Of the Impediment of the Condition of Slavery

Of the Impediment of the Condition of Slavery — St. Thomas Aquinas asks: Whether the condition of slavery is an impediment to matrimony?; Whether a slave can marry without his master's consent?; Whether slavery can supervene to marriage?; Whether children should follow the condition of their father?.

We must now consider the impediment of the condition of slavery. Under this head there are four points of inquiry:

Article 1: Whether the condition of slavery is an impediment to matrimony?

A Decretal says (De conjug. servorum, cap. Ad nostram) that "error regarding the condition hinders a marriage from being contracted and voids that which is already contracted."

Further, marriage is one of the goods that are sought for their own sake, because it is qualified by honesty; whereas slavery is one of the things to be avoided for their own sake. Therefore marriage and slavery are contrary to one another; and consequently slavery is an impediment to matrimony.

In the marriage contract one party is bound to the other in the matter of paying the debt; wherefore if one who thus binds himself is unable to pay the debt, ignorance of this inability, on the side of the party to whom he binds himself, voids the contract. Now just as impotence in respect of coition makes a person unable to pay the debt, so that he is altogether disabled, so slavery makes him unable to pay it freely. Therefore, just as ignorance or impotence in respect of coition is an impediment if not known but not if known, as we shall state further on (), so the condition of slavery is an impediment if not known, but not if it be known.

Article 2: Whether a slave can marry without his master's consent?

"In Christ Jesus . . . there is neither bond nor free" (Gal. 3:26, 28). Therefore both freeman and bondsman enjoy the same liberty to marry in the faith of Christ Jesus.

Further, slavery is of positive law; whereas marriage is of natural and Divine law. Since then positive law is not prejudicial to the natural or the Divine law, it would seem that a slave can marry without his master's consent.

As stated above (), the positive law arises out of the natural law, and consequently slavery, which is of positive law, cannot be prejudicious to those things that are of natural law. Now just as nature seeks the preservation of the individual, so does it seek the preservation of the species by means of procreation; wherefore even as a slave is not so subject to his master as not to be at liberty to eat, sleep, and do such things as pertain to the needs of his body, and without which nature cannot be preserved, so he is not subject to him to the extent of being unable to marry freely, even without his master's knowledge or consent.

Article 3: Whether slavery can supervene to marriage?

Everyone can give another that which is his own. Now the husband is his own master since he is free. Therefore he can surrender his right to another.

Further, a slave can marry without his master's consent, as stated above (). Therefore a husband can in like manner subject himself to a master, without his wife's consent.

A husband is subject to his wife in those things which pertain to the act of nature; in these things they are equal, and the subjection of slavery does not extend thereto. Wherefore the husband, without his wife's knowledge, can surrender himself to be another's slave. Nor does this result in a dissolution of the marriage, since no impediment supervening to marriage can dissolve it, as stated above ().

Article 4: Whether children should follow the condition of their father?

If a man sows on another's land, the produce belongs to the owner of the land. Now the woman's womb in relation to the seed of man is like the land in relation to the sower. Therefore, etc.

Further, we observe that in animals born from different species the offspring follows the mother rather that the father, wherefore mules born of a mare and an ass are more like mares than those born of a she-ass and a horse. Therefore it should be the same with men.

According to civil law (XIX, ff. De statu hom. vii, cap. De rei vendit.) the offspring follows the womb: and this is reasonable since the offspring derives its formal complement from the father, but the substance of the body from the mother. Now slavery is a condition of the body, since a slave is to the master a kind of instrument in working; wherefore children follow the mother in freedom and bondage; whereas in matters pertaining to dignity as proceeding from a thing's form, they follow the father, for instance in honors, franchise, inheritance and so forth. The canons are in agreement with this (cap. Liberi, 32, qu. iv, in gloss.: cap. Inducens, De natis ex libero ventre) as also the law of Moses (Ex. 21).

In some countries, however, where the civil law does not hold, the offspring follows the inferior condition, so that if the father be a slave the children will be slaves although the mother be free; but not if the father gave himself up as a slave after his marriage and without his wife's consent; and the same applies if the case be reversed. And if both be of servile condition and belong to different masters, the children, if several, are divided among the latter, or if one only, the one master will compensate the other in value and will take the child thus born for his slave. However it is incredible that this custom have as much reason in its favor as the decision of the time-honored deliberations of many wise men. Moreover in natural things it is the rule that what is received is in the recipient according to the mode of the recipient and not according to the mode of the giver; wherefore it is reasonable that the seed received by the mother should be drawn to her condition.