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Question: 47 [<< | >>]
We must now consider compulsory and conditional consent. Under this head
there are six points of inquiry:
(1) Whether compulsory consent is possible?
(2) Whether a constant man can be compelled by fear?
(3) Whether compulsory consent invalidates marriage?
(4) Whether compulsory consent makes a marriage as regards the party
using compulsion?
(5) Whether conditional consent makes a marriage?
(6) Whether one can be compelled by one's father to marry?
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Question: 47 [<< | >>]
Article: 1 [<< | >>]
Objection 1: It would seem that no consent can be compulsory. For, as stated
above (Sent. ii, D, 25 [*FS, Question [6], Article [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. FS, Question [6], Article [6]).
Wherefore this latter violence or compulsion is consistent with consent,
but not the former. And since this compulsion results from one's fear of
a threatening danger, it follows that this violence coincides with fear
which, in a manner, compels the will, whereas the former violence has to
do with bodily actions. Moreover, since the law considers not merely
internal actions, but rather external actions, consequently it takes
violence to mean absolute compulsion, for which reason it draws a
distinction between violence and fear. Here, however, it is a question of
internal consent which cannot be influenced by compulsion or violence as
distinct from fear. Therefore as to the question at issue compulsion and
fear are the same. Now, according to lawyers fear is "the agitation of
the mind occasioned by danger imminent or future" (Ethic. iii, 1).
This suffices for the Replies to the Objections; for the first set of
arguments consider the first kind of compulsion, and the second set of
arguments consider the second.
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Question: 47 [<< | >>]
Article: 2 [<< | >>]
Objection 1: It would seem that "a constant man" [*Cap. Ad audientiam, De his
quae vi.] cannot be compelled by fear. Because the nature of a constant
man is not to be agitated in the midst of dangers. Since then fear is
"agitation of the mind occasioned by imminent danger," it would seem that
he is not compelled by fear.
Objection 2: Further, "Of all fearsome things death is the limit," according
to the Philosopher (Ethic. iii, 6), as though it were the most perfect of
all things that inspire fear. But the constant man is not compelled by
death, since the brave face even mortal dangers. Therefore no fear
influences a constant man.
Objection 3: Further, of all dangers a good man fears most that which affects
his good name. But the fear of disgrace is not reckoned to influence a
constant man, because, according to the law (vii, ff, de eo quod metus,
etc.), "fear of disgrace is not included under the ordinance, 'That which
is done through fear'" [*Dig. iv, 2, Quod metus causa]. Therefore
neither does any other kind of fear influence a constant man.
Objection 4: Further, in him who is compelled by fear, fear leaves a sin, for
it makes him promise what he is unwilling to fulfill, and thus it makes
him lie. But a constant man does not commit a sin, not even a very slight
one, for fear. Therefore no fear influences a constant man.
On the contrary, Abraham and Isaac were constant. Yet they were
influenced by fear, since on account of fear each said that his wife was
his sister (@Gn. 12:12; 26:7).
Further, wherever there is mixed violence, it is fear that compels. But
however constant a man may be he may suffer violence of that kind, for if
he be on the sea, he will throw his merchandise overboard if menaced with
shipwreck. Therefore fear can influence a constant man.
I answer that, By fear influencing a man we mean his being compelled by fear. A man is compelled by fear when he does that which otherwise he would not wish to do, in order to avoid that which he fears. Now the constant differs from the inconstant man in two respects. First, in respect of the quality of the danger feared, because the constant man follows right reason, whereby he knows whether to omit this rather than that, and whether to do this rather than that. Now the lesser evil or the greater good is always to be chosen in preference; and therefore the constant man is compelled to bear with the lesser evil through fear of the greater evil, but he is not compelled to bear with the greater evil in order to avoid the lesser. But the inconstant man is compelled to bear with the greater evil through fear of a lesser evil, namely to commit sin through fear of bodily suffering; whereas on the contrary the obstinate man cannot be compelled even to permit or to do a lesser evil, in order to avoid a greater. Hence the constant man is a mean between the inconstant and the obstinate. Secondly, they differ as to their estimate of the threatening evil, for a constant man is not compelled unless for grave and probable reasons, while the inconstant man is compelled by trifling motives: "The wicked man seeth when no man pursueth" (@Prov. 28:1).
Reply to Objection 1: The constant man, like the brave man, is fearless, as the
Philosopher states (Ethic. iii, 4), not that he is altogether without
fear, but because he fears not what he ought not to fear, or where, or
when he ought not to fear.
