Chapter VIII (1)

RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL LAW

[BIBLIOGRAPHICAL NOTE VIII.--For the evolution of the canonical
theory of marriage the Richter-Friedberg _Corpus juris
canonici_ (Leipzig, 1881 ff.), Peter Lombard's _Sententiae_
(Incunabula, _Textus sententiarum_, 1488, Sutro Library), and
the _Ante-Nicene Fathers_ (Buffalo, 1885-87) are of the first
importance. The collections of Haddan and Stubbs, Thorpe,
Schmid, Hale, and Johnson, mentioned in Bibliographical Note
VII, are available for this chapter; as are also the collections
of Richter-Schulte, Theiner, and Waterworth, the works of Sarpi
and Pallavicino, the monographs of Salis, Fleiner, Riedler,
and Leinz, the papers of Meurer and Schulte, with the other
authorities already cited for the Council of Trent. Well-known
treatises on the canon law are Lyndwood, _Provinciale_
(ed. of 1505 and Oxford, 1679); Sanchez, _Disputationum de
s^{to} matrimonii sacramento_ (Venice, 1625); and Godolphin,
_Repartorium canonicum_ (3d ed., London, 1687). With these may
be used Smith, _Elements of Ecclesiastical Law_ (New York,
1882); Phillimore, _Ecclesiastical Law_ (London, 1873-76);
Stephens, _Laws Relating to the Clergy_ (London, 1848); Burn,
_Ecclesiastical Law_ (London, 1842); and the excellent summary
of Geary, _Marriage and Family Relations_ (London, 1892),
chap, xvi, where the principal sources are mentioned. Dodd's
_History of the Canon Law_ (London, 1884) is too general to be
of much service. A good handbook of Catholic doctrine, with
full citation of authorities, is Gury's _Compendium of Moral
Theology_; and in this connection may also be consulted Amat's
convenient _Treatise on Matrimony_ (San Francisco, 1864); the
works of Cigoi, Didon, Roskovány, Perrone, and Scheicher-Binder
described in Bibliographical Note XI.

The rise of the system of enforced celibacy of the clergy, with
the consequent evils, is most fully treated by the brothers
Theiner, _Die Einführung der erzwungenen Ehelosigkeit_ (3d ed.,
Barmen, 1891-98), whose book, first published in 1828, has been
fiercely attacked by Catholic critics; and Lea, _Sacerdotal
Celibacy_ (2d ed., Boston, 1884); supplemented by his _History
of Auricular Confession and Indulgences in the Latin Church_
(Philadelphia, 1896). The immorality of the mediæval clergy
is also described by Bouvet, _De la confession et du célibat
des prêtres_ (Paris, 1845); Gage, _Woman, Church, and State_
(Chicago, 1893); _idem_, an article under the same title in
_History of Woman Suffrage_ (New York, 1881); Lecky, _History of
European Morals_ (3d ed., New York, 1881); and Huth in the third
chapter of _Marriage of Near Kin_ (2d ed., London, 1887). For a
later period the subject is dealt with by Michelet, _Le prêtre,
la femme, et la familie_ (new ed., Paris, 1889); and "A. F. R.,"
_Betrachtungen über den Klerikal- und Mönchsgeist im neunzehnten
Jahrhundert_ (1805). In this connection see also Bucksisch, _De
apostolis uxoratis_ (new ed., Wittenberg, 1734); Essich, _De
clericis maritis dissertatio historica_ (Augusta Vindelicorum,
1747); Feyerabend, _De privilegiis mulierum_ (Jena, 1667);
_Recherches philosophiques et historiques sur le célibat_
(Geneva, 1781); _De l'institution du célibat_ (Paris, 1808);
Klitsche, _Geschichte des Cölibats ... zum Tode Gregor's VII_.
(Augsburg, 1830); Lind, _De coelibatu christianorum per tria
priora secula_ (Havniae, 1839); the anonymous _Letters on the
Constrained Celibacy of the Clergy_ (London, 1816); Zimmermann,
_Der Priester-Cölibat_ (Kempten, 1899), presenting the loyal
Catholic point of view; and the monograph of Schulte, _Der
Cölibatszwang und dessen Aufhebung_ (Bonn, 1876). A favorable
view of the conventual life is taken by Eckenstein, _Woman
under Monasticism_ (Cambridge, 1896); and curious monuments of
the contempt for woman produced by asceticism are the books of
Valens Acidalius and his adversary Simon Geddicus, mentioned in
a footnote below. For the controversy in France regarding the
validity of the marriage of a priest under the temporal law see
Nachet, _Liberté du mariage des prêtres: Mémoire produit à la
Cour de Cassation pour M. Dumonteil_ (Paris, 1833); and Horoy,
_Du mariage civil du prêtre en France_ (Paris, 1890).

The manifold evils arising from the canonical distinction
between _sponsalia de praesenti vel futuro_ are best described
in the vigorous words of Martin Luther. In particular should
be read the thirty-sixth chapter of the _Tischreden_ (folio,
Frankfort, 1571), and the _Von Ehesachen: Werke_, XXIII
(Erlangen ed.) or Vol. V in _Bücher und Schriften_ (Jena,
1555-80). The quaint and learned book of Swinburne, _Of
Spousals_ (London, 1686), contains a striking passage bearing
on the subject; while for the mediæval English law should be
consulted Glanville's _Tractatus_; Bracton's _De Legibus_ (ed.
Twiss, London, 1878-83); _idem_, _Note Book_ (ed. Maitland,
London, 1887); and Maitland's _Select Pleas of the Crown_.
With Sohm's view as to the essential identity in form of
the two kinds of _sponsalia_ compare the various works of
Biener, Bierling, Sehling, Scheurl, and Dieckhoff mentioned in
Bibliographical Note VII. The text of Master Vacarius's _Summa
de matrimonio_ is edited by Maitland in _Law Quarterly Review_,
XIII (London, 1897); and in the same volume he discusses
Vacarius's theory of marriage, differing essentially from that
of Gratian or Lombard. Assistance may also be had from Weber,
_De vera inter sponsalia de praesenti et nuptias differentia_
(Parchimi, 1825); Hoffmann, _De aetate juvenili contrahendis
sponsalibus_ (Regiomonti et Lipsiae, 1743); Lipold, _Arbor
consanguinitatis et affinitatis_ (n. p., n. d.); Niemeier, _De
conjugiis prohibitis dissertationes_ (Helmstadt, 1705); Born,
_De bannis nuptialibus_ (Leipzig, 1716); and the dissertations
on parental consent and clandestine marriage mentioned in
Bibliographical Note IX.

