Article VI: On Abduction and Crime

S. Th., Suppl., q. 60, a. 2.

894. Matter to be treated. - This double impediment has this in common, that each arises from a special delict. The first, namely abduction, was introduced by the Council of Trent, sess. 24, de ref., c. 6, for guarding the full liberty of matrimony; - the other, already existing for many centuries, but amplified and more defined by the decretals, and again confirmed, arises from a qualified crime, namely from adultery or spouse-murder, perpetrated under certain conditions; and this was introduced by the Church in order that provision be made for conjugal fidelity and for the safety of spouses, so that, all hope of union having been taken away, she might deter from these crimes and also justly punish them when committed.

895. Abduction (enlevement; gewelddadige ontvoering, schaking), as it is an impediment of matrimony, is defined: The violent abduction of an unwilling woman under the power of another, for the sake of entering matrimony. It is said:

1° Abduction under the power of another, under which name comes not only a transfer from place to place morally different, but also detention under the power of another, which is morally equivalent to abduction.

What formerly could be disputed is now certain from can. 1074, § 3: "As regards the nullity of matrimony, violent retention of a woman is held equal to abduction, namely when a man violently detains a woman, with a view to matrimony, in the place where she stays or to which she has freely gone."

2° Of an unwilling woman, not of a man, because the law regards that which happens commonly, not that which happens rarely and exceptionally, and because the liberty of a woman, as of the weaker one, is more to be protected.

Moreover, woman is understood as any woman whatever, whether virgin or corrupted, whether of minor or major age, whether betrothed or widow, whether honorable or dishonorable or infamous.

3° Violent, namely by physical force, or moral force as by threats and grave fear, the woman, namely, being unwilling and resisting.

It is necessary that violence be inflicted on the woman herself in order to matrimony; hence a) force inflicted on parents does not suffice; b) nor does it suffice that the woman, induced by flatteries, importunate prayers, gifts, or false promises, voluntarily follows, which is called abduction of seduction, because it is more flight than abduction; c) nevertheless it does not matter whether the abductor by himself or through another violently abducts the woman, or whether with himself or with another he retains her in his power: in which case the one commanding contracts the impediment, but not the mandatory; on the contrary, if someone without mandate acts for another, there is no impediment; d) it is not required that the woman be unwilling as regards the abduction itself or detention; it suffices that she is so as regards only the matrimony to be entered.

4° For the sake of entering matrimony, but not some other end, even the worst, as revenge, or even satisfying lust: thus abduction, as it is an impediment of matrimony, differs from abduction which is a species of lust.

Nevertheless, the impediment is present if a woman who first was abducted on account of the cause of lust is afterward detained unwillingly by force with a view to matrimony.

896. Principle I. Between a male abductor and a woman abducted with a view to matrimony, as long as she remains in the power of the abductor, no matrimony can stand. - Thus can. 1074, § 1, confirming the Council of Trent, l. c.

A threefold condition is required for contracting the impediment: violence, abduction or detention in a place under the power of the abductor, and the intention of entering matrimony. Once these have been fulfilled, the impediment exists only between the abductor and the abducted woman, and indeed as long as she is in the abductor's power; for by the very fact that the woman is endowed with liberty the impediment ceases, whence can. 1074, § 2: "But if the abducted woman, separated from the abductor and constituted in a safe and free place, has consented to have him as husband, the impediment ceases."

The impediment is of ecclesiastical law: for although grave fear is for the most part joined with abduction, nevertheless the impediment of abduction does not diriment matrimony by reason of fear, but is a distinct impediment, which exists as long as the woman is constituted under the power of the abductor, although she consents to the union spontaneously and freely.

897. Crime (crime; misdaad of misdrijf), which is an impediment of matrimony, consists in the injury which both, who intend to enter matrimony, inflict upon the matrimony of one of them already existing, or in qualified complicity against the honesty of marriage.

It arises from a threefold crime and therefore is in reality a threefold impediment:

1st on account of adultery alone with promise or attempted matrimony,

2nd on account of adultery with spouse-murder committed by one,

3rd on account of spouse-murder alone committed by common action.

