Point XIII. On the Impediment of Abduction

857. • Abduction is the violent carrying away of a woman from a safe place to another place where she is detained under the power of the abductor ¹, for the purpose of entering matrimony.

¹ It is the same whether the abductor carries out the abduction himself or through others, and likewise whether he retains the abducted person in his power by himself and in his own custody or through others and in their custody. This is gathered from a Declaration of the Sacred Congregation of the Council of June 25, 1864, which can be seen in the Roman Acts, volume 1, pages 15-25. But one who abducts for himself incurs the impediment, not those who abduct for another, although the latter can otherwise incur penalties decreed against abductors both by civil and Canon law. See Schmalzgrueber, book 5, title 17, no. 20.

Abduction invalidates matrimony by ecclesiastical law between the abductor and the abducted woman. This is established from the Council of Trent, session 24, chapter 6.

Three conditions are required for incurring that impediment, namely: 1. that the abducted woman be carried away from one place to another; 2. that the woman be abducted solely for the purpose of matrimony; 3. that the abduction occur while the woman resists ², or is altogether unwilling. This is gathered from the text of the Council of Trent ³. - St. Ligorius, no. 1107.

² It makes no difference whether the woman is carried away from her own home by force or, led about by deceit, unknowingly comes into the power of the one plotting the abduction; likewise, whether she is carried away from her own dwelling or, having been led from it through fraud, is thereafter prevented from being able to return to it freely. For free consent is equally absent both if through open force and if through fraud she is no longer permitted to be in her own power. See the Declaration of the Sacred Congregation cited in the preceding note.

³ The text of the Council of Trent cited by the Author does not in fact add this condition, that the woman be carried away altogether resisting and unwilling. The Doctors, however, are commonly accustomed to infer it from the fact that the Council speaks of that abduction by which the liberty of matrimony is injured. See Schmalzgrueber, book 5, title 17, no. 35. But liberty of consent appears sufficiently present when the woman consents to her abduction.

Nevertheless, this doctrine can easily be reconciled with the opposite opinion if a suitable distinction is employed. For the abduction of a woman consenting to her own carrying away can occur in two ways: first, when negotiations concerning nuptials with the abductor preceded and the woman consents to her own carrying away so that the marriage which otherwise was impeded can be entered. Then no impediment arises, since it ought rather to be called flight with the man for freely contracting matrimony than abduction. Second, when no negotiation concerning nuptials had preceded; and then the woman's consent to her own carrying away is presumed to have been extorted through deceit. Since consent to matrimony cannot be inferred from consent to the abduction, the abduction of the woman, although willing, is included in the decree of the Council. See Riganti on Rule 49 of the Chancery, no. 79 and following.

These things are brilliantly confirmed from Declarations of the Sacred Congregation which you have collected in the Appendix inserted in the first volume of the Roman Acts, beginning at page 54. From these the Author of the Appendix draws the following conclusions: I. an abduction which falls under the decree of the Council is not present when negotiations concluding the matrimony to be entered precede the abduction. For in this case the man has a right to have the woman espoused to him, and the woman is bound to consent to the matrimony. II. Nor is this abduction verified if, without deceit, the man carries away the woman by agreement because negotiations concerning the matrimony could not be concluded on account of the opposition of the parents. III. Nor is abduction verified if not the man but the woman solicited the man to carry her away. In these two cases it must rather be called the flight of the woman with the man so that they may more freely contract matrimony than abduction. IV. On the contrary, abduction is verified if the woman is carried away through snares and deceitful solicitations by one planning abduction, so that afterward under the influence of the abductor she is compelled to consent to matrimony.

And the same Author deservedly concludes that whenever the woman appears to have consented to the abduction, the resolution must be taken from the circumstances considered. For if the woman consents to the carrying away so that she may contract matrimony more freely, and uses this means of carrying away to remove obstacles, it does not appear to be abduction but mere flight, although some injury is inflicted upon the dissenting parents. But if the man cannot obtain the woman's consent to matrimony by a direct way and, therefore meditating the seizure or theft of the girl, begins to circumvent the inexperienced woman by snares, deceitful solicitations, etc., so that by these arts he may extort some compliance from the fickle girl, and, having obtained it, carry her away in contempt of her parents, everyone sees that the man indeed intends to compel the girl into matrimony, while the girl, through the man's snares, in some manner adheres to the circumvention without herself seriously perceiving that she is being driven to enter a marriage which perhaps she would never have entered willingly and against the will of her parents.

And in these things there is contained that by which the following question of the Author concerning abduction by seduction may also be resolved.

858. Questions. - QUESTION 1. Does ABDUCTION BY SEDUCTION, or when a woman is induced by gifts, flatteries, etc., to follow the abductor, introduce an impediment?

Reply. No. The reason is that through the impediment of abduction the Church intends only to provide for perfect liberty of matrimony, which is not injured when a consenting woman is carried away, even against the will of her parents. - Thus commonly, according to St. Ligorius, no. 1107. Sanchez, Bonacina, the Salmanticenses, Scavini, etc., agree.

And indeed not a few French theologians contend that, at least in France, abduction by seduction invalidates matrimony by prescribed custom. But this must not be admitted, for a custom which rests only upon a false interpretation of the law cannot bind. - Compare Gousset, no. 797.

But the Declarations of the Sacred Congregation of the Council which are cited for that opinion cited in the Analecta of Pontifical Law, volume IV, page 1848 and following, concern altogether particular cases, and the circumstances are not sufficiently established, so that it can be asserted that a violent carrying away of the woman was absent. In France itself, Scavini says, the opinion teaching that abduction by seduction introduces a diriment impediment of matrimony, which had long been in force, is everywhere rejected.

859. • QUESTION 2. Are betrothals contracted while the abducted woman is under the power of the abductor valid?

Reply. A twofold probable opinion is given:

The first opinion denies it, because betrothals require liberty just as matrimony itself does; for a penal law is extended where the same reason applies. - Sanchez. - The Salmanticenses, etc.

The second opinion affirms it, and St. Ligorius with La Croix, etc., calls this the more probable. The reason for this opinion is that betrothals, since they are always rescindable, require less liberty than matrimony ⁴.

⁴ Nevertheless, since this obligation is doubtful, the Confessor cannot urge it.

860. Resolutions. - 1. The impediment is not contracted if the woman is carried away only from one room to another room in the same house, because in this manner she is not properly placed under the power of the abductor; rather, she must be carried away from one house to another.

2. The impediment is not contracted if the woman is abducted for another cause besides the end of entering matrimony, for example, for the end of satisfying lust, etc.; because the Council intends nothing else through this impediment except to favor the liberty of matrimony.

3. The impediment is not incurred if the woman abducts the man, because the Council speaks only of a man as abductor.

4. The impediment is not incurred if matrimony is contracted between the abductor and the abducted woman after she has been freed from the power of the abductor. This is clearly evident from the text of the Council of Trent. - St. Ligorius, no. 1032. But St. Ligorius rightly notes, ibid., that this impediment endures so long as the abducted woman is in the power of the abductor, even if she consents freely ⁵.

⁵ The Church renders the abducted woman incapable of contracting so long as she is in the power of the abductor; therefore her consent, however free it may be supposed, will always remain without effect.