Remarkable testimony as to the existence of clandestine marriage
in England during the first half of the sixteenth century is
given by Richard Whitforde, _A Werke for householders_ (1530; 2d
ed., 1537); and in Miles Coverdale's translation of Bullinger's
_Christen State of Matrimonye_ (1st ed., 1541, in British
Museum).

Indispensable guides for the study of the entire subject are
still the works of Sohm, Friedberg, and Pollock and Maitland;
but by far the best systematic histories of canon-law marriage
are Freisen's _Geschichte des canonischen Eherechts_ (Tübingen,
1888; Paderborn, 1893); and Esmein's masterly _Le mariage en
droit canonique_ (Paris, 1891). A similar work for the eastern
church is Zhishman's _Das Eherecht der orientalischen Kirche_
(Vienna, 1864). Illustrative decisions are communicated by
Frensdorff, "Ein Urtheilsbuch des geistlichen Gerichts zu
Augsburg aus dem 14. Jahrhundert," in _ZKR._, X (Tübingen,
1871); and Loersch, "Ein eherechtliches Urtheil von 1448,"
_ibid._, XV (Freiburg and Tübingen, 1880). There is an article
on the beginnings of ecclesiastical jurisdiction by Sohm, "Die
geistliche Gerichtsbarkeit im frankischen Reich," _ibid._,
IX (Tübingen, 1870). Wunderlich has a serviceable edition of
Tancred's _Summa de matrimonio_ (Göttingen, 1841); and among the
works relating to special questions are Sehling, _Die Wirkungen
der Geschlechtsgemeinschaft auf die Ehe_ (Leipzig, 1885);
Heinlein, _Die bedingte Eheschliessung_ (Vienna, 1892); Andreae,
_Einfluss des Irrthums auf die Gültigkeit der Ehe_ (Göttingen,
1893); Eichborn, _Ehehinderniss der Blutsverwandtschaft_
(Breslau, 1872); Gerigk, _Irrtum und Betrug als Ehehinderniss_
(Breslau, 1898); Benemann, _De natura matrimonii_ (Halle,
1708); Baier, _Die Naturehe in ihrem Verhältniss zur ...
christlich-sakramentalen Ehe_ (Regensburg, 1886); Hahn, _Die
Lehre von den Sakramenten_ (Berlin, 1864); and the standard
Catholic treatise of Oswald, _Die dogmatische Lehre von den
heiligen Sakramenten_ (5th ed., Münster, 1894).

In general, besides the works of Gide, Loening, Combier, Tissot,
Burn, Thwing, Blackstone, Jeaffreson, Lingard, Makower, Madan,
and Morgan, elsewhere described, the following have been drawn
upon in various connections: Wasserschleben, _Bussordnungen_
(Halle, 1851); Schmitz, _Bussbücher_ (Mainz, 1883); Lobethan,
_Einleitung zur theoretischen Ehe-Rechts-Gelahrtheit_ (Halle,
1785); Schott, _Einleitung in das Eherecht_ (new ed., Nuremberg,
1802); Goeschl, _Ehegesetze_ (Aschaffenburg, 1832); Stäudlin,
_Geschichte der Vorstellungen und Lehren von der Ehe_
(Göttingen, 1826); Palgrave, _English Commonwealth_ (London,
1832); Kemble, _Saxons in England_ (London, 1876); Ellis,
_Introduction to Domesday Book_ (Record Commission, 1833);
Bigelow, _Placita anglo-normannica_ (Boston, 1881); Stubbs,
_Select Charters_ (Oxford, 1881); _idem_, _Constitutional
History_ (Oxford, 1875-78); _idem_, _Seventeen Lectures_
(Oxford, 1886); Denton, _England in the Fifteenth Century_
(London, 1888); Traill, _Social England_ (New York, 1898);
Nisbet, _Marriage and Heredity_ (London, 1888); Smith, _The
Parish_ (London, 1857); Kent, _Commentaries_ (Boston, 1873);
Gibbon, _Decline and Fall_ (London, 1830); and some of the
Reformation writers referred to in Bibliographical Notes IX and
XI.]

I. THE EARLY CHRISTIAN DOCTRINE AND THE RISE OF THE CANONICAL THEORY

It was most unfortunate for civilization that the Christian conception of the nature of marriage should have sprung from asceticism, and that the verbal subtlety of the schoolmen should have produced the cardinal definitions upon which the validity of marriage contracts, and therefore the practical administration of matrimonial law, were made to depend. The mediæval teaching regarding forbidden degrees, the sacramental nature of matrimony, and the difference between contracts _de futuro_ and _de praesenti_ are mainly responsible for the shameful abuses which disgrace the record of ecclesiastical judicature previous to the Council of Trent. With regard to an institution upon which in so high a degree the welfare of society depends, anarchy was practically sanctioned by the canon law. Where the utmost clearness and simplicity were needed, obscurity and complexity prevailed; and where publicity was urgently required by the plainest rule of common-sense, there secrecy was in effect invited and rewarded.

