Violence and Fear

637. On the Defect Itself. 1. Matrimony entered because of grave force or fear, inflicted from outside and unjustly in order to contracting, is invalid.¹

a. By the term force is not understood absolute coercion, which can be inflicted only on external acts while the will internally resists, and which therefore removes the voluntary, but conditional or moral coercion, which moves the will to willing under threat or infliction of evil, so that the will consents in order to avoid evil, though otherwise it would not have consented. This coercion, which is the infliction or threat of evil, stands to fear as cause to effect. Therefore force is rightly reduced to fear, and indeed to that fear which diminishes consent but does not remove it.

b. Matrimony entered from grave fear is not declared invalid by the Church for this reason, as if true consent were lacking; but true consent, nevertheless extorted by fear, the Church declares invalid, in order that provision may be made for the full liberty of marriages, without which marriages cannot be happy.

2. That fear dirimently impedes matrimony by ecclesiastical law is certain; whether also by natural law is disputed.

Those who, with Sanchez, Lugo, Schmalzgrueber, Gasparri, Kugler, deny this, argue in this way: this fear does not remove the voluntary, since it does not impede sufficient deliberation; therefore consent is present, which by natural law is required for the value of the matrimonial contract. Moreover, fear unjustly inflicted does not remove liberty more than fear justly inflicted or inflicted by a natural cause; but fear inflicted by a just or natural cause does not dirimently impede matrimony. Those who, with St. Thomas, Pontius, Tamburini, Reiffenstuel, Rosset, Ballerini, Aichner, affirm this, concede that consent is present, which by natural law is required for the value of other contracts; but the matrimonial contract by its nature requires altogether full liberty in contracting. For other contracts entered from fear unjustly inflicted are rescindable; but since matrimony cannot be rescinded, it is required that from the beginning it be invalid. Each opinion is probable, but the latter seems to be preferred. Wherefore only when the cause of fear has been removed can matrimony be entered, or a matrimony invalidly entered be convalidated: for so long as the fear unjustly inflicted endures, the cause of inefficacious consent also endures.

¹ Cn. 1087, 1.

638. Declaration. In order that fear certainly invalidate matrimony, it must be: a. grave; b. unjust; c. inflicted in order to matrimony.

1. Grave; fear not only absolutely but also relatively grave dirimently impedes matrimony; but light fear does not invalidate matrimony.

If it is doubtful whether fear is to be judged grave, one must stand for the value of the matrimony, both from the general principle: in doubt one must stand for the value of the act, and because of reverence for the sacrament.

2. Unjust; fear is said to be unjustly inflicted if someone threatens evil which he has no right to inflict; if someone by a lie pretends that grave evil threatens another, in order that he may extort that person's consent.

Therefore in particular cases one must attend to whether the evil to be inflicted on another is against justice. Thus if a seducer is compelled by a judge, under threat of penalty, to marry the injured person, the fear is unjustly inflicted, because the judge has the right of demanding only either matrimony or dowry. If an uncle threatens his niece that he will deny her a sum of money, unless she marries a determinate young man, which money he had decreed to give in the case of matrimony, the fear is not unjustly inflicted, because the uncle is not held to give the money. If a physician threatens a girl that he is unwilling to devote care to her gravely ill mother unless she enters matrimony with him, the fear is unjustly inflicted if the physician is held to devote care.

3. Inflicted from outside and in order to matrimony. From outside: for fear produced by an internal cause can never be unjust. In order to matrimony: for that fear dirimently impedes matrimony which compels the contracting party to choose matrimony in order to free himself or herself from fear.

Moreover, it makes no difference whether it was inflicted by the other contracting party or by some third person, e.g., by that person's father; whether it is inflicted on the contracting party himself or herself, or on that person's blood relatives, relatives by affinity, etc.

That grave fear, but not inflicted for the sake of extorting consent, does not dirimently impede matrimony is now certain, since the Code says that no other fear invalidates matrimony besides that which compels one to choose matrimony in order to free himself or herself from unjustly inflicted fear, Cn. 1087.

4. Reverential fear of itself is light, but sometimes in certain circumstances it can become grave.¹ Wherefore also reverential fear, if it is grave and unjustly inflicted in order to contracting, can invalidate matrimony.

Article Four.. On the Effects of Matrimony.

Since the effects of the sacrament of matrimony have already been discussed (n. 489), a few things remain to be said concerning the effects of matrimony as contract, some of which refer to the spouses, others to the children.

¹ Cf. De principiis, 15th ed., n. 56.

Violence is the onset of force too great to be resisted, and fear is a perturbation of mind arising from present or future danger. Here we treat of fear caused by extrinsic violence, inasmuch as it is a diriment impediment of marriage.

When marriage is contracted through grave fear, caused unjustly by a free agent with a view to extorting marriage, ecclesiastical law makes it null and void. Whether such a marriage is invalid by natural law is a moot point among Doctors. Fear may, indeed, sometimes be so excessive that it takes away the use of reason, so that a man under its influence does not know what he is doing. If a man married under the influence of such terror, the marriage would of course be invalid for want of consent. But commonly even grave fear does not produce such effects; a man in danger of shipwreck or death knows as a rule what he is doing, and if he marries in such circumstances, though induced by fear to do so, the marriage will be valid. But when he is unjustly forced by someone to marry against his will, the injury done to him is a sufficient reason for the Church to make the marriage null and void, even though he knew what he was doing and consented to the marriage. The only difference between this case and the former lies in the injury inflicted by the fear caused by a free agent. This however, does not seem sufficient ground for asserting the nullity of the contract by natural law, though it affords a just reason why positive law should make it invalid. The better opinion, then, seems to be that grave fear is a diriment impediment of marriage by ecclesiastical law when the fear is caused unjustly by someone with a view to compelling the party to marry against his will. Hence, if one who had violated a woman was threatened with a beating and married her in order to escape it, the marriage would be valid. Fear arising from reverence for parents and superiors is in general not sufficiently serious to make marriage contracted under its influence null and void. In certain circumstances, however, such a fear may become grave and sufficient to annul marriage. Much depends on the character of the party who was influenced by fear and on the means employed to compel acquiescence to the wishes of harsh and severe parents or guardians. The question as to whether in any particular case there was grave fear is a question of fact to be determined by the ecclesiastical judge after weighing all the circumstances of the case (Can. 1087).

