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.