Thesis I

Setting aside for a little while the character of sacrament, the notion of marriage in itself comes back to this: that it is the union of man and woman, situated in a mutual moral power over the body of the other for carnal copulation and for the individual society of life.

I. Marriage (matrimonium: γάμος, σύζευξις, γαμικὴ ὁμιλία, חֲתֻנָּה) has received its name from the mother; because “the mother pertains more to the account of marriage than the father: for concerning offspring, which is the end of marriage, the mother is more dutiful than the father” (St. Thomas, Suppl., q. XLIV, a. 2, ad 1); or, as the Roman Catechism says (On Matrimony, n. 2), “because to conceive, bear, and educate offspring is the office of the mother.” Augustine, Against Faustus, book XIX, chapter 25, explains the etymology of the name somewhat otherwise, saying: “it is called matrimony from this, that a woman ought not marry for any other reason except that she may become a mother.” It is also called coniugium, because it joins two into one. Likewise it is called connubium from nubendo, because brides among the ancients, when they were handed over to a man, were accustomed nubere, that is, to veil their heads: therefore connubium is the conjunction of the veiled woman with her man. From the same origin they are also called nuptiae, which are also customarily said of the ceremonies and of those solemnities, festive processions, and banquets which are customarily applied to a wife who has been taken; indeed this latter is the primitive and proper signification of nuptiae.

Since we are about to give and explain the definition of marriage, we cannot prove it except from the common sense of men, in the way, namely, in which definitions are customarily proved: that is, by accurately inspecting that thing to which, by all men generally, whether ecclesiastical or profane, the name of marriage is attributed; which thing existing, marriage is said to be; and which thing ceasing, marriage is judged to cease (cf. our Philosophical Institutions, Logic, chapter IV, article 4). Therefore the process of finding the definition will return to this. We receive from the whole human race that which is called marriage by it; we consider in that very thing what either the consensus of those same men, or manifest reason drawn from the common concept, teaches to be essential; and among the essentials we consider what is first and, as it were, the root of the others, namely so that, when this alone is posited, marriage exists, and, when it is taken away, even if the others remain, marriage does not exist. And seizing upon this, we say that this is that thing, that essence, which men have hitherto generally called marriage. Nor will it be necessary to be anxious over the dissent of certain vicious men: for those very men who oppose the rights of marriage, when they attempt to abolish marriage, are witnesses that under that account, although it does not please them, marriage has commonly been understood and is understood.

Marriage is commonly defined in two ways: namely, both insofar as it is a permanent thing and insofar as it is a transitory act giving origin to a permanent thing. Under the former respect it is commonly defined: the marital conjunction of man and woman between lawful persons, retaining an individual custom of life. Thus the Master in IV, dist. 17; St. Thomas there. Sanchez, On Marriage, book II, disputation 1, from the Roman definition, says: Marriage is the conjunction of man and woman, containing an individual custom of life. Thus Institutes, book I, title 9, §1; and with this coheres that definition of Modestinus, law 1, On the Rite of Nuptials, ff.: Nuptials are the conjunction of male and female, a partnership of all life, a communication of divine and human right. Thus also Alexander III, chapter III, Illud quoque, On Presumptions: marriage is the conjunction of male and female, retaining an individual custom of life. Here observe in passing that no explicit mention is made of the procreation of offspring; nevertheless it is made implicitly, for among the acts of individual life is also, indeed chiefly in itself, carnal intercourse. And such is the definition of marriage which generally occurs among the ancients, and which indeed will be more fully declared below. Under the other respect it is defined, with Hugh of St. Victor (On the Sacraments, book II, part II, chapter 4): marriage is the legitimate consent of two suitable persons concerning conjunction; or with Toletus (Summa, book VII, chapter 10): the lawful contract of man and woman, by which mutual power over bodies is handed over, conferring spiritual grace; here the account of sacrament is added, which for the present we wish to set aside for a little while.