Although marriage has beer contracted under the influence of grave fear sufficient to render it invalid, the marriage may afterward become valid if fear disappears, and the party who was under its influence freely cohabits with the other and expresses matrimonial consent. In this case it will not be necessary to repeat the external solemnization of the marriage unless the impediment was publicly known. It will be sufficient if the parties manifest their consent to be man and wile privately when freed from the influence of grave fear.

As may be gathered from what has already been said, slight fear, such as any ordinarily constituted person can despise, does not invalidate marriage, even when it is caused unjustly with a view to extort marriage.

"No one is admitted by law to impugn marriage from this head, force and fear, except the one who is said to have suffered violence and coercion; but he is to be rejected who has lived for a long time in marriage, provided that liberty and opportunity of protesting were not lacking to him; so that if, already free from fear, he of his own accord has persisted in the conjugal house and has not refused matrimonial offices, he ought no longer to be heard." Instr. S. I. C. 20 June 1883, n. 35; Instr. S. C. de P. F. 1883, n. 36.

“No one is admitted by law to challenge a Marriage under this title—force and fear—except the person who is said to have suffered violence and coercion; but a person who has lived in the Marriage for a long time is rejected, provided that freedom and opportunity to protest were not lacking to that person; so that, if, now free from fear, that person remained of his own accord in the conjugal home and did not refuse the matrimonial duties, he ought no longer to be heard.” Instruction of the Holy Office, 20 June 1883, no. 35; Instruction of the Sacred Congregation for the Propagation of the Faith, 1883, no. 36.

These few things must be established:

832. • I. Grave fear certainly invalidates matrimony by ecclesiastical law, and more probably also by the natural law ¹, as follows a fortiori from what was said concerning Contracts, volume 1, no. 780.

¹ Whichever law you say invalidates it, this impediment admits no dispensation; rather, it is necessary that the cause of fear be removed. Thus Alexander III, canon Cum locum 1, On Betrothals and Matrimony: Since consent has no place where fear or coercion intervenes, it is necessary that, where the assent of each is required, the material of coercion be removed.

Therefore, while the cause of fear perseveres, the invalid matrimony is revalidated neither through intercourse nor through cohabitation, for these things are otherwise presumed to have been extorted by fear. For while fear endures, just as matrimony cannot be validly contracted, so neither can an invalidly contracted matrimony be revalidated. It must be said otherwise if intercourse is admitted entirely freely and with marital affection, as the Doctors commonly hold after St. Thomas (In IV Sentences, distinction 29, question 1, article 3, minor question 2, reply to objection 2), or even if cohabitation is voluntary, which, according to canon Ad id 21, On Betrothals and Matrimony, is accepted as a ratification of consent. In this case, if the impediment was occult, it certainly will not be necessary to renew consent again before the Pastor, according to the general doctrine which Benedict XIV confirms from decrees of the Sacred Penitentiary issued by the authority of St. Pius V, Declarations of the Sacred Congregation of the Council, and the practice of the Sacred Roman Rota (Instruction 87, no. 62).

Nevertheless, it is not necessary also to admit what he himself adds, as though relying upon the authority of Sanchez (On Matrimony, book 2, disputation 36, no. 4), whom he highly praises, namely, that it is necessary for the other spouse also, who did not know the impediment, to be informed of it when the matrimony must be revalidated by new consent. For although Sanchez teaches this (l.c.) as more probable when the consent of each contracting party is invalid because of an impediment by which each is rendered incapable of contracting by the law itself, he nevertheless teaches the opposite concerning the present case, when there is question of a defect of consent alone, as also happens when either contracting party consents fictitiously. Thus he writes (On Matrimony, book 4, disputation 18, no. 2): Second, it must be supposed that if, after a matrimony extorted by fear, intercourse voluntarily had with conjugal affection follows, the prior matrimony is ratified and begins from that time to be valid, if the other party, who consented without fear, perseveres in the original consent. And the reason is that, since it is not necessary that the consents be simultaneous, and the consent of the one who did not suffer fear was legitimate, only the voluntary consent of the one who had consented through fear was wanting for the matrimony, as I said in book 4, disputation 15, no. 2. But this consent is sufficiently expressed through intercourse, etc., from chapter 15, question 30, On Betrothals. Therefore, when it follows, the prior matrimony is ratified. And in the same manner, a little later (ibid., no. 3), he reasons concerning consent expressed through lengthy mutual and voluntary cohabitation, confirming it from the explicit definition of the law in canon Ad id 21, On Betrothals and Matrimony. Therefore that opinion of Lambertini must be set aside, since it is not only destitute of foundation but also opposed to the dispositions of Canon law cited by Sanchez.

The following conditions, however, are required, namely, that the fear be instilled: 1. by an external and free cause; 2. unjustly; 3. for the end of contracting matrimony.

II. Light fear, even if unjust, does not invalidate matrimony ². The reason is: 1. because light fear is not considered to influence consent gravely and efficaciously; 2. because by positive law grave fear alone renders matrimony invalid; 3. because otherwise innumerable marriages would be invalid to the greatest detriment of society.

² In a doubt whether fear is to be considered grave, the common doctrine is that judgment must be made in favor of the validity of the matrimony, both because the cause of matrimony is favorable and because of reverence for the Sacrament, as Laymann says (book 5, treatise 10, part 2, chapter 5, no. 4). To this pertains the statement of Innocent III, canon Licet 47, On Witnesses and Attestations: It is more tolerable to leave some persons joined contrary to the statutes of men than to separate persons legitimately joined contrary to the statutes of the Lord. See Schmalzgrueber, book 4, title 1, no. 432.

