Question VI: Whether fear inflicted on another makes a vow invalid

This QUESTION is exceedingly weighty, and presupposes much, and hands down things necessary also for other Tracts, even that on marriage.

I ASSUME first, from the first part 2. Tract. 1. disp. 3. quaest. 5., that the Will, as regards elicited acts, cannot be coerced.

I ASSUME secondly, from the same disput. quaest. 8., that things done through fear are not involuntary. So holds also the Jurisconsult l. si mulier 21. §. si metu coactus, ff. de eo, quod metus causa. and l. cum proponas C. de hered. instit. and C. si privatus, ff. qui et a quibus. The reason is clear, because he can elicit, and not elicit, the act.

Fear IS a trepidation of mind from danger present or to come. So defines Ulpian the Jurisconsult, l. 1. ff. de eo quod metus causa. It is defined likewise by D. Bonav. 3. p. Centil. sect. 55. and in 4. at the place cited.

Fear is DIVIDED into Concussive, such as that which is inflicted by threats, and Impressive, which is called fear of Fact, as when deeds intervene, say blows, etc. So D. Bonav. loc. cit., on which Zasius Instit. de actione, §. quadrupli, num. 10. Bursatt. consil. 72. num. 11. vol. 1., where he reports others; Sanchez l. 3. de matrim. disput. 12 num. 8. Another fear they add, Compulsive from a powerful man, which is also called Violent; because the force that strikes fear is a man of great power: another fear, they say, is tacit, or of reverence, such as a daughter's toward her Father. The last they call fear of treachery, such as that of a sick man fearing to be treated treacherously by his physician.

Fear, then, is said of someone coerced conditionally, because setting fear aside the will would not will it; yet not absolutely, because he can still be unwilling, and therefore it is called conditional force.

BUT violent force, or absolute force, is that which is from without, not conferring force upon the sufferer ex 3. Eth. cap. 2., as if a Christian were dragged to a Mosque, and compelled by blows to offer incense to an Idol; which force D. Bonav. defines thus, loc. cit. Centil. and in 4. at the place cited, following the Jurisconsult, l. 2. ff. de eo quod metus causa: Vis est maioris rei impetus, qui repelli non potest, which assuredly lacks the voluntary altogether:

A CELEBRATED division of fear is that of D. Bonav. in 4. dist. 29. quaest. 1. in corpore, and loc. cit. Centil., and found in c. Considerationi, c. veniens, el. 2. de sponsal. cap. cum dilectus de his quae vi, et from the Jurisconsult, l. metu, l. 2. ff. de eo quod metus causa. Decio cap. final. de appell. c. causam matrimonii, num. 4. de off. deleg. Menochio de arbitrariis l. 2. Centur. 2. casu 135. n. 1. Flaminio de resignatione benef. l. 13. q. 1. n. 54. Abb. c. cum dilectus n. 3. D. Thoma in 4. dist. 29. quaest. un. art. 2. and elsewhere everywhere with the other Theologians and Summists.

Another is called fear falling upon a constant man, which is also called just fear, c. Finali de appell.; it is called probable by D. Bonav. loc. cit. and Goffredo de his, quae vi, num. 2. Angelo, at the word metus. Sylvest. quaest. 1. Sanchez loco cit. num. 19. It is called also grave fear by D. Bonav. and others, with the Jurisconsult, lege metum, l. 2 ff. de eo quod metus causa, where he says, it is not of a man of no account, since even the strong are shaken by it.

Another is called the fear of an inconstant man, and it is called light fear, in contrast to the preceding, because it marks out as inconstant, light, and vain the one who is shaken by it and led to act against his appetite.

Five conditions, however, S. Bonav., in the places adduced, whom the rest follow, assigns to fear, that it be of the first kind. The first is that the evil feared be grave, l. Metum, l. 1. de eo quod metus causa, there, Labeo says fear is to be taken, not any fear whatever, but of a greater evil.

From the last words they take occasion to say that this fear need not be great absolutely, but comparatively, so that it be greater than another, though light in itself. So Sylvest. v. metus, quaest. 1. Veracruz p. 1. speculi, art. 8. concl. 3. Carbon. de restit. quaest. 46. fundamento 3.

But D. Bonav. in 4. loc. cit. in corpore, and loc. cit. Censil. wills it to be grave in itself, say of death, infamy, or mutilation; whom follow Sotus 4. dist. 29. quaest. 1. art. 2. Sanchez num. 12. The reason is, D. Bonav. loc. cit., because contracts are rescinded by such fear, seeing it impedes consent, cap. Cum locum de sponsal.; but when the evil is light, though preferred before a graver evil, the liberty of consent in a strong man is not held to be impeded.

To those words I say that the comparative is there abusive, and signifies only what is positively great, as the Gloss explains there.

The second condition of fear falling upon a constant man is that the estimation of the grave evil be of one probably imminent, and not a light suspicion. So D. Bonav. in 4. loc. cit., and found l. Metum la 2. ff. de eo quod metus causa. For a constant man is not so lightly terrified; so also D. Thom. in 4. dist. 29. quaest. unica, art. 2. in corpore. Scotus there quaest. unica, §. de primo contradictio. Durandus there quaest. 2. Richard. art. 1. quaest. 1. Gabriel in 3. dist. 39. quaest. 1. art. 1. Sotus 4. dist. 29. quaest. 1. art. 2. Palacios there, disp 1. Ledesm. dub. 23. de matrimonio. And from the Jurisperiti, Torcremata 31. quaest. 2. in summa, num. 6. Sylvest. v. metus, quaest. 1. Tabiena v. impedimentum, impedimento 9. quaest. 1. Burlat. consil. 72. num. 30. vol. 1. Alphaeus in his collectaries, collect. 877. Sanchez num. 15. Hence Aristotle, 3. Eth. cap. 9., says, the brave man is fearless, because he does not fear lightly, but where right reason dictates that he must fear.

