Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article II. On Restitution on Account of Defloration and Fornication
- Principles. - I. For merely natural damage, or for the injury of bodily integrity and the loss of virginity, nothing, at least more probably, is to be restored; because that damage cannot be compensated by money. - St. Lig., n. 640. - Elbel, n. 220, etc. - Recall what was said above, n. 628.
II. Even for temporal damage which has followed from shameful intercourse, nothing, except the education of offspring, ought to be restored when the woman consented to the solicitation; because injury is not done to one knowing and willing. - St. Lig., n. 641.
III. If a deflowerer violated a girl by force, fraud, deceit, or threats, he is held to repair all damages thence befalling her or her parents, because he is the efficacious and unjust cause of these damages 1. - St. Lig., ibid. - Elbel, ibid.
1 All agree, so De Lugo, Disp. 12, n. 11, that the deflowerer is held in conscience to compensate all those damages; which compensation ought to be made either by taking her as wife, or by increasing the dowry, or by otherwise procuring that she marry as well as she would have married if she had not been deflowered. But whether and when an option can be permitted either to the deflowerer of offering either of the two, or to the deflowered woman of demanding either of the two, see apud the same Lugo (l. c., from n. 12).
- Questions. - Q. 1. Whether a violator is held to marry the girl violated under a promise of marriage?
Resp. First Sentence affirms. The reason is that the innominate contract, I give so that you may give, etc., is then perfected when delivery of the thing is made, or the performance of the work is furnished, and then the reason and force of the laws which invalidate shameful pacts cease; for the obligation which is then contracted by the other party is not shameful, nor does it drive one to a shameful thing. - St. Lig., n. 642 2, and others most commonly.
2 It can certainly seem strange that St. Alphonsus (cited n. 642) proposes the question concerning the obligation of the deflowerer both if he truly promised marriage and if he fictitiously promised it; and yet he does not introduce even one word concerning the first part of the question, but dwells solely in asserting the obligation of marriage, although the promise was fictitious. But perhaps to that wise man it seemed superfluous to discuss the hypothesis of a true promise; both because the very clear arguments which he brought forth, whether from reason or from authority, for proving the obligation of marriage, even if the deflowerer had fictitiously promised marriage, a fortiori proved it when a true promise had acceded, and when therefore, since the nature of the matter plainly persuades that on the woman's part also a counter-promise of marriage intervened, truest espousals are had; and because that prior part was so beyond controversy in the schools that not a single one of the Doctors could be alleged who dared not only to impugn that doctrine, but even to call it into doubt.
And indeed this very rare and therefore astonishing consensus of Theologians equally with Canonists in that doctrine manifestly shows in what place that second sentence, which the Author subjoins, namely the sentence of certain more recent writers - which you might better call an abnormal aberration - is to be held; and this all the more because those persons have persuaded themselves that a paradox of this kind is very clearly confirmed from the nature of a contract involving some shameful condition, as if indeed the contract of espousals which intervenes there ought or could also be called shameful! But indeed would it not be like a prodigy that all the Doctors of Theology and Law down even to our age had been so blind that in a matter plainly obvious and pertaining to the first elements of natural right, concerning which besides none of them failed to inquire most subtly and diligently and to dispute at length, they should so shamefully stumble? But should not this very thing move those more recent men at least to suspect that they have wandered away from the right path?
I have said that St. Alphonsus confirmed the obligation of contracting marriage by the strongest force of authority, even if a merely fictitious promise had intervened. But this also must be added: whatever probability some have seemed to attribute to the opposite sentence rests only upon the empty show of false allegations.