II. These things certainly are not to be rejected, but are to be explained. Therefore, in order first to declare and prove the definition of marriage, insofar as it is a permanent thing, by the method which we have stated, it must be observed that there are several elements from which that which is called marriage by all coheres integrally. For in marriage, 1. there is a certain contract containing and manifesting the present interior consent of both, that is, of man and woman, into marital conjunction; 2. there is mutual power over the body of the other, which follows upon the contract, or there is the mutual obligation of one to the other with respect to carnal copulation, which obligation arises immediately from the contract and corresponds to the mutual power; 3. there is the bond by which both are formally conjoined and are formally constituted, in first act, as one complete principle of mutual copulation and, through it, of generation; this bond indeed does not differ in reality from the above-mentioned power; but this bond is that which is called marital conjunction; 4. there is the obligation to receive, if God should give it to those coming together, offspring and to educate it; 5. there is power and obligation to an individual life; 6. there is the right, arising from that bond, of exercising conjugal acts and of carrying on life together; 7. there is an unimpeded power for the generation of offspring through carnal copulation; 8. there is use, that is, copulation, the procreation and education of offspring, domestic society, and mutual help; 9. besides this, Christian marriage is a Sacrament: however, we set this consideration aside for a little while now.

III. Now, of those eight, the last, that is, use, does not belong to the essence of marriage, although it pertains to its integrity; because act supposes the essence of the acting thing already constituted, and all concede this. Likewise an unimpeded power for the generation of offspring through carnal copulation is not essential to marriage, if, as all confess, marriage can exist also between sterile persons and the aged, who are fit indeed for coming together, but unfit for generating; indeed also between a man and a woman who lacks ovaries (response of the Holy Office, February 3, 1887), and indeed who lacks ovaries and uterus (response of the same Holy Office, 1890). Again, the proximate right of using does not belong to the essence; for that right can be lost, while marriage remains, by the consent of all civil and sacred laws; it is, namely, something consequent upon the essence. Moreover, the contract and interior consent, which is manifested through it, are indeed essential in order that marriage exist, and can be called marriage itself in fieri; but they are not the very essence of marriage; for marriage is something persevering, since marriage is said simply and properly to exist as long as husband and wife continue to live. But consent expressed by words concerning the present is called by Eugene IV (Instruction for the Armenians) the efficient cause of marriage, not marriage itself. Indeed consent is not only a transitory act, but it can even habitually cease, as if formal dissent and aversion should succeed in both toward the other; nevertheless marriage, no otherwise than before, remains and endures. Therefore, in these four of the things enumerated, which are the first, sixth, seventh, and eighth, the essence of marriage does not consist. Let us see the remaining things.

Moreover, the obligation to receive offspring, if God has given it, and not to impede its generation, and to educate it, is necessarily connected with the mutual power for carnal copulation, so that this cannot be admitted without that. For this is the end which nature has appointed for marital copulation, that through it the human race be propagated. Although it is not necessary that copulation be had, nor does offspring always follow copulation, and it is lawful to have copulation without hope of offspring, because there are other honorable ends of the use of marriage besides offspring; nevertheless, because offspring is the end which nature intends in marital copulation, and because this copulation, unless it is impeded accidentally by some physical defect, is naturally ordered to it, it is unlawful for spouses to do anything directly in the use of marriage against the reception of offspring. That is: by the very fact that they have the right of mingling with each other, they also have the obligation of using copulation rightly for the generation of offspring and, if God gives offspring to those using marriage, of receiving it. The same end appointed by nature further demands that the offspring received be rightly educated; but concerning the ends of marriage, see the following thesis. Therefore this obligation is essential to marriage; but because it supposes marriage, and indeed its use, it cannot constitute its essence.

The obligation and power, or right, to an individual life is conceived in two ways: either as obligation and power to carnal intercourse, so that on that account the man is of the woman and the woman is of the man, and in this way that obligation and power is the bond itself, of which we shall speak presently; or as obligation and right to cohabit and to carry on common life together, and then that obligation and that right do not constitute marriage, but suppose it; for it is an obligation and right belonging to spouses. There remains the bond and the mutual power over the body of the other. Now, first, we affirm that this bond is really contained in that mutual power over the body of the other in order to carnal copulation, and in the mutual obligation of one to the other, to an individual life. For some mutual power to carnal copulation is necessary, by the consent of all, to the essence of marriage; once that is removed, there will be any other society rather than conjugal society. But since a manifold bond can arise from mutual power, we say that the conjugal bond is constituted by this very mutual power in order to carnal copulation, and by the mutual obligation of one to the other, which obligation is also necessarily undertaken together with that same power.

