I. To the Question

A. Opinion of Others

1. Exposition of the Opinion

11. One way of speaking here [Richard of Middleton, Sent. IV d.29 princ.1 q.1] is that no one can be so coerced to consent that his will consents, because the will is not compelled nor can be compelled. But only in a certain respect is anyone coerced by a fear of penalties he wants to avoid. Herefrom the argument is: anyone does sufficiently avoid the penalties he fears by consenting with words exteriorly; and therefore if, over and above the consent that appears in the speaking of the words, he consent interiorly in his mind, he consents with that consent, not from fear. And consequently, the interior consent is free, not coerced, and so it obligates and the matrimony is ratified in the judgment both of God and the Church. But he who consents in his mind but with the words only, since the consent in his mind is not free, such as he does not contract matrimony either in the forum of conscience or in the forum of the Church, because the Church presumes that such as he did not consent.

2. Rejection of the Opinion

12. But, first, this seems unreasonable, because, according to everyone, the fear cannot be simply fear within or without, or simply coercion, because he who speaks is voluntarily moving his tongue. For however much his mouth were with fingers violently opened or his tongue moved, he could not speak or express words unless he were moved voluntarily by himself; therefore, coercion is only the inducement to do something to avoid a threatening evil.

Likewise, fear that leads to mortal sin cannot happen to a man of constancy, because then a man could be coerced into mortally sinning.

13. From these points I argue as follows: whoever is coerced to something, which cannot, in the absence of something else, be without mortal sin, is coerced to that something else, and this when taking ‘coercion’ in the same way on this side and that. But this person, for you, is coerced by fear into speaking external words expressing consent, and these words cannot, in the absence of interior consent, be without mortal sin, because he who speaks them without interior consent is perniciously lying. So, just as he can, for you, be coerced to speak the words, so can he be coerced to interior consent.

14. Proof of the major in multiple ways:

First, because the fear that excuses is only that which can happen to a man of constancy according to law; but a man of constancy seems to be one whom a fear of greater disadvantage than fear of mortal sin cannot happen to.

15. A proof also of this is that no fear can, according to right reason, happen to anyone save to undergo a lesser evil in order not to do, or in order to avoid, a greater evil; but suffering some pain is a lesser evil than sinning mortally; but it is a mortal sin to express outwardly that one consents and yet not to consent interiorly.

16. This could also be proved about what is licit and illicit, because fear cannot bring anyone to anything save to what is licit; for it is more necessary to avoid what is illicit than to flee pain, since indeed anyone is directed by a higher cause to flee what is illicit than to avoid pain, because God draws a man back from what is illicit through affection for justice, but love of advantage inclines toward avoidance of pain.

17. This reason [n.13] is confirmed by a double example:

First because if it were not licit for someone to consent interiorly, no fear ought to bring him to speak the words exteriorly - just as would be the case with a Religious, who ought in no way to be brought to speak these words, for either he is consenting and sins mortally against his vow, or he is not consenting and sins mortally with a pernicious lie. Therefore, fear is not sufficient to bring anyone else to speak those words save as he is distinguished from a Religious, for whom it is not licit to consent interiorly.

Another example is if someone, while inflicting violence on this person to accept this woman through the violence, were also to exact from him this sort of oath, ‘I swear on the holy Gospels of God that without fear I consent to her’ - in no way should he be brought by any fear to this oath, because, by swearing deceitfully, it is mortal sin. Therefore, similarly, by no fear can this man be brought to accept this woman by words exteriorly, save as it is licit so to accept her; but it is not licit save as conjoined with interior consent.

18. If you say that it is proved by these reasons that he should not speak words for any fear whatever unless he consent with his mind, yet, if he does consent, he is bound, because fear is not sufficient to bring him to that consent - on the contrary: neither is he coerced so to the exterior words simply that another be the mover of his tongue, but because something more to be avoided threatens him, namely death; for this reason is he said to be coerced by fear into so speaking; therefore, by similarity, when an evil threatens him greater than giving consent to this woman (as death or mortal sin), he is coerced by fear into giving consent to her.

