Page:Catholic Encyclopedia, volume 1.djvu/61

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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. Collat., 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, quæst. 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 (1) 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