Hence I infer with D. Bonav. loc. cit. in resol. that there is not required a true and real infliction of the punishments, for then it would be called not fear but harm; but it is enough that there be a probable fear of a future or imminent infliction, Leg. nec timorem 7. ff. de eo quod metus causa and l. 15. tit. 2. p. 4., and the Gloss teaches, c. el. primo vero metuebant de electione. Bartolomaeus l. metum autem, at the beginning, num. 1. ff. de eo quod metus causa. Sylvest. v. metus, quaest. 1. Lopez on that l. 15. Cucus l. 5. instit. Maiorum, tit. 12. num. 157.

Some add that the fear ought to be present, not awaited, though the evil be only future. They gather this from l. metum autem 9. ff. de eo, quod metus causa. So expound many, as Sanchez num. 16. reports.

Others, however, think that a probable suspicion of fear suffices, and that this is enough for rescinding the act, Leg. novissime, ff. de falso tutore, there, that he was thus compelled by fear, or fearing, lest he be compelled. So Bartol. l. 2. lectura 2. C. quod metus causa. Baldus leg. interpositas at the end C. de Transact. Alex. cons. 99. n. 6. vol. 3. Parisius consil. 60. num. 15. vol. 3. Romanus l. 5. ob turpem, num. 10. C. de condonatione ob turpem causam. Hostiens. c. Cum dilectus de his, quae vi, on the words nec metum mortis, and there Anchar. num. 7. Rebuff. Tom. 2. consil. Gallicarum, tit. de rescissione contractuum, art. unico Glossa 2. 2. num. 6. Alex. Tartagnus among the matrimonial consilia of Tileti cons. 21. num. 5. Sylvest. v. metus Villalobos in communi opinione, litt. N. at the word metus, num. 70. Anton. Gabr. tom. 2. commun. l. 11. v. metus, fol. 107. Burgos de Paz cons. 25. num. 73. Padella l. cum proponas, la 1. num. 3. C. de transact. Decisio Pedemontana 170. num. 3. Ioan. Garzia de nobilitate, gloss. 17. num. 14. Mascard. de probat. concl. 1055. num. 26.

Yet that Law sounds differently to me: that the contract be rescinded of one who, compelled by fear, or fearing, would not be compelled, that is, by force against the thing, say if he were compelled to subscribe, l. nam timor violentiae inferendae vitiat electionem. So the Gloss C. bone, CL. 1., at the word metuebant de electione, which all follow there, Alex. cons. 98. vol. 3. Rebuff. Mascad. loc. cit.

Therefore I note that the Law does not say, or thinking probably, lest fear be struck into him, but fearing (it says) lest he be compelled, that is, by force.

The third condition required for grave fear is assigned by D. Bonav. loc. cit. in corpore; and it is that the one striking fear be able to command his threats to execution; for it is not for a brave general to be terrified by the threats of little rustics, as D. Bonav. notes, l. Famosi, ff. ad legem Iul. maiest., there, for the person also is to be considered: whether he could do it, Gloss. l. metum, v. iactationibus, C. de his, quae vi. Anchar. c. ad Audientiam, num. 2. de his, quae vi. Baldus l. metum q. C. de his quae vi, and there Alex. Salicetus num. 2. Sebastianus de medicis, de casibus fortuitis, quaest. 1. num. 67. Flaminius de resign. benef. l. 13. quaest. 1. n. 116. Cucus l. 1. Instit. Mai. tit. 12. num. 165. Rolandus consil. 83. num. 28. vol. 2. Angelus v. metus, Sotus l. 7. de Iustitia, quaest. 2. art. 1. ad 2. Aragon. 2. 2. quaest. 88. art. 3. §. Pro explicatione, fol. 988. Carbo de restit. quaest. 46. fundamento 4., and all whom Sanchez num. 19. follows.

Note, however, that it is not to be taken as though he could in very fact fulfill the threats, but that the one fearing reasonably judge that he can fulfill them, even though in fact he truly cannot, for some reason unknown to the one fearing. Which D. Bonav. signified excellently, loc. cit., whom Richardus follows, there art. 1. quaest. 1., as Sanchez num. 19. reports. Wherefore the quality and power of the one striking fear and of the sufferer must be weighed, as if the former were a powerful man and the latter weaker, as Beroius cap. 1. n. 30. de off. deleg. Sotus, Arag. Carbo, and Sanchez loc. cit., and Henriquez l. 11. de matrim. cap. 9., after D. Bonav. loc. cit. Censil., teach well.

The fourth condition is D. Bonav. loc. cit. Censil., which he indicates in 4., that it be likely that the threatener will execute his threats; because he is wont to do so, and is not of those Worthies who fling out threats but do not execute them. It is established ex l. unica, C. Si quis Imperatori, there, let us weigh the sayings from the characters of men. And leg. Famosi, ff. ad Leg. Iul. maiest. and Leg. metum, C. de his, quae vi, there: Fear ought to be proved not by boasts or contentions alone, but by the atrocity of the deed. And so teaches Bartolus, Paulus, Alex. Baldus, Salicet. and Aretinus: Abbas indeed cap. 1. num. 3. de offic. deleg., and cap. causam matrimon. numer. 5. on the same title, and cap. Cum dilectus, numer. 8. Anchard. in the chapter ad Audientiam, num. 2. de his quae vi. Navo cap. consultatione, num. 12. de sponsal., and cap. finali, num. 17. de appel. Felinus cap. 1. de offic. deleg., there Decius, and cap. causam matrim. on the same title num. 21. Crottus leg. stipulatio hoc modo concepta, num. 67. ff. de verb. oblig. Vitalis de Cambaris tract. de clausulis; clausula non vi, tit. de metu uxoris, found in Tom. 18. tract. noviorum, Iacobinus leg. interpositas, num. 10. Cod. de transact. Couar. 4. decret. 2. part. cap. 3. §. 6. Tiberius Decianus consil. 18. num. 128. vol. 1. Bursatus consil. 72. num. 35. and 42. vol. 3. Flaminius lib. de resignatione, benef. lib. 15. quaest. 1. num. 174. Mascardus de probat. consil. 1055. num. 18. Antonius Gabriel. Tom. 2. com. lib. 11. v. metus, fol. 106.

