related to one
another. Now by matrimony certain things are related to one another;
for the husband is the wife's husband, and the wife is the husband's
wife. Therefore matrimony is a kind of relation, nor is it other than a
joining.
Further, the union of two things into one can result only from their
being joined. Now such is the effect of matrimony (Gn. 2:24): "They
shall be two in one flesh. " Therefore matrimony is a kind of joining.
I answer that, A joining denotes a kind of uniting, and so wherever
things are united there must be a joining. Now things directed to one
purpose are said to be united in their direction thereto, thus many men
are united in following one military calling or in pursuing one
business, in relation to which they are called fellow-soldiers or
business partners. Hence, since by marriage certain persons are
directed to one begetting and upbringing of children, and again to one
family life, it is clear that in matrimony there is a joining in
respect of which we speak of husband and wife; and this joining,
through being directed to some one thing, is matrimony; while the
joining together of bodies and minds is a result of matrimony.
Reply to Objection 1: Matrimony is the bond by which they are tied
formally, not effectively, and so it need not be distinct from the
joining.
Reply to Objection 2: Although relation is not itself a sensible
accident, its causes may be sensible. Nor is it necessary in a
sacrament for that which is both reality and sacrament [*Cf. [4934]TP,
Q[66], A[1]] to be sensible (for such is the relation of the aforesaid
joining to this sacrament), whereas the words expressive of consent,
which are sacrament only and are the cause of that same joining, are
sensible.
Reply to Objection 3: A relation is founded on something as its
cause---for instance likeness is founded on quality---and on something
as its subject---for instance in the things themselves that are like;
and on either hand we may find unity and diversity of relation. Since
then it is not the same identical quality that conduces to likeness,
but the same specific quality in each of the like subjects, and since,
moreover, the subjects of likeness are two in number, and the same
applies to equality, it follows that both equality and likeness are in
every way numerically distinct in either of the like or equal subjects.
But the relations of matrimony, on the one hand, have unity in both
extremes, namely on the part of the cause, since it is directed to the
one identical begetting; whereas on the part of the subject there is
numerical diversity. The fact of this relation having a diversity of
subjects is signified by the terms "husband" and "wife," while its
unity is denoted by its being called matrimony.
__________________________________________________________________
Whether matrimony is fittingly named?
Objection 1: It would seem that matrimony is unfittingly named. Because
a thing should be named after that which ranks higher. But the father
ranks above the mother. Therefore the union of father and mother should
rather be named after the father.
Objection 2: Further, a thing should be named from that which is
essential to it, since a "definition expresses the nature signified by
a name" (Metaph. iv, 28). Now nuptials are not essential to matrimony.
Therefore matrimony should not be called nuptials.
Objection 3: Further, a species cannot take its proper name from that
which belongs to the genus. Now a joining [conjunctio] is the genus of
matrimony. Therefore it should not be called a conjugal union.
On the contrary, stands the common use of speech.
I answer that, Three things may be considered in matrimony. First, its
essence, which is a joining together, and in reference to this it is
called the "conjugal union"; secondly, its cause, which is the wedding,
and in reference to this it is called the "nuptial union" from "nubo"
[*The original meaning of 'nubo' is 'to veil'], because at the wedding
ceremony, whereby the marriage is completed, the heads of those who are
wedded are covered with a veil [*This is still done in some countries];
thirdly, the effect, which is the offspring, and in reference to this
it is called "matrimony," as Augustine says (Contra Faust. xix, 26),
because "a woman's sole purpose in marrying should be motherhood. "
Matrimony may also be resolved into "matris munium" [*i. e. munus], i. e.
a mother's duty, since the duty of bringing up the children chiefly
devolves on the women; or into "matrem muniens," because it provides
the mother with a protector and support in the person of her husband;
or into "matrem monens," as admonishing her not to leave her husband
and take up with another man; or into "materia unius," because it is a
joining together for the purpose of providing the matter of one
offspring as though it were derived from {monos} and "materia"; or into
"matre" and "nato," as Isidore says (Etym. ix), because it makes a
woman the mother of a child.
Reply to Objection 1: Although the father ranks above the mother, the
mother has more to do with the offspring than the father has. or we may
say that woman was made chiefly in order to be man's helpmate in
relation to the offspring, whereas the man was not made for this
purpose. Wherefore the mother has a closer relation to the nature of
marriage than the father has.
