Thirty Sixth Distinction

Question One. Whether Servitude Impedes Matrimony

1. “Now about the condition” [Lombard, Sent. IV d.36 ch.1 n.1].

2. About this thirty sixth distinction I ask whether servitude impedes matrimony.

3. That it does:

No one ought to give what is another’s; but the body of a slave belongs to the master, according to Aristotle Politics 1.4.1254a12-13.

4. Again, more favorable is profession of Religion than carnal matrimony; but a slave cannot profess Religion without the will of the master; therefore not contract matrimony either.

5. The opposite:

Gregory IX, Decretals IV tit.9 ch.1 ‘On the marriage of slaves’. “As in Christ neither free nor slave is someone who should be taken away from the sacraments of the Church, so too should matrimony between slaves not in any way be prohibited.”

I. To the Question

A. Certain Prefatory Remarks about Impediments to Matrimony

6. Here I preface certain things in general about impediments to matrimony. For some impediments to matrimony are from the nature of the contract, others from the condition of the person contracting, and others are from a statute of the Church. The first impediments are about the conditions of the contract, the second about the conditions of the persons contracting.

7. Now in the persons contracting there are two conditions in general, namely impotence simply and tie to another matrimonially or by matrimonial bond.

8. The first was spoken of above, where impotence was discussed [d.34 nn.9-28].

9. The second impeding condition is contained in the verses.A mnemonic cited by several authors, as: vow, condition, violence, spiritual proximity, error, dissimilar faith, age, crime, blood, union, time. ⁹⁷ And it is plain that if one is tied to another by matrimonial bond one does not have power over one’s body and so cannot give it, because no one can give to another what he does not have, I mean in the New Law. And this will be dealt with in d.38 nn.16-19.

10. From the nature of the contract there is a multiple impediment: for one is compulsion, and this was spoken about above [d.29 nn.21-33]. Another impediment is error, and this is triple, for either it is error of person (for there should be distinction of sex, as man and woman); or it is error in condition of person (as when he intends to give his body to a free woman, and yet he or she is a slave; but a slave cannot give an equal gift to a free person, as conversely, because he does not have power over his own body, but it belongs to his master, and these matters of error impede not only the contract of matrimony but every exchange); or it is error in the contract, which is ‘I give if you give’ (for when one gives in words exteriorly and not in mind or intention interiorly but is lying, then in no way is there a contract, as was above [d.26n.36, d.30 nn.12-13]; and likewise about the other two errors). There are, therefore, three errors from the nature of the contract.

11. Another impediment is a condition repugnant to the contract, namely against procreation or education of offspring, as ‘I give myself to you such that I prevent offspring by procuring poison for sterility, or that I do not keep faith with you’; this is nothing because it contradicts matrimony and the good of it.

12. Another impediment is about a non-perpetual bond, as ‘I give myself to you not perpetually but until another comes along who pleases me more’.

13. So there are, therefore, seven impediments to matrimony: two on the part of the contracting parties and five on the part of the contract. And force or fear is another impediment, and so there are eight.

14. There are other impediments from statute of the Church, and these are three in kind: first from too close kinship on the part of the persons; second is some obligation made for divine cult; third is great crime. On account of these three reasons does the Church delegitimize certain persons.

15. By obligation to the cult of God there is a double impediment to matrimony, namely vow of continence and reception of Orders.

16. Likewise, a twofold kinship impedes matrimony, namely carnal and spiritual.

17. But the vow of continence is double, as below in d.38 nn.7-11.

B. Solution of the Question

18. Here two things are to be looked at: first, whence servitude was brought in and whether it was justly brought in; second to the issue at hand.

1. Whence Servitude was Brought in and Whether it was Justly Brought in

19. About the first, it is said that by the law of nature all are born free, yet servitude, or more properly filial subjection to the father, is more of the law of nature, namely filial obedience pertaining to disciplining, because according to the Philosopher Ethics 8.14.1161b27-30, 62a4-7, “a son has from his father being and discipline.” The servitude we are speaking of here, according to which the master can sell his slave as livestock, is that of which Aristotle speaks in Politics 1.4-7, for a slave cannot perform acts of virtue because he must perform servile acts at the command of the master; and this servitude is that one belong totally to the right of another. And this is not for the good, but the bad, of the slave, and this servitude is that of which Aristotle says that the slave is like an inanimate instrument [Politics 1.4.1253b32], and cannot be good and virtuous. Hence that servitude is not for the good but the bad of the slave, as was said.     Therefore , does the Apostle say [Galatians 4.31-5.1, 12-13, Romans 6.22], “You have become free; do not be subject to slavery etc     .” And hence this servitude was brought in only by positive law.