Reply to Objection 2: Sin is the greatest of evils, and consequently a constant
man can nowise be compelled to sin; indeed a man should die rather than
suffer the like, as again the Philosopher says (Ethic. iii, 6,9). Yet
certain bodily injuries are less grievous than certain others; and chief
among them are those which relate to the person, such as death, blows,
the stain resulting from rape, and slavery. Wherefore the like compel a
constant man to suffer other bodily injuries. They are contained in the
verse: "Rape, status, blows, and death." Nor does it matter whether they
refer to his own person, or to the person of his wife or children, or the
like.
Reply to Objection 3: Although disgrace is a greater injury it is easy to remedy
it. Hence fear of disgrace is not reckoned to influence a constant man
according to law.
Reply to Objection 4: The constant man is not compelled to lie, because at the
time he wishes to give; yet afterwards he wishes to ask for restitution,
or at least to appeal to the judge, if he promised not to ask for
restitution. But he cannot promise not to appeal, for since this is
contrary to the good of justice, he cannot be compelled thereto, namely
to act against justice.
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Question: 47 [<< | >>]
Article: 3 [<< | >>]
Objection 1: It would seem that compulsory consent does not invalidate a
marriage. For just as consent is necessary for matrimony, so is intention
necessary for Baptism. Now one who is compelled by fear to receive
Baptism, receives the sacrament. Therefore one who is compelled by fear
to consent is bound by his marriage.
Objection 2: Further, according to the Philosopher (Ethic. iii, 1), that which
is done on account of mixed violence is more voluntary than involuntary.
Now consent cannot be compelled except by mixed violence. Therefore it is
not entirely involuntary, and consequently the marriage is valid.
Objection 3: Further, seemingly he who has consented to marriage under
compulsion ought to be counseled to stand to that marriage; because to
promise and not to fulfill has an "appearance of evil," and the Apostle
wishes us to refrain from all such things (1 Thess 5:22). But that would
not be the case if compulsory consent invalidated a marriage altogether.
Therefore, etc.
On the contrary, A Decretal says (cap. Cum locum, De sponsal. et
matrim.): "Since there is no room for consent where fear or compulsion
enters in, it follows that where a person's consent is required, every
pretext for compulsion must be set aside." Now mutual contract is
necessary in marriage. Therefore, etc.
Further, Matrimony signifies the union of Christ with the Church, which
union is according to the liberty of love. Therefore it cannot be the
result of compulsory consent.
I answer that, The marriage bond is everlasting. Hence whatever is
inconsistent with its perpetuity invalidates marriage. Now the fear which
compels a constant man deprives the contract of its perpetuity, since its
complete rescission can be demanded. Wherefore this compulsion by fear
which influences a constant man, invalidates marriage, but not the other
compulsion. Now a constant man is reckoned a virtuous man who, according
to the Philosopher (Ethic. iii, 4), is a measure in all human actions.
However, some say that if there be consent although compulsory, the
marriage is valid in conscience and in God's sight, but not in the eyes
of the Church, who presumes that there was no inward consent on account
of the fear. But this is of no account, because the Church should not
presume a person to sin until it be proved; and he sinned if he said that
he consented whereas he did not consent. Wherefore the Church presumes
that he did consent, but judges this compulsory consent to be
insufficient for a valid marriage.
Reply to Objection 1: The intention is not the efficient cause of the sacrament
in baptism, it is merely the cause that elicits the action of the agent;
whereas the consent is the efficient cause in matrimony. Hence the
comparison fails.
Reply to Objection 2: Not any kind of voluntariness suffices for marriage: it
must be completely voluntary, because it has to be perpetual; and
consequently it is invalidated by violence of a mixed nature.
Reply to Objection 3: He ought not always to be advised to stand to that
marriage, but only when evil results are feared from its dissolution. Nor
does he sin if he does otherwise, because there is no appearance of evil
in not fulfilling a promise that one has made unwillingly.
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Question: 47 [<< | >>]
Article: 4 [<< | >>]
Objection 1: It would seem that compulsory consent makes a marriage, at least
as regards the party who uses compulsion. For matrimony is a sign of a
spiritual union. But spiritual union which is by charity may be with one
who has not charity. Therefore marriage is possible with one who wills it
not.
Objection 2: Further, if she who was compelled consents afterwards, it will be
a true marriage. But he who compelled her before is not bound by her
consent. Therefore he was married to her by virtue of the consent he gave
before.
On the contrary, Matrimony is an equiparant relation. Now a relation of
that kind is equally in both terms. Therefore if there is an impediment
on the part of one, there will be no marriage on the part of the other.
I answer that, Since marriage is a kind of relation, and a relation
cannot arise in one of the terms without arising in the other, it follows
that whatever is an impediment to matrimony in the one, is an impediment
to matrimony in the other; since it is impossible for a man to be the
husband of one who is not his wife, or for a woman to be a wife without
a husband, just as it is impossible to be a mother without having a
child. Hence it is a common saying that "marriage is not lame."
