Chapter III — On the conditions of the mutual consent necessary to matrimony

I. QUESTION I. Whether, that matrimony be valid, the consent of each spouse be required? ANSWER. All affirm it. That consent must needs be internal, sincere and not feigned, free and not forced, immune from error, public, and manifested by an exterior sign. For in no way does internal consent suffice, unless it be manifested by an exterior sign. Because that consent is the matter of the sacrament, which must necessarily be sensible. But that consent ought to be expressed outwardly either by words, or by nods clearly indicating the internal consent. Those nevertheless sin, as a rule, who being able to speak, words being omitted, employ nods or other signs. Except girls of excessive modesty, who today occur exceedingly rarely.

II. Consent feigned and simulated internally, although outwardly expressed by words, does not suffice for matrimony. He sins mortally who contracts feignedly and simulatedly, and is bound to consent truly and sincerely. Nor is credence given in any tribunal to one asserting that he contracted feignedly and simulatedly, nor is it to be given; but rather he deserves to be struck with penalties. And simulators of this kind are by no means to be absolved, until they have given true and sincere consent.

III. If a man contracted feignedly with the first, and afterwards the simulator contract with a sincere and true mind with a second, the ecclesiastical judge commands that he remain with the first: because judgment and right bring forth sentence according to those things which appear and are presumed. For the rest, if with the first the consent was in truth before God feigned, and sincere with the second, then let him rather (says St. Thomas, Suppl., q. 45, art. 4, reply 3) sustain excommunication than approach the first wife, or he ought to flee into other remote regions. For the second in this case would be the true wife. And when certain and undoubted arguments of the feigning with the former woman appear, then the ecclesiastical judge, a penance being imposed and the loss inflicted upon the former woman being repaired, ought to absolve the guilty party and to declare the first matrimony null.

IV. Offspring received from a feigned matrimony is to be held legitimate, until the feigning be proved, as all teach. When one of the spouses knows that a former matrimony dissolved by the judge's sentence is before God valid, he cannot enter upon a second marriage.

V. QUESTION II. Whether consent extorted by fear makes matrimony null? ANSWER. Theologians distinguish manifold fear. One is grave, which is conceived concerning some grave evil imminent, as death, exile, prison, mutilation; or it can be grave from the vehement apprehension of the one fearing. To a woman an evil can be grave which to a man is slight. Slight fear is concerning a slight evil, both in itself and in respect of the person fearing. Besides, one fear arises from a natural internal cause, which impels to act for the preserving of life, or for the fleeing of eternal punishment. Another proceeds from a cause acting outwardly. And this is twofold: for either the cause acting outwardly is only an occasion, as is a tempest of the sea in respect of a merchant; or the cause directly strikes in fear, as a robber who with drawn dagger threatens death, unless money be consigned to him. Moreover another fear is just, struck in by a judge or lawful superior from a just cause; as when a judge casts the violator of a girl into prison, and binds him to take her in matrimony. Another is unjust, which is struck in without a just cause. Another lastly is reverential fear, such as is that of children toward parents.

VI. Matrimony celebrated from grave fear unjustly struck in is null and void, as all confess: because that consent extorted by such fear fights with a perpetual concord of souls and with benevolence. This matrimony is null by ecclesiastical right, most consonant with natural right, as seems to me the more probable. Matrimony on the contrary from fear justly struck in, whether from a natural and internal cause or from an external one, is valid, just as matrimony celebrated from slight fear.

VII. Hence: 1. He who takes a concubine for fear of death contracts a valid matrimony. 2. He who, justly condemned to death, if he be sought in marriage by some woman that he may decline death, contracts validly. 3. Valid also is the matrimony of him who, the judge threatening death or prison, marries the woman he deflowered.

VIII. Sempronius, having suffered an injury from Titius by theft or another crime, threatens to accuse him before a judge unless he marry such a girl: the matrimony would be null, because Sempronius has no right of compelling Titius to marry such a girl, although he has a right of accusing him for the theft. He who under an unjust fear was compelled to marry is not bound to render the debt.

IX. Matrimony entered upon under compulsion becomes valid through free consent, provided that in the other party which contracted freely the consent persevere. Temporal lords and magistrates who directly or indirectly unjustly strike in grave fear, that they may compel someone to contract matrimony, are by that very deed excommunicated by the Council of Trent, session 24, chapter 9 On Reformation.

X. Consent limited by a condition makes matrimony null. Wherefore if anyone say, I take thee as my wife, if my father shall have consented, the matrimony is null, because the condition suspends the consent. General and necessary conditions, as if you say, I will marry thee, if it shall please God, in no way suspend the matrimony. If they be impossible or shameful, which do not infect the substance of matrimony, they are held as not added. All conditions which infect the substance of matrimony make it null, as are these: I take thee as mine, if thou shalt bear me no sons, if thou shalt avoid generation, if thou shalt take the poison of sterility, if thou shalt prostitute thyself to be an adulteress. I contract with thee until I shall have found a fairer or richer. These and like conditions destroy the very substance of matrimony, and make it null.

XI. If to matrimony or to betrothals conditions be appended concerning the present or the past, the condition being posited, the betrothals and the matrimony subsist; and the condition being taken away, the betrothals and the matrimony are null: as if you say, I take thee as mine, if thou be a virgin, if thou be the firstborn, if thy parents consent, if thou be noble, if thou be legitimate. If, the matrimony being consummated, it be detected that at the time of contracting she was not a virgin, nor legitimate, nor noble, nor firstborn, the matrimony is null; nor can carnal copulation make it valid. If anyone say, I take thee as mine, if it shall please thy father, and knew that the father was dead, the condition is held as not added. But if he was ignorant of the father's death, a new consent is necessary, that the matrimony be valid. For it is null by reason of the first conditioned consent, because the condition suspends the effect. If the father live and be silent, because the contract pleases him, then the matrimony is valid. If it be detected that he is silent because it displeases him, then the contract is null. If it be doubted why he is silent, the contract is to be suspended until he declare himself. If he consent, and afterwards dissent, the matrimony is valid, provided they persevere in the will of contracting until the father's consent. There is need nevertheless of prudence, and it is to be gathered from the circumstances regarded whether the father's consent was in fact full and true. Nay, prudence dictates that these conditions, as being wellsprings of doubts, are in a contract of so great moment — namely matrimony — altogether to be rejected; and that either one must contract absolutely, or abstain from such a contract.

XII. An honourable condition contrary to the goods of matrimony makes matrimony null; as if they contract under the condition of perpetual chastity, then no right to copulation is given. But this right being taken away, the matrimony is null. Nay, although there can be conjoined with matrimony an intention of not asking the debt, yet if this be brought into an agreement, the substance of matrimony is destroyed. The Blessed Virgin and the Patriarch Joseph contracted absolutely, and mutually transferred power over their bodies, no reciprocal agreement being added, although they had the mind of abstaining from all carnal copulation, God so illuminating their minds.

XIII. Those entangled in a diriment impediment who contract, the condition being added if the Pope shall dispense, effect a conditioned marriage; but conditioned marriages of this kind are never to be admitted, whether the impediment be of those in which the Pope is wont to dispense, or of another kind.

XIV. Consent is to be expressed by those formulas of words which according to the custom of the country declare a consent true, sincere, reciprocal, and of the present, such as are these: I take thee as my wife; I take thee as my husband, and so forth.