D. 29 - On the impediment of compulsion

After the Master has shown that consent is the cause of marriage, here he shows what impedes the consent, such that no marriage can be effected. And this is divided into two parts: in the first he examines the impediment of compulsion; in the second, the impediment of error, in Distinction 30, at: nor is it coercion alone which precludes consent, but also error. (Sententiae IV, 30.1 (178). 1.)

The first is divided into three: in the first part he shows that coercion of consent does not bring about marriage; in the second he shows that if, after the coercion, free consent should come forth, then it will be a valid marriage, at: and yet, if those who were joined unwilling and coerced should afterwards cohabit for some length of time without objection and complaint, so long as they have had the opportunity to leave or to complain, they are deemed to consent; (Sent. IV, 29.1 (177). 3.) in the third, how someone may be understood to have consented, where he says: one who does not manifestly object is deemed to consent. (Sent. IV, 29.1 (177). 4.)

Question 1

On the impediment of compulsion

Here four questions arise:

first, whether any consent may be compelled;

• second, whether any compulsion could happen to a steadfast man;
• third, whether forced consent causes marriage;
• fourth, whether someone can be compelled by his father to contract marriage.
• Article 1

Whether any consent may be compelled

Obj. 1: To the first question, we proceed thus. (Parallels: ST I-II, q. 6, a. 4; In II Sent. d. 25, q. 1, a. 2.) It seems that no consent can be compelled. For compulsion cannot happen to a free will, no matter what its condition, as was said in Book II, Distinction 25, Question 1, Article 1. But consent is an act of free will. Therefore, it cannot be compelled.

Obj. 2: Furthermore, violence, which is the same as compulsion, according to the Philosopher, is what has its principle outside, with the one suffering the force contributing nothing. (Aristotle, Nicomachean Ethics, Bk. 3, ch. 1 (1110a1–4).) But the principle of every consent is within. Therefore, no consent can be compelled.

Obj. 3: Furthermore, every sin is completed in consent. But what completes a sin cannot be compelled; for according to Augustine, no one sins in what he cannot avoid. (See Augustine, Retractations, Bk. 1, ch. 9 (CCSL 57).) But since force is defined by jurists as being the impetus of a greater thing, which cannot be repelled, (See the Digesta Iustiniani, 4.2.2.) it seems that consent cannot be compelled or violent.

Obj. 4: Furthermore, domination is opposed to freedom. But compulsion belongs to domination, as is clear in a certain definition from Cicero: for he says that force is the impetus of the dominant thing holding something within foreign boundaries. (Not found in these or similar words in the works of Cicero; may be from a florilegium.) Therefore force does not happen to a free will; and thus neither does it happen in consent which is its act.

On the contrary (1), what cannot be, cannot impede something. But the compulsion of consent impedes marriage, as is said in the text. Therefore, consent can be compelled.

Furthermore (2), in marriage there is a certain contract. But in contracts the will can be compelled; and for this reason, the legislator adjudicates for the full restitution, and the contract does not stand because it was made by force or because of grave fear. Therefore, consent can also be forced in marriage.

I answer that, there are two kinds of compulsion or violence. One kind is what causes absolute necessity, and this kind of violence is called violence simply speaking by the Philosopher; as when someone forces something else to move physically. The other kind causes a conditional necessity; and the Philosopher calls this mixed violence, as when someone casts his cargo into the sea, lest it should endanger him; and in this violence, although what is done is not voluntary per se, nevertheless, considering the circumstances, here and now it is voluntary. (See Nicomachean Ethics, Bk. 3, ch. 1, for Aristotle’s discussion of all these things.) And since acts are about particulars, therefore it is voluntary simply speaking, and involuntary in a certain respect. And thus this kind of violence or compulsion can exist in consent, which is an act of the will; but the first kind cannot. And since this compulsion happens by the fact that someone fears some imminent danger, it is thus the same force as grave fear, which forces the will in a certain way, but the first kind of force also happens in bodily acts. And since the legislator does not consider only interior acts, but rather external ones, he takes “force” as compulsion simply speaking, which is why he distinguishes between force and grave fear. But now we are considering interior consent, in which the compulsion or force that is distinguished from fear does not happen. And thus, in the case proposed, compulsion is the same as fear. However, according to juridical experts, grave fear is trepidation of the mind by reason of present or future danger. (Digesta Iustiniani, 4.2.1.)

And by this the answers to the objections are clear: for the first arguments deal with the first kind of compulsion, and the second arguments deal with the second kind.