Reply to Objection 2: Sometimes essentials are known by accidentals,
wherefore some things can be named even after their accidentals, since
a name is given to a thing for the purpose that it may become known.
Reply to Objection 3: Sometimes a species is named after something
pertaining to the genus on account of an imperfection in the species,
when namely it has the generic nature completely, yet adds nothing
pertaining to dignity; thus the accidental property retains the name of
property, which is common to it and to the definition. Sometimes,
however, it is on account of a perfection, when we find the generic
nature completely in one species and not in another; thus animal is
named from soul [anima], and this belongs to an animate body, which is
the genus of animal; yet animation is not found perfectly in those
animate beings that are not animals. It is thus with the case in point.
for the joining of husband and wife by matrimony is the greatest of all
joinings, since it is a joining of soul and body, wherefore it is
called a "conjugal" union.
__________________________________________________________________
Whether matrimony is fittingly defined in the text?
Objection 1: It would seem that matrimony is unfittingly defined in the
text* (Sent. iv, D, 27). [*The definition alluded to is as follows:
"Marriage is the marital union of man and woman involving living
together in undivided partnership. "] For it is necessary to mention
matrimony in defining a husband, since it is the husband who is joined
to the woman in matrimony. Now "marital union" is put in the definition
of matrimony. Therefore in these definitions there would seem to be a
vicious circle.
Objection 2: Further, matrimony makes the woman the man's wife no less
than it makes the man the woman's husband. Therefore it should not be
described as a "marital union" rather than an uxorial union.
Objection 3: Further, habit [consuetudo] pertains to morals. Yet it
often happens that married persons differ very much in habit. Therefore
the words "involving their living together [consuetudinem] in undivided
partnership" should have no place in the definition of matrimony.
Objection 4: Further, we find other definitions given of matrimony, for
according to Hugh (Sum. Sent. vii, 6), "matrimony is the lawful consent
of two apt persons to be joined together. " Also, according to some,
"matrimony is the fellowship of a common life and a community regulated
by Divine and human law"; and we ask how these definitions differ.
I answer that, As stated above [4935](A[2]), three things are to be
considered in matrimony, namely its cause, its essence, and its effect;
and accordingly we find three definitions given of matrimony. For the
definition of Hugh indicates the cause, namely the consent, and this
definition is self-evident. The definition given in the text indicates
the essence of matrimony, namely the "union," and adds determinate
subjects by the words "between lawful persons. " It also points to the
difference of the contracting parties in reference to the species, by
the word "marital," for since matrimony is a joining together for the
purpose of some one thing, this joining together is specified by the
purpose to which it is directed, and this is what pertains to the
husband [maritum]. It also indicates the force of this joining---for it
is indissoluble---by the words "involving," etc.
The remaining definition indicates the effect to which matrimony is
directed, namely the common life in family matters. And since every
community is regulated by some law, the code according to which this
community is directed, namely Divine and human law, finds a place in
this definition. while other communities, such as those of traders or
soldiers, are established by human law alone.
Reply to Objection 1: Sometimes the prior things from which a
definition ought to be given are not known to us, and consequently
certain things are defined from things that are posterior simply, but
prior to us; thus in the definition of quality the Philosopher employs
the word "such" [quale] when he says (Cap. De Qualitate) that "quality
is that whereby we are said to be such. " Thus, too, in defining
matrimony we say that it is a "marital union," by which we mean that
matrimony is a union for the purpose of those things required by the
marital office, all of which could not be expressed in one word.
Reply to Objection 2: As stated [4936](A[2]), this difference indicates
the end of the union. And since, according to the Apostle (1 Cor.
11:9), the "man is not [Vulg. : 'was not created'] for the woman, but
the woman for the man," it follows that this difference should be
indicated in reference to the man rather than the woman.
Reply to Objection 3: Just as the civic life denotes not the individual
act of this or that one, but the things that concern the common action
of the citizens, so the conjugal life is nothing else than a particular
kind of companionship pertaining to that common action. wherefore as
regards this same life the partnership of married persons is always
indivisible, although it is divisible as regards the act belonging to
each party.