Reply to Objection 1: Although the act of the lover can be directed to one who
loves not, there can be no union between them, unless love be mutual.
Wherefore the Philosopher says (Ethic. viii, 2) that friendship which
consists in a kind of union requires a return of love.
Reply to Objection 2: Marriage does not result from the consent of her who was
compelled before, except in so far as the other party's previous consent
remains in force; wherefore if he were to withdraw his consent there
would be no marriage.
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Question: 47 [<< | >>]
Article: 5 [<< | >>]
Objection 1: It would seem that not even a conditional consent makes a
marriage, because a statement is not made simply if it is made subject to
a condition. But in marriage the words expressive of consent must be
uttered simply. Therefore a conditional consent makes no marriage.
Objection 2: Further, marriage should be certain. But where a statement is
made under a condition it is rendered doubtful. Therefore a like consent
makes no marriage.
On the contrary, In other contracts an obligation is undertaken
conditionally, and holds so long as the condition holds. Therefore since
marriage is a contract, it would seem that it can be made by a
conditional consent.
I answer that, The condition made is either of the present or of the
future. If it is of the present and is not contrary to marriage, whether
it be moral or immoral, the marriage holds if the condition is verified,
and is invalid if the condition is not verified. If, however, it be
contrary to the marriage blessings, the marriage is invalid, as we have
also said in reference to betrothals (Question [43], Article [1]). But if the condition
refer to the future, it is either necessary, as that the sun will rise
tomorrow---and then the marriage is valid, because such future things are
present in their causes---or else it is contingent, as the payment of a
sum of money, or the consent of the parents, and then the judgment about
a consent of this kind is the same as about a consent expressed in words
of the future tense; wherefore it makes no marriage.
This suffices for the Replies to the Objections.
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Question: 47 [<< | >>]
Article: 6 [<< | >>]
Objection 1: It would seem that one can be compelled by one's father's command
to marry. For it is written (Col. 3:20): "Children, obey your parents in
all things." Therefore they are bound to obey them in this also.
Objection 2: Further, Isaac charged Jacob (@Gn. 28:1) not to take a wife from
the daughters of Chanaan. But he would not have charged him thus unless
he had the right to command it. Therefore a son is bound to obey his
father in this.
Objection 3: Further, no one should promise, especially with an oath, for one
whom he cannot compel to keep the promise. Now parents promise future
marriages for their children, and even confirm their promise by oath.
Therefore they can compel their children to keep that promise.
Objection 4: Further, our spiritual father, the Pope to wit, can by his
command compel a man to a spiritual marriage, namely to accept a
bishopric. Therefore a carnal father can compel his son to marriage.
On the contrary, A son may lawfully enter religion though his father
command him to marry. Therefore he is not bound to obey him in this.
Further, if he were bound to obey, a betrothal contracted by the parents
would hold good without their children's consent. But this is against the
law (cap. Ex litteris, De despon. impub.). Therefore, etc.
I answer that, Since in marriage there is a kind of perpetual service,
as it were, a father cannot by his command compel his son to marry, since
the latter is of free condition: but he may induce him for a reasonable
cause; and thus the son will be affected by his father's command in the
same way as he is affected by that cause, so that if the cause be
compelling as indicating either obligation or fitness, his father's
command will compel him in the same measure: otherwise he may not compel
him.
Reply to Objection 1: The words of the Apostle do not refer to those matters in
which a man is his own master as the father is. Such is marriage by which
the son also becomes a father.
Reply to Objection 2: There were other motives why Jacob was bound to do what
Isaac commanded him, both on account of the wickedness of those women,
and because the seed of Chanaan was to be cast forth from the land which
was promised to the seed of the patriarchs. Hence Isaac could command
this.
Reply to Objection 3: They do not swear except with the implied condition "if it
please them"; and they are bound to induce them in good faith.
Reply to Objection 4: Some say that the Pope cannot command a man to accept a
bishopric, because consent should be free. But if this be granted there
would be an end of ecclesiastical order, for unless a man can be
compelled to accept the government of a church, the Church could not be
preserved, since sometimes those who are qualified for the purpose are
unwilling to accept unless they be compelled. Therefore we must reply
that the two cases are not parallel; for there is no bodily service in a
spiritual marriage as there is in the bodily marriage; because the
spiritual marriage is a kind of office for dispensing the public weal:
"Let a man so account of us as of the ministers of Christ, and the
dispensers of the mysteries of God" (@1 Cor. 4:1).