The disagreement of the Doctors concerning the sufficiency of reverential fear is easily reconciled if you consider that this fear also, according to the variety of circumstances, is deservedly regarded sometimes as light and sometimes as grave, as was said in the Treatise On Human Acts. Thus Laymann with others, l.c., no. 3, who judges by a similar reason concerning importunate entreaties, which, according to the differing circumstances of persons, may be contradicted easily or only with great difficulty, as Sanchez, book 4, disputation 7, no. 7, Koninck, Lessius, etc., also note.

746. Notions. Force can be defined: "the (external) onset of a greater force which cannot be repelled," or also: "a motion whose principle is outside, while the one who suffers the force strives to the contrary."⁵⁵⁹ Fear, however, is defined: "trepidation of mind on account of an imminent or future danger."

If force or fear is so grave that the use of reason is disturbed, it is evident of itself that a matrimony thus entered is then invalid by natural law itself, since consent, which is the essential cause of matrimony, is entirely lacking. - Force taken in the strict sense is something physical which entirely takes away consent and therefore also annuls matrimony. This likewise by natural law.

The diverse divisions of fear were already given above, I, n. 68. The Instruction of the Holy Office of June 20, 1883, nn. 35 f., indicates these norms for discerning the gravity of fear: "The gravity of fear arises from the nature of the threats, from the quality both of those from whom they proceed and of those who are said to have suffered them." Hence fear will more easily be grave: a) if the superior inflicting the fear is prone to anger and violence, and of so hard and obstinate a mind that he suffers himself to be contradicted by no one; b) if the person suffering the fear is timid and depends totally upon the will of the superior; and so forth.

Reverential fear is judged light per se, unless, however, it is qualified, that is, unless beatings, threats, or importunate or unjust entreaties are joined to it by the superior,⁵⁶⁰ which render it grave.

⁵⁵⁹ L. 1, 2, Dig. IV, 2.

⁵⁶⁰ Cf. Acta Ap. Sed. IV (1912), 647, 671, 709; XI (1919), 195.

747. Principle. A matrimony entered on account of force or fear is invalid when the fear is: a) grave (absolutely or relatively); b) unjustly inflicted by a free extrinsic cause; c) deliberate, that is, inflicted in order to extort matrimony; and persevering at the time of the celebration of the matrimony. Thus by ecclesiastical law,⁵⁶¹ and more probably also by natural law. But no other fear, even if it gives cause to the contract, carries with it the nullity of the matrimony.

Explanation. What grave, unjust fear inflicted from without is was already said in I, n. 68.

Deliberate fear, or fear inflicted in order to extort matrimonial consent, is present when the fear is inflicted for the precise end that matrimony be contracted with a determinate person, or at least with a person to be chosen; or, as the Code of Canon Law, can. 1087, § 1, says, it is fear "from which, in order that someone free himself, he is compelled to choose matrimony." This condition seems necessary for invalidating matrimony; for if fear was inflicted for another reason, for example, to obtain money, to satisfy lust, and so forth, and matrimony afterward follows accidentally, the impediment is not present. Such is the far more common and truer opinion, and the opinion more conformable to the decisions of the Sacred Congregation.⁵⁶²

No other fear (for example, just fear, or fear inflicted from within) carries with it the nullity of matrimony (can. 1087, § 2).

The following solutions more fully explain the proposed principle concerning unjust fear:

a) A man living in concubinage who is in danger of death, for example, because of grave illness, an impending shipwreck, and so forth, contracts matrimony with his concubine because he gravely fears hell after death. - The matrimony is valid because the grave fear was not inflicted by a free extrinsic cause.

b) A father finds a young man acting shamefully with his daughter and threatens him with accusation before a tribunal unless he marries her. - The matrimony is valid because the fear was indeed inflicted by an extrinsic cause, but justly. For in these circumstances the father has the right of accusing. The matter is otherwise if the father threatens the young ravisher with death; for no private man can (except in legitimate defense) justly threaten or inflict death upon another. In this case the matrimony is null.⁵⁶³

c) Peter is oppressed by very great debts contracted with a wealthy Jew. The Jew demands the money lent. Peter, seeing no other escape from his straits, at length proposes to take the Jew's daughter as wife; this is done and the debts are extinguished. The matrimony is valid because the fear was not deliberate, that is, inflicted in order that matrimony be contracted.

Proof. From ecclesiastical law, that fear furnished with the conditions adduced invalidates matrimony is evident both from the texts of the law and from the constant practice of the Church.⁵⁶⁴ Thus Alexander III already says: "Since consent has no place where fear or coercion intervenes, it is necessary that where the assent of anyone is required, the occasion of coercion be repelled. But matrimony is contracted by consent alone, and when inquiry is made concerning that consent, the one whose mind is to be investigated ought to enjoy full security, lest through fear he say that what he hates is pleasing to him, and the outcome which is accustomed to proceed from unwilling nuptials follow."⁵⁶⁵ The Code of Canon Law, can. 1087, establishes the same. - Just as consent given without the form prescribed by law cannot produce true matrimony between Christians, so likewise the Church establishes that no consent, however true, given under grave and unjust fear can cause true Christian matrimony.

⁵⁶¹ Cf. Code of Canon Law, can. 1087.

⁵⁶² Feije, De imped. et dispens. matrim., n. 134; Gasparri, De matrim. II, n. 821; Aichner, Comp. iur. eccl., § 168; Wernz-Vidal, Ius can. V, n. 501; De Smet, loc. cit., n. 537; and many others hold this opinion. The Sacred Congregation of the Council on May 10, 1890, favors this opinion so openly that the opposite opinion of Lugo, Schmalzgrueber, and others has now become little probable.