19. This is confirmed, because the opposite would give many people the occasion to lie perniciously. It is also confirmed by an example, because if someone in great peril cast merchandise into the sea lest he drown, he casts it from fear; and if there were some other act in the absence of which there could be no casting into the sea, either absolutely or not without mortal sin, he would be coerced in like manner into that.

20. Second, the opinion is at fault in its saying that the Church presumes there is no interior consent there, because the Church presumes he only consented exteriorly out of fear, not interiorly in his mind. For this is false, because the Church always makes assumption for the better side, as is contained in Gregory IX, Decretals V tit.41 ch.2, ‘Be merciful’, and I tit.12 ch.1, ‘About scrutiny in conferring Orders’, “Him whom one does not know to be unworthy, one should reckon to be worthy.” It is manifestly plain that the Church assumes that carnal union, following espousals, comes from marital affection, because the Church assumes that spouse and spouse are not sinning mortally in the act; therefore here similarly.

B. Scotus’ own Response

21. To the question, therefore, I speak differently. And there are here two things that need looking at: first, how consent can be coerced; second, whether it be sufficient for contract of matrimony.

1. How Consent Could be Coerced

22. About the first I say that coercion does not properly happen to a man in any human act; for it is a contradiction that the will is simply coerced to an act of willing; because, since from Ethics 3.1.1110b15-17 “the violent is that whose principle is outside, the passive thing contributing no force to it,” understand this to be ‘contributing no force’, that is, ‘contributing no violence’ - not by way of negation but by way of contrariety, that is, ‘not contributing violence to the contrary’. This is to say, ‘the violent is what is totally from a principle outside and is against the inclination of the passive thing’; and an act of will cannot in this way be in the will, because then he who does not will would will, which manifestly includes a contradiction.

23. However, what has a will can be coerced to some passive suffering (as that it remain here bound), or to some instrumental action, which however is not its own action (for example if he strike someone with my hand, because he could do that with a bronze hand).

24. But to an elicited or commanded action of the will, which alone is properly a human action, a man cannot be compelled save in a certain respect, namely by fear of a greater evil than that act is. And this coercion can exist in a virtuous man, namely when he knows - not by a slight guess or suspicion but with certitude (at least a certitude sufficient in the case of human acts) - that an evil is to be inflicted on him that is more unacceptable to him and more to be avoided than eliciting the act that displeases him. And it can well be that it is more unacceptable to him according to right reason, as death or undergoing imprisonment or captivity, and as major mutilation or disgrace or the like evils.

25. Since, therefore, he is lord of his will, he can also will something that he would otherwise not will, and command an act otherwise refused, before he incur those evils -and this according to right reason; hence such fear is said to happen to a man of constancy. But no fear can, according to right reason, bring anyone to mortal sin, because there cannot be a greater evil that threatens than mortal sin, because no penalty, mere penalty, is worse than mortal sin.

26. Now as to venial sin let it here be a matter of doubt. But about it elsewhere.Vatican editors: The doubt is briefly introduced by Scotus in Rep. IV/A d.29 q.1 n.9, “Now about venial sin.. .whether it should, according to right reason, be committed by anyone rather than that any pain be allowed, is doubtful.” However, he gives no solution to it. ⁷⁸

2. Whether Coerced Consent Suffice for Contract of Matrimony

27. On the second main point [n.21], I say that this consent, coerced thus through fear as was said [nn.17-19], does not suffice for contract of matrimony, as is obtained expressly from Gregory IX, Decretals IV tit.1 ch.14, ‘On espousals’, and ch.28, ‘By your consultation’. Therefore, we have it that so it is.

28. But what is the reason for this?

I say that a cause and reason can be given, both from the formal cause of this contract, and from the efficient cause by which the contract has such form, and from the final cause because of which the efficient cause has given this contract such form.