The early church was only too ready to take in hand the supervision of marriage and the development of matrimonial law. With regard to the _form_, as already shown, her progress was cautious and slow. Not until the thirteenth century, as a general rule, does the priest appear with authority as one especially qualified by his religious office to solemnize the nuptials. But long before this, in nearly every other respect save only the betrothal, the church was taking sole possession of the field of matrimonial law and jurisdiction.[1029] Yet the institution of marriage was accepted, as it were, under protest. Here and there, of course, the early Fathers admit the purity of the marriage state,[1030] but usually with a tone of apology or depreciation which is itself very suggestive of the pervading trend of the ascetic mind. If wedlock be holy, celibacy is much more holy. "It is better to marry than to burn," is a dictum which sounds the keynote of ecclesiastical dogma. "Few texts," declare Pollock and Maitland, "have done more harm than this. In the eyes of the mediæval church marriage was a sacrament; still it was but a remedy for fornication. The generality of men and women must marry or they will do worse; therefore marriage must be made easy; but the very pure hold aloof from it as from a defilement. The law that springs from this source is not pleasant to read."[1031]

[1029] ESMEIN, _Le mariage en droit canonique_, I, 3, 4,
distinguishes the three phases in the growth of the canon law:
"D'abord, elle s'est développée à côté du droit séculier, celuici
restant indépendant et souverain dans son domaine, et n'a exercé
qu'une action parallèle. Dans une seconde phase, elle a supplanté
et éliminé le droit séculier, elle seule régissant le mariage
dans l'Europe chrétienne. Enfin, devant un reflux puissant de la
législation civile, elle a dû, dans le temps moderne, abandonner
le terrain qu'elle avait ainsi occupé, pour garder seulement son
autorité première, et reprendre son ancienne position."

[1030] For examples see IGNATIUS, _Epis. to Philadel._,
c. iv; _Epis. to Polycarp_, c. v, in _Ante-Nicene Fathers_,
I, 81, 95; JUSTIN, _First Apol._, cxv, _ibid._, 167;
ATHENAGORAS, _Plea for Christians_, c. xxxiii, _ibid._,
II, 147; CLEMENT OF ALEX., _ibid._, 259-63, 377-79. In
this last passage Clement is less coarse than usual. "Marriage,
then, as a sacred image," he concludes, "must be kept pure from
those things which defile it." _Cf._ also TERTULLIAN,
_ibid._, III, 293-95, 443; ORIGEN, _To His Wife_,
_ibid._, IV, 40-44. Compare BUCKSISCH, _De apostolis
uxoratis_, 9 ff., who holds that, with the exception of John and
Paul, all the apostles had wives. In general, on the development
of the early Christian conception of marriage from its Roman
and Hebrew beginnings, see FREISEN, _Geschichte des
can. Eherechts_, 32 ff.; ZHISHMAN, _Das Eherecht der
orient. Kirche_, 93 ff.; SCHULTE, _Der Cölibatszwang_,
5 ff.; THEINER, _Die Einführ. der erz. Ehelosigkeit_,
I, 5 ff.; STÄUDLIN, _Geschichte der Vorstellungen
und Lehren von der Ehe_, 259 ff.; _Letters on the Const.
Celibacy of the Clergy_, 22 ff., 51 ff.; _Recherches phil.
et hist. sur le célibat_, 67 ff. On the influence of Paul's
teaching see THWING, _The Family_, 47 ff.; and compare
NISBET, _Marriage and Heredity_, 33-57, who takes an
unfavorable view of the influence of the church as opposed to
that of Christianity; and GAGE, _Woman, Church, and
State_, 49 ff.; HUTH, _Marriage of Near Kin_, 108 ff.

[1031] POLLOCK AND MAITLAND, _Hist. Eng. Law_, II, 383.
Compare the excellent account of the canonical conception of
marriage in ESMEIN, _Le mariage en droit canonique_,
I, 63-92. "Enfin, le mariage étant conçu comme un remède à
la concupiscence, le droit canonique sanctionnait, avec une
énergie toute particulière, l'obligation du devoir conjugal,
non seulement dans le _forum internum_, mais encore devant
le _forum externum_. De là toute une série de règles que les
canonistes du moyen âge exposaient avec une précision minutieuse
et une innocente impudeur, et qu'il est parfois assez difficile
de rappeler, aujourd'hui que les mœurs ont changé et que l'on
n'écrit plus en latin."--_Ibid._, 84, cited also by POLLOCK
AND MAITLAND, II, 383. It is well, for instance, that the
editors of the _Ante-Nicene Fathers_ have concealed the "innocent
immodesty" of Clement of Alexandria (_The Instructor_, c. x,
_ibid._, II, 259 ff.; _Stromata_, Book III, _ibid._, II, 381
ff.) in the Latin version. The indecency of the Penitentials is
so shocking as almost to justify Gibbon's severe epigram that in
them "some sins are enumerated which innocence could not have
suspected, and others which reason cannot believe."--_Decline
and Fall_, chap. lviii, 1070. "I know of no more fatal sources
of antichristian error," says Kemble of the Penitentials, "no
more miserable records of the debasement and degradation of human
intellect, no more frightful proofs of the absence of genuine
religion."--_Saxons_, II, 403, 404. See the _Poenitentiale
Theodori_, lib. i, c. ii: HADDAN AND STUBBS, _Councils_,
III, 178, 179; and especially WASSERSCHLEBEN'S excellent
collection of _Bussordnungen_.

The monstrous indecencies of the mediæval confessional are
revealed by BOUVET, _De la confession et du célibat des
prêtres_, 195 ff. On the other hand, a word of justification may
be found in ELLIS, _Psychology of Sex_, I, pp. viii-ix.

Here we have a double paradox, two irreconcilable contradictions, which in due time produced their natural evil fruit. On the one hand, marriage is a sacrament, a holy mystery, yet it rests upon a mere human contract.[1032] On the other hand, though possessing a sacramental character, it is but a compromise with lust, from which the saint may well abstain. Hence a premium is placed upon sacerdotal celibacy, though for centuries priests are not absolutely forbidden to marry. Thus in England, at any rate until the days of Dunstan, celibacy had not been strictly enforced in the monastic bodies;[1033] and until a still later day marriage was practiced by the secular clergy,[1034] the priestly office in some instances practically becoming hereditary, passing on from father to son.[1035] But in the western church asceticism at last gained a complete victory; and the priest taking orders after marriage was obliged to put away his wife; while in both East and West marriage after the taking of orders was forbidden.[1036] The causes of the low esteem in which marriage was held by the early Christian theologians have been well described by Meyrick. "For some time before the Christian era a change of sentiment as to the relative excellence of the married and single life had been growing up among a section of the Jews. The national feeling was strongly in favour of marriage, and a man who was unmarried or without children was looked upon as disgraced. But the spirit of asceticism, cherished by the Essenes, led to an admiration of celibacy, of which no traces are to be found in the Old Testament; so that, instead of a shame, it became an honour to be unmarried and childless. In the early church this spirit, at first exhibiting itself only to be condemned in the Encratites," and some other sects, "struggled with a healthier feeling, till at length it stifled the latter. But another cause was working in the same direction. The days of chivalry were not yet; and we cannot but notice, even in the greatest of the Christian fathers, a lamentably low estimate of woman, and consequently of the marriage relationship. Even St. Augustine can see no justification for marriage, except in a grave desire deliberately adopted of having children."[1037] If "marriage is sought after for the sake of children, it is justifiable; if entered into as a _remedium_ to avoid worse evils, it is pardonable; the idea of 'the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity,' hardly existed and could hardly yet exist.[1038] In the decline of the Roman empire, woman was not a helpmeet for man, and few traces are to be found of those graceful conceptions which western imagination has grouped round wedded love and home affections. The result was that the gross, coarse, material, carnal side of marriage being alone apprehended, those who sought to lead a spiritual life, that is, above all, the clergy, instead of 'adorning and beautifying that holy estate' and lifting it up with themselves into a higher sphere and purer atmosphere, regarded it rather as a necessary evil to be shunned by those who aimed at a holier life than that of the majority."[1039]