From the Theologians, Henriquez lib. 11. de matrim. cap. 9., Lopez 2. part. Instruct. de matrim. cap. 40. fo. 1071., and Sanchez num. 20., who num. 21. adds that it is required that such a one be wont to execute the threatened evil in the same kind of evil as that threatened, on the doctrine of Baldus leg. finali at the end, ff. de haered. instit., where he says that conjecture is not drawn from unlike things; so Cynus, whom Alexander cites and follows, leg. metum, num. 2. Cod. de his, quae vi.

The last condition is that the one fearing be unable to meet the threatened evils otherwise than by vowing; for if he could meet them otherwise, it would not be the fear of a brave man, but of a little fellow, whose it is to dread evils he could easily escape. This condition, however, seems to me implicit in the second, whereby the evil is imminent, for then it is well-nigh irreparable.

Straightway Sanchez disputes whether one choosing a greater evil, say to deny Christ, in order to avoid a lesser, say death, can be called a constant man, and whether that fear of a lesser evil, though grave in itself, suffices to render external acts invalid, as involuntary, because it is fear falling upon a constant man, since it is grave according to the first condition of fear.

Very many assert that an evil, even if grave, does not suffice to strike fear into a constant man if it be chosen to avoid another greater evil, to say, he is not held to be a constant man if he chooses the greater evil, say fault, to avoid a lesser penalty, say death; the reason is, because such a one is moved not by rational but by irrational fear; but the constant man acts rationally.

And indeed D. Bonavent. holds this, at the place cited, toward the end, D. Thom. in 3. dist. 29. quaest. unica, art. 2. in corpore, Scotus quaest. unic. §. de prima contradictio, and §. hic dicitur, Durandus quaest. 1. Richardus art. 1. quaest. 1. ad Paludanum quaest. unica, art. 2. concl. 2. num. 13. Gabriel. in 3. dist. 39. quaest. 1. art. 1. and art. 3. concl. 8. Victoria sum. de matrim. num. 168. Sotus in 4. dist. 29. quaest. 1. art. 2. Palacios in 4. dist. 29. dub. 1. fol. 655. Veracruz p. p. speculi, art. 8. and others, whom Sanchez reports, lib. 4. de matrim. disp. 2. num. 2., where he asserts that these Doctors, speaking of fear in reference to marriage and other contracts to be rescinded — namely that it be fear falling upon a constant man, sufficient to annul marriage — require that the lesser evil be chosen by the man, otherwise he was not constant but inconstant.

Others, however, explain that these Doctors will this condition of choosing the lesser evil to be required in order that fear excuse from fault, but not that it suffice for rescinding contracts; and in this sense D. Bonavent. spoke, in 3. dist. 29. art. 3. quaest. 2. ad 3., where he grants fear falling upon a constant man with regard to human contracts; yet with regard to things of universal justice he denies it, according to that of Matth. 10.: Fear not them that kill the body. Therefore such fear, on grounds urged before God, is not reckoned a sufficient cause to excuse man from the guilt of sin, or from the obligation of an oath, though it exempt him from human contracts, according to the Axiom of the Jurisperiti reported above.

In the place indeed adduced by Sanchez, in the fourth sent., at the end of the question cited, he says that fear falling upon a constant man is of those things only that are not contrary to our salvation, and thus no fear of penalty, with respect to committing sin, can fall upon a constant man; therefore he ought rationally to suffer death rather than sin; but marriage is not of things contrary to salvation, whence he infers that, with respect to it, the fear of a constant man can fall, which fear renders the act involuntary; whence it comes about that this condition, of one choosing the lesser evil in order to be a constant man, in our case does not come into play in a vow or oath, but only in things that carry fault in themselves, which, even though they carry only venial fault, are yet a greater evil than any penalty whatsoever, even of death, as D. Bonavent. teaches, in 3. dist. 38, whom others imitate after D. Augustine, reported in cap. ne quis 22. quaest. 2.

Which things being so, Sanchez does not rightly institute the second disputation lib. 4. de matrimonio: Whether the fear of a constant man necessarily requires that the lesser evil be chosen, that is, the penalty rather than the fault. He says that B. Bonaventure, D. Thomas, and others assert that such an evil ought to be preferred in reference to marriage; for since marriage is not compared, as an evil, with the fear, and consequently cannot be called a lesser evil than the evil certainly threatened by the threatener unless one enter marriage, I do not see on what ground Sanchez says that D. Bonaventure, D. Thomas, and others spoke in this sense, that by choosing marriage rather than death, or death rather than marriage, one is said to choose the greater or the lesser evil, and thence one is argued to be a constant or inconstant man. As D. Bonavent. subtly argues, at the place cited, and Sanchez himself, disp. 5. num. 16., where he says that the fear of just excommunication does not strike grave fear with regard to some contract, because one thing is not chosen as an evil before another, since both are goods.

