Chapter VI — On betrothals and their conditions

I. QUESTION I. What are betrothals? ANSWER. Betrothals, of which at present, are a promise concerning a future matrimony, mutual, free, expressed by external signs, bearing an obligation. The promise must needs be mutual, that it may oblige both. Free, coercion and fear being excluded. Expressed by external signs, because internal acts do not suffice. Betrothals bear a twofold obligation, natural and canonical. For by natural right each man is bound to stand by his promises, chiefly in a most grave matter, such as are betrothals. The canonical obligation induces the impediment of public honesty. A promise made to one absent, before his acceptance, does not oblige. Betrothals cannot be contracted under a slight obligation. They can indeed promise to one another under the penalty of losing the earnest-money, and even under no obligation; but these would be simple, jesting promises, not true betrothals, which induce the impediment of public honesty. The betrothed ought to promise to one another mutually, that the betrothals may be valid and firm.

II. There is required a deliberate mind of contracting betrothals according to the rite of the Church. If a betrothed man deceive a virgin by a feigned promise, and deflower her, he is bound to marry her; nor is it enough to endow her, chiefly if they be not of disparate condition, and if the virgin herself did not consent to her own defloration and deception. If on the contrary the deceiving betrothed man be of a condition far superior, and known as such by the virgin, then he is bound to endow her, not to marry her. Since in such a case it is presumed, and indeed prudently, that the virgin willed of her own accord to be deceived. On the contrary, if the superior condition of the betrothed man was unknown to the virgin, and he had promised in good faith, the feigned promiser would be bound to marry her.

III. This nevertheless is certain to me, that exceedingly few Lucretias are deflowered unwilling. The girls themselves are the cause why they are deflowered. If they abstained from commerce with young men, and led a modest, bashful, and solitary life, as befits their state, they would be impregnable citadels. But the feigned Lucretias of today themselves open the doors, dart the strokes of their eyes, hunt lovers, and with marvellous modes allure, invite, provoke. When they see wretched youths foaming with the sting of lust, and captured by an immodest love, then they employ all womanly prestiges, and display a more elegant beauty with paints, cosmetics, and allurements. They spare no industry, no study, no craft, no fraud, that they may bewitch their little lovers and suitors and drive them into the snares. And when the wretched youths, seduced by so many stratagems and artifices, attempt to enter the citadel, then the crafty Lucretias put forth a fraudulent resistance — who do not resist but invite, do not repel but provoke, that the young men may fall into the snare of a promise of future matrimony. Shameless virgins of this kind are truly foolish, who disturb families, who stir up dissensions, who bring forth enmities, homicides, and most mournful tragedies. Wherefore if a law were passed binding all deflowered virgins to perpetual penance to be performed in ashes and hair-shirt, this law being passed, beyond doubt virgins would become solitary, bashful, and modest, and would dwell hidden at home.

IV. QUESTION II. By what words are betrothals to be contracted? ANSWER. By words or signs which clearly manifest mutual consent, such as are these: I promise, I oblige myself, on my faith I will take thee as wife. Taciturnity does not suffice. He who is silent seems to consent holds good only in one's own favour, otherwise for undertaking a burden. For then this other rule holds good: He who is silent seems neither to consent nor to dissent. Words ought to be employed absolutely. For the rest, according to the diversity of nations signs can be had in place of words.

V. Infants, the demented, the drunken, and children cannot contract betrothals, because here, as I have said, they require a liberty immune from coercion and from fear falling upon a constant man. The deaf and dumb from birth, if they be endowed with such understanding that they can perceive what betrothals are and what matrimony is, can contract betrothals, as is gathered from chapter Cum apud sedem on betrothals. For a deaf and dumb man can confess and be absolved. He nevertheless who should at the same time be blind could not contract, because he could be instructed by no signs so as to perceive what betrothals and matrimony are.

VI. QUESTION III. What age is required both for betrothals and for contracting matrimony? ANSWER. Seven years completed are required for betrothals, because commonly at this age the light of reason shines forth. But for matrimony fourteen years in males and twelve in females are necessary. Those who before the years of puberty completed contract matrimony sin mortally, as is had in chapter Qui 1 on the betrothals of the under-age.