[1032] The Council of Trent declared marriage to be a sacrament,
but did not settle the mediæval dispute as to the relation of
its different elements. A strong party held that it is necessary
to distinguish between the contract and the sacrament. The
church might regulate the former and not the latter, for it was
established by Christ himself. This doctrine would logically
have led to civil marriage, which the council was not ready to
sanction. "In every sacrament a distinction is made between
the minister, that is the agent who produces the sacrament,
and its _materia_, the objective or real content." From this
distinction arose an important controversy; one party regarding
the priest, and the other the parties, as the minister of the
sacrament. According to the former theory, which was adopted by
the French church, the bare consent of the parties constituted
the contract, and the marriage gained its sacramental character
later through the priestly benediction. The form of valid
contract as a temporal matter may therefore be determined by the
state. As a direct consequence of this doctrine in the eighteenth
century civil marriage arose in France: FRIEDBERG,
_Geschichte der Civilehe_, 26-29; _idem_, _Eheschliessung_,
546 ff., 509 ff. _Cf._ SALIS, _Publikation des trid.
Rechts_, 46 ff.; RIEDLER, _Bedingte Eheschliessung_,
12, 18 ff.; ESMEIN, _Le mariage en droit canonique_,
I, 78 ff.; II, 159 ff. The modern Catholic church rejects the
doctrine that there can be a distinction between the contract
and sacrament, the parties being the ministers of the sacrament.
Yet in effect a distinction is really made. The benediction,
we are told, is not "necessary in order to the validity of the
sacrament; but it is the presence of the parish priest, which is
a necessary condition _sine quâ non_ in order to the validity
of the contract."--HUMPHREY, _Christian Marriage_, 70
ff., 73 ff.; OSWALD, _Die dogmat. Lehre von den heil.
Sakramenten_, II, 501 ff. On this controversy see especially
RICHTER, _Lehrbuch_, 1047-49; MEURER, "Die
rechtl. Natur des trid. Matrimonialdecrets," _ZKR._, XXII; and
SCHULTE, "Die Statthaftigkeit der Civilehe nach kath.
Grundsätzen," _ibid._, XI, holding that the action of the Council
of Trent regarding the marriage contract is not dogmatic in
character, and that hence the state, without violating Catholic
doctrine, may rightly institute a compulsory civil marriage form.
Compare ROSKOVÁNY, _De matrimonio in ecc. cath._, 35-42;
PERRONE, _De matrimonio christ._, I, 46-159.

[1033] KEMBLE, _Saxons_, II, 434 ff., 454, 455;
LINGARD, _Hist. Anglo-Saxon Church_, I, 156-62; II, 235
ff., 260 ff.; STUBBS, CONST. HIST., I, 224;
THEINER, _Die Einführ. der erz. Ehelosigkeit_, I, 267-69.

[1034] In 376 "a Gallic synod excommunicated those who should
refuse the ministrations of a priest on the ground of his
marriage," though this need not imply that the church resisted
celibacy: KEMBLE, _Saxons_, II, 441. Married priests
were still allowed in the western church in 961. "The priests
were enjoyned not to marry without the leave of the Pope, on
which account a great disturbance took place in the diocese of
Teilaw, so that it was considered best to allow matrimony to the
priests."--"Brut y Twigsog.," in HADDAN AND STUBBS,
_Councils_, I, 286. For England there is abundant evidence of
the marriage of priests, sometimes of bishops, even as late as
the twelfth century: KEMBLE, _op. cit._, II, 443 ff.;
HADDAN AND STUBBS, _op. cit._, III, 19 (temp. Gregory);
II, 178 (Scotland); LEA, _Sacerdotal Celibacy_, 147, 159
ff., 197 (concubines), 271 ff.; THEINER, _op. cit._,
II, 183 ff.; LINGARD, _Hist. Anglo-Saxon Church_, I,
156-62; II, 235, who thinks at first the rule of celibacy was
enforced; STUBBS, _Const. Hist._, I, 223, 224, notes;
ELLIS, _Int. to Domesday_, I, 342 (two examples, _an._
1086); especially the excellent discussion of celibacy in England
by MAKOWER, _Const. Hist. Eng. Church_, 212-24, where
the sources are cited.

[1035] STUBBS, _Const. Hist._, I, 243, 244, notes; _Cod.
Dipl._, xxxiii, cxlvi, ccxv, lxxx, cxxvii, lxxxii, cxxiv, clxix;
HADDAN AND STUBBS, _op. cit._, II, 178 (Scotland);
THEINER, _op. cit._, I, 321-47.