This fear, then, is not only required for the rescission of marriage and other just contracts, as Soto asserts, in 4. dist. 29. quaest. 1. art. 4., Nauar. summa lat. cap. 22. num. 51., and others whom Sanchez follows, num. 3.; neither can it even intervene.

Sanchez defines this well indeed, disp. 3.: this grave fear, which is called falling upon a constant man, is not equally to be assessed, but proportionally, so that what is light to a man may be grave to a woman or a child, cap. indignanti, 13. quaest. 6., as Tiraquel notes, lib. 1. connub. num. 71., the Gloss cap. cum locum de sponsal. v. metu, where Anton. num. 12. Abbas num. 6. Alexand. de Nevo, num. 23. and others.

Moreover, note that it is not required for grave fear, which deters a constant man, that the evil be feared for one's own person, but it is enough that it be feared in the persons of one's children, leg. isti quidem §. fine, ff. de eo, quod metus causa.

The same of other kindred, in cap. sciam cuncti de electione, in 6., which text Jason says is notable, leg. de pupillo, ff. si quis ipsi, num. 12. ff. de operis novi nuntiat. Felinus cap. Ecclesiae sanctae Mariae, n. 99., where fear inflicted upon the kindred of an elector in order to strike fear into the elector is held to have been struck into the elector himself.

The same of a bond of friendship closely joined, Sanchez teaches, num. 9.; because a friend is another self. Attend also to other things concerning grave evil, sufficient to strike fear into a constant man.

AND indeed, as to those evils that are not declared grave by law, that is to be defined by the judgment of a Judge, leg. 3. ff. ex quibus causis. The greater reason is, because all cases cannot be expressed; but this judgment is not required for those evils that are clearly grave by law. So Baldus, cap. 2. de his, quae ad finem; his reason is, because arbitria are given with respect to those things that cannot be comprehended under a rule, on account of human variety, as is noted on leg. non possunt, ff. de legibus. Sylvester notes the same, V. metus, quaest. 4.; it will be so judged, whether the estimation of the impending evil be in accordance with right reason.

AS TO evils certainly grave, D. Bonavent., at the place cited, in corpore, enumerates death, found in cap. cum dilectus, de his quae vi, and leg. nec timorem 7. ff. de eo quod metus causa. The reason is, because of all terrible things the greatest is death, by the testimony of Aristotle, 4. Eth. So also Sanchez, disp. 5. num. 4.

S. Bonavent. asserts the same of mutilation; for it is a kind of partial death, cap. si quis absciderit disp. 55., and it is found expressly in dicta leg 7. The same, of grave bodily torment, is found expressly in the said cap. cum dilectus, and the said leg. 7., to which grave blows are reduced. The same must be said of the fear of arms, leg. 3. at the beginning, in the verse qui armati, ff. de vi, et vi armata.

S. Bonavent. asserts the same of the fear of servitude. It is found in leg. ego puto, and leg. isti quidem, ff. de eo, quod metus causa. Say the same of the fear of captivity and of grave exile. Of the fear of prison, it is found in leg. nec timorem, and leg. qui in carcerem, ff. de eo, quod metus causa.

S. Bonavent. asserts the same of the fear of losing honor; it is found in leg. 7. tit. 33. part. 7. The Gloss seems to think the same, cap. cum dilectus, v. metum de his, quae vi.

TO this tends the fear of rape, as S. Bonavent. says, at the place cited, and it is found in leg. isti 8. at the end, ff. de eo, quod metus causa, and leg. ff. 15. tit. 2. part. 4., which seem to speak of a virgin; for she, if not corrupted, can suffer rape. The same think D. Thom., 4. dist. 29. quaest. unica, art. 2. ad 2.; D. Bonavent. is cited also, quaest. 1., and others by Sanchez, disp. 5. num. 12., where he understands the same of another honest woman, which I judge the Seraphic Doctor also to have meant; for he does not there define it strictly of rape, and it is gathered from the leg. isti quidem adduced, which includes also men, for whom there is no seal of virginity; and moreover he adds the reason of honesty, that with good men this fear ought to be greater than that of death, which reason also holds in an honest widow.

AS TO grave infamy, although it is in controversy, and S. Bonavent. has expressed nothing about it, yet I judge he included it in the fear of death, to which it is equated, leg. insta, ff de manumiss. vindic.; or he may have included it in the fear of rape, which for the most part carries infamy with it; or S. Bonavent. held that infamy is not among these evils. The same D. Thomas taught, in 4. dist. 23. quaest. unica, art. 2. ad 3.; Durandus quaest. 2. num. 4.; Carthus. there quaest. 2.; Sylvester V. metus, quaest. 4.; and it is gathered from leg. nec timorem, ff. de eo, quod metus causa, there: Nor is infamy contained in this edict, as fear, Pedius said; and the Gloss holds it there, V. infamiae, when it is infamy of fact. Indeed, of infamy of law, the law itself adduced holds it, and Tabiena holds it, V. impedimentum, impedimento 9. quaest. 1. num. 2.

Others ADD the fear of excommunication. Others deny it.

HERE the rule of D. Bonavent. holds, which Sanchez uses, num. 17.; for either the excommunication is just, and then the fear of it does not fall upon a constant man, because it is medicinal and good, nor is it compared as an evil to be avoided or feared; or it is unjust, and this is to be feared, for so it is found, 11. quaest. 3. cap. 1., as Sanchez notes, num. 17., after D. Bonavent. in 4. dist. 18. part. 2. dub. 2., and he brings forward infamy.

S. Bonavent. does not enumerate the LOSS of goods among those things that strike grave fear, for so it seems to be excluded by 32. quaest. 7., there: I will not that you bring before me the losses of the household goods, and it is omitted in cap. cum dilectus de his, quae vi. Paludanus thinks the same, 4. dist. 29. quaest. 1. art. 2. concl. 2.