The Reply to the Fourth Objection is clear from what has been said
above.
__________________________________________________________________
OF THE MARRIAGE CONSENT CONSIDERED IN ITSELF (FIVE ARTICLES)
In the next place we have to consider the consent; and the first point
to discuss is the consent considered in itself; the second is the
consent confirmed by oath or by carnal intercourse; the third is
compulsory consent and conditional consent; and the fourth is the
object of the consent.
Under the first head there are five points of inquiry:
(1) Whether the consent is the efficient cause of matrimony?
(2) Whether the consent needs to be expressed in words?
(3) Whether consent given in words expressive of the future makes a
marriage?
(4) Whether consent given in words expressive of the present, without
inward consent, makes a true marriage outwardly?
(5) Whether consent given secretly in words expressive of the present
makes a marriage?
__________________________________________________________________
Whether consent is the efficient cause of matrimony?
Objection 1: It would seem that consent is not the efficient cause of
matrimony. For the sacraments depend not on the human will but on the
Divine institution, as shown above (Sent. iv, D, 2; [4937]TP, Q[64],
A[2]). But consent belongs to the human will. Therefore it is no more
the cause of matrimony than of the other sacraments.
Objection 2: Further, nothing is its own cause. But seemingly matrimony
is nothing else than the consent, since it is the consent which
signifies the union of Christ with the Church.
Objection 3: Further, of one thing there should be one cause. Now there
is one marriage between two persons, as stated above ([4938]Q[44],
A[1]); whereas the consents of the two parties are distinct, for they
are given by different persons and to different things, since on the
one hand there is consent to take a husband, and on the other hand
consent to take a wife. Therefore mutual consent is not the cause of
matrimony.
On the contrary, Chrysostom [*Hom. xxxii in the Opus Imperfectum,
falsely ascribed to St. John Chrysostom] says: "It is not coition but
consent that makes a marriage. "
Further, one person does not receive power over that which is at the
free disposal of another, without the latter's consent. Now by marriage
each of the married parties receives power over the other's body (1
Cor. 7:4), whereas hitherto each had free power over his own body.
Therefore consent makes a marriage.
I answer that, In every sacrament there is a spiritual operation by
means of a material operation which signifies it; thus in Baptism the
inward spiritual cleansing is effected by a bodily cleansing.
Wherefore, since in matrimony there is a kind of spiritual joining
together, in so far as matrimony is a sacrament, and a certain material
joining together, in so far as it is directed to an office of nature
and of civil life, it follows that the spiritual joining is the effect
of the Divine power by means of the material joining. Therefore seeing
that the joinings of material contracts are effected by mutual consent,
it follows that the joining together of marriage is effected in the
same way.
Reply to Objection 1: The first cause of the sacraments is the Divine
power which works in them the welfare of the soul; but the second or
instrumental causes are material operations deriving their efficacy
from the Divine institution, and thus consent is the cause in
matrimony.
Reply to Objection 2: Matrimony is not the consent itself, but the
union of persons directed to one purpose, as stated above ([4939]Q[44],
A[1]), and this union is the effect of the consent. Moreover, the
consent, properly speaking, signifies not the union of Christ with the
Church, but His will whereby His union with the Church was brought
about.
Reply to Objection 3: Just as marriage is one on the part of the object
to which the union is directed, whereas it is more than one on the part
of the persons united, so too the consent is one on the part of the
thing consented to, namely the aforesaid union, whereas it is more than
one on the part of the persons consenting. Nor is the direct object of
consent a husband but union with a husband on the part of the wife,
even as it is union with a wife on the part of the husband.
__________________________________________________________________
Whether the consent needs to be expressed in words?
Objection 1: It would seem that there is no need for the consent to be
expressed in words. For a man is brought under another's power by a vow
just as he is by matrimony. Now a vow is binding in God's sight, even
though it be not expressed in words. Therefore consent also makes a
marriage binding even without being expressed in words.
Objection 2: Further, there can be marriage between persons who are
unable to express their mutual consent in words, through being dumb or
of different languages. Therefore expression of the consent by words is
not required for matrimony.
Objection 3: Further, if that which is essential to a sacrament be
omitted for any reason whatever, there is no sacrament. Now there is a
case of marriage without the expression of words if the maid is silent
through bashfulness when her parents give her away to the bridegroom.