[1036] After centuries of struggle and divergent practice, this
was decreed by the Roman council under Nicholas II., 1059;
and by the first Lateran council under Calixtus II., 1123:
MEYRICK, in _Dict. Christ. Ant._, II, 1100; _Hard.
Concil._, tom. vi, 1052; vii, 1111. "The eastern church has
never forbidden marriage before ordination to its presbyters,
and has never laid upon them the burden of abstinence from their
wives; and there is no doubt that the eastern discipline in this
respect was the discipline of the whole of the early church."
But eventually, in the East as well as the West, bishops were
forbidden to have wives: MEYRICK, _op. cit._, 1098,
1099, where the sources are cited on the whole subject of
the rise of celibacy. _Cf._ ZHISHMAN, _Das Eherecht
der orient. Kirche_, 165 ff., 449 ff.; LYNDWOOD,
_Provinciale_ (ed. 1505), foll. xc-xcv; LINGARD,
_Hist. Anglo-Saxon Church_, I, 156 ff.; KEMBLE,
_Saxons_, II, 439 ff.; SCHULTE, _Der Cölibatszwang_,
5 ff.; _Recherches phil. et hist. sur le célibat_, 147 ff.;
LEA, _Sacerdotal Celibacy_, 59 ff.; THWING,
_The Family_, 74 ff.; GAGE, _Woman, Church, and State_,
49 ff., 55 ff.; NISBET, _Marriage and Heredity_, 44 ff.

[1037] Citing AUGUSTINE, _Serm._ ix, li, _Op._, tom.
v, pp. 88, 345, ed. MIGNE. Augustine's view is that of
the earlier Fathers; see the references in n. 2, p. 325, above,
to which many more might be added. _Cf._ ESMEIN, _Le
mariage en droit canonique_, I, 83-87; THEINER, _Die
Einführung der erz. Ehelosigkeit_, I, 23 ff. (teachings of the
"heretical sects"), 81 (teachings of the "Fathers"); _Recherches
phil. et hist. sur le célibat_, 177 ff. (doctrines of the early
"heretics").

[1038] In the _Stromata_, c. xxiii: _Ante-Nicene Fathers_, II,
378, CLEMENT OF ALEXANDRIA approaches the loftier view
of marriage. "Philosophers" are "to take advantage of marriage
for help in the whole of life, and for the best self-restraint."
It is a "sacred image;" and "every foul and polluting practice"
must be purged away from it.

[1039] MEYRICK, in _Dict. Christ. Ant._, II, 1198. The
early theological conception of marriage is much lower than
that of the mature Roman law: "Nuptiae sunt conjunctio maris
et feminae et consortium omnis vitae, divini et humani juris
communicatio": MODESTINUS, in _Digest_, xxiii, tit. 2,
l. 1: _Corpus juris civilis_, I, 295. _Cf._ FREISEN,
_Geschichte des can. Eherechts_, 22. As if to emphasize the
paradoxical nature of the prevailing dogma, the Council of Trent
anathematizes those who say "that matrimony is not truly and
properly one of the seven sacraments;" as well as those who say
"that the marriage state is to be placed above the state of
virginity, or of celibacy, and that it is not better and more
blessed to remain in virginity, or in celibacy, than to be united
in matrimony."--WATERWORTH, _Canons and Decrees_, 194,
195. The Reformation Fathers constantly reproach their Roman
antagonists with this anomaly and with having debased the state
of marriage which is right for all according to the law of God
and nature: see the Parker Society collection of the _Works
of Fathers and Early Writers of the Reformed English Church_,
General Index, at "Marriage," 515-17. _Cf._ the curious book of
MADAN, _Thelyphthora, or a Treatise on Female Ruin_
(2d ed., London, 1781), who endeavors to show that sacerdotal
celibacy, the theory of impediments, and the invention of the
sacrament of matrimony have lowered the ideal of marriage which
is an institution divinely ordained for all men. He brings
together in convenient form for reference a mass of extracts from
the teachings of the Fathers, the papal and conciliar decrees,
the utterances of the schoolmen, and other sources.

But, in spite of theology and priestly asceticism, there is little doubt that the loftier ideals and the gentler affections which we now associate with wedded life were beginning to make themselves felt in the early Christian family; just as despite the licentiousness found in the imperial and noble circles of the capital, most observed and doubtless exaggerated by historian and satirist, and notwithstanding the surviving coldness[1040] of the patriarchal age, the same ideas and sentiments, independently of Christian influences, must already have been springing up among the common people of the provinces, and presently in the Stoic families of the Antonine era were to reach a splendid development worthy of the days in which we live.[1041] It is doubtless true, as so often urged, that there is a bright side to the history of celibacy. Incidentally the monk organized schools, taught the barbarous tribes the dignity of labor, demonstrated the power of industry,[1042] and handed down to the men of the Renaissance some of the materials of classic learning. So, likewise, the convent afforded an outlet for the energy and the ambition of woman. Here in a large measure she enjoyed independence and could assert her individuality. "For the convent accepted the dislike women felt to domestic subjection and countenanced them in their refusal to undertake the duties of married life." The "outward conditions of life were such that the woman who joined the convent made her decision once for all. But provided she agreed to forego the claims of family and sex, an honorable independence was secured to her, and she was brought into contact with the highest aims of her age. At a period when monasteries, placed in the remote and uncultivated districts, radiated peace and civilization throughout the neighborhood, many women devoted themselves to managing settlements which, in the standard they attained, vied in excellence with the settlements managed by men." "The career open to the inmates of convents both in England and on the continent," continues Eckenstein, in summarizing the results of her valuable researches, "was greater than any other ever thrown open to women in the course of modern European history."[1043] Still, granting all that can be said for the conventual life, the motives which sustained it only throw into bolder relief the social evils of the age and the low ideal of marriage fostered by asceticism itself. History all too plainly shows that the benefits conferred by monasticism and the enforced celibacy of the secular clergy come far short of balancing the evils flowing from the conception of wedlock as a "remedy for concupiscence." The influence of the church did, indeed, tend to condemn the breach of conjugal fidelity by the husband as equally sinful with that of the wife; although this righteous principle has by no means always been observed in Christian legislation. On the other hand, celibacy bred a contempt for womanhood and assailed the integrity of the family.[1044] The gross immorality of the mediaeval clergy, regular and secular, and the shocking abuses of the confessional have often been recorded and fortunately need not here be dwelt upon.[1045]

[1040] FARRAR, _Seekers after God_, 10 ff.

[1041] CAPES, _Early Empire_, 223 ff., discusses the
exaggeration of the satirists; and in his _Age of the Antonines_,
85, 86, 89, 90, 117 ff., he describes the family life of Marcus
Aurelius and analyzes his meditations.