VII. QUESTION IV. When the time is not predetermined for betrothals, ought matrimony to be celebrated at once? ANSWER. Betrothals oblige under mortal sin to contracting matrimony, as has been said. When the time is predetermined within a month, a year, and so forth, neither can compel the other before the time has elapsed. But when the time is not predetermined, matrimony ought to be contracted as soon as it can conveniently be done. If it be deferred more than is just, he who is in culpable delay sins. Since betrothals afford a right to future matrimony. Therefore the delaying of that right is an unjust privation. The circumstances nevertheless are to be regarded. When one party defers more than is just, he ought in the interior forum to be compelled by the confessor, as all confess, unless some just and grave cause stand in the way. As regards the external forum, in my judgment a judge will never compel by force that matrimony be celebrated; but will rather persuade the party willing to celebrate the matrimony to renounce betrothals of this kind. For matrimony is a conjunction of souls, which does not consist without liberty. And upon the prudence of the confessor and of the judge this whole business depends. A judge nevertheless is bound to compel that the injured party be indemnified for the dissolution of the betrothals.

VIII. QUESTION V. Whether it be lawful to affix to betrothals an obligation to a penalty? ANSWER. One penalty is positive, as if someone oblige himself to lose a hundred gold pieces unless he marry Bertha; the other negative, as if someone promise that he will give a hundred to a girl if she will marry him, otherwise not about to give; or if a testator leave a legacy to a girl if she marry such a man, otherwise she loses the legacy. The former penalty canon law forbids and constitutes invalid, as is plain from chapter Gemma on betrothals. For such a penalty stands in the way of the liberty of matrimony. Nor is a penalty to be imposed upon the party drawing back, for the same reason. For although in other contracts penalties of this kind can lawfully be imposed, yet because matrimony is a bond of souls, and indeed perpetual, whose felicity depends upon the concord and benevolence of the spouses, most prudently have the Legislators forbidden every positive penalty. If one has been appended, the party drawing back is not bound to pay it.

IX. QUESTION VI. Can betrothals be dissolved by mutual consent? ANSWER. The affirmative opinion is common, when each party freely consents. If one party should extort from the other by guile, fraud, fear, or importunate entreaties a remission of the obligation, it would not remain immune from the contracted obligation. But when the reciprocal consent is sincere and free, betrothals can be dissolved even when confirmed by oath, because that oath follows the nature of the contract. Wherefore, the contract yielding, the oath yields. The under-age cannot dissolve betrothals by mutual consent before they have arrived at the years of puberty. Puberty being acquired, both, or one of them, can protest, and the betrothals are rescinded, although the other party refuse. If, puberty being attained, they have not protested at once, or, as they say, after three days, the betrothals cannot afterwards be dissolved at the protest of one party, but the mutual consent of each party is necessary. If one attains puberty before the other, he can forthwith draw back, the other party's puberty not being awaited. If one of full age contract betrothals with one under age, he cannot recede from the contract; but the under-age party, having attained puberty, can draw back. When the under-age, betrothals being contracted, attain puberty, a new consent is not necessary, but the contract entered upon perseveres, because it was not retracted. A private protest also suffices. If nevertheless the betrothals were contracted before a bishop or parish priest by the under-age, then, for the redeeming of vexation, the protest ought to be made in the exterior forum.

X. QUESTION VII. Whether after betrothals contracted and confirmed by oath it be lawful for one party to enter Religion? ANSWER. If entrance is lawful after a ratified matrimony, by a stronger right it is lawful after betrothals even confirmed by oath: because the oath follows the nature of the contract, which is dissolved by entrance into Religion, and so therefore is the oath also. The party which remains in the world, as soon as the other party has entered Religion, remains free, because he who enters cedes his own right. But he who enters remains bound until profession: so that, if the party which remains wishes to wait, and the one who entered return to the world without profession, the betrothals ought to be fulfilled. Betrothals are also dissolved through the reception of sacred Orders. Nor does he sin who after betrothals receives sacred Orders, whatever some say to the contrary, because always in betrothals this condition is included, unless I shall have passed to a better state. Similarly betrothals are dissolved through a vow either of entering Religion or of receiving sacred Orders.

XI. QUESTION VIII. Is it lawful, betrothals having been contracted, to emit a simple vow of chastity? ANSWER. That, this vow being emitted, the betrothals are dissolved in respect of the party which does not vow, is agreed among all, because the one vowing cedes his own right. It is disputed only concerning the vowing party, whether he lawfully vows and becomes free from the burden of the betrothals. The negative opinion, favouring the nuptials, is defended by Lessius, Layman, Castropalao, and Sánchez, who reports several other authors: because, they say, that cannot be promised to God which was owed to man. By force of the betrothals the body was owed to man. Therefore it cannot be promised to God. How robust this reason is, no one does not see.