⁵⁶³ Cf. the causa Benvenuti-Tazioli, resolved by the Sacred Roman Rota on January 28, 1918 (Acta Ap. Sed. XI, 22 ff.).

⁵⁶⁴ cc. 13, 14, 15, 28, X 4, 1; Code of Canon Law, can. 1087; Sacred Congregation of the Inquisition, February 15, 1901; Sacred Roman Rota, July 10, 1910, and innumerable Roman decisions.

⁵⁶⁵ c. 14, X 4, 1.

748. The more common and truer opinion teaches that fear invalidates matrimony also by natural law. Thus, for example, St. Raymond of Penafort⁵⁶⁶ says: "Concerning the impediment of violence or fear it is to be noted that by its own nature, even without a constitution of the Church, it excludes matrimonial consent; for where fear or coercion intervenes, consent can have no place, and consequently neither can matrimony, which is contracted by consent alone." The authority of St. Raymond, who by command of Gregory IX collected and arranged the books of the Decretals, is certainly very great, since he knew the mind of the legislator thoroughly. St. Thomas,⁵⁶⁷ Reiffenstuel,⁵⁶⁸ Ballerini,⁵⁶⁹ Aichner,⁵⁷⁰ Scherer,⁵⁷¹ Wernz-Vidal,⁵⁷² Linneborn,⁵⁷³ and very many others agree with St. Raymond. Sanchez, Lugo, Billuart, van de Burgt-Schaepman,⁵⁷⁴ Gasparri,⁵⁷⁵ and especially Feije⁵⁷⁶ hold the contrary.

This controversy is not merely theoretical, but can have practical utility. For if grave fear invalidates matrimony by natural law, it also affects the marriages of pagans, which are not rarely entered under fear, and which therefore would all be invalid. But if it is only of ecclesiastical law, the marriages of two pagans are not touched by it.

The principal argument for the opinion teaching that fear invalidates matrimony by ecclesiastical law alone is proposed in this manner: If it were by natural law, nullity would arise either: a) from a defect of consent; b) from a defect of liberty in the consent; or c) from the injury inflicted. But first, natural law does not establish nullity in that case on account of a defect of consent, because fear does not take away consent but only diminishes it. Fear justly and unjustly inflicted equally produces this diminution of consent. Nevertheless, as all admit, fear justly inflicted or produced by a necessary cause does not invalidate matrimony. Therefore no fear by natural law itself invalidates consent and consequently matrimony. - Nor does natural law establish nullity on account of a defect of liberty in the consent; for liberty is not taken away but diminished through fear; therefore, if that were the reason, fear inflicted by a necessary cause or from within, or by a free cause but justly, would suffice, which nevertheless the adversaries deny. - Nor, finally, is nullity established by natural law on account of injury; otherwise all onerous contracts entered under the influence of grave fear unjustly inflicted ought by that very fact to be null, which nevertheless is not commonly admitted.

To this argument it is responded that matrimony is not to be judged like any other arbitrary contract. For matrimony is a contract sui generis, entirely singular and indissoluble. Therefore the rules concerning other arbitrary contracts cannot be applied indiscriminately to the matrimonial contract. For from the very nature of the matrimonial contract there follows the most intimate and indissoluble union of minds and bodies, which certainly requires complete freedom from all fear, at least fear extrinsically and unjustly inflicted. - The Angelic Doctor writes to the point: "The bond of matrimony is perpetual. Hence that which is repugnant to perpetuity takes away matrimony. But fear which befalls a constant man takes away the perpetuity of a contract, because restitutio in integrum can be sought. And therefore this coercion of fear which befalls a constant man takes away matrimony, and not another [namely, light fear]."⁵⁷⁷ - The opinion of St. Raymond and St. Thomas and of other grave authors is confirmed from the practice of the Roman Curia, which never dispenses from the impediment of grave fear unjustly inflicted from without in order that matrimony be contracted. The Congregation of the Holy Office, sending on February 15, 1901, an Instruction to the bishops of Albania concerning the impediment of abduction, teaches: "For the most part, a twofold impediment is to be distinguished in violent abductions of women of this kind: the one, namely, by reason of force and fear, which in fact affects consent and which therefore has its foundation in natural law itself; the other from the positive Tridentine law, or abduction simply, which invalidates matrimony both from the presumption of non-consent and in hatred of so great a crime."⁵⁷⁸

⁵⁶⁶ Summa, l. 4, tit. 10.

⁵⁶⁷ Suppl., q. 47, a. 3.

⁵⁶⁸ In tit. 40, n. 47 ff.

⁵⁶⁹ In notes to Gury II, 832.

⁵⁷⁰ Comp. iur. eccl., § 168.

⁵⁷¹ Kirchenr. II, 174, note 45.

⁵⁷² Ius can. V, n. 502.

⁵⁷³ Grundriss d. Eherechtes, § 39 (IV).

⁵⁷⁴ Tract. de matrim., n. 101.

⁵⁷⁵ De matrim. II, n. 811.

⁵⁷⁶ De imped. et dispens. matrim., n. 138.

⁵⁷⁷ Suppl., q. 47, a. 3.

⁵⁷⁸ Collect. de Prop. Fide II, n. 2101.

749. Note. A matrimony which was contracted under grave unjust fear remains invalid as long as the fear endures and the spouse who suffered the fear has not given free consent in the due form. Hence the right of seeking a declaration of the nullity of this matrimony is never lost by the party upon whom the injury was inflicted; that party can therefore vindicate his or her right even after several years and after offspring have been generated,⁵⁷⁹ provided that through trustworthy witnesses⁵⁸⁰ or certain documents the party can prove that at the time of the celebration of the matrimony he or she truly suffered grave, unjust fear directed toward contracting the matrimony. But if the grave fear was inflicted not by the other party but by a third person, for example, by the parents, not only the party who suffered the fear, but also the other party can protest against the matrimony entered.⁵⁸¹ A petition for nullity of matrimony on account of fear inflicted is to be directed to the proper diocesan bishop of the petitioner.

