A public crime and a matrimonial diriment impediment
Abduction.—Abduction may be considered as a public crime and a matrimonial diriment impediment. Viewed as a crime, it is a carrying off by force, physical or moral, of any virtuous woman, or even man, from a free and safe place to another place morally different and neither free nor safe from the captor's power, with intent to marry her or to gratify lust. Abduction considered as a matrimonial impediment is a violent taking away of any woman whatsoever, chaste or unchaste, from a place free and safe to a morally different place, and there detaining her in the power of her abductor until he has coerced her into consenting to marry him. Abduction as a crime is of wider scope than is the impediment, inasmuch as the former includes man-captors and intent to gratify lust, both of which are excluded from the scope of the impediment. On the other hand, the impediment is of wider import than the crime in as far as it includes all women, chaste as well as unchaste, while the crime excludes the corrupt. This difference arises from the fact that the State aims to suppress the public crime as a menace to the safety of the commonwealth, while the Church cares, directly and immediately, for the freedom and the dignity of the Sacrament of Marriage. Abduction is often divided into Abduction by Violence (Raptus Violentiae) and Abduction by Seduction, or Elopement (Raptus Seductionis). The former is when (a) a woman evidently reluctant, and not consenting either to the flight or to the marriage, is forcibly transferred with a matrimonial intent from a secure and free place to a morally different one and there held under the abductor's influence by force, physical or moral, i.e. threats, great fear, or fraud equivalent to force, as it is a well-known axiom that" it is equal to be compelled to do a thing as to know that it is possible to be compelled to do it"; (b) a woman enticed by fair words and fraud and deception consents to go with a man for other reason than matrimony from one place to another where he detains her by force or fraud equivalent to force, in order to coerce her into a marriage to which she objects; (c) a woman who, although she had already consented to a future marriage by act of betrothal, yet strenuously objects to abduction, is carried off violently by her betrothed or his agents from a free and safe place to another morally different and there detained until she consents to marry him. Some deny, however, that the raptor in this case is guilty of abduction, saying that he has a right to his betrothed. He has, indeed, a right to compel her to fulfil her engagement by public authority, not, however, by private authority. His carrying off of the woman against her will is the exercise of private authority, and therefore violence to her rights. Abduction by Seduction (Raptus Seductionis), or Elopement, is the taking away from one place to another, by a man, of (I) a woman of age or under age who consents to both the flight and the marriage without consent of her parents or guardians; or (2) a woman who, although she refuses at first, finally, induced thereto by caresses, flattery, or any allurement, not however equivalent to force, physical or moral, consents to both flight and marriage without knowledge or consent of her parents or guardians. Abduction by seduction, as defined, is held by Roman law to be abduction by violence, inasmuch as violence can be offered to the woman and her parents simultaneously, or to the woman alone, or to the parents and guardians alone; and in the elopement, while no violence is done to the woman, violence is done to the parents or guardians. On the contrary, the Church does not consider violence done to parents, but the violence done only to the parties matrimonially interested. Hence, elopement, or abduction by seduction, does not induce an impediment diriment. Pius VII, in his letter to Napoleon I (June 26, 1805), pronounced this kind of abduction no abduction in the Tridentine sense. The Church considers it, indeed, a wrong against parental authority, but not a wrong to the abducted woman.
