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with the wife of his youth. He does so; and in their first access he finds her, whom he thought to be a woman, to be a eunuch: and, therefore, not a person capable of making such a contract: she did ill in contracting, but she hath done nothing at all besides that ill, for the contract is void by the incapacity of the person.
Upon this account, the lawyers amongst the causes of the nullities of marriage, reckon “error personæ,' the mistake of the person ;' though certainly this is not to be extended beyond the mere incapacities of nature, if we speak of natural nullities. Thus if I contract with Millenia whom I suppose to be a lady, and she proves to be a servant, or of mean extraction, though if she did deceive me, she did ill in it; yet if she could naturally verify that contract, that is, do all the offices of a wife, the contract is not naturally void; whether it be void upon a civil account is not here to be inquired: but by the law of nature it is void, only if by nature it cannot be consummate. a civil inconvenience or mistake the contracts of nature cannot be naturally invalid; because that is after nature and of another consideration, and of a different matter. For that a man's wife should be rich, or free, is no more of the necessity of the contract of marriage, than it is that she should be good-natured, or healthful; with this only difference, that if a man contracts upon certain conditions, the contract is void, if the conditions be not verified; and for those things which are present and actual, he can contract, but not for what is future, contingent, and potential. A man may contract with a maiden to take her for his wife, if she be free, or if she have such a portion; but not upon condition, that she shall be healthful for seven years. Because whatever condition can be stipulated for, must be actual before consummation of the marriage : afterwards it is for better or worse: the want of any such condition is not so great an evil to the man, as it is to the woman to be left after she is dishonoured. So that if it be a thing, which can be contracted for, and be actually contracted for, in the destitution of the condition the contract is void. But if there be no such express stipulation made, there is nothing can be made a nullity by nature, but that which is a natural incapacity: and, therefore, if a gentleman contracts with a slave whom he thinks to be a free woman, with a bastard whom he thinks to be legitimate, with a beggar whom he thinks to be a great heiress, the contract is naturally valid; because there is in it all the natural capacity; if she be a woman, if she can be a wife, and can be his, there is no more required to a verification of the contract in the law of nature. By the way I desire it be observed, that to separate or disannul a contract, is not the same thing with declaring it to be null of itself or from the beginning. The reason why I insert this here, -is, lest the explication of the rule seem infirm upon the account of other instances : for if a man marries a woman whom he took for a maid, and she proves not to be so, by the Mosaic law she was to be separated by death or divorce: but this is not a nullity : but a divorce may be for that cause, which was in being before the marriage, as well as for the same reason after.
The other natural cause of invalidity is when the contract is made by him, who had no power naturally to make it. This happens in case of precontracts. Spurius Fescennius woos a Greek virgin, and obtaining her consent, contracts himself to her, and promises to marry her within a certain limited time. But before the expiration of that time, Publius Niger dies, and leaves his widow young and rich, and noble; which advantages Fescennius observing, grows in love with them, and in a short time quits his pretty Greek, and marries the rich Roman lady. But being troubled in conscience about the fact, inquires what he hath done, and what he ought to do: and he was answered thus, If he was married to the Greek, he must return to her if she will receive him, and quit his new lady; because he was not a person capable , to contract with her, being married to another: a dead man may as well marry, as that a husband can marry to another, and quit that which had possessed all his former power.' For, in all moral actions, there must be a substantial, potestative principle, that must have proportioned power to the effect; a thing cannot be done without a cause and principle in morality, any more than in nature. If a woman goes about to consecrate the holy sacrament, it is xeię årupos; it is 6 an ineffective hand,' she sins for attempting it, and cannot
do it afterwards; and it were wiser and truer, if think the same thing of their giving baptism, unless they will confess that to baptize children is a mere natural and secular action, to which natural powers are sufficient; or that women have received spiritual powers to do it; and that whether a priest or a woman does it, is no difference, but matter of order only. If an effect be spiritual, the agent must be so too; if the effect. be gracious and precarious, so must the active cause; thus it is in contracts, and donations, which cannot be done without the power of him that does it. But he who hath already given away his power, hath none to act withal: he cannot do one action twice.