And indeed, 1. for that opinion Schmalzgrueber (Lib. 4, Tit. 1, n. 32) alleges St. Antoninus, Gabriel Biel, Barthol. De Ledesma, Bonacina, Martin Perez, and Wiestner, by whom he was deceived (Lib. 4, Tit. 1, n. 20) and from whom he borrowed both the thesis and most of these allegations. - But Gabriel Biel (In 4, Dist. 28, q. 1, art. 2, Concl. 5), Mart. Perez (De Matrim., Disp. 2, Sect. 4, n. 3), Bonacina (De Matrim., Disp. 1, q. 1, p. 2, n. 9), and St. Antoninus (Sum., Part 3, Tit. 1, Cap. 19, § 1) affirm this only concerning the fictitious promise of a man who notably exceeds the condition of the woman; which conclusion, as is plain, does not touch the matter. 2. The Salmanticenses (De Matrim., Cap. 1, n. 33) asserted that that opinion is called probable by Dicastillo, as St. Alphonsus also intimates (Lib. 3, n. 642, § 2). - But Dicastillus (Lib. 2, Tr. 2, Disp. 7, Dub. 9, n. 155-156) speaks of a mere fictitious promise without defloration; and this likewise does not touch the matter. 3. Peter De Ledesma also asserted that this opinion is called probable by certain persons, which both Dicastillus (l. c., n. 128) and Sanchez (De Matrim., Lib. 1, Disp. 10, n. 2) intimate; and besides the accustomed St. Antoninus and Biel, he alleged Tabiena (V. Matrim., II, n. 8), and attributed to Francisco De Victoria that he said (Sum., n. 254) that the opposite is not proved sufficiently. - But Tabiena (l. c.) discusses only him who fictitiously CONTRACTS MARRIAGE and afterward has copula; which case is foreign to ours. Victoria, however (l. c.), does not treat of defloration with a fictitious promise of marriage, but raises the question about him who contracted with someone, uttering words outwardly and not having consent inwardly: whether it is marriage? And after he responded that from St. Thomas it is not certain that he is held to marry her, he subjoins the words alleged by Peter Ledesma: Nor do those who say that he is held to marry her prove it sufficiently; which words, as is plain, were not said for our matter.
Therefore we have one alone from the Theologians, Ioan. Praepositus, whom St. Alphonsus also intimates, l. c.; Diana (Tom. 2, Tr. 6, R. 149) indeed skillfully brings him forward as the only one for that opinion, because he had noticed that others were brought forward wrongly. But Praepositus (De Matrim., Q. 9, Dub. 4, n. 48) uses a sophistical argument, which Schmalzgrueber also intimates (l. c.), namely that the deflowerer is not held by reason of the promise, which was fictitious, but only by reason of the damage, which can be compensated otherwise than by marriage. Sophistically, I say. For the obligation arises from the injury which you do to another when you deny that under whose condition you both demanded and received that which the other furnished under that pact alone; which injury can in no way be repaired unless the other receives that under whose condition he gave his own.
** Whatever things have been said in this Note, all, as is plain, contribute to confirming the sentence of St. Doctor Alphonsus. Nevertheless the VV. seek in it what they may reprehend, and - at which indeed you may wonder - they go so far that they undertake to defend with their powers the cause of those whom St. Doctor refutes. Therefore through twenty columns (pages 361-371) the VV. 1. indeed contend that in the Note the opinion of certain more recent writers is unjustly represented as an abnormal aberration and an immense paradox; 2. they contend that in the Note the weight either of the reasons or of the authority which militate for the same opinion is too much attenuated; 3. finally they contend that elsewhere, namely in the Note which is subjoined below at n. 760, Q. 6, a certain incident pertaining to history is less rightly set forth.
We reserve this last accusation to be weighed where there will be speech about this alleged Note. Now concerning the two prior heads.
As to what pertains to the first, one must respond briefly: I deny the supposition; and the reason is most manifest. For the VV. (page 361) suppose that the question there is about a fictitious promise. Thus they: We shall weigh whether concerning the proposed question the consensus of Theologians and Canonists is so astonishing that the negative sentence is truly to be judged an immense paradox and, as below the distinguished Professor, namely P. Ballerini, will say, an abnormal aberration: namely, that there is no obligation of marrying the girl violated UNDER A FICTITIOUSLY GIVEN PLEDGE OF MARRIAGE. But, I subsume, in the Note, as is plain to the reader, that astonishing consensus of Theologians and Canonists, and therefore also the immense paradox and abnormal aberration of more recent persons thinking the contrary, is said not of the hypothesis of a fictitious promise, but of the hypothesis of a true promise, and when therefore espousals truly intervened through mutual promise. Therefore the supposition must be denied, on which nevertheless the VV. again insist (page 363).