XII. The affirmative opinion is defended by grave theologians — Cajetan, Suárez, Vásquez, Azor, Gonet, Pontius, Ledesma, and very many others. This opinion is to me the more probable, provided guile and fraud be absent. Since always in a promise made to a man, in which each man binds his own state, there is included the condition, unless I shall choose a better state of serving God. But celibacy is a better state than that of matrimony, as all confess. Nor does the reason of the opposite opinion urge anything: since that vow is not to the loss of a third party, seeing that all creatures are subject to God. Nor by force of betrothals does the body become owed to a man absolutely, since in them the said condition of a better state is included. The chapter Veniens, which is wont to be opposed, speaks of a crafty woman who had emitted a vow after a postponement of the matrimony, that she might elude her betrothed.

XIII. A subsequent matrimony dissolves preceding betrothals, as all confess. He nevertheless sins mortally who, betrothals having been entered upon, contracts matrimony with another man or woman. If the matrimony be invalid, the contracting party remains bound, and is held on his own part to fulfil the betrothals; and if he has inflicted loss upon the party, he is bound to repair it.

XIV. A subsequent valid matrimony not only suspends betrothals but dissolves them, so that, the spouse being dead, one is not bound to fulfil the betrothals, as seems to me the more probable. Preceding betrothals are in no way dissolved by later ones, but the later ones are altogether invalid, even if they were confirmed by oath. Always nevertheless the innocent party remains free, so that she can lawfully marry another. What if to the second betrothals carnal copulation should accede, which had not acceded in the first? If the second betrothed woman knew of the prior betrothals, these are not dissolved, because she willed of her own accord to be deceived. If on the contrary she was ignorant of the betrothals, and was in truth deceived under the hope of future matrimony, then that the second betrothals are valid seems to me the more probable, and that this second deflowered virgin would have to be married. Although, as I said above, rare are the virgins who unwilling and deceived are deflowered. And therefore rare is the case in which second betrothals subsist. He who celebrates second betrothals, if the prior ones, which were valid, are on some head rescinded, is not bound to fulfil the second, as being null: because what from the beginning was null does not by the course of time grow valid.

XV. QUESTION IX. Whether betrothals be dissolved either by delay of time, or by the absence of one of the betrothed, or by change of domicile? ANSWER. If the time be predetermined for ending the obligation, the time having elapsed the betrothals can be dissolved by the innocent party, otherwise by the guilty. If the time be indefinite, they are not dissolved by delay of time, unless it be exceedingly excessive, and the other party press. Authors dispute whether one year, or two, or three ought to be reputed a sufficient interval for dissolving betrothals. A certain rule of this dissolution cannot be prescribed. The age, condition, and state of the betrothed, and several other circumstances, are to be regarded.

XVI. That betrothals are dissolved by departure into a far region, even with the mind of returning, is the common opinion, and is gathered from chapter De illo on betrothals. The civil laws which oblige a betrothed woman to await for a biennium the return of a betrothed man absent in the same province, and for a triennium if he has gone into a foreign province, have been corrected by canon law. The forum of conscience is chiefly to be regarded in this matter. If with the betrothed woman consenting the betrothed man departed, she is bound to wait until he return according to the predetermined time. Similarly if with the betrothed woman consenting the domicile be changed, the betrothals subsist; otherwise if it be done without her knowledge. In all these things, before betrothals be dissolved, the parish priest is always to be consulted.

XVII. QUESTION X. What are the supervening causes which suffice for dissolving betrothals? ANSWER. This is the general rule which is commonly assigned. As often as a grave change, vicissitude, or circumstance emerges which, had it been known or foreseen before the betrothals were contracted, would have been an impediment to the celebration of the contract, it suffices for dissolving the betrothals in respect of the innocent party, who is not the cause. For this condition — if things stand as they now are, unless a notable change happen — is always implanted in the contract of betrothals. Nor hence does it follow that all betrothals are conditioned, but only those to which a condition is appended from the free will of the contracting parties. But the general condition implanted in the contract itself does not hinder the betrothals from being absolute, and from inducing the impediment of public honesty.

