OF COMPULSORY AND CONDITIONAL CONSENT (SIX ARTICLES)
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?
Whether a compulsory consent is possible?
Objection 1: It would seem that no consent can be compulsory. For, as stated above (Sent. ii, D, 25 [*FS, Q[6], A[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, Q[6], A[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.
Whether a constant man can be compelled by fear?
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 ).