29. The first point is clear, because this contract is a giving, and though it is not a generously free‘Generously free’ because the Latin word ‘liberalis’ is used here to qualify the giving; in the next line the word ‘libera’ is used to qualify the giving. So, to bring out the difference, ‘generously free’ is translated here and merely ‘free’ there. ⁷⁹ giving (supply: because given so that equal to oneself be given), yet it is a free giving simply, because it is against the idea of giving that it not be free. This then is the formal cause of matrimony (and a form cannot be proved of itself);The form of a thing is also its definition, and a definition cannot be proved; rather is it the first principle of proof (as the definition of triangle is the principle to prove it has internal angles equal to two right angles). A definition is reached rather by process of description and division. ⁸⁰ and thus is it plain, on the part of the form or the formal cause of matrimony, that coerced consent is not sufficient, because it impedes liberty, which is the form of it.

30. This is plain second from the efficient cause, because God has instituted this transfer to be such, namely purely free. Hence this is not determined by the Church but only expressed. For it is plain that even in the law of nature this was required in the contract of matrimony, Genesis 2.24, “He will cleave to his wife.” One does not cleave to that which one holds unwillingly. And Genesis 24.8, 57-58, where it is said of Abraham that he said to his servant, “If the woman not wish to come with you, you will be free of your oath;” and when he sought for Rebecca, they said, “We will call the girl, and we will ask her will;” and at once her parents asked her, “Do you wish to go with this man?” She replied, “I will go.” But where is it seen to have been instituted by God? I say that in Genesis 2.24, through the mouth of Adam, “Wherefore,” he says, “a man will leave his father and will cleave to his wife.” Now this ‘leave his father’ is not to throw away or despise his father; nor does he say ‘he will be left or thrown away by his father’, but ‘he will cleave (he says) to his wife’, namely ‘his own wife’, and ‘to cleave’ is done by love. And so is it plain that this condition (namely of mutual will and mutual love and consent) God bestowed on matrimony, and instituted it.

31. Third, this is plain on the part of the end, which is the offspring to be procreated, to be religiously educated, and for the divine cult - or the indissolubility of the bond for that act; because the act looks for this giving to be simply free, for love does much for this, that such bond be preserved through mutual affection; for as was said earlier [d.26 n.33; Gratian, Decretum, p.2 cause 30 q.3 ch.4], “What someone does not love, he easily despises.” Similarly, marriages that are not free or not loved are, for the most part, destined to a bad end.

32. Also a certain person says [Richard of Middleton, Sent. IV d.29 princ. 1 q.1] that it could be said the Church makes a person, even a suitable person, illegitimate for the time for which there is coercion, because just as the Church can make illegitimate simply, so also in a particular case and for a time.

33. But this I do not believe; rather the statute of the Church requires this [sc. free gift] for the nature of this contract, from the efficient cause that determines it, and on account of the end for which it is.

3. Some Doubts against the Aforesaid

34. But against the aforesaid are some doubts.

Because he who is coerced by fear does simply give consent in his mind to this woman (as was said before [n.12]); otherwise he would be lying in saying that he consents - but this is not true, because from the fact that he is virtuous he does, in order to avoid mortal sin, give consent interiorly, in agreement with the words said exteriorly. Therefore he has an act of will of voluntarily transferring both his body and the right over his body, just as another does who is in no way coerced. Therefore when, by act of will he transfer dominion, he transfers the power of his body to her, and consequently, when the power over his body has, by act of his will, been thus transferred to one woman, power for another woman does not remain with him.

35. Again, if someone contract matrimony from fear of mortal sin, he would simply contract it, as being by divine precept or by precept of a man who was superior (if he could prescribe it); and yet fear of mortal sin is thus fear and does happen thus to a man of constancy, just as does fear of any pain, indeed much more so. Or like this in logical form: if coercion from fear command matrimony, then a greater fear would command more; but he who makes a contract from fear of mortal sin contracts it on account of a greater fear, because from fear of a greater evil than if he were to make a contract because of any fear of pain; therefore such a one would make a contract - which is false.

