QUESTION 46: OF THE CONSENT TO WHICH AN OATH OR CARNAL INTERCOURSE IS APPENDED
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
Article 1: 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.
Article 2: 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 , Article ).
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.