Article 2

Whether any compulsion could happen to a steadfast man

Obj. 1: To the second question, we proceed thus. It seems that the compulsion of grave fear cannot happen to a steadfast man. For someone steadfast is precisely someone who does not quail among dangers. Since, then, grave fear is a trepidation of the mind by reason of imminent danger, it seems that he would not be compelled by grave fear.

Obj. 2: Furthermore, death is the end of all terrifying things, according to the Philosopher in the Ethics 3, as though it were the most complete among terrifying things. (See Aristotle, Nicomachean Ethics, Bk. 3, ch. 6.) But the steadfast are not compelled by death: for a brave man will also undergo the dangers of death. Therefore, no grave fear can happen to a steadfast man.

Obj. 3: Furthermore, among other dangers, the danger to reputation is particularly feared by good men. But the danger of disgrace is not considered a fear affecting steadfast men; for as the law says, the fear of disgrace is not included in that edict which was made about grave fear. (Digesti veteris, Bk. 4, tit. 2, sec. 7.) Therefore, neither does any other fear affect a steadfast man.

Obj. 4: Furthermore, when someone is compelled by fear, the fear leaves sin in its wake: for it makes him promise something that he does not wish to do, and thus it makes him lie. But a steadfast man does not commit the least sin on account of any fear. Therefore, no grave fear affects a steadfast man.

On the contrary (1), Abraham and Isaac were steadfast men. But grave fear affected them; for because of grave fear they said that their wives were their sisters. (See Genesis 20 and 26.) Therefore, grave fear can affect a steadfast man.

Furthermore (2), everywhere that there is mixed violence, there is some kind of fear that compels. But anyone, however steadfast he may be, can suffer such violence: for if he is at sea on the point of shipwreck, he throws his cargo overboard. Therefore, grave fear can affect a steadfast man.

I answer that, for grave fear to affect someone is for someone to be forced by grave fear. However, someone is forced by fear when he does something that otherwise he would not wish, in order to avoid what he fears. In this, though, the steadfast man is distinguished from the inconstant man in two ways.

First, as regards the sort of danger that is feared; for the steadfast man follows right reason, by which he knows what may be good to do or to forego. But always a lesser evil or a greater good must be chosen; and thus the steadfast man is forced by fear of the greater evil to suffer the lesser evil; but he is not forced to the greater evil in order to avoid the lesser evil. But the inconstant man is forced to the greater evil because of fear of the lesser evil; for example, to sin out of fear of bodily pain. But an obstinate man, on the contrary, cannot even be forced to suffer or do the lesser evil for the sake of avoiding the greater evil. And this is why the steadfast man is the mean between the inconstant and the obstinate.

Second, they differ as regards the estimation of the imminent danger: for the steadfast man is not compelled, except by a strong and probable judgment, but the inconstant man can be forced by a light judgment, as in Proverbs 18:1: the impious man flees when no one is pursuing.

Reply Obj. 1: The steadfast man, as the Philosopher says of a brave man, is intrepid, not because he fears nothing, but because he does not fear what it is not fitting to fear, or where or when it is not fitting. (Aristotle, Nicomachean Ethics, Bk. 3, ch. 7.)

Reply Obj. 2: Sins are the greatest of evils, and therefore the steadfast man can in no way be forced to them; indeed, a man should rather die than allow such evils, as the Philosopher also says in the Ethics 3. (Aristotle, Nicomachean Ethics, Bk. 3, ch. 1 (1110a20–34).) But certain bodily damages are less than others, which are among those particulars that pertain to the person, like death, flogging, rape, and enslavement. And thus by these things, the steadfast man is forced to undergo other bodily damages, and these are contained in this verse: dishonor or status, flogging, or killing. Nor does it matter whether this pertains to one’s own person, or one’s wife, or one’s children, or others like this.

Reply Obj. 3: Disgrace, although it is a great injury, nevertheless can easily happen to someone; and therefore the fear of disgrace is not considered as affecting a steadfast man, according to the laws.

Reply Obj. 4: The steadfast man is not forced to lie, for at that moment he does wish to give; but nevertheless afterward he may wish to seek restitution, or at least to appeal to the court, if he promised that he would not seek restitution. But he cannot promise that he will not appeal to the court, since this would be against the good of justice, to which he cannot be forced—namely, that he should act against justice.

Article 3

Whether forced consent causes marriage

Quaestiuncula 1

Obj. 1: To the third question, we proceed thus. (Parallel: In III Sent. d. 39, a. 3, qa. 2, ad 2.) It seems that forced consent does not invalidate marriage. For consent is required for marriage just as intention is required for baptism. But someone compelled by fear into receiving baptism does receive the sacrament. Therefore, someone compelled by fear into consenting to marriage is also bound by it.

