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Question: 52 [<< | >>]
We must now consider the impediment of the condition of slavery. Under
this head there are four points of inquiry:
(1) Whether the condition of slavery is an impediment to matrimony?
(2) Whether a slave can marry without his master's consent?
(3) Whether a man who is already married can make himself a slave
without his wife's consent?
(4) Whether the children should follow the condition of their father or
of their mother?
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Question: 52 [<< | >>]
Article: 1 [<< | >>]
Objection 1: It would seem that the condition of slavery is no impediment to
matrimony. For nothing is an impediment to marriage except what is in
some way opposed to it. But slavery is in no way opposed to marriage,
else there could be no marriage among slaves. Therefore slavery is no
impediment to marriage.
Objection 2: Further, that which is contrary to nature cannot be an impediment
to that which is according to nature. Now slavery is contrary to nature,
for as Gregory says (Pastor. ii, 6), "it is contrary to nature for man to
wish to lord it over another man"; and this is also evident from the fact
that it was said of man (Gn. 1:26) that he should "have dominion over the
fishes of the sea," but not that he should have dominion over man.
Therefore it cannot be an impediment to marriage, which is a natural
thing.
Objection 3: Further, if it is an impediment, this is either of natural law or
of positive law. But it is not of natural law, since according to natural
law all men are equal, as Gregory says (Pastor. ii, 6), while it is
stated at the beginning of the Digests (Manumissiones, ff. de just. et
jure.) that slavery is not of natural law; and positive law springs from
the natural law, as Tully says (De Invent. ii). Therefore, according to
law, slavery is not an impediment to any marriage.
Objection 4: Further, that which is an impediment to marriage is equally an
impediment whether it be known or not, as in the case of consanguinity.
Now the slavery of one party, if it be known to the other, is no
impediment to their marriage. Therefore slavery, considered in itself, is
unable to void a marriage; and consequently it should not be reckoned by
itself as a distinct impediment to marriage.
Objection 5: Further, just as one may be in error about slavery, so as to deem
a person free who is a slave, so may one be in error about freedom, so as
to deem a person a slave whereas he is free. But freedom is not accounted
an impediment to matrimony. Therefore neither should slavery be so
accounted.
Objection 7: Further, leprosy is a greater burden to the fellowship of
marriage and is a greater obstacle to the good of the offspring than
slavery is. Yet leprosy is not reckoned an impediment to marriage.
Therefore neither should slavery be so reckoned.
On the contrary, A Decretal says (De conjug. servorum, cap. Ad nostram)
that "error regarding the condition hinders a marriage from being
contracted and voids that which is already contracted."
Further, marriage is one of the goods that are sought for their own
sake, because it is qualified by honesty; whereas slavery is one of the
things to be avoided for their own sake. Therefore marriage and slavery
are contrary to one another; and consequently slavery is an impediment to
matrimony.
I answer that, In the marriage contract one party is bound to the other
in the matter of paying the debt; wherefore if one who thus binds
himself is unable to pay the debt, ignorance of this inability, on the
side of the party to whom he binds himself, voids the contract. Now just
as impotence in respect of coition makes a person unable to pay the debt,
so that he is altogether disabled, so slavery makes him unable to pay it
freely. Therefore, just as ignorance or impotence in respect of coition
is an impediment if not known but not if known, as we shall state further
on (Question [58]), so the condition of slavery is an impediment if not known,
but not if it be known.
Reply to Objection 1: Slavery is contrary to marriage as regards the act to which
marriage binds one party in relation to the other, because it prevents
the free execution of that act; and again as regards the good of the
offspring who become subject to the same condition by reason of the
parent's slavery. Since, however, it is free to everyone to suffer
detriment in that which is his due, if one of the parties knows the other
to be a slave, the marriage is none the less valid. Likewise since in
marriage there is an equal obligation on either side to pay the debt,
neither party can exact of the other a greater obligation than that under
which he lies; so that if a slave marry a bondswoman, thinking her to be
free, the marriage is not thereby rendered invalid. It is therefore
evident that slavery is no impediment to marriage except when it is
unknown to the other party, even though the latter be in a condition of
freedom; and so nothing prevents marriage between slaves, or even between
a freeman and a bondswoman.
