Of Compulsory and Conditional Consent

Of Compulsory and Conditional Consent — St. Thomas Aquinas asks: Whether a compulsory consent is possible?; Whether a constant man can be compelled by fear?; Whether compulsory consent invalidates a marriage?; Whether compulsory consent makes a marriage as regards the party who uses compulsion?; Whether conditional consent makes a marriage?; Whether one can be compelled by one's father's command to marry?.

We must now consider compulsory and conditional consent. Under this head there are six points of inquiry:

Article 1: Whether a compulsory consent is possible?

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.

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. ). 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.

Article 2: Whether a constant man can be compelled by fear?

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.

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).

Article 3: Whether compulsory consent invalidates a marriage?

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.

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.

Article 4: Whether compulsory consent makes a marriage as regards the party who uses compulsion?

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.

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."

Article 5: Whether conditional consent makes a marriage?

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.

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 (). 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.

Article 6: Whether one can be compelled by one's father's command to marry?

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.

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.