36. Again, one can and should fear evil not for oneself but also for one’s neighbor;     therefore if evil either of sin or pain threatens this woman (evil of sin, as when she says, asserting firmly, that she would at once prostitute herself unless she be conducted into matrimony; evil of pain, as if she for certain say that she will kill herself, or another says he will kill her, unless she be conducted into matrimony), then the man, so as to avoid all these evils, accepts her. It seems that this is a contract of matrimony, and yet here there is fear; therefore etc     .

4. Solution of the Doubts

37. For the solution of this question [sc. from the preceding doubts, nn.34-36], an argument could be taken from the sacrament, because free intention is required in ministering this sacrament; but this fact is not as known as the fact about the freedom required for a contract.

38. [Solution of the first doubt] - As to the first [n.34] I concede that he who is threatened by this fear of sin, or of death, or of prison, should, according to reason, say the matrimonial words that are exacted of him, and so, consequently, he should consent interiorly in agreement with the words. Indeed, he is also bound, by necessity of safety for the moment, to have such a ‘to will’ and such an interior consent, just as he gives expression exteriorly in words, if such words he should give expression to. Nor yet does he by this consent transfer power over his body to another, because no consent makes a transfer in this way save a purely free one.

39. And if you say ‘this man at least freely has an act of will, therefore as far as in himself he does make the transfer’ - I reply: he does not freely have the act, because he has it only from fear, though the fear not be the sufficient efficient cause, but a cause strongly inducing him, just as he does not freely speak the exterior words, because he speaks from fear. Or it could be said that although by such ‘to will’ he does, as far as his own part is concerned, make a gift to the other, yet God, who is the superior lord in this transfer, does not ratify it unless it is purely free.

40. But from this it could be argued, against the aforesaid that, from the fact he knows he is not transferring his body (because he is not freely consenting), and he shows by an exterior sign that he is transferring, then he lies.

41. I reply: he shows he is transferring as far as it is in himself, though he knows he is not transferring, because he knows it is not ratified by the superior.

42. If therefore you say that then he should say, so as not to be lying, ‘I accept you for mine if the Lord permit it’ - I reply: this condition is always understood however absolute the speech, and his absolute word must in this way be understood, ‘I accept you for mine (supply: ‘as far as is in me, on presupposition of this violence’), and if God were - through such consent as I now have - to ratify that a handing over is taking place, I would hand over my body to you, and I do hand it over, as much as I can hand it over through such consent’.

43. [Solution of the second doubt] - As to the second, about obedience [n.35], some say that, just as one can be coerced into accepting some prelacy, and in every spiritual contract one is bound to obey - as a bishop, coerced by obedience, is bound to accept the church of which he is the spouse (whether it be so about a Religious, let me not here say) - so can someone be coerced in a matrimonial contract to give consent to such and such woman.

44. However I reply otherwise, that someone coerced by obedience to make a contract, and who does thus make it through fear of mortal sin, contracts it so he may keep justice, and therefore, he does so from the fact that no one is compelling him exteriorly, but he himself, by his own inclination and affirmation of justice, is interiorly inclined, by pure choice, to this sort of contract.The Vatican Editors note the following addition from some of the mss.: “But then it seems that the argument against the first opinion fails [n.43], because one would thus say that, having been coerced into the words by pure choice, one does consent to the words, because one has the consent by title of justice, lest one sin.” ⁸¹ And therefore I say that there is there a matrimony by choice, and he does truly make a contract. But not so if he were coerced into it by fear of pains or threats.

45. [Solution of the third doubt] - To the next [n.36], about the fear of pain or a neighbor’s sin, if only pain in the neighbor were feared it can be said that the consent, coerced by such fear, is not sufficient for matrimony, as was said before about fear of pain in oneself [n.44], because such consent would not be by a choice made in charity. But if sin against his neighbor were feared, and this fear be very certain, the perfect work would be if he were to accept her lest she would sin; and if he accept her, he would hold to the matrimony, because it would be a free consent by charity.

46. But whether he is bound to this by necessity of salvation, look elsewhere [Rep IVA d.29 q.1 n.15].