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St. Thomas Aquinas
The Summa Theologica
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?
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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 Mt. 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.
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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 (Question [45],
Article [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.
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