20. But how is it just? I reply: as was said in d.15 nn.93-110 about the way ownerships began to be just, so I say that this base servitude cannot be justly brought in save in two ways:

21. In one way, because such person voluntarily subjects himself to such servitude; but such subjection is vain; indeed, it is perhaps against the law of nature for a man to renounce for himself his liberty; but after it has been done, it is necessary to serve, because this is justice.

22. In another way, if some master of a community, seeing some to be so vicious that their liberty is harmful both to themselves and to the republic, can justly punish them with the penalty of servitude - just as also he could kill them in certain cases for the good of the republic.

23. If you say that there is also a third cause of servitude, as when being captured in war one is preserved alive, and thus, being preserved from death, one become a slave deputed to serving - I doubt this, unless it be said that a slave was there preserved alive. Nor does justice manifestly appear here because, although the captor could have justly killed the captive, if his war was just, by defending himself but not by invading (and this while the persistence of the one fighting back remains), yet from when he ceases to be persistent, because he is now a captive within one’s will, it seems inhuman to inflict a penalty on him against the law of nature. For there is not the same reason here as in the second case [n.22], because perhaps he would not remain rebellious nor abuse his liberty, but would perhaps become obedient and use well the liberty given him.

24. If it be argued against the first member [n.21], that servitude, to be sure, is not against the law of nature, because, according to the Philosopher, Politics 1.2.1252a31-35, he who excels in mind should rule, he who excels in strength should serve; but some naturally excel in mind and some are less prudent in mind and more robust in body; therefore some are naturally fit for lordship and some naturally fit for being slaves; therefore they ought naturally to be slaves (there can be an example for this in the members of the human body, where some naturally serve the principal part) - I reply: this instance is worthy of note, for this is not to be understood of the extreme servitude that we were just now speaking of, but only of political servitude, whereby an inferior is disposed by a superior, and not however as something inanimate but the way one who is less vigorous in mind is ordered through him who excels more in mind.

25. If you argue against the second [n.22], that thus all servitudes that now exist would be unjust,An odd remark because penal servitude, which the second case is about [n.22], hardly seems unjust. Perhaps the idea is (as Scotus’ remarks agreeing with the objection, and in n.26, suggest) that since most slaves now, in Scotus’ day, were slaves by being born slaves, then while their criminal forebears may have been justly slaves, the innocent descendants are not. So these descendants at least are unjustly slaves; for time does not pass the crime from parent to child, but rather shows that crime to be a crime. ⁹⁸ because what is against the law of nature can never be made just, for antiquity of time does not ratify crimes but rather condemns them; all servitude other than these two cases is unjust and against the law of nature; therefore through no length of time does it seem to be just that a master be justly master over such slaves. - I reply: it was touched on above, d.15 nn.105-110, how right can be acquired through prescription, if the other conditions that rights determine are concurrent, namely that he acquire it by just title and that the possessor be of good faith and that he possess it without interruption in the time determined by the law. But this point extends itself to possessions and not to servitude, because the reason for possessing gold is not the same as for possessing a slave, as far as concerns the law of nature; and it would be difficult by prescription to save the justice of detaining such slaves, unless it be presumed that they were made slaves from the beginning in one or other of the two ways.

26. If you object, why then did the Apostle bid such slaves to obey their masters? - I reply: many obligations are unjust on the part of those by whom they are made, and yet, after they have been made, they are to be kept. Hence the Apostle, showing servitude not to be laudable in itself [Ephesians 6.5-8], and much less the detention of anyone in servitude, says [I Corinthians 7.21], “If you are called a slave, let it not be of concern to you; but if you can be free, use it rather.”