But from this false supposition the VV. fall into another likewise false supposition, as if, namely, the prior part of the Note looked to Authors who in any way thought against St. Alphonsus in the question of fictitious promise; wherefore on this account the VV. dwell through ten columns (pages 365-370) in describing these Authors. But it is plain that that part of the Note in no way pertains to these authors. And if indeed they desire to know who are the more recent writers who declined to that paradox, let them go to the editions of this Compendium of P. Gury, all which preceded the sixteenth - printed at Lyons in the year 1865, but at last emended by Roman cares - not excluding also the one which came forth from the press of Propaganda Fide; there they will find this paradox proposed as the more probable sentence. Let them also go to the Moral Theology of Em. Gousset, where they will find these things written (Vol. 1, n. 1015): He who has seduced a person by the promise of marriage, is he obliged to marry her? According to the opinion of the greater number of theologians and canonists, he is obliged to marry her, whether the promise was feigned or whether it was sincere. He is held to this in the first case, generally, not by virtue of his promise, since it does not oblige, but rather by virtue of the injury which he has done to the person by deceiving her through a false promise. He is likewise held to it in the second case, because, they say, the condition having been fulfilled, the promise becomes absolute and by that very fact obligatory. But since this question falls under that of contracts made under an illicit condition, we regard the promise in question as null, as consequently not being able to produce any effect: "Every condition of a thing contrary to good morals," says article 1172 of the civil Code, "is null and renders null the agreement which depends upon it." Now, such evidently is the agreement of him who promises to marry a person if she consents to commit the sin of fornication. This sentiment is more favorable to good morals than the contrary sentiment; St. Alphonsus de Liguori himself admits it: "It is useful to note," he says, "that it would be very useful for avoiding sins of this kind if promises of marriage for obtaining defloration, even perhaps confirmed by oath, were declared invalid by Bishops." This is also the thought of M. Carrière, and of the author of the Reasoned Examination on the Commandments of God. These, therefore, and not others, are the more recent writers who drew forth an immense paradox against the unanimous sentence of the Doctors. And let these things be enough concerning the first head of accusation.
As to the other head of accusation, the VV. 1. object that Gabriel Biel says nothing about the condition of a man notably exceeding the condition of the woman. - Resp. Let the antecedent pass; and I deny the consequence. For in the text of Biel which they themselves describe (page 364), not even a word occurs concerning a promise of marriage, whether true or fictitious. Therefore Biel is alleged against the doctrine of St. Alphonsus fruitlessly and foreign to the matter, because he in no way touches the question.
2. The VV. object that according to Bonacina (l. c., n. 5) a man is not held to marry a virgin or widow of good reputation whom he deflowered by a fictitious promise of marriage, when... there is no danger of infamy. Hence the VV. reproach that this was omitted in the Note. - Resp. 1. In the context of Bonacina this is an exception from the common doctrine which he himself also defends, just as he himself excepts if the man is of a notably exceeding condition. But an exception from the most known maxim confirms the rule to the contrary. 2. Bonacina through this exception speaks openly contradictory things. For he had premised these things (n. 4): Nor will he satisfy by endowing the aforesaid virgin or widow, if she is not content with a dowry. The reason is both because the promise was not concerning a dowry, but concerning marriage; and because, since she has fulfilled the contract "I give that you may do," it is also equal that the one fictitiously promising fulfill it on his part, lest he should bring back advantage from his own delict. But those reasons exclude, indeed destroy, the force of the little reason upon which that exception rests. 3. Add to these that Bonacina in that exception either did not sufficiently explain his mind, or certainly seems to have fallen asleep. For of the eight authors whom he there alleges, omitting now Lessius and Filliucius as having nothing which touches the matter, the six remaining make the question concerning a fictitious promise made to a woman already corrupted, and therefore they either excuse from the obligation of marriage, or allege those excusing, because proportion is lacking between the thing accepted and the thing promised. Therefore the objection of the VV. concludes nothing from the manifold cause.
3. The VV. object (page 365), as regards Martin Perez, that it is passed over in silence in the Note that he in the preceding Sect. 3 denied the obligation of one fictitiously promising to marry the deflowered woman. - Resp. He denied it relying upon three false allegations, and likewise upon a limping parity drawn from a diverse case; let it pass.