⁵⁷⁹ See several cases decided by the Sacred Congregation of the Council or by the Sacred Roman Rota in Analect. eccl. IV (1896), 114; V (1897), 242; VII (1899), 16; VIII (1900), 55, 379, 383; and in Acta Ap. Sed. II (1910), 886 ff.; IV (1912), 474; VIII (1916), 45 ff., 109 ff., 184 ff., 487 ff. - St. Raymond of Penafort (Summa, l. 4, § 4) writes: "Likewise it is to be noted that whatever the fear or violence may be in contracting matrimony, if the woman who alleges fear has remained with her husband for a year and a half, or has consented to carnal intercourse, she ought not afterward to be heard if she alleges fear or violence." - These things are drawn from c. 21, X 4, 1, which chapter indeed is explained in diverse ways by canonists; but it is certain that, according to modern discipline, the right of seeking the nullity of a matrimony contracted because of grave fear is never lost, unless, however, it is established that the true and free consent of the injured party afterward supervened, and indeed in the due form, that is, ordinarily before the parish priest and two witnesses. Hence, on June 2, 1911, the Sacred Roman Rota dissolved, because of the impediment of fear, a matrimony (Andrassy-Szechenyi) which had endured for twenty years and in which several children had been generated. Cf. Acta Ap. Sed. IV, 108 ff.

⁵⁸⁰ Concerning the deposition of witnesses, the following rule is to be noted: "More faith is to be given to two witnesses testifying concerning fear than to a thousand denying it or asserting spontaneous will; ... for those testifying concerning spontaneous will, so to speak, testify concerning a mental and invisible act which is known to God alone; but the others, testifying concerning fear, attest to threats and torments and similar things which are perceived by bodily sense" (Acta Ap. Sed. IV, 117, and VIII, 205).

⁵⁸¹ Cf. Wernz-Vidal, Ius can. V, n. 505.

750. Cessation of force and fear. Although the Supreme Pontiff perhaps can dispense, nevertheless in fact he never dispenses, since this impediment is more probably of natural law and since great harms arise from marriages coercively entered and continuing under fear.

If the matrimony was duly entered according to the statutes of ecclesiastical law and the fear remained occult, that is, when its existence cannot be proved at least by two witnesses, then it is required and suffices that the party who suffered the fear freely but secretly give matrimonial consent by some external sign, while in the meantime the consent of the other party perseveres at least virtually. This giving of consent can be made either by express words or by conclusive signs, for example, by carnal intercourse had with matrimonial affection.

But if the fear was public, so that it can easily be proved in the external forum, then the party who suffered the fear, once liberty has been obtained, must give consent before the parish priest and two witnesses.⁵⁸²

⁵⁸² Cf. Feije, De imped. et dispensa. matrim., n. 762 f. Benedict XIV (Inst. eccl. 87, n. 62) writes: "If the matrimony was publicly entered before the parish priest and two witnesses and the impediment [of fear] also became publicly known, the same matrimony cannot duly be confirmed unless consent is given again before the parish priest and two witnesses."

751. You will resolve. From what has thus far been said follows the solution of the following difficult case:

A woman is compelled by grave fear to matrimony, and therefore her matrimony is null. How ought the confessor whose counsel is sought to conduct himself? It is responded:

a) If the woman is in good faith, thinking that in these circumstances she can permit carnal intercourse, she is to be left in this good faith until the matrimony is convalidated or dissolved. The reason is that it is better to permit material sins than to place someone in the proximate danger of committing formal sins. Nevertheless, since material sins too are to be avoided insofar as possible, the woman must prudently be induced to abstain from carnal intercourse insofar as is possible; and this all the more because children could easily be born from carnal intercourse who, in the case of the dissolution of the matrimony, would lack a father directing their education.

b) If the woman knows her matrimony to be null, she cannot consent to carnal intercourse before the matrimony is duly convalidated. The reason is that intercourse of this kind is fornication and intrinsically evil. Therefore the woman must conduct herself like a virgin oppressed by force, that is, resist with all her strength. Nevertheless, if the fear is occult and no other impediment stands in the way of the validity of the matrimony, the woman could first give matrimonial consent and, with the matrimony thus convalidated, consummate carnal intercourse. But if the fear is public, the woman can no longer convalidate the matrimony by her own matrimonial consent privately given, as was said above, but convalidation in the public forum is required.

In practice, however, one can proceed in this manner: When a matrimony was contracted from grave fear before the parish priest and two witnesses, or in another legitimate manner, then (whether the fear is public or occult) this matrimony is not only presumed true, but is also probably licit until its nullity is authentically and juridically established. But in a matrimony probably true and licit, carnal intercourse can be permitted for a most grave cause, because this intercourse is not certainly fornication. Therefore the woman is not to be disturbed if for most grave reasons she permits intercourse until the Church has rendered a judgment concerning the validity of the matrimony. Certainly it is better if intercourse is avoided.⁵⁸³

⁵⁸³ Cf. Lehmkuhl, Cas. consc. II, n. 937 ff.

752. The penalties against violators of matrimonial liberty enacted by the Council of Trent⁵⁸⁴ have been abrogated, since no mention of them is made in the Code of Canon Law.⁵⁸⁵ But by particular law penalties of this kind could be established.

⁵⁸⁴ Sess. 24, c. 9, de reform. matrim.

⁵⁸⁵ Code of Canon Law, can. 6, n. 5.

52. • I. Notion.

a) Force can be defined: "the exterior impulse of a greater thing which cannot be repelled."