Reply to Objection 2: Nothing prevents a thing being against nature as to the
first intention of nature, and yet not against nature as to its second
intention. Thus, as stated in De Coelo, ii, all corruption, defect, and
old age are contrary to nature, because nature intends being and
perfection, and yet they are not contrary to the second intention of
nature, because nature, through being unable to preserve being in one
thing, preserves it in another which is engendered of the other's
corruption. And when nature is unable to bring a thing to a greater
perfection it brings it to a lesser; thus when it cannot produce a male
it produces a female which is "a misbegotten male" (De Gener. Animal. ii,
3). I say then in like manner that slavery is contrary to the first
intention of nature. Yet it is not contrary to the second, because
natural reason has this inclination, and nature has this desire---that
everyone should be good; but from the fact that a person sins, nature has
an inclination that he should be punished for his sin, and thus slavery
was brought in as a punishment of sin. Nor is it unreasonable for a
natural thing to be hindered by that which is unnatural in this way; for
thus is marriage hindered by impotence of coition, which impotence is
contrary to nature in the way mentioned.
Reply to Objection 3: The natural law requires punishment to be inflicted for
guilt, and that no one should be punished who is not guilty; but the
appointing of the punishment according to the circumstances of person and
guilt belongs to positive law. Hence slavery which is a definite
punishment is of positive law, and arises out of natural law, as the
determinate from that which is indeterminate. And it arises from the
determination of the same positive law that slavery if unknown is an
impediment to matrimony, lest one who is not guilty be punished; for it
is a punishment to the wife to have a slave for husband, and "vice versa."
Reply to Objection 4: Certain impediments render a marriage unlawful; and since
it is not our will that makes a thing lawful or unlawful, but the law to
which our will ought to be subject, it follows that the validity or
invalidity of a marriage is not affected either by ignorance (such as
destroys voluntariness) of the impediment or by knowledge thereof; and
such an impediment is affinity or a vow, and others of the same kind.
other impediments, however, render a marriage ineffectual as to the
payment of the debt; and since it is within the competency of our will to
remit a debt that is due to us, it follows that such impediments, if
known, do not invalidate a marriage, but only when ignorance of them
destroys voluntariness. Such impediments are slavery and impotence of
coition. And, because they have of themselves the nature of an
impediment, they are reckoned as special impediments besides error;
whereas a change of person is not reckoned a special impediment besides
error, because the substitution of another person has not the nature of
an impediment except by reason of the intention of one of the contracting
parties.
Reply to Objection 5: Freedom does not hinder the marriage act, wherefore
ignorance of freedom is no impediment to matrimony.
Reply to Objection 6: Leprosy does not hinder marriage as to its first act, since
lepers can pay the debt freely; although they lay a burden upon marriage
as to its secondary effects; wherefore it is not an impediment to
marriage as slavery is.
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Question: 52 [<< | >>]
Article: 2 [<< | >>]
Objection 1: It would seem that a slave cannot marry without his master's
consent. For no one can give a person that which is another's without the
latter's consent. Now a slave is his master's chattel. Therefore he
cannot give his wife power over his body by marrying without his master's
consent.
Objection 2: Further, a slave is bound to obey his master. But his master may
command him not to consent to marry. Therefore he cannot marry without
his consent.
Objection 3: Further, after marriage, a slave is bound even by a precept of the Divine law to pay the debt to his wife. But at the time that his wife asks for the debt his master may demand of him a service which he will be unable to perform if he wish to occupy himself in carnal intercourse. Therefore if a slave can marry without his master's consent, the latter would be deprived of a service due to him without any fault of his; and this ought not to be.
Objection 4: Further, a master may sell his slave into a foreign country,
where the latter's wife is unable to follow him, through either bodily
weakness, or imminent danger to her faith; for instance if he be sold to
unbelievers, or if her master be unwilling, supposing her to be a
bondswoman; and thus the marriage will be dissolved, which is unfitting.
Therefore a slave cannot marry without his master's consent.
Objection 5: Further, the burden under which a man binds himself to the Divine
service is more advantageous than that whereby a man subjects himself to
his wife. But a slave cannot enter religion or receive orders without his
master's consent. Much less therefore can he be married without his
consent.
On the contrary, "In Christ Jesus . . . there is neither bond nor free"
(Gal. 3:26,28). Therefore both freeman and bondsman enjoy the same
liberty to marry in the faith of Christ Jesus.
Further, slavery is of positive law; whereas marriage is of natural and
Divine law. Since then positive law is not prejudicial to the natural or
the Divine law, it would seem that a slave can marry without his master's
consent.
