Page:Catholic Encyclopedia, volume 1.djvu/62

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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: (1) a woman; (2) change of locality; (3) violence; (4) matrimonial intent.

(1) 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. Cong. Conc., 23 Jan., 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 eases 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 rumour, 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 his 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