2. Application to the Issue at Hand

a. Opinion of Others and the Weighing of It

27. About the second article [n.18]: some say [Thomas Aquinas, Sent. IV d.36 q.1 a.2, arg.2 contra] that a slave can contract matrimony against the will of his master - and this from the preceding article [n.24], because matrimony is of the law of nature and servitude is not, but is rather against the law of nature; and what is of the law of nature is not taken away because of anything that is only of positive law.

28. Another reason is set down [Aquinas, ibid. Richard of Middleton, Sent. IV d.36 princ.4 q.1], that a slave does not so belong to his master that he does not have his own right as concerns natural acts pertaining to preservation of the individual; for it is plain that he can use things necessary for life; therefore, by similarity, as concerns acts pertaining to the preservation of the species. The proof of the consequence is that the preservation of the species, since it is a greater natural good, belongs more to the law of nature.

29. Or in this way: a slave cannot be a brute; hence every man has, as to some acts, his own right, nor can he make himself a slave as to those acts (rather nature would make him so free [as to those acts] that he cannot make himself slave); and of such sort are natural acts that are for the preservation of the individual and also for the preservation of the species, and he cannot obligate himself to any master against these acts; but he can obligate himself so as to be bound to a master as to later acts.

30. These reasons can be solved:

First because an obligation that is not of the law of nature can well impede some liberty that belongs to someone of the law of nature; and so it is here. An example: by the law of nature I owe you nothing, yet if I vow obedience to you I am bound to obey you. Now matrimony is not of the law of nature except secondarily, as was said above [d.26 n.31]; and it seems to be just as much of the law of nature to render to each his own; therefore, from the fact that he has by an obligation made himself to be slave of a master, he is bound to render the master the master’s own, and bound to be held back from that which impedes such rendition, although that other impeding thing would, secondarily according to the law of nature, belong to him when not obligated.

The second reason is not probative, because it is manifest that not everyone who is bound to preserve the individual is bound to multiply the species.

31. And if you say that at any rate it is so licit for him that the fact it is licit for him cannot by man be taken away - this is true in a case of necessity, where the preservation of the species would depend on his act. But because many who are not slaves are intent on generation even in the Christian Law, therefore the act of the slave pertaining to this is not necessary for the preservation of the species, and therefore it is possible by some obligation to preclude him from it. Hence if an obligation to later acts impede prior acts which are not simply necessary for the procreation of offspring, then it does not seem that, because of such non-necessary and prior acts, he must set aside the posterior acts that belong to his master; for the procreation of offspring through him does not seem to be a necessary act simply, because the human race can be multiplied and offspring procreated through others. - There is a confirmation, that before matrimony he is bound to certain acts, as to a, b, c; if he contract matrimony, there will be an obligation to something that is impossible with the b or c; therefore that obligation cannot justly be made, because therein what is another’s is, after the obligation is made, taken away.

b. Scotus’ own Solution

32. I say, therefore, to this article [n.18] that a slave can, by the will of his master, contract matrimony; and if the burden of matrimony be something repugnant to the accustomed services, the master, by letting him contract, implicitly relaxes the accustomed services for him. And if the master afterward revoke the concession (as by totally preventing him from carnal union or sending him to far-off parts or detaining him in labors so that he cannot visit his spouse sometimes), he would commit mortal sin, and also he would manifestly have to be corrected by the Church.

33. A slave can also contract against his master’s will insofar as he has some right over his own body; for he has not deprived himself of all liberty for all acts; and insofar as his body is his, he can make exchange with another. But if the other, whether slave or free, wish to be content with the modest liberty or power for a modest use that he knows he [the master] can give, he can well make the judgment beforehand for himself, and the exchange stands. And he does have so much power over his body when he is not occupied in the service of his master, if he contract against the master’s will; and then between such [contracting parties] there is only obligation to as much as they can give their bodies to, the master’s justice being preserved. Hence the chapter that does allow slaves to contract, Gregory IX, Decretals IV tit.9 ch.1 ‘On Marriage of Slaves’, says that a slave, if he have contracted against his master’s will, has given what he had, and is bound to fulfill his services to the master, because he cannot give to another save what he had in his power; but he did not have power simply over his body;     therefore etc     .

34. And from this follows that the slave could contract matrimony with a free woman, provided however she know his condition and to him in such condition, because then she exchanges the power of body that she has for the little that the slave has of power over his own body. And he can make a contract with a slave girl, and then it seems that both concede what they can; and as they contract so are they bound, according to justice, to render the debt, namely insofar as those acts do not hinder them from their accustomed services.