It is customarily denominated the impediment from the death or killing of the spouse, and therefore respectively is said to be contracted either with neither plotting or perpetrating; - or with one plotting and perpetrating; - or with both plotting and perpetrating.

For, as St. Thomas says, q. 60, a. 2:

"1° In that in which someone sins, he must also be punished. But he sins against matrimony who kills his wife (or commits adultery). Therefore he ought to be punished so that he be deprived of matrimony.

2° Wife-murder from the statute of the Church impedes matrimony... and... sometimes diriments it when contracted: as when someone kills his wife in order to marry her with whom he commits adultery. For then he becomes an illegitimate person simply for contracting with her, so that, if in fact he has contracted with her, the matrimony is dirimented. But through this he does not become simply an illegitimate person with respect to other women."

898. Principle II. Those cannot validly contract matrimony who, while the same legitimate matrimony endures, have consummated adultery between themselves and have mutually given faith to each other concerning entering matrimony, or have attempted matrimony itself, even only by a civil act. - Thus can. 1075, 1°.

The conditions required for the impediment are:

A. On the part of adultery, that it be true, formal, and consummated.

1° Let it be true, so that at least one accomplice is bound by a valid matrimony.

2° Formal on the part of each, i.e., so that each knows the conjugal state of at least one and the same accomplice, and thus injury is inflicted upon one and the same matrimony.

3° Consummated by perfect copula by which otherwise matrimony is consummated; moreover, copula once had is presumed perfect.

B. On the part of faith given or promise, that it be true, free, absolute, and mutually given and accepted; or there is an attempted matrimony.

1° Let it be true and serious, not feigned or jocose. For an irritating law is of strict interpretation (can. 19), whence any fiction, even merely internal, seems to stand in the way of the impediment being present.

2° Free, not extorted by grave fear or deceit, nor vitiated by substantial error.

3° Absolute, not merely conditioned, unless the suspensive condition was fulfilled before the death of the spouse, because then the promise has already passed into an absolute one.

4° Mutually given, as now is certain from the tenor of the canon, and accepted by word or sign; hence it does not suffice that one party promise, if the other behaves negatively, a fortiori if he rejects it.

5° Or an attempted matrimony, by which, conscious of the impediment of ligamen, they truly and seriously furnish conjugal consent mutually to each other, although invalidly: it matters little by what pact the attempt is made and in what form, whether public and prescribed by the code, or wholly clandestine, or merely civil.

C. On the part of the circumstances, that the promise or attempted matrimony and adultery are knowingly done while the same union stands, so that they simultaneously violate the fidelity owed to the same spouse, 1 whether the promise or attempted matrimony precedes the adultery, or follows it.

Hence the impediment does not arise if the promise accedes to adultery after the death of the spouse, or if it was made while the first spouse was living and the adultery was committed while the second was living, or vice versa; or if, made previously, it was retracted before the adultery and this was notified to the accomplice, and not repeated after it; - on the contrary, if it was retracted after the adultery, the impediment which has already been contracted does not cease.

1. There are those who require the promise to be injurious to matrimony both materially and formally. Hence if an adulterer with the wife's sister should afterward only promise matrimony to her before the wife herself while dying, and indeed with the wife consenting and entreating it in favor of the offspring born, the impediment would not be present. Thus De Smet, o. c., n. 659, and Marc, Th. M. II, n. 2033. But Prummer, Th. M. III, n. 824, does not admit this, because the consent of the spouses does not take away the injury inflicted upon matrimony.

899. Principle III. Those cannot validly contract matrimony who, while the same legitimate matrimony likewise endures, have consummated adultery between themselves and one of them has perpetrated spouse-murder. - Thus can. 1075, 2°.

The conditions required for contracting the impediment are:

A. On the part of adultery, that it be true, formal, consummated, as was said in the preceding number.

No promise or attempted matrimony is required.

B. On the part of spouse-murder, that from the plotting of either of the adulterers death has followed, whether one's own spouse is killed or the spouse of the accomplice.

Therefore it is necessary: 1° That the death of the spouse be plotted by either of the adulterers, by physical or moral action, and indeed from the intention of contracting matrimony with the accomplice of adultery, probably also, according to several, manifested to that accomplice; which intention, however, is presumed in the external forum; but not that both conspire in the killing.