XVIII. A notable defect of beauty, with which the betrothed woman was endowed at the time of the contract, and afterwards has been made deformed, is a sufficient cause for dissolving betrothals, because with a notably deformed girl a prudent betrothed man would not have contracted. The crime of heresy, a scandalous deed bearing infamy, grave enmities, quarrels between the betrothed, and the rest which suffice for a separation from bed, much more suffice for dissolving betrothals. Similarly any impediment whatsoever, whether diriment or impedient, which is adverse to the contracting of matrimony, is enough for rescinding betrothals. Similarly grave poverty supervening upon one of the betrothed, who at the time of the contract abounded in riches, is enough for dissolving betrothals. If nevertheless the betrothed woman should have her whole designated dowry, and the betrothed man were rich, although the other goods of the betrothed woman had perished, then it does not seem a sufficient cause for dissolving the betrothals. But if each of the betrothed be made poor, then by a stronger right the betrothals may be dissolved, because the burdens of matrimony could then be more difficultly sustained, teach Pontius, Rebello, Leander, and the Salmanticenses. But this is not absolutely true. When both are poor, the condition of each is equal. Are betrothals not valid among the poor, provided the betrothed be able to earn bread whereby they may feed themselves and their offspring? In practice nevertheless I myself judge that betrothals of this kind ought easily to be dissolved. Because the rich made poor bear poverty too grievously, and are with difficulty induced to labour. And besides, a rich betrothed man made poor perhaps wishes to abstain from matrimony. Wherefore like cases are to be subjected to a prudent parish priest, that, the circumstances being regarded, he may judge what is expedient in the Lord. This is certain, that those sin who contract matrimony unless they probably foresee that they can acquire those things which are necessary for sustaining the burdens of matrimony.

XIX. If one of the betrothed become far richer, the other remaining in the state in which the betrothals were contracted, that the betrothals are not dissolved is to me the more probable. For no deception is then in him who has been made richer. Fornication contracted after betrothals dissolves them, as much in respect of the betrothed man as of the betrothed woman, because each violates the fidelity of the betrothals: although the betrothed woman commits a baser crime, it does not nevertheless take away that the betrothed man's fornication suffices for dissolving the betrothals. If nevertheless the innocent party wish to contract matrimony, the betrothals subsist. When both fornicate, the betrothals can be dissolved, because there is not given a mutual compensation, in that the betrothed woman's fornication is far baser and brings infamy upon the betrothed man. A betrothed woman oppressed by force after betrothals can by right be rejected by the betrothed man, because a grave, nay a most grave, change has happened.

XX. QUESTION XI. What antecedent causes dissolve betrothals? ANSWER. There are several, which, if they be unknown to the contracting parties, can dissolve betrothals, otherwise if they were known to them. 1. If a noble and rich man promise to a poor and ignoble girl, thinking her to be rich, noble, and so forth. 2. Preceding fornication of the betrothed woman, as soon as it becomes known to the betrothed man, dissolves the betrothals. On the contrary the occult fornication of the betrothed man inflicts no infamy upon the betrothed woman, and therefore here does not absolutely dissolve them. 3. An accidental cause unknown, which gave cause to the contract, affords a right to the innocent party that he may be able to draw back from the contract. 4. An ignoble betrothed woman is reputed noble, a poor one is believed rich, a deformed one beautiful, a corrupt one is reckoned a virgin: if she wish to contract betrothals, she is bound to lay open these defects, because if she concealed them, she would deceive the betrothed man in a grave matter. But she is not bound to defame herself. True. But neither can she by right deceive her neighbour. What then? Let her abstain from the contract. For the rest, if she wish to enter upon the contract, she ought to lay open the occult and grave defects. This is observed in the sale of a horse, a cow, or an ass by a man truly Christian.

XXI. QUESTION XII. Who is the lawful judge for dissolving betrothals? ANSWER. The ecclesiastical one, namely the proper bishop, or his delegate. A parish priest in the contentious forum is not a judge. If the cause be occult, the betrothed can by their own authority draw back from the contract. If the betrothed woman be guilty of occult fornication, she ought to be admonished and persuaded by the betrothed man to withdraw; if she refuse, he can call her before a judge: if she be defamed, she herself is the cause.

XXII. The cause which is assigned for dissolving betrothals ought to be morally certain. In the exterior forum the confession of each party suffices. In the interior forum one trustworthy witness suffices. In the exterior forum also, if the cause be a diriment or impedient impediment, one grave witness worthy of credit suffices. But these things pertain to the ministers of the forum.

XXIII. QUESTION XIII. Do children sin mortally who contract betrothals or matrimony with their parents unaware or unwilling? ANSWER. Theologians and canonists commonly affirm it. For if children ought to honour and revere their parents and to obey them, assuredly they are bound to obey them and to honour them in a business most grave of all, whereon depends the institution of life, the peace of families, and the preservation of cities and kingdoms. Parents nevertheless cannot compel their children to marry this woman rather than that. Children under grave fault ought to consult their parents concerning matrimony to be contracted. But parents ought to instruct their children to take a betrothed woman modest, honourable, of good morals, and equal to themselves both in riches and in condition of state. Marriages nevertheless celebrated with parents unwilling are valid, though unlawful.