The old Roman law (Jus Vetus), mindful of the actual or imaginary "Rape of the Sabines", dealt leniently with woman-stealers. If the woman was willing, her marriage with her abductor was allowed and solemnized by the lictor leading her by the hand to the home of the raptor. Constantine the Great, to protect female virtue and safeguard the State, forbade (A.D. 320) such marriages. The law was neither universally received nor observed. The Emperor Justinian (A.D. 528, 533, and 548) forbade these marriages and fixed the punishment, for the principal and his accomplices in the crime, at death and confiscation of all their property. Legal right to avenge the crime was given to parents, relations, or guardians; to put to instant death the abductor caught in the act of Abduction. Appeal by the victim in behalf of her abductor, on the plea that she gave consent, was denied. The law awarded the confiscated property to the woman, if she had not consented to the abduction; to her parents, if they were ignorant of, or adverse to, it, and their daughter consented to the abduction; but if the woman and her parents consented to the carrying off, then all the property lapsed to the State, and the parents were banished (Codex Just., IX, Tit. xiii; Auth. Coil at., IX, Tit. xxvi; Novell, 143; Auth. Collat., IX, Tit. xxxiii; Novell. 150).The Byzantine Emperor, Leo VI (886-912), called the Philosopher, approved (Constit. XXXV) the former laws in all particulars, with the exception that if swords or other deadly weapons were carried by the abductor and his accomplices during the abduction a much severer punishment was inflicted than if they were not carried. The old Spanish law condemned to death the abductor who also ravished the woman, but the abductor who did not ravish was let off with a money fine to be equally shared by the abducted and the State. If the woman had consented to the abduction, the whole fine reverted to the State. Athenian law commanded the abductor to marry the abducted, if she so willed, unless the woman or her parents or guardians had already received money instead. The earlier Byzantine law enjoined, but the later law forbade, the marriage. Among the Germanic nations the crime of abduction was compounded by pecuniary gifts to the parents or guardians. The Church did not accept the Roman law which declared all the marriages of the abductor with the abducted, 'without exception, entirely and perpetually null and void. She held as valid all marriages in which there was present true and real consent of the captured women. According to St. Basil (2 Canon. Epist. to St. Amphilochius, xxii, xxx, fixed date, an. 375, Post-Nicene Fathers, 2d series, VIII, Scribner's ed.), the Church issued no canons on abduction prior to his time. Such a crime was, doubtless, extremely rare among the early Christians. In the fourth century, as men grew more audacious, the number of wife-captors became exceedingly numerous. To check this, the Church in several particular councils, besides the punishment of service, confiscation of goods, and public penance, decreed sentence of excommunication (to be judicially pronounced) against laics, and deposition from ecclesiastical rank against clerics, who had violently carried off, or helped to carry off, women. Pope Gelasius (496) permitted the marriage of the abductor with his captive if she was willing, and they had been betrothed, or had mutually discussed their future marriage prior to the abduction. Antecedent to the ninth century, however, the canons make no mention of abduction (raptus) as a matrimonial impediment, either diriment or impedient. In the Western Church, at least from the ninth century, the marriage of the captor with his captive, or any other woman, was perpetually prohibited. This was not, however, the universal church discipline, but rather the discipline peculiar to those nations among whom the absence of strict laws made abductions more numerous. The bishops of the Frankish nation felt the necessity of severe legislation to meet the evil, and therefore, in many particular Councils, e.g. Aix-la-Chapelle (817), Meaux (845), etc., issued stringent canons which continued as the peculiar law of the Franks until it was abolished by Innocent III. Furthermore, the impediment was impedient, not diriment (according to the most common opinion). Marriages celebrated in opposition to the prohibition were held to be valid, although illicit. The Council of Meaux (845) forbade the abductor ever to marry the rapt woman, but permitted his marriage with any other woman after he had performed the prescribed public penance. Gratian ("Decretum Caus.", XXXVI, quaest. ii, ad finem) inaugurated a milder discipline. He, relying upon the (supposed) authority of St. Jerome, taught that an abductor ought to be allowed to marry the abducted, provided she was willing to have him for a husband.
After the publication of his decree in the twelfth century, this milder discipline was generally observed and met with the approval of many popes. Finally, Innocent III ("Decret. Greg.", lib. V, tit. xvii, cap. vii, "De Raptoribus") decreed for the universal Church (especially aiming at the perpetual prohibition by the particular councils) that such marriages might take place as often as a prior reluctance and dissent on the part of the woman should change to willingness and consent to the marriage, and this (according to the common interpretation) even if the woman was in the power of the captor at the time she consented. This decree practically did away with the impedient impediment of abduction, which was merged into the impediment of vis et metus. The Innocentian law continued to be the ecclesiastical discipline up to the sixteenth century. The Council of Trent introduced an entirely new discipline. To guard the liberty and dignity of marriage, to show its detestation of a horrible crime dangerous alike to the purity of morals and the peace and security of society, and to bar the criminal from gaining the result intended by his crime, the Fathers decreed: "between the abductor and abducted there can be no marriage, as long as she remains in the power of the raptor; but if the abducted, having been separated from the abductor, and having been placed in a safe and free place, consents to have him for a husband, let her marry him; yet, notwithstanding, the abductor with all his advisers, accomplices and abettors, are by the law itself excommunicated and declared forever infamous, incapable of acquiring dignities, and, if they be clerics, deposed from their ecclesiastical rank. Furthermore, the abductor is bound, whether he marries the abducted or not, to dower her with a decent dowry at the discretion of the judge" (Concil. Trid., Sess. XXIV, vi, "De Reform Matrim."). This law was to take immediate effect, requiring no promulgation in individual parishes. Such also is the law in the Oriental Churches (Synod. Mont. Liban., 1736, Collect. Lacens., II, 167; Synod. Sciarfien. Syror., 1888). The difference between this law and that of the Decretals (Innocent III) is evident. According to the Decretals, the woman's consent, given even while she was in the raptor's power, was deemed sufficient. The Council of Trent does not consider such consent of any avail, and requires consent given after the woman has been entirely separated from the control of the raptor and is dwelling in a place safe and free from his influence. Should she desire to marry him, the marriage may be celebrated, the priest having first obtained permission from the bishop (according to some) whose duty it is to testify to the cessation of the impediment and that the dowry prescribed by the Council has been made over and is subject to the sole use and discretion of the abducted. The general law of the Church does not require the aforesaid bishop's permission, but individual bishops can and do make laws to that effect. The Council of Trent by this law safeguarded the freedom of marriage (I) on the part of the man, by allowing him to marry the abducted woman, and (2) on the part of the woman, by protecting her from being coerced while in the abductor's power into a marriage against her free will and consent. This impediment of abduction (raptus) is one entirely distinct from that of vis et metus. The latter entirely looks to the freedom of consent; the former, to the freedom of the place where true consent must be elicited. Of ecclesiastical origin, this impediment is temporary and public, and does not bind two unbaptized persons unless the civil law of their country invalidates such marriages. It does, however, govern the marriage of an unbaptized abductor with a Catholic abducted woman, and vice versa.