Or perhaps he includes it in the fear of death, to which it is equated, as Tiraquellus teaches, de nobilitate, cap. 31. num. 369.; for goods are in a certain sense the life of man, leg. advocati 14. Cod. de advoc. divers. iudic., there the Gloss, and it is proved by the song of Hesiod:

Money is the soul to wretched mortals —

So the Gloss cap. unic. verb. coactus de his, quae vi in 6., there Ioan. Monach. num. 5.; Alphonsus Brunus inter consilia feudalia, consil. 82. num. 7., and many others as Sanchez reports, num. 22.

Sanchez NOTES further, disp. 6., that merely reverential fear, without threats, does not fall upon a constant man, nor suffice to annul contracts, cap. ex litteris de despons. impuberum, and cap. 2. de pactis, in 6., and in many others.

The QUESTION, then, is: Whether grave fear, struck in order to extort a vow, annuls it, and on what account.

The FIRST opinion is that such a vow is null by no law, but they say it is to be annulled by Ecclesiastical law. So the Cardinal, cap. 2. quaest. 1. casu 4. de his, quae vi.; Sylvester, verb. metus, quaest. 8., and verb. votum, 2. quaest. 12.

The SECOND opinion asserts this of simple vows alone; but that profession so emitted alone is null, because only one law annulling a vow is found, and it is cap. 1. de his, quae vi, which speaks of profession alone; so Penna, as Lopez reports at the place cited, and other learned Recentiores.

The THIRD opinion is that every such vow is null, whether simple or solemn. So very many, who prove it from tradition, though perhaps the written law annulling it has perished elsewhere. So the final Gloss at the end of cap. 2. de his, quae vi.; Abbas there num. 11., and cap. sicut nobis, num. 5. de regular.; Maior in 4. dist. 38. quaest. 4. col. penult. vers. His rationibus; Rosella V. votum, 1. num. 4., and v. metus, num. 3.; there Angelus num. 8.; Tabiena V. votum, 1. quaest. 1.; Fortunius de ultimo fine, illatione 1. num. 4. 18.; Rota in novis. 4. To decis. 20. num. 15.; Sotus lib. 7. de Iustitia, quaest. 2. art. 1. ad 1. and 2.; Navar. summa, cap. 14. §. 6.; Arag. 2. 2. quaest. 88. art. 3. fol. 988.; Angles flor. 2. part. quaest. unic. de voto, art. 3. difficult. 18.; Toletus lib. 4. summa, cap. 17.; Sà V. votum, num. 8., and v. metus, num. 2.; Valentia 2. 2. disp. 6. q. 6. puncto 4.; Manuel, Tomo 7, cap. 93.; Lopez p. p. Instruct. cap. 45.; Azor. lib. 11. Instit. moral. cap. 15. quaest. 7.; Philiat. de offic. sacerd. Tom. 1. part. 2. lib. 3. cap. 18.; Sanchez in summa, lib. 4. cap. 3. num. 13.

Many note that this is true even if the one vowing had the true intention of binding himself; otherwise, without intention, it is beyond doubt null of itself; Tanner subscribes, disp. 5. quaest. 4. dub. 1. num. 8.

From these, some will that it is null by Divine and natural law. So Sotus, lib. 7. de Iustitia, quaest. 2. art. 1. ad 2., and lib. 8. quaest. 1. art. 7. col. 17., and some Recentiores; and in a similar case, namely marriage, D. Bonavent. holds it, in 4. dist. 29. quaest. 1.; D. Thom. there quaest. unica, art. 3. quaestiuncula 1. supplem.; Gabriel. there quaest. 2. art. 2.; Almain. quaest. 1.; Carthuf. quaest. 2.; Sotus quaest. 1. art. 3.; Richardus art. 1. quaest. 1.; Altisiodor lib. 4. summae, tract. 9. cap. 7. quaest. 5.; Scotus 4. dist. 20. quaest. unica, §. De secundo dico; D. Anton. 3. part. tit. 1. cap. 7.; Veractuz p. p. speculi, art. 8. concl. 1.; Angles flor. 1. part. de matrim. quaest. 3. de consensu coacto, art. 1. diffic. 1. fol. 546.; Ledesma dub. 23. de matrim. concl. 3.; Philiarc. de offic. sacerd. tom. 1. part. 2. lib. 2. cap. 8. and cap. 6.; Molina tom. 2. de Iust. Tract. 2. disp. 226. ad 2. And they bring it forward as probable: Victoria summa, de matrim. num. 268.; Palacios 4. dist. 29. disp. unica; Lopez 2. part. Instruct. de matrimonio. cap. 40. fol. 1063.

Of the Jurisperiti, Angelus de Uraldis holds it, among the matrimonial consilia of Zileti consil. 46.; Covar. 4. decret. 2. part. cap. 3. §. 5.; Cucus, lib. 5. Instit. Maior tit. 12. num 118.; Alexander Caeretius lib. 4. de sponsal. cap. 9.; Matienzo lib. 5. recopilat. tit. 1. rub. glos. 1. num. 189.; Barbosa ff. soluto matrimonio, rub. 4. part. num. 30. Sanchez asserts it as much more probable than the others recited, lib. 4. de matrim. disp. 14. num. 1.