Obj. 2: Furthermore, in a case of mixed violence, an action is more voluntary than involuntary, according to the Philosopher. (Aristotle, Nicomachean Ethics, Bk. 3, ch. 1.) But consent can only be forced by mixed violence. Therefore, it does not entirely exclude the voluntary action; and thus there is still a marriage.

Obj. 3: Furthermore, someone who was compelled to consent to marriage should be counseled, it seems, to remain in that marriage: for promising and not keeping one’s promise has the appearance of evil, from which the Apostle wishes us to abstain. (See 1 Thessalonians 5:22.) Now this would not be the case if consent under compulsion invalidated marriage altogether. Therefore, etc.

On the contrary (1), the Decretals say: consent has no place where grave fear or compulsion intervene, so it is necessary that the matter of compulsion be excluded where mutual consent is required. (Alexander II, De sponsalibus et matrimonio, Extra Bk. 4, tit. 1, ch. 14.) But in marriage, mutual consent is required. Therefore, etc.

Furthermore (2), marriage signifies the union of Christ to the Church, which happens according to the freedom of love. Therefore, it cannot happen by forced consent.

Quaestiuncula 2

Obj. 1: Moreover, it seems that forced consent does cause marriage, at least on the part of the one coercing. For marriage is a sign of spiritual union. But spiritual union, which happens through charity, can exist toward someone who does not have charity. Therefore, marriage to someone who does not wish it can also exist.

Obj. 2: Furthermore, if a woman who had been coerced gave her consent afterward, it would be a valid marriage. But then the man who had coerced her in the first place would not be bound by that consent. Therefore, he must have been bound in the marriage by the first consent.

On the contrary, marriage is an equal-sided relation. But such a relation exists equally in both members. Therefore, if there is an impediment on the part of one, there is not a marriage on the part of the other.

Quaestiuncula 3

Obj. 1: Moreover, it seems that marriage does not come about by conditional consent. For what is placed under a condition is not expressed simply. But in marriage it is necessary that the words be simply expressive of consent. Therefore, any condition laid on consent would fail to bring about a marriage.

Obj. 2: Furthermore, a marriage should be certain. But when something is stated subject to a condition, it is subject to doubt. Therefore, such consent does not cause marriage.

On the contrary, in other contracts an obligation is undertaken subject to a condition, and it stands so long as the condition is fulfilled. Therefore, since marriage is a kind of contract, it seems that it could be entered by conditional consent.

Response to Quaestiuncula 1

I answer that, the marriage bond is perpetual, which is why anything opposed to perpetuity invalidates marriage. But fear grave enough to affect a steadfast man removes the perpetuity of the contract, because he can seek restoration to his former condition. For the kind of compulsion from fear that would affect a steadfast man, and no other kind, invalidates marriage. But a steadfast man is considered to be the virtuous man, who is the measure of all human works, as the Philosopher says in the Ethics 3, Chapter 9. (Many passages in Aristotle’s Nicomachean Ethics, Bk. 3 could be cited; good texts are found in ch. 7 as well as ch. 9.)

Now certain people say that if consent is present, although forced, there is an inner marriage before God, but not as regards one’s state in the Church, because the Church presumes that no interior consent was present due to fear. But this amounts to nothing, for the Church should not presume a sin of anyone until it is proved. But if a person said that he consented when he did not consent, then he has sinned. So the Church presumes that he consented, but it judges this extorted consent insufficient for causing marriage.

Reply Obj. 1: Intention is not an efficient cause of the sacrament in baptism, but only one that elicits the action of the agent. But consent is the efficient cause in marriage, and therefore it is not the same.

Reply Obj. 2: Not just any voluntary act is sufficient for marriage, but only a completely voluntary act, for marriage must be perpetual. Consequently, it is impeded by mixed violence.

Reply Obj. 3: A person should not always be induced to stay in such a marriage, but only when danger is feared from its dissolution. Otherwise he does not sin, because not keeping a promise that was made unwillingly is not an appearance of evil.

Response to Quaestiuncula 2

To the second question, it must be said that marriage is a kind of relation, and a relation cannot arise on one end without arising on the other end as well; so whatever impedes marriage in one, impedes it in the other. For no one can be a husband without a wife, or a wife without a husband, just as no one can be a mother without a child. This is why it is commonly said that marriage cannot limp along on one leg.

Reply Obj. 1: Although the act of one who loves can go out to someone who does not love, still there cannot be a union between them unless the love is mutual. This is why the Philosopher says in the Ethics 8 that friendship, which consists in a certain union, requires love in return. (Aristotle, Nicomachean Ethics, Bk. 8, ch. 2.)