Fear is: "trepidation of mind by reason of an instant or future danger."

b) Fear is distinguished:

1° Into antecedent fear, i.e., that which is the cause of the operation which is said to be done from fear; and concomitant fear, which does not influence the operation but exists together with it. And such an operation is said to be done with fear.

2° Into fear from without, i.e., that which is inflicted by an external cause; and from within, i.e., that whose cause is internal to the one suffering fear.

3° Into just fear, namely when the evil which is feared can be inflicted by strict right, justice being uninjured; and unjust fear, when the infliction of that evil would injure justice.

4° Into grave fear, which is present when these two things concur at once: a grave evil, either absolutely or relatively to the person who suffers fear, and an imminent danger of that evil, at least in the opinion of the one fearing, without there being at hand another means of escaping than to choose that which he would not will; light fear, namely when the two things aforesaid are not verified; reverential fear, which is the fear of incurring the indignation of parents or superiors. Of itself it is light, but from circumstances it can become grave.

II. Concerning the influence of force and fear upon matrimonial consent.

53. • a) Absolute force renders matrimony contracted under its influence invalid by natural law itself.

The reason is that physical violence excludes every human act and therefore every consent of the will.

54. • b) "Matrimony entered into on account of... grave fear, inflicted from without and unjustly, is invalid." (Can. 1086 § 1.)

Therefore five conditions must be present in order that fear invalidate matrimonial consent:

1°) Fear must be grave, either absolutely or relatively.

In doubt it is reputed light, because matrimony enjoys the favor of law.

2°) It must have been brought from without, and indeed by a free cause.

It matters little what person is the one causing the fear.

3°) It must be unjust as to substance, or at least as to mode.

Fear is unjust as to substance when the threatened punishment is unjust. It is unjust as to mode when the punishment itself is just, but the order of law is not observed.

4°) It must be in order to matrimony, i.e., such that in order to free himself from it one is compelled to choose matrimony.

It matters little whether one is compelled by fear to a determinate matrimony or to matrimony in general.

But authors dispute whether there is required in the author of the fear an intention of extorting consent or not.

Most assert the necessity of this intention.¹

¹ De Smedt, De sponsalibus et matrimonio, n. 537. - Vlaming, Praelectiones de Jure matrimoniali, ed. alt. 1920, n. 539. - Marc-Gesterman, Institutiones morales Alphonsianae, ed. 18., t. II, n. 1979, 4°. - Prummer, op. cit., n° 795.

Others, and more truly, as it seems to us, deny that such an intention is required.² For the words of the Code, "fear from which, in order that one may free himself, he is compelled to choose matrimony" (Can. 1087 § 1), abstract from the aforesaid intention.

² Capello, De matrimonio, n° 606, 4°. - Vermeersch-Creusen, op. cit., n. 377 d).

Practically almost always an intention of this kind will be found in him who inflicts the fear. But it can also happen that fear is inflicted not precisely for extorting consent, and yet no other way lies open besides entering matrimony by which someone can free himself from a grave and unjust evil. In such consent the words of the canon seem altogether to be verified, and therefore the matrimony is invalid.

Whatever may be the case concerning that controversy, it is always necessary that, on the part of the one suffering threats, matrimony appear as the single means of freeing himself or his own from a grave and unjust evil.

5°) The fear must persevere in the act of the celebration of matrimony. Therefore if the party who suffered fear puts it aside before matrimony is celebrated and consents freely, the matrimony is valid.

55. • III. By what law fear dirimently impedes matrimony.

a) If the fear is so great that it takes away the use of reason and free choice, by natural law there is no matrimony.

b) All agree that grave fear, clothed with the other conditions stated above, dirimently impedes matrimony from ecclesiastical law.

c) But whether fear dirimently impedes matrimony also from natural law is disputed. St. Thomas affirms it. In fact, in the impediment of fear the Church never dispenses.

56. • IV. What concerning the matrimony of the non-baptized which is contracted from fear clothed as above.

a) If an unbeliever contracts with a faithful party, there is no matrimony, whether the faithful or the unbelieving party suffers the fear.

b) The same holds if civil law declares invalid matrimony contracted from fear.

c) Outside this twofold case, such matrimony contracted by unbelievers is doubtful, because probably that impediment is of natural law.

806. Force and fear impede the fully voluntary and perfectly free consent of the will. Force properly is physical coercion inflicted on one resisting, which indeed cannot be inflicted on the internal act of the will itself, but renders the external act wholly involuntary (I, n. 69-70). Fear, on the contrary, morally influences the internal act of the will itself, namely, by the apprehension of an imminent evil, to flee which it moves the will to willing that which otherwise it would not will. When inflicted by another, it is called force or moral violence, which diminishes the voluntary but does not take it away, except exceptionally if it takes away every use of reason (I, n. 71-73). Now:

1° Physical or absolute force, which cannot be resisted and which is inflicted on one wholly unwilling, invalidates matrimony, because internal consent is lacking: it compels to the external act with full dissent of the will; this very rarely happens in celebrating matrimony, but nevertheless it is possible.

2° Grave fear, if exceptionally it wholly takes away the use of reason, invalidates matrimony, because it impedes a human act and free consent.

3° Grave fear unjustly inflicted from outside invalidates consent, if someone, in order to free himself from it, is compelled to choose matrimony as the sole escape, whether the fear as to substance or as to mode was unjust, because consent is the fruit of injustice. - On the contrary, grave fear arising from within or from a natural cause, or justly inflicted, or unjust fear which can be avoided otherwise than by matrimony, does not invalidate matrimony, because the consent is simply voluntary and is not the effect of injustice; a fortiori light fear, such as reverential fear also is of itself, unless grave vexation is added.

Hence can. 1087: "§ 1. Matrimony entered by force or by grave fear inflicted from outside and unjustly, from which, in order that one may free himself, he is compelled to choose matrimony, is also invalid.

"§ 2. No other fear, even if it gives cause to the contract, brings with it the nullity of matrimony."