Others, however, say they are annulled by Ecclesiastical law alone. So Aragonius 2. 2. quaest. 88. art. 2. fol. 989.; Azor. lib. 11. Instit. moral. cap. 15. quaest. 6.; Vega, tomo 2 of the summa, cap. 129. casu 17.; Sanchez in summa, lib. 4. cap. 3. num. 9. Sanchez asserts the same of marriage, lib. 4. disp. 14. num. 2., bringing forward many: these are Durandus in 4. dist. 29. quaest. 2.; Paludanus 1. quaest. 1. art. 3. concl. 2. num. 20.; Sotus there, quaest. 1. art. 3.; Arboreus lib. 11. Theosophiae, cap. 15.; Ledesma 2. part. 4. q. 49. art. 3.; Henriquez lib. 11. de matrim. tit. de impedimento violentiae, num. 29. And Richardus says it is probable, 4. dist. 2. art. 1. quaest. 1.; D. Antonin. Victoria, Palac. Bartholomeus a Ledesma reported above; and of the Jurisperiti, Sylvester V. matrimonium, 8. quaest. 11.; Armil. V. matrim. num. 41.; Tabiena V. impedimentum, impedimento 9. quaest. 2.; Navar. sum. cap. 22. num. 50.; Fagundez lib. 2. in 2. praecept. cap. 13. num. 15.; and Suarez Tom. 2. relig. lib. 2. cap. 10. num. 8. To this Bassaeus inclines, num. 5., provided the fear struck be for the end of extorting the vow: Navar. cites, above; Suarez cap. 7. num. 8.; Sanchez lib. 4. moral. cap. 5.; Valentiam disp. 6. quaest. 6. puncto 4.; Sylvium quaest. 88. art. 1.

The SENTENCE therefore of D. Bonavent., as regards vows, is found in 3. dist. 39. art. 3. quaest. 2. ad 2., where he confesses vows null, though not oaths; the reason of the disparity he assigns, because a Vow regards the obligation toward God, who wills that sacrifices be not forced but voluntary; not so an oath, between which S. Bonavent. places three differences, in 3. dist. 38. quaest. 1. ad ult. The first is in the object, because an oath is made to men; a vow to God. The second in the means, because a vow is vowed to God by promise; but an oath is sworn by God. The third in the end, because an oath is for establishing truth; a vow, however, for increasing honesty, and therefore it ought to be more perfectly voluntary.

On which the opposition of Sanchez in his summa, num. 9., falls, where he argues: An oath extorted by such grave fear binds altogether, cap. si vero, de iureiurando; and yet it is involuntary; and it binds, of itself, no less than a vow; therefore there is no other difference than that the Church annuls the Vow, not the Oath.

D. Bonavent. therefore thinks that a vow is null by the Divine law of nature; for he thought the same of marriage at the place cited above.

I ASSERT, that every Vow extorted by grave fear is null by the Divine natural law.

It is PROVED first by D. Bonavent. at the place cited. A Vow is an act of religion, offering something in the service of God; but God does not will a forced sacrifice, as is found in 2. Corint. 9.: Every one, as he purposed in his heart, not from sadness, or of necessity.

Sanchez answers, num. 19., that it is involuntary only in a certain respect, but simply voluntary.

TRUE, this Doctor has not grasped the character of the voluntary required for a vow; for as S. Bonavent. rightly notes, in 4. dist. 38. quaest. 1. in argumentis, such a voluntary is required as is contained in the word of vowing, which is altogether spontaneous and most free, that character by which through a Vow we offer spontaneously to God the services of our works and give ourselves over to him; such as there is in marriage, in which the body is given over with love to the holy and dear society; which likeness Sanchez also admits on LL. CC.; but marriage is annulled by grave fear, as the Canons declare, can. veniens, el. 2. de sponsal. and can. significavit, related to this by D. Bonavent. in 4. dist. 29. quaest. 1., and Sanchez lib. 4. de matrimonio, disp. 21. num. 18.; and such marriage is null in either forum, as S. Bonavent. holds at the place cited, the Canons being adduced, whom the Doctors of both Laws follow, especially all the Doctors of Pontifical Law, cap. 2. de his, quae vi, and cap. cum locum, de sponsal., where, in cap. matrimonium, they teach it to be null absolutely; for even if they expound it also in the forum of conscience, the Theologians adduced by Sanchez at the place cited expound it so. The reason is that of D. Bonavent., on which Sanchez rests, num. 18., because marriage signifies the union of Christ with the Church, as a Vow signifies the union of the soul with Christ; but that is null by the Divine law of nature if it be entered from grave fear: Therefore.

The Minor is indeed PROVED by the most valid argument of S. Bonavent., dist. 29. quaest. 1. Wherever that is lacking which by its nature constitutes a thing in intrinsic being, there that being is not, because a thing cannot be without its essence: but in marriage entered from grave fear, consent is lacking, which by the intrinsic nature of the thing constitutes marriage: Therefore it is null by the nature of the thing. The Minor is proved from cap. cum locum, de sponsal., as D. Bonavent. reports in the arguments and in the body. For when two citizens of Pavia claimed a right over a girl, saying they had contracted marriage with her, the Pontiff commanded the girl to be placed in a safe place, because she feared violence, and the Pontiff gives the reason: because marriage is perfected by consent alone, which is not found where there is fear falling upon a constant man.

Hence Sanchez himself infers, num. 18.; therefore the Pontiff clearly holds that that involuntary consent, which is found where the aforesaid fear is present, is not sufficient for the worth of marriage: namely, because the essential of nature would be lacking. For that mutual consent is of the essence of marriage is of faith by the Council of Florence, in the decree on the sacrament of matrimony, as Sanchez notes, lib. 2. disp. 25. Indeed in disp. 26. he infers that by no power, even that of God, can there be marriage without consent, because it is of its essence.

But CONSENT, of the essence of it, the Pontiff establishes at the place cited to exclude fear falling upon a constant man. To this argument I do not see what the adversaries, especially Sanchez, can worthily reply.