Therefore the expression of words is not essential to matrimony.
On the contrary, Matrimony is a sacrament. Now a sensible sign is
required in every sacrament. Therefore it is also required in
matrimony, and consequently there must needs be at least words by which
the consent is made perceptible to the senses.
Further, in matrimony there is a contract between husband and wife. Now
in every contract there must be expression of the words by which men
bind themselves mutually to one another. Therefore in matrimony also
the consent must be expressed in words.
I answer that, As stated above [4940](A[1]), the marriage union is
effected in the same way as the bond in material contracts. And since
material contracts are not feasible unless the contracting parties
express their will to one another in words, it follows that the consent
which makes a marriage must also be expressed in words, so that the
expression of words is to marriage what the outward washing is to
Baptism.
Reply to Objection 1: In a vow there is not a sacramental but only a
spiritual bond, wherefore there is no need for it to be done in the
same way as material contracts, in order that it be binding, as in the
case of matrimony.
Reply to Objection 2: Although the like cannot plight themselves to one
another in words, they can do so by signs, and such signs count for
words.
Reply to Objection 3: According to Hugh of S. Victor (Tract. vii, Sum.
Sent. ), persons who are being married should give their consent by
accepting one another freely. and this is judged to be the case if they
show no dissent when they are being wedded. Wherefore in such a case
the words of the parents are taken as being the maid's, for the fact
that she does not contradict them is a sign that they are her words.
__________________________________________________________________
Whether consent given in words expressive of the future makes a marriage?
Objection 1: It would seem that consent given in words expressive of
the future makes a marriage. For as present is to present, so is future
to future. But consent given in words expressive of the present makes a
marriage in the present. Therefore consent given in words expressive of
the future makes a marriage in the future.
Objection 2: Further, in other civil contracts, just as in matrimony, a
certain obligation results from the words expressing consent. Now in
other contracts it matters not whether the obligation is effected by
words of the present or of the future tense. Therefore neither does it
make any difference in matrimony.
Objection 3: Further, by the religious vow man contracts a spiritual
marriage with God. Now the religious vow is expressed in words of the
future tense, and is binding. Therefore carnal marriage also can be
effected by words of the future tense.
On the contrary, A man who consents in words of the future tense to
take a particular woman as his wife, and after, by words of the present
tense, consents to take another, according to law must take the second
for his wife (cap. Sicut ex Litteris, De spons. et matr. ). But this
would not be the case if consent given in words of the future tense
made a marriage, since from the very fact that his marriage with the
one is valid, he cannot, as long as she lives, marry another. Therefore
consent given in words of the future tense does not make a marriage.
Further, he who promises to do a certain thing does it not yet. Now he
who consents in words of the future tense, promises to marry a certain
woman. Therefore he does not marry her yet.
I answer that, The sacramental causes produce their effect by
signifying it; hence they effect what they signify. Since therefore
when a man expresses his consent by words of the future tense, he does
not signify that he is marrying, but promises that he will marry, it
follows that a consent expressed in this manner does not make a
marriage, but a promise [sponsionem] of marriage, and this promise is
known as a betrothal [sponsalia].
Reply to Objection 1: When consent is expressed in words of the present
tense, not only are the words actually present, but consent is directed
to the present, so that they coincide in point of time; but when
consent is given in words of the future tense, although the words are
actually present, the consent is directed to a future time, and hence
they do not coincide in point of time. For this reason the comparison
fails.
Reply to Objection 2: Even in other contracts, a man who uses words
referring to the future, does not transfer the power over his property
to another person---for instance if he were to say "I will give
thee"---but only when he uses words indicative of the present.
Reply to Objection 3: In the vow of religious profession it is not the
spiritual marriage itself that is expressed in words which refer to the
future, but an act of the spiritual marriage, namely obedience or
observance of the rule. If, however, a man vow spiritual marriage in
the future, it is not a spiritual marriage, for a man does not become a
monk by taking such a vow, but promises to become one.
__________________________________________________________________
Whether, in the absence of inward consent, a marriage is made by consent
given in words of the present?