[1042] TAINE, _Ancient Régime_, 1-5.

[1043] ECKENSTEIN, _Woman under Monasticism_, 5,
478. This important and very interesting book throws much new
light on the position of woman in the Middle Ages. The convent
was a refuge from the "tyranny" of the family; and the author
believes that the desire for independence was a survival of the
"mother-age." The woman saint is thus a successor of the "tribal
goddess" and the "heathen prophetess."

[1044] The doctrine that woman was the cause of the "original
sin" arose among the early fathers of the church, and it was well
established by the time of Augustine. At the Council of Macon
(585) the question, "Does woman possess a soul?" was seriously
discussed. "Upon one side it was argued that woman should not be
called 'homo;' upon the opposite side that she should, because,
_first_, the Scriptures declared that God created man, male and
female; _second_, that Jesus Christ, son of a woman, is called
the son of man. Christian women were therefore allowed to remain
human beings in the eyes of the clergy, even though considered
very weak and bad ones."--GAGE, _Woman, Church, and
State_, 56.

Nevertheless for many this problem remained for centuries a topic
for theological debate. In 1595 appeared ACIDALIUS'S
_Disputatio nova contra mulieres, qua probatur eas homines
non esse_. In the same year it was republished, with an
answer, by SIMON GEDDICUS under the common title,
_Disputatio perjucunda, qua anonymus probare nititur mulieres
homines non esse: cui opposita est Simonis Geddici sacros.
theologiae doctoris defensio sexus muliebris_ (editio novissima,
Hagae-Comitis, 1644). At the end Simon writes: "Scriptum Halae
Saxonum, 10. Februarii, Anno Filii Dei nati, Hominis veri, ex
Maria Virgine, homine vera, 1595."

Still later (1667) FEYERABEND, _De privilegiis mulierum_
(3d ed., Jena, 1672), 2-5, starts with the inquiry, "an mulieres
sint homines?"

[1045] For details consult THEINER, _Die Einführung
der erz. Ehelosigkeit_, I, 44 ff., 54-60, 167 ff., 239, 296,
_passim_; II, 183-209; III, 96-148 (contemporary evidence for
the period 1448 to the Reformation), 305 ff. (influence of the
Jesuits on morals); LEA, _Sacerdotal Celibacy_, 78
ff., 109 ff., 115 ff., 129, 135 ff., 161-77, 330-61, 566-80
(abuse of the confessional, especially since the Council of
Trent), 631 ff.; _idem_, _Hist. of Auricular Confession_,
I, 378-400 (solicitations), 240 ff., 261, 272, 426 ff.;
LECKY, _Hist. of European Morals_, II, 120 ff., 148
ff., 316-72; HUTH, _Marriage of Near Kin_, 108 ff.; the
vigorous arraignment of the church and the canon law for their
alleged degrading influence on woman by GAGE, _Woman,
Church, and State_, 49 ff., 113 ff., 152 ff.; and _idem_, in
_Hist. of Woman Suffrage_, I, 753-99. For the opposite view
read _Christian Marriage_, by REV. WILLIAM HUMPHREY, S.
J.; ZIMMERMANN, _Der Priester-Cölibat_, 11 ff.;
GIDE, _La femme_, 169-82; and compare THWING,
_The Family_, 45 ff.; _Letters on the Const. Celibacy of the
Clergy_, 266 ff., 294 ff.; and BOUVET, _De la confession
et du célibat des prêtres_, 195-238, containing extracts from
BURCHARD'S _Decretorum_, showing the abominable
questions put to women. For the literature relating to celibacy
(to 1887) see especially ROSKOVÁNY'S _Coelibatus et
breviarium_ (13 vols., 1861-88), enumerating 6,785 books,
essays, and articles on the subject, of which (according to
THEINER, _op. cit._, III, 379) 3,285 are antagonistic.

We may next consider the second member of the paradox, the dogma which constitutes the very basis of the canon law of marriage and the source of manifold hardships and confusion. By the second half of the twelfth century the doctrine that marriage is a sacrament was thoroughly established in the western church.[1046] The early Christian teachers had, indeed, regarded it as one of the many holy "mysteries" to which the name "sacrament" was given.[1047] But it was long before any of these were differentiated as distinct rites superior to the rest in religious efficacy. Not until 1164, in the fourth book of Peter Lombard's _Sentences_, do we find the first clear recognition of the "seven sacraments," among which that of marriage appears;[1048] and these were approved by The Council of Florence in 1439 and later by the Council of Trent.[1049] The theory of the sacramental character of wedlock had two consequences of vast importance for the history of matrimonial law. First is the dogma of the indissolubility of the marriage bond, involving the whole problem of separation and divorce, which must be reserved for discussion in another chapter;[1050] and, second, the exclusive jurisdiction of the church in matrimonial causes.[1051] This ecclesiastical function, like so many others, is of slow growth. "We are here confronted by a conception which certainly does not belong to the primitive sources. It is not by a revindication of principles that the church conquers jurisdiction in marriage. After having shared it with the state for centuries, she obtained it in the Middle Ages without partition;" and "when her competence was well established and a theory for it was required, it was justified by saying that the church alone could take cognizance of sacraments;" and "at the Council of Trent when this jurisdiction was solemnly affirmed in a canon sanctioned by anathema, the majority of the orators brought it expressly into connection with the sacrament."[1052] In England between the seventh and the twelfth centuries the ecclesiastical authority in matrimonial questions was slowly established. Gregory writes to Augustine concerning forbidden degrees.[1053] Later Theodore regulates marriage and divorce.[1054] "When the conqueror had paid the debt that he owed to Rome by a definite separation of the spiritual from the lay tribunals,[1055] it cannot have remained long in doubt that the former would claim the whole province of marriage law as their own. In all probability this claim was not suddenly pressed; the _leges Henrici_[1056] endeavor to state the old law about adultery; the man's fine goes to the king, the woman's to the bishop; but everywhere the church was beginning to urge that claim, and the canonists were constructing an elaborate jurisprudence of marriage. By the middle of the twelfth century, by the time when Gratian was compiling his concordance of discordant canons, it was law in England that marriage appertained to the spiritual forum."[1057] From the time of Glanville the "marriage law of England was the canon law."[1058]

[1046] Thoroughly to appreciate the nature of the controversy
over the sacramental nature of marriage the writings of the
Reformation Fathers should be studied. See General Index to
the Parker Society publications; and _cf._ MADAN'S
_Thelyphthora_, already mentioned.