But this is to be understood only after the actual cession of the power and active principle; not after promises, but after possession. Therefore, if Fescennius was only contracted or promised for the future, though he sinned grievously in afterwards contracting with the other, yet it is valid. For a promise takes not away our dominion in a thing, but obliges us to use it in a certain manner. Bartolus.appoints his cousin Ancharanus, to be his proctor at a synod, and promises that he will not revoke the deputation : but afterwards does; he is a breaker of promise; but the revocation is good. So it is in testaments, and so in promises. For, if, after promise, we have no right in the thing which we have promised, then we have no power to perform it; but if we have a right, then the after act is valid, because it hath a natural potestative cause; but if the power be past from us, as if Fescennius were married to the Greek, he had not himself to give; for as he in the comedy' said of servants,
Του σώματος γαρ ουκ έα τον κύριον
Κρατείν ο δαίμων, αλλά τον εωνημένον. “ The man hath not power over his own body, but the master hath ;" so hath the wife over the husband, and therefore he hath nothing now to give, and if he does, he does nothing; the man loses his honesty, but the wife does not lose her right. But of the instance I am to speak in its own place. Here only I am to consider the general rule and its
a Aristoph. Plutus. 6. Brunck.
When an Act, is forbidden by the Law of Nature for the Turpi.
tude and Undecency that it hath in the Matter of the Action, the Act is also void, when the Turpitude remains or hath a perpetual Cause.
He that contracts a marriage with his father's wife, or any marriage, in which every illicit act is a new sin, hath not only sinned in making the contract, but the marriage is void by the law of nature; and the reason is, because no man can bind himself to sin; so that here also there is a defect of power : no man can bind himself against God; and the law of nature, whose prime rule is to do good and to eschew evil, cannot verify an act, which prevaricates her greatest principle. Nature cannot give leave to sin against nature; it were a contradiction : for then the same thing should be according to nature, and not according; and this is expressly affirmed in the lawa; “ Quod leges prohibent, si perpetuam causam servaturum est, cessat obligatio: ut si sororem sibi nupturam aliquis stipuletur.” He that promises to marry his sister is not bound to verify it; and if he have done it, he is bound to quit her, because every act of conjunction with her is incestuous, and a state of sin cannot be consented to, nor verified by nature, who is an essential enemy to it.
This is to be understood only in things forbidden by the law of nature, the eternal law of God, or his positive temporary law; but is not true in things forbidden only by men: the reason of them both is, because no man hath power to contract against a Divine law: but if he have contracted against a human law, his contract is established by a Divine law, and is greater than the human, where the Divine does not intervene by some collateral interest. The law of the church of Rome forbids some persons to contract marriage; and yet if they do, the contract is valid; because the persons being naturally, or by Divine law, capable of contracting, they only sinned who entered against law or leave, but they sinned then only; for the after-actions, being no sins, cannot be invalidated.
• L. si stipuletur. de tab. oblig.
And yet if the contract be made against a Divine law, it is not invalid, unless the Divine law have a perpetual influence upon the state, or renewed actions. If a Jew did buy and sell upon the sabbath, he sinned against a Divine law; but his contract is valid. He that contracts with a woman of fornications, and lies with her for a price, hath sinned in so doing, but is bound to pay her the price of her lust: because nothing here is against the Divine law but the fornication; but the contract being extrinsical to the nature of the sin, is not made null by that sin: but that which is intrinsically evil, is for ever so, and therefore must be broken in pieces.
In all other cases, whatsoever is forbidden by the law of nature, is a sin, if it be done, but it is valid and effective to all purposes of that law. It is against the law of nature to take a great price for a trifle, but if it be contracted for, it must be paid. If a thief makes me promise to pay him twenty pounds the next day; though he sinned against a natural law in doing me that violence, and exacting of me that promise, yet the stipulation must stand.
The sum is this; wherever there is power, and will, and, in the permanent effect, consonancy to the prime measures of nature, there, the actions are valid, though they entered at the wrong door.
But, he that wants power, let his will be ever so strong, it effects nothing without: it is just like the king that commanded the waves of the sea not to come to the foot of his chair; they came for all his will to the contrary.
He that wants will, wants also an integral part of the constitution of the act, and does nothing.
But when he hath a natural and legal power, and an effective will, yet if the whole state or the after-actions dwell in sin, it cannot be permitted by nature, but must be turned out of doors.
The Law of Nature can be dispensed with by the Divine
Power a. I am willing publicly to acknowledge, that I was always, since I understood it, a very great enemy to all those ques
* Vide reg. 1. n. 43, 44, &c.