4. Against what is said in the prior part of the Note, that all the Doctors of Theology and Law down to our age have agreed in a matter plainly obvious and pertaining to the first elements of natural right, the VV. object (page 365) that there are several more recent Authors who hold the negative sentence, or at least judge it probable. - Resp. It has already been said above that this instance of the VV. labors under a false supposition; because the words of the Note look to the case of a sincere mutual promise, which constituted true espousals; but they heap up Authors discussing a fictitious promise.
With the same fault of arguing the VV. write (page 368): Now let us see who those others are who conspicuously abuse, etc.; these words of theirs accuse what below, in the Note to n. 760, Q. 6, is read thus: These things should have been set forth a little more diligently, after certain others conspicuously abuse that fictitious probability - concerning no effect of a shameful contract after the placing of the work - which some have seemed to attribute to this opinion, for defending that immense paradox concerning there being no obligation of marriage as regards him who has violated a girl under a given pledge of marriage. Here, as is plain, the speech is not about a fictitious promise, but about a sincere promise of marriage. And this is confirmed evidently from this, that there the speech is soon introduced concerning the desire of certain persons that, by episcopal law, promises of marriage for obtaining defloration should be judged invalid, even perhaps PROMISES CONFIRMED BY OATH; which also we saw a little before in the words of Em. Gousset. Nevertheless, behold, the VV. even here suppose that in this place the discussion concerns a fictitious promise; and after they have shown (pages 368-369) that neither Schmalzgrueber, nor Wiestner, nor Henry of St. Ignatius in his condemned work, nor Collet, nor Henno, nor Concina, nor Amort, in the question of a FICTITIOUS promise, used the argument drawn from the null value of a shameful contract, they conclude that labor in the Notes concerning the value of a shameful contract was therefore in vain. Thus they (page 369): If therefore the distinguished Professor, namely P. Ballerini, set forth the question of a promise for a shameful thing more diligently for this reason, that he might oppose the immense paradox and abnormal aberration of certain more recent writers, he certainly could have spared himself useless labor. But would that he had set forth the question more diligently, alleged the Authors correctly and faithfully, and not heaped undeserved injuries upon his adversaries. Since all these things are clearly built upon a false supposition, let the candid reader judge also from this what must be defined concerning Vindications of this kind.
What now matters is that it remains to inspect here what force those things have which the VV. have heaped together so that they may conciliate weight and probability for the opinion which, in the present question, exempts one fictitiously promising from the obligation of marrying the deflowered girl. In this matter this wondrous scene is offered to our eyes, as we have said, in which we see the VV. so carried away by desire and zeal for attacking an imaginary adversary that they do not doubt, in whatever way they can, to attribute strength to that opinion whose opposite they themselves proclaim true, and which St. Alphonsus also, whom they undertake to vindicate, professes to be altogether to be held. But the matter can be dispatched briefly; for just as Schmalzgrueber and Wiestner, so also most others were moved by the putative authority of certain persons to attribute some probability to that opinion.
Second Sentence of certain more recent writers denies, from the general principle concerning contracts invalid on account of a shameful condition, concerning which it will be said below, where we shall speak of contracts in general.
Q. 2. Whether a violator is held to anything toward the parents of the violated virgin, if she herself freely consented to the sin?
Resp. More probably negatively, because no strict right of theirs was violated; nor can they impede the daughter from being able to cede her own right as regards temporal damages. - St. Lig., n. 641. - Billuart. - Lugo.
- Q. 3. To what is the violator held toward spurious offspring?
Resp. 1. If he oppressed the mother by force, he is held to all expenses of nourishment and education. The reason is plain from what has been said. Nevertheless, in his defect the mother must undertake care of the child, although she has admitted no fault, because she is the mother. But then she retains recourse against the corrupter, who is held to compensate her for all expenses which she incurred on occasion of that offspring.
Resp. 2. But if the woman consented to the sin:
- From Roman Law the mother is held to nourish the infant for three years, and afterward the father ought to provide for him.
- From Gallic law nothing is expressly established. Jurists, however, acknowledge that parents are equally and in solidum obligated at least to nourishing and educating children legally recognized. They elicit this from art. 203. But even if the children were not recognized, nevertheless by natural law the same obligation lies upon them. - Carrière, n. 1371. - Gousset, n. 1016. - See Casus, n. 737 and following.