For the bond is that which arises necessarily and immediately from the contract; for both consent into conjunction, the man indeed into the conjunction of himself to the woman, and the woman into the conjunction of herself to the man (St. Thomas, q. XLV, a. 1, ad 3); but from the contract there arises immediately and necessarily a mutual obligation, and therefore a mutual power to that which is handed over by the contract (ibid., a. 5, ad 2): therefore. And indeed, with that mutual power and obligation existing, the man is of the woman and the woman of the man; and therefore both are united. And from this union there is constituted one complete principle, not indeed in second act, which is situated in the mingling of bodies, but in first act or power, of carnal copulation and, through it, according to the primary ordination of nature, a principle of generation, which is found incompletely in each separately. Therefore there are two who are united, but there is one thing to which they are united, that is, the principle of generation. Hence the relation of conjunction is manifold and one: manifold on the part of the subject, because there are two subjects, man and woman; one on the part of the cause, namely the final cause, because it is ordered to the same carnal copulation and generation in number. And insofar as this union is manifold on the part of the subject, it is signified by these names, wife and husband; but insofar as it is one on the part of the cause, it is signified by this name, marriage (ibid., a. 1, ad 3).

IV. Moreover, secondly, we say that the essence of marriage is placed in such a bond. For not only is the bond itself permanent, but, when it alone exists, marriage is truly said to exist; and each, namely bond and marriage, mutually posits itself and mutually destroys itself. Thus marriage is received by both Roman and canon law, civil and ecclesiastical society therefore consenting, and the definition brought forward above from law looks to this. Although all these things, says the Roman Catechism (loc. cit., n. 3), are present in perfect marriage, namely interior consent, the external agreement expressed in words, the obligation and bond which is effected from that agreement, and the copulation of the spouses by which marriage is consummated, nevertheless none of these properly has the force and account of marriage except that obligation and nexus which is signified by the word conjunction. Thus St. Thomas, q. XLIV, a. 1, in corp. and ad 1, where he says: “marriage is the bond by which spouses are formally bound, not effectively; and therefore it need not be something other than conjunction”; and in the following question, article 1, ad 2: “Marriage,” he says, “is not consent itself, but a certain union of those ordered to one thing, which consent makes”; and q. XLII, a. 3, ad 2: “External acts and words expressing consent directly make a certain nexus, which is the Sacrament of marriage.”

Hence, in the definitions brought forward above, marriage is defined as conjunction: not any conjunction whatever, but of male and female, that is, of each principle, separately indeed inadequate, of generation; and this conjunction therefore supposes the possibility of having copulation and arises from this very mutual power.

These things having been declared, it is easy to gather the definition of Marriage insofar as it is a permanent thing. It is, namely, the union of man and woman, situated in the moral obligation and power of the one over the other for carnal copulation and a certain individual society of life.

We say “a certain individual society,” according to those things which above we distinguished in the obligation to an individual life. For domestic society, although it is required by marriage, nevertheless does not constitute its essence. We do not indeed deny that these things are indicated in the definitions of Roman law; nevertheless we observe that they pertain to the true definition if only the exigency of them is considered, which necessarily coheres with the bond; but if domestic society is considered in act, it is therefore placed in the definition because it is that to which the conjunction of male and female is ordered, especially if individual life is taken fully, so that it also comprehends carnal intercourse.

V. We have said that mutual consent expressed outwardly, or the contract, is the efficient cause of marriage. But when we say this, we do not wish to affirm that that consent is the adequate cause of the perennial bond of the spouses, a question which we shall settle in another place; nor that marriage is simply some contract, for in many ways it differs from a contract, as again we shall see later. But because, besides the action of God uniting the spouses, there is certainly required some reason on the part of the man and woman determining the union of both, and this reason is the consent of each into the union, which is posited after the manner of a contract; in this sense we say that the contract is the efficient or determining cause of marriage. For marriage is a certain mutual obligation between man and woman, which does not exist naturally, nor is it immediately effected by God or by another authority, but is freely undertaken by man; but the efficient cause of an obligation freely undertaken is those very persons who undertake it, insofar as by their consent they will and admit it. Therefore the consent of those contracting marriage is that by which that obligation, or marriage, is determined. But if you seek the principle which, it is the contracting persons themselves. But because marriage is a certain union, and this union is made by mutual consent, and this mutual consent already is a certain actual union by which the permanent union begins, hence the consent itself is called marriage, but marriage in fieri. Therefore, if you consider marriage in fieri and in facto esse, consent is intrinsic to it, for it is marriage itself in fieri; but if you consider marriage only in facto esse, namely the permanent nexus of man and woman, consent is extrinsic to it; for it belongs to the account of an efficient cause to be extrinsic to its effect, that is, distinct from it.