[1047] The early Fathers render the Greek μυστήριον by
_sacramentum_, which is defined by St. Augustine as "the visible
form of invisible grace," or "a sign of a sacred thing";
_Encyc. Brit._, XXI, 131. _Cf._ also FRIEDBERG,
_Eheschliessung_, 153, 154; FREISEN, _Geschichte des
can. Eherechts_, 29 ff.; ZHISHMAN, _Das Eherecht der
orient. Kirche_, 124 ff.; OSWALD, _Die dogmat. Lehre
von den heil. Sakramenten_, I, 25 ff.; PERRONE, _De
mat. christ._, I, 1-21; SCHULTE, _Lehrbuch_, 349;
RICHTER, _Lehrbuch_, 1044, 1045; THWING,
_The Family_, 81; and the monograph of BAIER, _Die
Naturehe in ihrem Verhältniss zur christlich-sakramentalen Ehe_;
AMAT, _Treatise on Matrimony_, 3 ff.

[1048] See the incunabula edition of PETRUS LOMBARDUS,
_Textus sententiarum_ (1488). _Cf._ MADAN,
_Thelyphthora_, III, 262; NISBET, _Marriage and
Heredity_, 46; FREISEN, _Geschichte des can.
Eherechts_, 34 ff.; OSWALD, _Die dogmat. Lehre von
den heil. Sakramenten_, I, 29; II, 458 ff.; CIGOI,
_Unauflösbarkeit_, 107 ff.; PERRONE, _De mat. christ._,
I, 22 ff.

[1049] _Encyc. Brit._, XXI, 132; WATERWORTH, _Canons and
Decrees_, 193-96.

[1050] See chap. xi, below.

[1051] For the growth of ecclesiastical jurisdiction in the West
see ESMEIN, _Le mariage en droit canonique_, I, chap. i.

[1052] _Ibid._, 73, 74, where the sources are cited;
WATERWORTH, _Canons and Decrees_, 196.

[1053] HADDAN AND STUBBS, _Councils_, III, 20.

[1054] _Ibid._, 199-202.

The theories adopted and developed by the canonists favor the forming of marriages. "All those are urged to marry who are unable to bear the superior state of virginity or continence and who are not restrained by solemn vows." Consequently the canon law "renders the formation of marriage as easy as it had rendered its dissolution difficult."[1059] At first, as already explained, it adopted the Roman betrothal, which possessed no legal significance, the marriage beginning with the nuptials or actual living together. Later it accepted the principles of Germanic custom, according to which the legal effects of betrothal became far more stringent, and the marriage was perfected at the nuptials or tradition, and not through the _Beilager_, or physical union. Hence by the mediæval canon law, if the nuptials were solemnized by priestly benediction, though not followed by _copula_ or physical union, a marriage was formed which could not be annulled by means of subsequent espousals thus consummated.[1060] Gradually, however, as the betrothal gained, the nuptials lost, in importance. Before the middle of the twelfth century the doctrine prevailed that the _copula carnalis_ is the supreme legal moment in marriage.[1061] This theory, which had arisen with Hincmar of Rheims,[1062] is especially associated with the name of Gratian, in whose _Decretum_ the arguments for and against it are weighed, with the result of its practical acceptance, though he tries to reconcile it with the Roman view, that the nuptial _consensus_ constitutes the marriage.[1063] According to him, there are two degrees in marriage: one is the _conjugium initiatum_, arising in the simple consent of the espoused; second, the _conjugium ratum_, created by the _copula carnalis_ and perfecting the former. The _conjugium initiatum_ may be dissolved at pleasure; but the _conjugium ratum_ is indissoluble. Thus the former is merely the Roman betrothal under another name. But the Bolognese jurists made it more stringent, assigning eight reasons for which alone such a marriage could be dissolved.[1064]

[1055] On the separation of the lay and spiritual jurisdictions
see STUBBS, _Const. Hist._, I, 300, 307; _idem_,
_Select Charters_, 85; _idem_, _Lectures_, 300. SCHMID,
_Gesetze_, 357, and THORPE, _Anc. Laws_, II, 213,
give William's law, the date of which is unknown. See also
MAKOWER, _Const. Hist. of English Church_, 465, 466, 392
ff.

[1056] _Leges Henrici Primi_, 11, § 5.

[1057] POLLOCK AND MAITLAND, _Hist. of Eng. Law_, II,
365. The _Concordia discordantium canonum_, or Decree of Gratian,
comprises the first volume of RICHTER AND FRIEDBERG'S
fine edition of the _Corpus juris canonici_ (Leipzig, 1879). The
bringing together of the scattered rules of the ecclesiastical
authorities by Ivo of Chartres in the reign of Henry I., and
especially by Gratian (1151), was of vast importance in building
up the ecclesiastical jurisdiction. On the history of the
canon law see STUBBS, _Lectures_, 292-333; _idem_,
_Const. Hist._, I, 308 ff.; DODD, _Hist. Canon Law_,
150 ff., 161 ff.; BLACKSTONE, _Commentaries_, I, 14,
15, 19; ESMEIN, _Le mariage en droit canonique_,
I, 3 ff., 56 ff., 108 ff. The best account of the rise and
jurisdiction of ecclesiastical courts in England will be found in
MAKOWER, _Const. Hist. of Eng. Church_, 384-464.

[1058] POLLOCK AND MAITLAND, _op. cit._, II, 365, 366;
GEARY, _Marriage and Family Relations_, 1 ff.

[1059] ESMEIN, _op. cit._, I, 85.

[1060] This is the view established by SOHM,
_Eheschliessung_, particularly 120 n. 22, 151 n. 89. Compare
SEHLING, _Unterscheidung der Verlöbnisse_, 1 ff., 14
ff., 34 ff.; SCHEURL, _Kirch. Eheschliessungsrecht_, 35
ff.