Amidst the conflicting opinions of canonists and moralists as to whether abduction by seduction, abduction of a betrothed, abduction of a minor against the will of her parents, or the abduction of a man by a woman, induces the impediment or not, it is necessary to remember that this impediment is of Tridentine origin, and therefore the Council of Trent was sole judge of the necessary conditions; that the Roman or any other civil law or any prior ecclesiastical law had nothing to say in the matter; that the question under investigation was the impediment, not the crime, of abduction; and that in rebus odiosis, which this is, the words of the Council of Trent must be strictly adhered to and interpreted. Four elements are essential in an abduction in order to induce thereby the Tridentine diriment impediment, to wit: (I) a woman; (2) change of locality; (3) violence; (4) matrimonial intent.
(I) Any woman, whether moral or immoral, maid or widow, betrothed or not, even a public woman, may be the object of a violent Abduction inducing the Tridentine impediment and punishment. Lessius, Avancini, and others hold that a man is not guilty of abduction who carries off his betrothed. The Council of Trent makes no exception, hence we should not. The abduction of a man by a woman is not included in the Tridentine law. The contrary opinion (De Justis and other earlier authors) is at variance with the language of the Council, which always speaks of the raptor, but nowhere of the raptrix. A woman can be guilty of the crime of raptus; but the question here is not about crime, but about the Tridentine impediment. She may be an agent or accomplice of the abductor and, as such, incur the penalties decreed by the Council; but it does not admit her as raptrix.
(2) Change of Locality.—Two places are necessary to an abduction—one, the place from which, the other, the place to which, the reluctant woman is violently taken, and in which she is also violently detained. These two places must be morally (some say physically, some virtually) different—the one, from which may be her own or her parents' home, where she is a free agent; the other, to which, must be subject to the power or influence of the abductor, where, though she is free in very many of her actions, she is not perfectly free in all. It is not necessary that the place to which be the house of the abductor; it suffices if it be under his control or influence. Two rooms or two stories in a small dwelling, the home of one family; a street and an adjoining house; a public highway and a nearby field, would not afford the necessary change of locality. Removal, though violent, from room to room as above, would not induce the impediment under consideration, though some hold the contrary opinion. In case of a large castle, or mansion, or tenement-house, where many families dwell, the violent transference of a reluctant woman from a part where her family dwells to another remote part where a different family lives would constitute sufficient change of locality. If a woman is violently seized, v.g. in a room, and is violently kept there without change to another room, or if she willingly, without any enticement on the part of the man, goes to a place and is there violently detained with matrimonial intent, she does not suffer abduction in the Tridentine sense. It is a mere sequestration, or detention. Some jurists, however, think otherwise, claiming virtual change (from state of freedom to that of subjection) to be sufficient to induce the Council's impediment. Physical transference from one place to another, however, is absolutely necessary to constitute raptus; virtual transference does not suffice. Should a woman be forcibly removed from a place to which she went willingly, to another where she is detained against her will with matrimonial intent, it is abduction.
(3) Violence.—Abduction always presumes that the abducted dissents, and that her unwillingness is overcome either by physical force, i.e. laying hands upon her, or moral force, i.e. threats, great fear, and fraud equivalent to force. Mere importunities, fair words, sweet phrases, gifts, and promises are not sufficient to constitute the moral force requisite for abduction. It is immaterial whether the principal, of and by himself, or through his agents and accomplices, uses this force, moral or physical. Women, as the agents of the principal, may exercise it, and not infrequently do so.