Objection 1: It would seem that even in the absence of inward consent a
marriage is made by consent expressed in words of the present. For
"fraud and deceit should benefit no man," according to the law (cap. Ex
Tenore, De Rescrip. , cap. Si Vir, De cognat. spir. ). Now he who gives
consent in words without consenting in heart commits a fraud. Therefore
he should not benefit by it, through being released of the bond of
marriage.
Objection 2: Further, the mental consent of one person cannot be known
to another, except in so far as it is expressed in words. If then the
expression of the words is not enough, and inward consent is required
in both parties, neither of them will be able to know that he is truly
married to the other; and consequently whenever he uses marriage he
will commit fornication.
Objection 3: Further, if a man is proved to have consented to take a
certain woman to wife in words of the present tense, he is compelled
under pain of excommunication to take her as his wife, even though he
should say that he was wanting in mental consent, notwithstanding that
afterwards he may have contracted marriage with another woman by words
expressive of consent in the present. But this would not be the case if
mental consent were requisite for marriage. Therefore it is not
required.
On the contrary, Innocent III says in a Decretal (cap. Tua Nos, De
Spons. et matr. ) in reference to this case: "Other things cannot
complete the marriage bond in the absence of consent. "
Further, intention is necessary in all the sacraments. Now he who
consents not in his heart has no intention of contracting marriage; and
therefore he does not contract a marriage.
I answer that, The outward cleansing stands in the same relation to
baptism as the expression of words to this sacrament, as stated above
[4941](A[2]). Wherefore just as were a person to receive the outward
cleansing, with the intention, not of receiving the sacrament, but of
acting in jest or deceit, he would not be baptized; so, too, expression
of words without inward consent makes no marriage.
Reply to Objection 1: There are two things here, namely the lack of
consent---which benefits him in the tribunal of his conscience so that
he is not bound by the marriage tie, albeit not in the tribunal of the
Church where judgment is pronounced according to the evidence---and the
deceit in the words, which does not benefit him, neither in the
tribunal of his conscience nor in the tribunal of the Church, since in
both he is punished for this.
Reply to Objection 2: If mental consent is lacking in one of the
parties, on neither side is there marriage, since marriage consists in
a mutual joining together, as stated above ([4942]Q[44], A[1]). However
one may believe that in all probability there is no fraud unless there
be evident signs thereof; because we must presume good of everyone,
unless there be proof of the contrary. Consequently the party in whom
there is no fraud is excused from sin on account of ignorance.
Reply to Objection 3: In such a case the Church compels him to hold to
his first wife, because the Church judges according to outward
appearances; nor is she deceived in justice or right, although she is
deceived in the facts of the case. Yet such a man ought to bear the
excommunication rather than return to his first wife; or else he should
go far away into another country.
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Whether consent given secretly in words of the present makes a marriage?
Objection 1: It would seem that consent given secretly in words of the
present does not make a marriage. For a thing that is in one person's
power is not transferred to the power of another without the consent of
the person in whose power it was. Now the maid is in her father's
power. Therefore she cannot by marriage be transferred to a husband's
power without her father's consent. Wherefore if consent be given
secretly, even though it should be expressed in words of the present,
there will be no marriage.
Objection 2: Further, in penance, just as in matrimony, our act is as
it were essential to the sacrament. But the sacrament of penance is not
made complete except by means of the ministers of the Church, who are
the dispensers of the sacraments. Therefore neither can marriage be
perfected without the priest's blessing.
Objection 3: Further, the Church does not forbid baptism to be given
secretly, since one may baptize either privately or publicly. But the
Church does forbid the celebration of clandestine marriages (cap. Cum
inhibitio, De clandest. despons. ). Therefore they cannot be done
secretly.
Objection 4: Further, marriage cannot be contracted by those who are
related in the second degree, because the Church has forbidden it. But
the Church has also forbidden clandestine marriages. Therefore they
cannot be valid marriages.
On the contrary, Given the cause the effect follows. Now the sufficient
cause of matrimony is consent expressed in words of the present.
Therefore whether this be done in public or in private the result is a
marriage.
Further, wherever there is the due matter and the due form of a
sacrament there is the sacrament. Now in a secret marriage there is the
due matter, since there are persons who are able lawfully to
contract---and the due form, since there are the words of the present
expressive of consent. Therefore there is a true marriage.