I answer that, As stated above (Article [1], ad 3), the positive law arises out
of the natural law, and consequently slavery, which is of positive law,
cannot be prejudicious to those things that are of natural law. Now just
as nature seeks the preservation of the individual, so does it seek the
preservation of the species by means of procreation; wherefore even as a
slave is not so subject to his master as not to be at liberty to eat,
sleep, and do such things as pertain to the needs of his body, and
without which nature cannot be preserved, so he is not subject to him to
the extent of being unable to marry freely, even without his master's
knowledge or consent.
Reply to Objection 1: A slave is his master's chattel in matters superadded to
nature, but in natural things all are equal. Wherefore, in things
pertaining to natural acts, a slave can by marrying give another person
power over his body without his master's consent.
Reply to Objection 2: A slave is bound to obey his master in those things which
his master can command lawfully; and just as his master cannot lawfully
command him not to eat or sleep, so neither can he lawfully command him
to refrain from marrying. For it is the concern of the lawgiver how each
one uses his own, and consequently if the master command his slave not to
marry, the slave is not bound to obey his master.
Reply to Objection 3: If a slave has married with his master's consent, he should
omit the service commanded by his master and pay the debt to his wife;
because the master, by consenting to his slave's marriage, implicitly
consented to all that marriage requires. If, however, the marriage was
contracted without the master's knowledge or consent, he is not bound to
pay the debt, but in preference to obey his master, if the two things are
incompatible. Nevertheless in such matters there are many particulars to
be considered, as in all human acts, namely the danger to which his
wife's chastity is exposed, and the obstacle which the payment of the
debt places in the way of the service commanded, and other like
considerations, all of which being duly weighed it will be possible to
judge which of the two in preference the slave is bound to obey, his
master or his wife.
Reply to Objection 4: In such a case it is said that the master should be
compelled not to sell the slave in such a way as to increase the weight
of the marriage burden, especially since he is able to obtain anywhere a
just price for his slave.
Reply to Objection 5: By entering religion or receiving orders a man is bound to
the Divine service for all time; whereas a husband is bound to pay the
debt to his wife not always, but at a fitting time; hence the comparison
fails. Moreover, he who enters religion or receives orders binds himself
to works that are superadded to natural works, and in which his master
has power over him, but not in natural works to which a man binds himself
by marriage. Hence he cannot vow continence without his master's consent.
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Question: 52 [<< | >>]
Article: 3 [<< | >>]
Objection 1: It would seem that slavery cannot supervene to marriage, by the
husband selling himself to another as slave. Because what is done by
fraud and to another's detriment should not hold. But a husband who sells
himself for a slave, does so sometimes to cheat marriage, and at least to
the detriment of his wife. Therefore such a sale should not hold as to
the effect of slavery.
Objection 2: Further, two favorable things outweigh one that is not favorable.
Now marriage and freedom are favorable things and are contrary to
slavery, which in law is not a favorable thing. Therefore such a slavery
ought to be entirely annulled in marriage.
Objection 3: Further, in marriage husband and wife are on a par with one
another. Now the wife cannot surrender herself to be a slave without her
husband's consent. Therefore neither can the husband without his wife's
consent.
Objection 4: Further, in natural things that which hinders a thing being
generated destroys it after it has been generated. Now bondage of the
husband, if unknown to the wife, is an impediment to the act of marriage
before it is performed. Therefore if it could supervene to marriage it
would dissolve it; which is unreasonable.
On the contrary, Everyone can give another that which is his own. Now
the husband is his own master since he is free. Therefore he can
surrender his right to another.
Further, a slave can marry without his master's consent, as stated above
(Article [2]). Therefore a husband can in like manner subject himself to a
master, without his wife's consent.
I answer that, A husband is subject to his wife in those things which
pertain to the act of nature; in these things they are equal, and the
subjection of slavery does not extend thereto. Wherefore the husband,
without his wife's knowledge, can surrender himself to be another's
slave. Nor does this result in a dissolution of the marriage, since no
impediment supervening to marriage can dissolve it, as stated above
(Question [50], Article [1], ad 7).