I URGE further, because neither of marriage nor of vows so emitted is any annulment of the Church found; but the bare assertion that they are null. So of marriage it is found in cap. cum locum, cap. consultatione, and cap. veniens el. 2. de sponsal. significavit de eo, qui duxit in matrimonio, which are texts speaking of this matter; they deal with marriages already contracted, and declare that if they were entered through fear they are invalid; and the Church could not annul those marriages then contracted if, before her decree, they were valid: therefore they were null by the very natural law. That which is found only in cap. 1. de his, quae vi, does not annul profession, but brings forward and declares it to be such.

Sanchez answers, lib. 4. de matrimonio, disp. 14. num. 2., that those texts indeed do not have the form of statutes, and thus it is not established where such annulment was decreed by the Church; yet, a tradition of so many Doctors being extant, the Pontiffs in those decrees show that by law and usage it was always held that a marriage extorted by grave fear is null; and perhaps it was once written, though the writing perished; just as, although there is not extant a written declaration of the Church that marriage between a faithful man and an infidel is null, yet that it is so is established from the most ancient tradition of the Church.

He tries to satisfy with the same answer as regards cap. 1. de vi, which concerns vows.

Yet this answer is frivolous; for the Pontiffs in the decrees alleged before show that at all times such vows and marriages were always null, as Sanchez ingenuously confesses: therefore it is a sign that no solid tradition is had that this annulment was decreed by the Church.

I urge further, by the reason adduced above, because the Pontiffs assert that those marriages were always null from defect of consent, which excludes grave fear; which consent they assert is intrinsically necessary for marriage.

To that, indeed, which he adds about the marriage of a faithful man with an infidel, I say it is not null from the determination of the Church alone, as D. Bonavent. asserts, in 4. dist. 39. quaest. 1. in resolutione, but from the nature of the sacrament, which cannot be had without Baptism, which is the door of the sacraments; and by reason of the danger of falling away from Divine worship on account of the unequal worship of the spouse; from which arises the Ecclesiastical determination, which in many Provincial Councils declared such marriage null; and cap. cave, and cap. non oportet forbid such marriage to be contracted; and in c. Quam vero a general annulling decree is found; therefore many say it is null from the nature of the sacrament, among whom is S. Bonavent., who is badly adduced by Sanchez, lib. 7. disp. 71. num. 7., together with those asserting it null by Ecclesiastical law alone.

You will object first with the first opinion. Where there is free consent, other things being in place, there the Vow and the marriage are voluntary: But in our case there is free consent, for fear makes it involuntary only in a certain respect: Therefore.

D. Bonavent. answers, in 4. dist. 29. quaest. 1., that the voluntary is required in the manner said above, on account of the reasons adduced.

You will object secondly with Sanchez. Standing in the law of nature, that deliberation suffices for a Vow which also suffices for mortal fault, as I said, quaest. 2.: But this is present in a vow entered from fear: Therefore.

It is answered from what has been said, that such deliberation ought to be simply voluntary, of the kind that suffices also for committing mortal fault; but not that which arises from grave fear, as we showed above: for this does not suffice simply, but only as it prefers the lesser evil to the greater.

Other arguments, resting on the same foundation, he says he refers to lib. 4. de matrim. disp. 14. num. 1., and they press as regards marriage; which are destroyed by what has been said, and will be resolved also in the third part, Tractate on marriage, disputation 4. question 2. and 3.

He objects first. If it is null by reason of liberty — against: for often light fear deprives of liberty more; for the avaricious man is deterred from an act more by fear of losing money than a slave is by fear of the whip: but light fear by its nature does not annul: Therefore.

It is answered from S. Bonavent., at the place cited, by denying that light fear deprives of liberty more; for liberty ought to follow the dictate of reason, so as to be rightly measured, and for that reason it ought to be measured in a rational man, not in a lunatic.

You will object secondly: fear struck by a natural cause, say the fear of death, or even by a free cause, as if a captive condemned to death, to escape, should marry a harlot according to the custom of certain peoples — and in similar cases does not annul the contract thereupon following: Therefore the annulment does not come from the force of liberty, but from Ecclesiastical law.

It is answered from D. Bonavent., dist. 29. quaest. 1. and dist. 39. art. 3. quaest. 2. ad 1., that the fear must be one fighting diametrically against liberty, resisting rationally; for only such fear is grave; therefore fear alone struck in order to extort marriage annuls; for the fear of imminent damnation, or of death arising from elsewhere, do not act against this liberty so as to extort consent; therefore they are not grave against consent; therefore they are said not to compel but to induce, as S. Bonavent. says, as also those pressing with prayers, as the holy Doctor says, dist. 29. quaest. 1. ad penultimum; for these can strike only light fear, as the Doctors hold whom Sanchez reports, lib. 4. disp. 6. de matrimonio.

You will object thirdly, that Baptism in adults requires consent for its worth, and yet the will suffices even though coerced by grave fear, for the Baptism to be valid, cap. Maiores de Baptismo, and cap. Iudaeis, 45. dist.: Therefore it would suffice also for marriage and Vow, unless the Church annulled.

S. Bonavent. answers, in 4. dist. 29. q. 1. ad 2., that Baptism is the work of God, not of men; but marriage is from the consent of men; for it is a human contract, therefore it requires greater liberty; for it is placed wholly in consent.

Another reason also is assigned common to Vows, because they are self-surrenders of love.

You will object fourthly: also an oath, extorted by grave fear, is valid, cap. verum, and cap. si vero de iureiurando; and yet it requires liberty. If, then, Vow and marriage are annulled for this reason, it is a sign that they are annulled by Ecclesiastical law, not from defect of liberty. This argument was answered above.