I answer that, Just as in the other sacraments certain things are
essential to the sacrament, and if they are omitted there is no
sacrament, while certain things belong to the solemnization of the
sacrament, and if these be omitted the sacrament is nevertheless
validly performed, although it is a sin to omit them; so, too, consent
expressed in words of the present between persons lawfully qualified to
contract makes a marriage, because these two conditions are essential
to the sacrament; while all else belongs to the solemnization of the
sacrament, as being done in order that the marriage may be more
fittingly performed. Hence if these be omitted it is a true marriage,
although the contracting parties sin, unless they have a lawful motive
for being excused. [*Clandestine marriages have since been declared
invalid by the Council of Trent (sess. xxiv). It must be borne in mind
that throughout the treatise on marriage St. Thomas gives the Canon Law
of his time. ]
Reply to Objection 1: The maid is in her father's power, not as a
female slave without power over her own body, but as a daughter, for
the purpose of education. Hence, in so far as she is free, she can give
herself into another's power without her father's consent, even as a
son or daughter, since they are free, may enter religion without their
parent's consent.
Reply to Objection 2: In penance our act, although essential to the
sacrament, does not suffice for producing the proximate effect of the
sacrament, namely forgiveness of sins, and consequently it is necessary
that the act of the priest intervene in order that the sacrament be
perfected. But in matrimony our acts are the sufficient cause for the
production of the proximate effect, which is the marriage bond, because
whoever has the right to dispose of himself can bind himself to
another. Consequently the priest's blessing is not required for
matrimony as being essential to the sacrament.
Reply to Objection 3: It is also forbidden to receive baptism otherwise
than from a priest, except in a case of necessity. But matrimony is not
a necessary sacrament: and consequently the comparison fails. However,
clandestine marriages are forbidden on account of the evil results to
which they are liable, since it often happens that one of the parties
is guilty of fraud in such marriages; frequently, too, they have
recourse to other nuptials when they repent of having married in haste;
and many other evils result therefrom, besides which there is something
disgraceful about them.
Reply to Objection 4: Clandestine marriages are not forbidden as though
they were contrary to the essentials of marriage, in the same way as
the marriages of unlawful persons, who are undue matter for this
sacrament; and hence there is no comparison.
__________________________________________________________________
OF THE CONSENT TO WHICH AN OATH OR CARNAL INTERCOURSE IS APPENDED (TWO
ARTICLES)
We must now consider the consent to which an oath or carnal intercourse
is appended. Under this head there are two points of inquiry:
(1) Whether an oath added to the consent that is expressed in words of
the future tense makes a marriage?
(2) Whether carnal intercourse supervening to such a consent makes a
marriage?
__________________________________________________________________
Whether an oath added to the consent that is expressed in words of the
future tense makes a marriage?
Objection 1: It would seem that if an oath be added to a consent that
is expressed in words of the future tense it makes a marriage. For no
one can bind himself to act against the Divine Law. But the fulfilling
of an oath is of Divine law according to Mat. 5:33, "Thou shalt perform
thy oaths to the Lord. " Consequently no subsequent obligation can
relieve a man of the obligation to keep an oath previously taken. If,
therefore, after consenting to marry a woman by words expressive of the
future and confirming that consent with an oath, a man binds himself to
another woman by words expressive of the present, it would seem that
none the less he is bound to keep his former oath. But this would not
be the case unless that oath made the marriage complete. Therefore an
oath affixed to a consent expressed in words of the future tense makes
a marriage.
Objection 2: Further, Divine truth is stronger than human truth. Now an
oath confirms a thing with the Divine truth. Since then words
expressive of consent in the present in which there is mere human truth
complete a marriage, it would seem that much more is this the case with
words of the future confirmed by an oath.
Objection 3: Further, according to the Apostle (Heb. 6:16), "An oath
for confirmation is the end of all . . . controversy"; wherefore in a
court of justice at any rate one must stand by an oath rather than by a
mere affirmation. Therefore if a man consent to marry a woman by a
simple affirmation expressed in words of the present, after having
consented to marry another in words of the future confirmed by oath, it
would seem that in the judgment of the Church he should be compelled to
take the first and not the second as his wife.