Before the code they said quite generally that matrimony is invalidated only when fear is unjustly inflicted for extorting consent. This now does not seem strictly necessary, so that fear, even inflicted for another end, invalidates the matrimony which someone is compelled to choose in order to free himself from fear; but the case will be rare, although not impossible.

Absolute force and fear taking away the use of reason invalidate matrimony from natural law; whether the same must be said of fear merely grave and unjust is disputed. Several, especially canonists, think it invalid from positive law alone; many others, such as St. Raymond of Penyafort and St. Thomas,¹ derive the nullity from natural law. For since the matrimonial contract is indissoluble, unjustly inflicted fear, which renders other onerous contracts rescindable, ought to render the irrevocable contract of matrimony null, so that the full liberty of the contracting party, necessary in assuming a perpetual burden, may be preserved.

¹ Suppl. q. 47, a. 3.

Hence the validity of a matrimony entered by an unbeliever from such fear is doubtful, unless civil law invalidated it. And the Church, by reason of her doubtful power, cannot dispense concerning force and fear, and in fact does not dispense; whence matrimony extorted by fear is not revalidated unless, once the fear has been removed, consent is renewed.

807. Corollary. - Therefore accidental error and fear that is not unjust, although they give cause to the contract, do not invalidate it, although the contracting party, if he had known or had not been moved by fear, would not have contracted. For the interpretative intention, namely, does not have force, but the existing intention; not what one would have willed or done, but what he willed and did.

808. Observations. - 1. "Matrimony enjoys the favor of law; wherefore in doubt one must stand for the validity of matrimony until the contrary is proved, saving the prescription of can. 1127: in a doubtful matter the privilege of faith enjoys the favor of law," can. 1014.

These things are to be understood of a positive and probable doubt remaining after inquiry. In such a doubt matrimony is presumed valid until the contrary is proved; unless the good of faith stands in the way, which is more excellent. Whence, on account of the good of faith, a doubtful matrimony can be declared null, provided nevertheless that scandal is not to be feared, nor there be danger of injuring a ratified and consummated matrimony, which by divine law is wholly indissoluble and from which the Church cannot dispense: as in the case of a consummated matrimony between two doubtfully baptized persons (cf. Holy Office, May 5-June 10, 1937). And in individual cases recourse must be made to the Holy Office (ibid. and can. 247, § 3), or to someone to whom the faculty of dispensing has perhaps been delegated.

2. "Knowledge or opinion of the nullity of matrimony does not necessarily exclude matrimonial consent," can. 1085: if nevertheless someone intends, as much as is in him is to consent; in which case the consent, although juridically invalid, nevertheless subsists physically.

3. Hence "even if matrimony was entered invalidly by reason of an impediment, the consent furnished is presumed to persevere until its revocation has been established," can. 1093.

I say 1°. § 1. A marriage entered on account of force or grave fear inflicted from outside and unjustly, from which, in order that someone may free himself, he is compelled to choose marriage, is also invalid (Can. 1087).

This is certainly established from many places of law. Marriage must enjoy full security.

I say 2°. § 2. No other fear, even if it gives cause to the contract, carries with it the nullity of marriage (Can. 1087).

The reason is: 1°. because light fear is not judged to influence consent gravely and efficaciously; 2°. because from positive law only grave fear makes Marriage invalid; 3°. because otherwise innumerable Marriages would become invalid with the greatest detriment to society.

Question 1. Does any grave fear whatsoever dirimently invalidate Marriage?

Resp. Negatively, but the following conditions are required, namely, that it be inflicted 1°. by an external and free cause; 2°. unjustly; 3°. that from it, in order to free himself, someone be compelled to choose marriage.

Question 2. By what law does grave fear dirimently invalidate Marriage?

Resp. Certainly by ecclesiastical law; but whether also by the law of nature is disputed among theologians, and S. Alphonsus, n. 1054, relates reasons on either side. Besides, no practical utility can be derived from the solution of this controversy. For either the discussion is of Marriage to be contracted or of one contracted. If the first, the Church will never dispense unless the cause of fear is first removed; if the other, that Marriage will never be declared invalid unless it has first been proved, in the external forum, that all the conditions which the Church requires for grave fear were verified. - Cf. Ballerini, note (c), p. 806.

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.

Anna, converted to the Catholic faith some years ago, comes to Caius, a missionary, and says that while a Protestant in northern Ireland she married Titius, a Protestant, having been driven to this by continual entreaties and even by threats of expulsion from her father’s house. Afterwards she bore him two sons, but finally, because of his cruelty and because she had never loved him, she left her husband in Ireland and came to England. Now she cohabits as a wife with Titius, a Catholic, and each would like to enter marriage so that they may receive the sacraments. Caius, however, does not know whether it is lawful to admit them to marriage, and asks what he must do. Hence it is asked:

1. What is the impediment of fear, and by what law is it established?

2. Can a marriage invalid because of fear be validated, and how?

3. To whom does it belong to treat such matrimonial causes?

4. What is to be said of the case?

1. What is the impediment of fear, and by what law is it established?

Fear is a perturbation of mind arising from present or future danger. When marriage is contracted through grave fear caused unjustly by a free agent with a view to extorting marriage, ecclesiastical law makes the marriage null and void. Whether it is also void by natural law is a disputed point among divines.¹

1 Manual of Moral Theology, vol. ii, 320.

2. Can marriage, void through fear, be revalidated, and how?

Yes, such marriage may be revalidated when the fear ceases by expressing free matrimonial consent.²

2 Ibid., 321.

3. To whom does it belong to treat of such matrimonial causes?

To the bishop as judge of first instance in the external forum. “ Questions concerning the validity of marriages are called causes; these pertain solely to the external forum and must be juridically determined by the Ordinary. Therefore, recourse must be had to the ordinary when it is about entering into a new marriage where there is doubt regarding the validity of a marriage already contracted ... But as regards marriages already contracted, we most gravely admonish and command in the Lord all priests who have the care of souls that, although it may be most certainly established to them that some marriage was invalid, they openly declare to all concerned that they have no authority to pronounce judgment in a matter of this kind: but before they presume to proceed to a new marriage, they must recourse to the ordinary and await his legal judgment. ” (IV Cone. West., d. 15).