(4) Matrimonial Intent.—The intention or motive of the criminal act is all important. To induce the impediment the intent must be to marry the abducted woman. Were the motive other than marriage, e.g. vengeance, pecuniary gain, or gratification of lust, there would be no abduction, no impediment, no penalties (S. Congo Cone., January 23, 1585). This is evident also from the custom of the Roman Curia, which, in all dispensations given or faculties granted to ordinaries to dispense in cases of affinity, consanguinity, etc., prefixes" provided that the woman was not abducted on account of this [marriage]". This impediment exists only between the abducted and abductor who, of and by himself, or with the assistance of others, had carried her off with intent to marry her. No impediment arises between the abducted and the agent or abettors of the abduction. She could validly, therefore, marry one of the agents or accomplices while still under the control of the abductor. When the intention is doubtful, judgment is arrived at from consideration of the circumstances. Thus, if a man violently carries off his betrothed or a woman with whom he has had conversations looking to future marriage, it is presumed that his intention was marriage. If doubts still remain, the law presumes the motive to be matrimonial. Where it is abundantly evident that the initial motive of the abduction was lust, it is not abduction, but sequestration, or detention, although afterwards, during the captivity, the captor promise marriage in order to attain his lustful object. The contrary opinion, held by Rosset (De Matrimonio, II, 1354), Krimer, and others, is at variance with the principle of law, that in crimes the beginning, and not what happens accidentally is what the law considers. "Were the intent twofold, v.g. lust and marriage, then the carrying off is abduction and induces the impediment. 'The abduction must be proved, not presumed. The mere word of the abducted woman, especially as against the oath of the so-called abductor and the absence of all rumor, does not establish the fact. The existence of the abduction once admitted, the burden of proof rests upon the abductor. He must conclusively prove that the abducted willingly consented to both abduction and marriage. If she admits consent to the flight, he must still prove conclusively that she gave willing consent also to the marriage; otherwise the impediment holds and the penalties are incurred. Should he claim (in order to exclude impediment) that his motive in the beginning of the transaction was not marriage, but lust, and that he proposed marriage in order to attain his initial purpose, then he must, by the most conclusive evidence, establish his assertion, since the law presumes that is motive was matrimonial.
PUNISHMENTS.—The abductor and his advisers and abettors and accomplices in a complete (copula not required), not merely an attempted, abduction are, by the law itself (Tridentine), excommunicated (not reserved), and made perpetually infamous, incapable of acquiring dignities; if they be clerics, they also incur deposition from their ecclesiastical rank. The abductor is also bound, whether the woman marries him or not, to dower her with a decent dowry at the discretion of the bishop. The priest who celebrates the marriage while the woman is under restraint does not incur the excommunication nor any other penalty, unless he has advised the abductor that he would aid him in his abduction by his presence and ministry. The agents and the like, in an abduction of a woman validly and freely betrothed, but unwilling to be carried off, do not incur excommunication and other Tridentine punishments (S.C. Prop. Fid., April 17, 1784). The vindictive punishments are incurred, at least in the ecclesiastical court, by a declaratory sentence. The abducted woman, not the abductor, has the right to challenge the validity of her marriage celebrated while under control of the abductor. No particular time is prescribed by law, but she should, however, unless prevented by reasonable cause, present her plea as soon as possible after her entire separation from the control of the abductor.
DISPENSATION.—The Church as a rule does not dispense with this impediment. It even refuses to grant other dispensations, v.g. affinity, if the woman was abducted; indeed any dispensation granted, in which mention of the abduction has been omitted, is held as invalid. There are some cases in which the Church has dispensed when it is abundantly evident that the consent of the woman was really free, although circumstances prevented her entire separation from the control of the abductor. The late Instruction of the Congregation of the Inquisition (February 15, 1901, in the "Analecta Ecclesiastica," Rome, 1901, 98) to the bishops of Albania (where abduction is of very frequent occurrence) refused a general repeal of the law for their country, adding that the frequency mentioned, far from being a reason for relaxing, was rather a reason for insisting on the Tridentine law; yet, where it was abundantly evident that the consent of the woman under restraint was truly a free consent, and that there were reasons sufficient for the dispensation, recourse should be had to Rome in each single case. Further, in the extraordinary faculties given to bishops (February 20, 1888) for dispensing in public impediments persons in danger of death, the impediment of raptus is not excluded. The civil codes of today, as a rule, do not recognize abduction as an impediment diriment to civil marriage, but consider it as a species of vis et metus. The codes of Austria and Spain, however, still hold it as an impediment, and among the jurists of Austria there is an earnest endeavor to make it an impediment absolute and perpetual, so that the abducted woman, if still under control of her abductor, may not marry even a third party.
P.M. J. ROCK