You will object fifthly. Nothing is more opposed to consent than fraud and error, leg. si per errorem, ff. de iurisdict. omn. iudic.; and yet here fraud does not annul marriage unless it be error of person and condition; fear, however, annuls: which is different in other contracts; for fraud giving cause to a contract of good faith annuls it, leg. Et eleganter, §. 1. de dolo; but fear does not annul those: Therefore this difference cannot arise from natural law; for otherwise fraud giving cause to marriage, since it is more contrary to consent than fear, would annul it.

It is answered that fear annuls insofar as it directly attacks liberty in the substance of the thing to be chosen; therefore it goes together with error; for it is struck at the substance of the Vow, of marriage, etc.

What is said, that other contracts are not annulled by fear, is false, as S. Bonavent. intimated, in 4. dist. 29. quaest. 1.; it is proved ex leg. 1. Cod. de rescind. vendit., there it is null, as the Gloss expounds on leg. inbemus 14. §. accep-mus, at the word privetur, Cod. de sacro-sancta Ecclesia, and l. 5. v. si habeas, Cod. de iurisdict. omn. iudic.; and it is the common opinion, as Cremensis testifies, singul. 7.; Iason leg. 2. num. 13. and 15. Cod. de iure emphyteut.; Tiraquel. with many, leg. si unquam, v. revertatur, n. 21. and following, Cod. de revocatione donat.; the same is found in other laws related by Sanchez lib. 3. de matrimonio, disp. 8. num. 2.

It is proved by the reason of D. Bonavent. in the places adduced. Without consent a contract is deprived of its substance, leg. obligationum, ff. de act. et oblig.; but where fear is present, consent is lacking, from what has been said: Therefore; and it is plain from the rule Nihil consensui 117. ff. de regul. iuris, there: Nothing is so contrary to consent as force and fear; and c. cum locum, de sponsal., there: consent has no place where fear or coercion intervenes.

But the texts brought forward in opposition by Sanchez only show that such acts ought to be judged null for the sake of preserving peace, because often they could not have the effect of natural annulment through the power of the powerful.

Others, however, will only that the external act, say the entering upon an inheritance, be declared by a magistrate, or recalled to its state, as done without intention of taking possession. Therefore in cap. 2. de his, quae vi, it is found: Things done through fear and force ought by law to be recalled to nullity.

I answer secondly, from what has been said, that greater liberty is required by the nature of the thing for a Dowry and for marriage than for simple human contracts, on account of the reasons adduced above.

Sanchez brings forward, num. 4., the text of leg. 1. ff. de eo quod metus causa, where the Praetor says: quod metus causa gestum erit, ratum non habebo, where he notes, with Tiraquel and others, that it speaks in the future, that is, of what is to be annulled; and yet D. Bonavent. in 3. dist. 39. art. 3. quaest. 2. argumento 2., in the second place, so puts it in the present: ratum non habeo.

Note that it is the same thing, that what has already been done, ratum non habeo: and that what he has, he will not have; whence Sanchez accomplishes nothing; for the annulment follows the deed, and from the nature of the thing, all the more as regards the declaration of the judge in the external forum. It would perhaps serve, if he had said: What is done through fear, I will not ratify. But not even so: for the sense would be that it is null at all times.

There remains the doubt: Whether a Vow emitted from grave fear justly struck is null.

The first opinion is that it is null. So Lopez, prima parte Instruct. cap. 45. col. 3.; Manuel, tomo 2 of the summa, disp. 93.; Vega, Tomo 2 of the summa, cap. 29. casu 17.; and in the similar case of marriage they assert it, as Sanchez reports, lib. 4. disp. 13. The reason is, because it still takes away liberty.

The second opinion is that it is valid. So Sanchez in the cited lib. on marriage, and lib 4. summae, cap. 3. num. 21., with Medina lib. 1. summae, cap. 14. §. 6. fol. 86. quaest. 1. ad ultimum, and in 3. dist. 39. art. 3. quaest. 2. ad 3., where he does not admit fear falling upon a constant man when it arises from justice; for then there is no fear that can deter a constant man from what is just and deflect him, and consequently pertain to annulling contracts, as I said above against Sanchez in his notes.

I assert that a Vow emitted in grave fear justly struck is valid.

It is proved by the reason of D. Bonavent. there, because then no fear falling upon a constant man is struck into him by another, but he rather strikes fear into himself, as is found in leg. si mulier 21. at the beginning, ff. de eo, quod metus causa. For he is himself to himself the cause of fearing sin, or the evil of penalty, one of which looms to be chosen. Which reason Sanchez uses, lib. 4. de matrimonio, disp. 13. num. 3.

This doctrine destroys the foundation of the adversaries; for the vow is voluntary, since the fear was struck from within, duly, and is therefore not coercing; for coercion and force are from without.

From these you can gather that Vows extorted by light fear are valid; for liberty is not gravely assailed thereby.

Here Sanchez discourses at greater length on the excommunication of the holy Council of Trent, sess. 25. de regul. cap. 18., which is fulminated first against those compelling women to enter a monastery, or to take on the habit of Religion, or to make profession.

Secondly, against those giving aid or favor to that end.

Thirdly, against those who, knowing that a woman does not enter or take the habit or emit profession spontaneously, interpose in any way whatever power, or consent, or authority to that act.

Fourthly, against those impeding, without just cause, the voluntary act of the woman willing to emit Vows and enter religion. On this Suarez, Tom. 5. in 3. part. disp. 23. sect. 5., where he treats of Censures, which is the place of this disputation, and which will be treated by us in the 3. part. Tom. 2. Tract. de Censuris.