Reply Obj. 2: A marriage will not arise from the free consent of the one who was formerly compelled, except to the degree that the previous consent remains in the other party in its full strength. Therefore, if he were to dissent, no marriage would occur.

Response to Quaestiuncula 3

To the third question, it should be said that the condition attached to the consent concerns either the present or the future. If it concerns the present, and it is not contrary to marriage, then whether it be honorable or dishonorable the marriage stands if the condition is fulfilled, and it does not stand if it is not fulfilled. But if it is contrary to the goods of marriage itself, then it does not bring about a marriage, as was also said above regarding betrothals. If the condition concerns the future, either it is a necessary condition, like the sun rising tomorrow, and then there is a marriage, since such future things are already present in their causes. Or else it is a contingent condition, such as the giving of money or the parents’ approval. And then the judgment is the same about this kind of consent as about consent that is given in words speaking of the future, and so it does not cause marriage.

And by this the answers to the objections are clear.

Article 4

Whether someone can be compelled by his father to contract marriage

Obj. 1: To the fourth question, we proceed thus. (Parallel: ST II-II, q. 104, a. 5.) It seems that someone can be compelled to contract marriage by his father’s command, for Colossians 3:20 states: children, obey your parents in all things. Therefore, they are also bound to obey them in this matter.

Obj. 2: Furthermore, in Genesis 28, Isaac commanded Jacob that he not take a wife from among the daughters of Canaan. But he would only have commanded if, by law, he were able to command. Therefore, a son is bound to obey his father in this matter.

Obj. 3: Furthermore, no one must promise, especially by an oath, on behalf of someone else whom he cannot compel to keep the promise. But parents promise future marriages on behalf of their children, and even strengthen their promise with an oath. Therefore, they can force their children to fulfill it by their command.

Obj. 4: Furthermore, the spiritual father, namely the Pope, can compel a spiritual marriage by his precept, namely, that someone receive the episcopate. Therefore a physical father can do this for a physical marriage.

On the contrary (1), if the father commands marriage, the son can enter religious life without sinning. Therefore, he is not bound to obey him in this matter.

Furthermore (2), if he were bound to obey, the betrothal contracted by the parents without the consent of the children would be binding. But this is contrary to the laws. Therefore, etc.

I answer that, since marriage is like a certain perpetual servitude, a father cannot compel his child to marry by his command, since the child is of a free condition. But he can induce him by reasonable grounds, and then the son relates to the command of his father as he relates to that reason. So if this reason compels him out of necessity or honor, his father’s command will compel him in the same way, and otherwise not.

Reply Obj. 1: The Apostle’s words are not to be understood as applying to matters in which the son is as free as the father; and one of these is marriage, by which the son becomes a father.

Reply Obj. 2: Jacob was bound to do what Isaac commanded for other reasons as well, whether because of the wickedness of those women, or because the seed of Canaan was about to be dispersed from the land which had been promised to the seed of the patriarchs; and this is why Isaac could command.

Reply Obj. 3: They do not swear except under a certain understood condition: that the children will agree; and the parents are obligated in good faith to induce them to agree.

Reply Obj. 4: Some people say that the Pope cannot command someone to accept the episcopate: for consent should be free. But if this were held, the ecclesiastical order would perish. For the Church could not be preserved unless someone could be compelled to undertake ruling the Church, because the men most suited would never want to undertake this unless they were compelled. And thus it should be said that it is not the same thing here, for there is no bodily servitude in spiritual marriage as in corporeal marriage; for the episcopate is a spiritual marriage, like certain office of administering the common welfare: so let a man consider us as ministers of Christ (1 Corinthians 4:1).

Exposition of the Text

The legates of Prince Jordan have reported. (Sententiae IV, 29.1 (177). 2.) It seems that a marriage cannot be accomplished through intermediaries, for if before the arrival of the messenger, one of the parties should change his mind, there would be no marriage. And it must be said that someone can establish another as his proxy for the purpose of consenting: nevertheless, if before the consent is signified he should change his mind about consenting, it is not a marriage, neither in the truth of the matter, nor according to the judgment of the Church—if by some signs he should appear to have changed his mind. But from the time that consent is given through intermediaries, the marriage holds as if he himself had done it.

One who does not manifestly object is deemed to consent. (Sent. IV, 29.1 (177). 4.) This is understood as to the forum of the Church: for as to the forum of conscience, if internally he should dissent although externally he does not make any protest, there is no marriage.