4. The case. Caius may not admit Ann to a fresh marriage until it has been proved that the former marriage was invalid. It is possible that it was invalid to begin with; whether it afterwards became revalidated by the expression of free marital consent on the part of the woman or not, does not appear from the case as stated. Caius should therefore question Ann with a view to finding this out, and so discovering whether there is a prima facie case for invalidity or not. If he finds that there is solid ground for thinking that the former marriage was and remained null and void, Caius should send all the particulars of the case to the bishop, who after examining the evidence will pass sentence in accordance with it. The case will then be sent to the higher ecclesiastical court if the bishop's sentence was in favor of invalidity. The woman will be free to marry again after two concordant sentences have been given in favor of the nullity of the marriage.

Eva, a good, pious young girl, had been brought up by her uncle, who practically forced her to marry Caesar. She was utterly averse to the marriage, and even declared in confession that she agreed to it against her will, not daring to thwart her uncle. The wedding took place, and in due time a child was born. From the wedding-day onwards Eva continued to be unhappy, and in course of time she refused her husband the debitum, because she had inwardly never consented to the marriage, and persisted in refusing her consent; moreover her confessor regarded her marriage as invalid. In order, as she thought, to make things easier for herself, she took a vow of chastity, and lived with her husband as his sister. He is, however, in danger of incontinence; and the question arises whether Eva, in spite of her strong repugnance, is bound now at any rate to consent to her marriage with Caesar, in order to avert this periculum conjugis?

In a theological periodical of wide circulation in Italy, this question received merely " Yes " in reply. The Roman weekly, " Il Corrispondente del Clero," was not satisfied with this decision, and commented unfavorably upon it. The first point chosen for criticism was that the journal in question laid down too decidedly that "grave fear invalidates marriage by natural and ecclesiastical law." The Corrispondente declared that the theory that metus gravis could destroy a marriage also with regard to the natural law, is viewed by the best authorities merely as probabilior. Hence Mansella, in his work " de impedimentis," simply says: "an impediment of this kind indeed invalidates marriage by the positive law of the Church; but more probably it also renders it null by natural law." As a reason for the greater probability he says that fear, however grave, does not remove freedom unless it sometimes removes the exercise of reason. Gury and others make similar statements.

The Corrispondente is still less satisfied with the following remark in the mentioned paper: "Reverential fear alone toward parents, grandparents, masters, guardians, and so forth, is not sufficient to invalidate marriage unless fear of a grave evil is added." If, says the Corrispondente, these words only mean that the timor reverentialis must be gravis, there is no objection to them; but they seem rather to mean that there must necessarily be some other metus besides, or, at least, that the timor reverentialis could not be gravis to such a degree as to invalidate the marriage; and this is not true. On the contrary, it is precisely the timor reverentialis that may easily be gravis, especially in the case of a timid girl, unaccustomed to oppose her fosterfather. The famous Schmalzgruber teaches: that a marriage is invalid when contracted by a maiden with a young man whom she detested, out of mere reverence toward her parents, joined with a probable expectation of indignation, reproaches, harsh treatment, and similar hardships. We see from this that reverentialis timor can much more readily be regarded as gravis than ordinary fear.

After discussing these preliminary matters, the Corrispondente proceeds to answer the question. The writer believes that the other paper erred on the side of severity in the following passage: " Eva was, strictly speaking, not forced to marry, therefore she ought to be forced to consent." In stating the case, she is said to have been " practically forced," so her uncle must have brought some kind of compulsion to bear upon her, and she felt herself constrained to comply with his wishes. From her childhood she had been in the habit of obeying him, she was afraid of him, and could not make up her mind to refuse, for the first time perhaps, to do his bidding. She made no secret of her aversion to her future husband, even in the confessional, but her fear made her disregard the voice of her own conscience and yield to her uncle's pressure, so that she apparently consented to the marriage and lived tanquam uxor, though always with inward repugnance. When she grew older and found that even her love for her children did not enable her to overcome her dislike of her husband, she at last spoke frankly to him and refused, ut supra; and in order to have more strength, or a better reason for persisting in her refusal, she took a temporary vow of chastity. According to our opinion the confessor ought to point out to her the sins her weakness has led her to commit, so that she may recognize the dangerous state of her soul. He ought also to draw her attention to the unpleasant position of her husband and of her innocent children, and do his utmost to induce her to overcome her aversion; in short, he should use every means of persuasion, but we certainly cannot consider it right for him to force her, i. e. to lay upon her a solemn duty to consent to such a marriage. We are much afraid that she, having already suffered so much in consequence of her weakness, will only suffer far more in consequence of a demand on the part of her confessor that is too hard for her to comply with.

Finally the Corrispondente del Clero considers the last reason given in the other paper, viz., Eva's vow of chastity, to be of no importance and no obstacle to her marriage, for she vowed concerning something not her own. Any reasonable person would certainly agree that her circumstances are such that a dispensation from this vow ought to be granted her, but it seems at least very doubtful whether she has made a vow de re non propria. It is admitted that the marriage is not valid; what right could such a marriage give to the reputed husband to control his wife's freedom of action?

To sum up: Taking into account the scandal to which the dissolution of this marriage would give rise, and the position in which the husband and the children would be placed, we are of opinion that the confessor ought to use every means in his power to persuade Eva to give her consent to the marriage, but he must not compel her to do so. The Corrispondente concludes by saying that " this is only our opinion, which we desired to state in order to have it corrected, should it be erroneous."