Reply to Objection 1: The fraud can indeed hurt the person who has acted
fraudulently, but it cannot be prejudicial to another person: wherefore
if the husband, to cheat his wife, surrender himself to be another's
slave, It will be to his own prejudice, through his losing the
inestimable good of freedom; whereas this can nowise be prejudicial to
the wife, and he is bound to pay her the debt when she asks, and to do
all that marriage requires of him for he cannot be taken away from these
obligations by his master's command.
Reply to Objection 2: In so far as slavery is opposed to marriage, marriage is
prejudicial to slavery, since the slave is bound then to pay the debt to
his wife, though his master be unwilling.
Reply to Objection 3: Although husband and wife are considered to be on a par in
the marriage act and in things relating to nature, to which the condition
of slavery does not extend, nevertheless as regards the management of the
household, and other such additional matters the husband is the head of
the wife and should correct her, and not "vice versa." Hence the wife
cannot surrender herself to be a slave without her husband's consent.
Reply to Objection 4: This argument considers corruptible things; and yet even in
these there are many obstacles to generation that are not capable of
destroying what is already generated. But in things which have stability
it is possible to have an impediment which prevents a certain thing from
beginning to be, yet does not cause it to cease to be; as instanced by
the rational soul. It is the same with marriage, which is a lasting tie
so long as this life lasts.
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Question: 52 [<< | >>]
Article: 4 [<< | >>]
Objection 1: It would seem that children should follow the condition of their
father. Because dominion belongs to those of higher rank. Now in
generating the father ranks above the mother. Therefore, etc.
Objection 2: Further, the being of a thing depends on the form more than on
the matter. Now in generation the father gives the form, and the mother
the matter (De Gener. Animal. ii, 4). Therefore the child should follow
the condition of the father rather than of the mother.
Objection 3: Further, a thing should follow that chiefly to which it is most
like. Now the son is more like the father than the mother, even as the
daughter is more like the mother. Therefore at least the son should
follow the father in preference, and the daughter the mother.
Objection 4: Further, in Holy Writ genealogies are not traced through the
women but through the men. Therefore the children follow the father
rather than the mother.
On the contrary, If a man sows on another's land, the produce belongs to
the owner of the land. Now the woman's womb in relation to the seed of
man is like the land in relation to the sower. Therefore, etc.
Further, we observe that in animals born from different species the
offspring follows the mother rather that the father, wherefore mules born
of a mare and an ass are more like mares than those born of a she-ass and
a horse. Therefore it should be the same with men.
I answer that, According to civil law (XIX, ff. De statu hom. vii, cap.
De rei vendit.) the offspring follows the womb: and this is reasonable
since the offspring derives its formal complement from the father, but
the substance of the body from the mother. Now slavery is a condition of
the body, since a slave is to the master a kind of instrument in working;
wherefore children follow the mother in freedom and bondage; whereas in
matters pertaining to dignity as proceeding from a thing's form, they
follow the father, for instance in honors, franchise, inheritance and so
forth. The canons are in agreement with this (cap. Liberi, 32, qu. iv, in
gloss.: cap. Inducens, De natis ex libero ventre) as also the law of
Moses (Ex. 21).
In some countries, however, where the civil law does not hold, the
offspring follows the inferior condition, so that if the father be a
slave the children will be slaves although the mother be free; but not if
the father gave himself up as a slave after his marriage and without his
wife's consent; and the same applies if the case be reversed. And if both
be of servile condition and belong to different masters, the children, if
several, are divided among the latter, or if one only, the one master
will compensate the other in value and will take the child thus born for
his slave. However it is incredible that this custom have as much reason
in its favor as the decision of the time-honored deliberations of many
wise men. Moreover in natural things it is the rule that what is received
is in the recipient according to the mode of the recipient and not
according to the mode of the giver; wherefore it is reasonable that the
seed received by the mother should be drawn to her condition.
Reply to Objection 1: Although the father is a more noble principle than the
mother, nevertheless the mother provides the substance of the body, and
it is to this that the condition of slavery attaches.
Reply to Objection 2: As regards things pertaining to the specific nature the son
is like the father rather than the mother, but in material conditions
should be like the mother rather than the father, since a thing has its
specific being from its form, but material conditions from matter.
Reply to Objection 3: The son is like the father in respect of the form which is
his, and also the father's, complement. Hence the argument is not to the
point.
Reply to Objection 4: It is because the son derives honor from his father rather
than from his mother that in the genealogies of Scripture, and according
to common custom, children are named after their father rather than from
their mother. But in matters relating to slavery they follow the mother
by preference.