Objection 4: Further, the simple uttering of words relating to the
future makes a betrothal. But the addition of an oath must have some
effect. Therefore it makes something more than a betrothal. Now beyond
a betrothal there is nothing but marriage. Therefore it makes a
marriage.
On the contrary, What is future is not yet. Now the addition of an oath
does not make words of the future tense signify anything else than
consent to something future. Therefore it is not a marriage yet.
Further, after a marriage is complete, no further consent is required
for the marriage. But after the oath there is yet another consent which
makes the marriage, else it would be useless to swear to a future
marriage. Therefore it does not make a marriage.
I answer that, An oath is employed in confirmation of one's words;
wherefore it confirms that only which is signified by the words, nor
does it change their signification. Consequently, since it belongs to
words of the future tense, by their very signification, not to make a
marriage, since what is promised in the future is not done yet, even
though an oath be added to the promise, the marriage is not made yet,
as the Master says in the text (Sent. iv, D, 28).
Reply to Objection 1: The fulfilling of a lawful oath is of Divine law,
but not the fulfilling of an unlawful oath. Wherefore if a subsequent
obligation makes that oath unlawful, whereas it was lawful before, he
who does not keep the oath he took previously does not disobey the
Divine law. And so it is in the case in point; since he swears
unlawfully who promises unlawfully; and a promise about another's
property is unlawful. Consequently the subsequent consent by words of
the present, whereby a man transfers the power over his body to another
woman, makes the previous oath unlawful which was lawful before.
Reply to Objection 2: The Divine truth is most efficacious in
confirming that to which it is applied. Hence the Reply to the Third
Objection is clear.
Reply to Objection 4: The oath has some effect, not by causing a new
obligation, but confirming that which is already made, and thus he who
violates it sins more grievously.
__________________________________________________________________
Whether carnal intercourse after consent expressed in words of the future
makes a marriage?
Objection 1: It would seem that carnal intercourse after consent
expressed in words of the future makes a marriage. For consent by deed
is greater than consent by word. But he who has carnal intercourse
consents by deed to the promise he has previously made. Therefore it
would seem that much more does this make a marriage than if he were to
consent to mere words referring to the present.
Objection 2: Further, not only explicit but also interpretive consent
makes a marriage. Now there can be no better interpretation of consent
than carnal intercourse. Therefore marriage is completed thereby.
Objection 3: Further, all carnal union outside marriage is a sin. But
the woman, seemingly, does not sin by admitting her betrothed to carnal
intercourse. Therefore it makes a marriage.
Objection 4: Further, "Sin is not forgiven unless restitution be made,"
as Augustine says (Ep. cliii ad Macedon. ). Now a man cannot reinstate a
woman whom he has violated under the pretense of marriage unless he
marry her. Therefore it would seem that even if, after his carnal
intercourse, he happen to contract with another by words of the present
tense, he is bound to return to the first; and this would not be the
case unless he were married to her. Therefore carnal intercourse after
consent referring to the future makes a marriage.
On the contrary, Pope Nicholas I says (Resp. ad Consult. Bulg. iii;
Cap. Tuas dudum, De clandest. despons. ), "Without the consent to
marriage, other things, including coition, are of no effect. "
Further, that which follows a thing does not make it. But carnal
intercourse follows the actual marriage, as effect follows cause.
Therefore it cannot make a marriage.
I answer that, We may speak of marriage in two ways. First, in
reference to the tribunal of conscience, and thus in very truth carnal
intercourse cannot complete a marriage the promise of which has
previously been made in words expressive of the future, if inward
consent is lacking, since words, even though expressive of the present,
would not make a marriage in the absence of mental consent, as stated
above ([4943]Q[45], A[4]). Secondly, in reference to the judgment of
the Church; and since in the external tribunal judgment is given in
accordance with external evidence, and since nothing is more expressly
significant of consent than carnal intercourse, it follows that in the
judgment of the Church carnal intercourse following on betrothal is
declared to make a marriage, unless there appear clear signs of deceit
or fraud [*According to the pre-Tridentine legislation] (De sponsal. et
matrim. , cap. Is qui fidem).
Reply to Objection 1: In reality he who has carnal intercourse consents
by deed to the act of sexual union, and does not merely for this reason
consent to marriage except according to the interpretation of the law.