2° That death really follows from the action; not from another cause, even if it is approved or ratified.

3° That adultery precede the act which is the cause of death.

C. On the part of the circumstances, that they be done while the same legitimate matrimony endures.

Namely, the spouse upon whom death is inflicted must be the same one who was the spouse at the time of the adultery committed.

900. Principle IV. Those cannot validly contract matrimony who by mutual physical or moral action, even without adultery, have brought death upon a spouse. - Thus can. 1075, 3°.

The conditions required for incurring the impediment are:

A. On the part of the plotting, mutual conspiracy, so that, namely, each has plotted the killing of the other's spouse.

Hence ratihabition or approval of a killing perpetrated by the other does not suffice.

B. On the part of spouse-murder, the death of a true spouse truly having followed from the cooperation of each accomplice, whether physical or moral.

Nevertheless it is not required that they cooperated by the same positive action, but it suffices that one counsel or consent to the other physically acting; indeed even if neither cooperates physically, but each only morally and through another, e.g., by mandate or efficacious counsel, causes the death.

C. On the part of the end, that it be done from the intention of entering matrimony with the accomplice.

For the end of the law is lest anyone kill his own or another's spouse in hope of matrimony. Therefore it is required that at least in one accomplice there be the intention of matrimony and that it be manifested to the other; which is presumed in the external forum.

901. Observations. - 1. The impediments are of ecclesiastical law; hence the Church can dispense in them. Nevertheless she very rarely dispenses in the impediment of abduction and not unless the free consent of the woman is established, concerning which, so that it truly be emitted freely, it will belong to the pastor to take care; likewise in spouse-murder by one or both plotting, especially public. In adultery alone dispensation is more easily given, for avoiding scandal; indeed, in a dispensation over ratified non-consummated matrimony, and in the permission given by the Supreme Pontiff - not likewise by the Ordinary - to pass to other nuptials on account of the presumed death of the spouse, there is implicitly contained a dispensation over this impediment, but not from others (can. 1053).

When danger of death urges, for a grave cause, dispensation is conceded over all.

2. Unbelievers are not subject to these impediments while they contract among themselves, even if afterward they are converted, unless the civil law established the same thing. But if one party is faithful and contracts the impediment, the unbeliever is indirectly reached by the impediments: thus not only for abduction, because the law renders the abductor and abducted incapable; but also for crime, provided the faithful party fulfills all the conditions required for the impediment, but not if the unbeliever alone did it. Thus, for example, if a faithful person, matrimony having been promised, committed adultery with an unbeliever, or if he perpetrated the killing, or was a participant in the plotting.

3. Ignorance of the impediments, as of irritating or incapacitating laws, does not excuse from them; which now, on account of can. 16, § 1, is altogether certain, even concerning crime, concerning which before the code there was dispute.

4. The impediments can be multiplied, the cause of another impediment being multiplied. Thus:

a) by reason of a diverse crime against the same matrimony, as if to adultery with promise of matrimony there is added an attempt of this matrimony or spouse-murder;

b) also by reason of multiple matrimony, as if both are married and commit adultery or each kills the spouse; or if one successively enters two unions and during each commits adultery with a third person, promising matrimony to that person.

But they are not multiplied from the same delict numerically multiplied against the same matrimony.

5. In practice: If the impediment of abduction should cease, nevertheless the pastor should not assist at the matrimony without consulting the Ordinary, to whom it will belong to judge whether it has truly ceased and whether the woman is in a safe and free place. But concerning the impediment of crime the pastor or confessor should not inquire unless a prudent suspicion is present; those are suspect who in the time of a prior matrimony fell into adultery, and those who after the death of the spouse without delay pass to new nuptials with a person belonging to the house or family, especially if the prior spouse before death had been sick for a long time. To investigate this, one can prudently ask: whether, while the prior spouse was living, he already had association with that person, or acted too familiarly, whether he much desired the nuptials, whether he had become weary of the prior spouse, wished for that spouse's death, gave any cause to that spouse's death, etc.