35. But let it be that in such a case, when they contract matrimony against the will of the master, one of the masters sends his slave to Africa and the other sends his slave girl to France, is it really licit to do this?

36. I say that, because a case of matrimony is a favorable thing, the masters would have to be induced not to do this; but if they did do it, it is not apparent how, on the supposition of slavery, they would be acting there against justice; because this slave was before in the power of the master to send him thither, indeed to sell him; and that slave girl was likewise in the power of her master as to some other place; and they were not able through their own acts, without the will of their masters, make themselves freer, nor exempt themselves more from the right of their masters than they were before; therefore it is still licit.

37. But if a slave girl intend to contract with him whom she believes to be free and yet he is a slave, does she really contract?

It could be said that error of worse condition does impede the contract, because it prevents the exchanger from receiving as much as that for which they intend to make the exchange; but ignorance of better or equal condition does not impede, for the same reason.

II. To the Initial Arguments

38. To the first argument [n.3], according to this final reasoning [nn.32-33], it is plain that a slave does not belong to his master as to everything, because he has his own right as to eating and drinking and sleeping, and in brief for performing whatever acts whereby his due services are not subtracted from his master; therefore since at that time he could now and then use the carnal act, he can obligate himself to it insofar as he does have his own right.

39. And as to what the Philosopher says about that cursed servitude where the slave is like cattle, it can be understood that the slave belongs to his master as possession or as money; but not because in his acts he is only led about and does not lead, for however much he is a slave, yet he is a man and so possessed of free choice. From which a great cruelty is apparent in the first bringing in of servitude, because it makes a man, free in choice and master of his own acts for virtuous action, into a brute as it were, as if not a user of free choice, nor able to act virtuously.

40. As to the second [n.4] the case is not alike, because he who makes profession in Religion submits himself totally to obedience to the superior of the Religion, and thereby he removes himself in totality from the accustomed services of his master. Not so he who contracts matrimony, but only in some acts, which can stand along with his rendering the due and accustomed services. And the Church does not want to prejudice the right of another, nor privilege anyone to the prejudice of another.

Question Two. Whether Age of Childhood Can Impede Matrimony

41. Second I ask whether the age of childhood can impede matrimony.

42. That it cannot:

Because anyone can accept a power before he can use it; therefore in a contract of matrimony, where there is a giving of use and an accepting of power, anyone can accept the power and give before he have power for the use - and so a child can. There is a confirmation, because the age of childhood does not impede the reception of Order (this was spoken of above in distinction 25 [n.75]), and yet he receives there the power to carry out the act of Order, which he cannot at that time carry out.

43. To the opposite:

Gregory IX, Decretals IV tit.15 ch.2, “A child, who is not able to render the debt, is not fit for marriage.”

44. Besides, those cannot contract matrimony who cannot transfer power over their body; but a child does not have power over his body; therefore, he cannot transfer or give it.

I. To the Question

45. I reply: as was said above, distinction 34 nn.9-10, impotence does simply prevent contracting, because in this contract there is a giving of the power of marriage, and he who does not have the power gives nothing.

46. This reason is probative about children for the time for which they are children. But because this impotence is not permanent, but future power is expected, therefore can a child now promise power for the future time at which he will have it; and this happens in betrothals, because a child can contract a betrothal but not matrimony.

47. If you say he can give it for the future - I reply: this is not to give but to promise.

48. And the response that is put there about defect of intention [d.34 n.12], whether this is adduced for the contract or for matrimony, is nothing as to b [sc. the power], because he can have discretion enough for due intention before he have the power, if intention have to be exchanged in this contract.

49. If the time of childhood be asked for, a time of fourteen years is regularly put for a male, twelve for a female; but, however, “malice sometimes makes up for age” [Code of Justinian II ch.32 n.3], and bodily complexion anticipates the regular age. And then, from the fact he has the power and sufficient discretion, he can contract, because he has what he ought to have, and sufficient consent and signs.

II. To the Initial Argument

50. To the argument and confirmation [n.42], I concede that someone can receive a power before he can use it, but he cannot give a power before he have it; and in this contract there is a giving of power.