Reply to Objection 2: This interpretation does not alter the truth of
the matter, but changes the judgment which is about external things.
Reply to Objection 3: If the woman admit her betrothed, thinking that
he wishes to consummate the marriage, she is excused from the sin,
unless there be clear signs of fraud; for instance if they differ
considerably in birth or fortune, or some other evident sign appear.
Nevertheless the affianced husband is guilty of fornication, and should
be punished for this fraud he has committed.
Reply to Objection 4: In a case of this kind the affianced husband,
before his marriage with the other woman, is bound to marry the one to
whom he was betrothed, if she be his equal or superior in rank. But if
he has married another woman, he is no longer able to fulfill his
obligation, wherefore it suffices if he provide for her marriage. Nor
is he bound even to do this, according to some, if her affianced
husband is of much higher rank than she, or if there be some evident
sign of fraud, because it may be presumed that in all probability she
was not deceived but pretended to be.
__________________________________________________________________
OF COMPULSORY AND CONDITIONAL CONSENT (SIX ARTICLES)
We must now consider compulsory and conditional consent. Under this
head there are six points of inquiry:
(1) Whether compulsory consent is possible?
(2) Whether a constant man can be compelled by fear?
(3) Whether compulsory consent invalidates marriage?
(4) Whether compulsory consent makes a marriage as regards the party
using compulsion?
(5) Whether conditional consent makes a marriage?
(6) Whether one can be compelled by one's father to marry?
__________________________________________________________________
Whether a compulsory consent is possible?
Objection 1: It would seem that no consent can be compulsory. For, as
stated above (Sent. ii, D, 25 [*[4944]FS, Q[6], A[4]]) the free-will
cannot be compelled. Now consent is an act of the free-will. Therefore
it cannot be compulsory.
Objection 2: Further, violent is the same as compulsory. Now, according
to the Philosopher (Ethic. iii, 1), "a violent action is one the
principle of which is without, the patient concurring not at all. " But
the principle of consent is always within. Therefore no consent can be
compulsory.
Objection 3: Further, every sin is perfected by consent. But that which
perfects a sin cannot be compulsory, for, according to Augustine (De
Lib. Arb. iii, 18), "no one sins in what he cannot avoid. " Since then
violence is defined by jurists (i, ff. de eo quod vi metusve) as the
"force of a stronger being that cannot be repulsed," it would seem that
consent cannot be compulsory or violent.
Objection 4: Further, power is opposed to liberty. But compulsion is
allied to power, as appears from a definition of Tully's in which he
says that "compulsion is the force of one who exercises his power to
detain a thing outside its proper bounds. " Therefore the free-will
cannot be compelled, and consequently neither can consent which is an
act thereof.
On the contrary, That which cannot be, cannot be an impediment. But
compulsory consent is an impediment to matrimony, as stated in the text
(Sent. iv, D, 29). Therefore consent can be compelled.
Further, in marriage there is a contract. Now the will can be compelled
in the matter of contracts; for which reason the law adjudges that
restitution should be made of the whole, for it does not ratify "that
which was done under compulsion or fear" (Sent. iv, D[29]). Therefore
in marriage also it is possible for the consent to be compulsory.
I answer that, Compulsion or violence is twofold. One is the cause of
absolute necessity, and violence of this kind the Philosopher calls
(Ethic. iii, 1) "violent simply," as when by bodily strength one forces
a person to move; the other causes conditional necessity, and the
Philosopher calls this a "mixed violence," as when a person throws his
merchandise overboard in order to save himself. In the latter kind of
violence, although the thing done is not voluntary in itself, yet
taking into consideration the circumstances of place and time it is
voluntary. And since actions are about particulars, it follows that it
is voluntary simply, and involuntary in a certain respect (Cf.
[4945]FS, Q[6], A[6]). Wherefore this latter violence or compulsion is
consistent with consent, but not the former. And since this compulsion
results from one's fear of a threatening danger, it follows that this
violence coincides with fear which, in a manner, compels the will,
whereas the former violence has to do with bodily actions. Moreover,
since the law considers not merely internal actions, but rather
external actions, consequently it takes violence to mean absolute
compulsion, for which reason it draws a distinction between violence
and fear.