Therefore, when with Eugene IV we say that the efficient cause of marriage is the consent of those contracting, we do not oppose the words of Christ teaching that God is the one who joins man and woman (Matt. XIX); for God joins insofar as he both established the law according to whose norm man and woman ought to be joined for the generation of offspring, and established the indissolubility of the nexus which has once been freely undertaken, and therefore wills, and by his own will effects, that that nexus exist and be perpetual. Besides, God is said to join spouses insofar as by his grace he sanctifies them and unites them in Christ. Therefore the consent of each is a certain proximate cause why the obligation of each toward the other exists; but that it be such an obligation depends both on the law of nature and on the positive law of God, as will be declared later.

VI. Now that nexus, or conjunction, or bond, which consent makes, is called and is the bond of souls: “There are two things in marriage,” says Innocent III, chapter Debitum, On Bigamists, “the consent of souls and the mingling of bodies.” Since the latter looks to act, the former displays the essence, which is placed in the bond; whence consent there is the same as the bond. Therefore the bond is a bond of souls. “One society of body and soul is contracted, so that affections may be mingled with affections and flesh in a certain way be joined to flesh,” says St. Asterius, bishop of Amasea, homily on Matt. XIX, 3. And indeed before the consummation of marriage there is no actual mingling of bodies, yet marriage exists; “for consent, not lying together, makes nuptials,” c. 30, ff., de R. I. Therefore man and woman are united before and apart from mingling, because of the power mutually handed over and the obligation mutually accepted; but the subject of power and obligation is the soul, or man through the soul: therefore according to the soul two are bound, and therefore there is a bond of souls. For this reason it is not called consent of souls because the term into which consent is borne is something spiritual only; for it is borne into the mutual power over bodies handed over, which in itself is ordered to mutual mingling; but because that power itself is in itself something spiritual and inheres subjectively in the soul. Wherefore the essence of marriage consists in a moral bond. Marriage is therefore a bond of souls, because it is effected by consent, because it is contained by obligation, which binds souls. This bond, however, remains even if, by the fault of one or both, mutual affection ceases. Yet in this matter a certain sensible affection must be distinguished from marital affection, which is that serious will by which the one wills to have the other as his or her own, and conversely, and to be obligated to that other, and to render fidelity.

VII. The definition of Hugh and Toletus brought forward above (n. 1) directly signifies the cause of marriage, and indirectly its essence; and this definition is employed especially when Marriage the Sacrament is to be defined. For although Christian marriage always remains a sacrament, as will be explained below, nevertheless the sacramental rite, by which the sacrament is made and grace is conferred, is had when marriage is made, or when its cause is posited; this will be declared in what follows.

VIII. From what has been said, you have, first, that the consummation of marriage does not belong to its essence.

Second, you have that the consent which makes marriage is not explicit consent into carnal copulation, but explicit consent into the power of the same, or into the bond, and implicit consent into copulation. Yet this implicit consent, which in itself follows upon consent into the power, can, by mutual consent to preserve chastity, while that power nevertheless remains, be suspended or impeded, as we shall demonstrate in Thesis III.

Third, you have that marriage differs altogether both from the conjunction of the other animals, for no moral bond exists between them, and from fornicatory and wandering concubinages, in which there is no obligation of the man to a determinate woman, which obligation makes marriage (q. XLI, a. 1).

Fourth, you have that in the definition itself the properties of marriage are signified: namely unity, when it is said “of man and woman,” and the perpetuity of the bond, when power and obligation are said to be to a certain individual life. To explain and defend these properties, however, is the more important part of this treatment, and this we shall carry out below.

IX. Note: Marriage is divided into legitimate, ratified, and consummated. Legitimate is that which is contracted by legitimate and therefore valid consent; of this sort there is marriage even among unbelievers. Ratified is that which, being legitimate, is sanctified by the sacrament of baptism; of this sort is the marriage of the faithful. And when this appellation is made simply, it is accustomed to have an exclusive signification, that is, not consummated. Consummated marriage exists both among the faithful and among unbelievers, and is marriage perfected by carnal copulation.