[1061] SOHM, _op. cit._, 150-52; _idem_, _Trauung und
Verlobung_, 61 ff.; FRIEDBERG, _Eheschliessung_, 209;
ESMEIN, _op. cit._, I, 83. RIEDLER, _Bedingte
Eheschliessung_, 15 ff., discusses the different views as to
the relation of _consensus_ and the _copula carnalis_, in
connection with the sacramental nature of marriage. See also
FREISEN, _Geschichte des can. Eherechts_, 151 ff., 164
ff., on the whole subject.

[1062] SEHLING, _Unterscheidung der Verlöbnisse_, 33-59.

[1063] GRATIAN, _Decreti sec. pars. causa_ xxvii,
quest. ii, c. 16 ff.: RICHTER AND FRIEDBERG, _Corpus
juris canonici_, I, 1069 ff. _Cf._ ESMEIN, _op.
cit._, I, 97-119; SOHM, _Eheschliessung_, 111 ff.;
FREISEN, _op. cit._, 164 ff.; SCHEURL,
_op. cit._, 58-75; SEHLING, _op. cit._, 81 ff.;
HEUSLER, _Institutionen_, II, 290; DIECKHOFF,
_Die kirch. Trauung_, 115 ff.

[1064] On the whole subject see ESMEIN, _op. cit._, I,
97-119.

The theory of the classic canon law, formulated by Gratian, that there is no marriage "until man and woman have been one flesh,"[1065] does not receive so much emphasis in any other legal system.[1066] It had far-reaching consequences in matrimonial jurisprudence.[1067] Marriage became a simple consensual compact. "In strictness of law all that was essential was this physical union accompanied by the intent to be thenceforth husband and wife. All that preceded this could be no more than an espousal (_desponsatio_) and the relationship between the spouses was one which was dissoluble; in particular it was dissolved if either of them contracted a perfected marriage with a third person."[1068]

[1065] POLLOCK AND MAITLAND, _op. cit._, II, 366.

[1066] ESMEIN, _op. cit._, I, 83. Esmein traces the
origin of this doctrine of the canonists in part to the influence
of the "popular" or "naturalistic" view of marriage; in part
to certain texts of the Old and New Testament (particularly
Gen. 2:23, 24; 1 Cor. 16:16): and in part to the conception of
marriage as a remedy for concupiscence: _op. cit._, 83, 84, 97
ff. _Cf._ POLLOCK AND MAITLAND, _op. cit._, II, 367 n.
1; FREISEN, _op. cit._, 173.

[1067] It affected the "théorie de la formation et de la
dissolution du mariage, théorie de la nullité pour cause
d'impuissance, théorie de l'affinité, théorie des droits et des
devoirs des époux."--ESMEIN, _op. cit._, I, 83.

[1068] POLLOCK AND MAITLAND, _op. cit._, II, 366.

But before the close of the twelfth century theological subtlety had conceived and gained the acceptance of a distinction in the forms of contract which was fatal to the security of the marriage bond. The famous classification of contracts as _sponsalia per verba de praesenti_ and _sponsalia per verba de futuro_, though its principle was earlier asserted, is due mainly to Peter Lombard;[1069] and through the influence of Alexander III. ("Magister Rolandus") it was accepted generally by the western church.[1070] The theory of Lombard represents the triumph of Gallic theology over the doctrine of Gratian, as maintained by the Italian jurists; and, in effect, it is an attempt to combine the principles of the Roman with those of the German--that is to say, the canonical--betrothal.[1071] In _sponsalia de praesenti_, in words of the present tense, the man and woman declare that they take each other now, from this moment onward, as husband and wife. Such a contract is a valid marriage, though not followed by actual wedded union; and since in theory it is a real marriage, it is necessarily sacramental in character. It creates a bond which can be dissolved only with the greatest difficulty. It constitutes "at all events an initiate marriage; the spouses are _coniuges_; the relationship between them is almost as indisseverable as if it had already become a consummate marriage. Not quite so indisseverable however; a spouse may free himself or herself from the unconsummated marriage by entering religion, and such a marriage is within the papal power of dispensation."[1072] But even the unconsummate marriage _de praesenti_ cannot be dissolved by a subsequent marriage which either party may contract, though followed by wedded union.[1073] Espousals _de futuro_, on the other hand, are a promise for future joining in marriage. Physical union when preceded by such a contract is held to constitute a binding marriage. The canonists went farther than this, as Esmein declares, and "in a way set a snare for human nature to beguile the imprudent into the matrimonial state" through the theory of "presumptive marriage." The _copula carnalis_ was made a legal ground for assuming the foregoing promise to wed. "The rule was laid down that it is always necessary to judge in favor of marriage unless the contrary be clearly understood."[1074] Moreover, the church steadily refused to make the validity of marriage depend upon forms and conditions such as the civil law prescribes. There was no absolute requirement of parental consent[1075] or of a certain age. All persons on reaching the years of puberty were declared capable of wedlock solely on their own authority. No religious ceremony, no record, or witness was essential. The private, even secret, agreement of the betrothed, however expressed, was declared sufficient for a valid contract.[1076] All these things might be enjoined under sanction of severe discipline for their neglect; but the marriage, if formed without them, was not the less binding. A puzzling and disastrous antagonism between _legality_ and _validity_ was thus created. Even the Council of Trent, while making the validity of the marriage depend upon its conclusion in the presence of a priest and two or three witnesses, declined to go farther and give an equal sanction to banns, registration, or the benediction, though these were enjoined in its decree. After the council as well as before children barely arrived at the age of puberty might contract a valid marriage without the consent, or even against the will, of their parents.[1077] In short, as Esmein has so well shown, lest without a safety-valve the temptations of the flesh should become too strong for weak human nature, and lest access to a sacrament should be hindered, it was deemed necessary to discard all restraints originating in mere "human convention."[1078] It is a noteworthy fact that the dogma of marriage as a sacrament came near being a fatal obstacle in the way of the action of the Council of Trent against secret marriages.[1079] For how could the church legislate concerning a holy mystery which Christ himself had given her, without suggesting the human nature of the matrimonial contract and by implication admitting the right of the state to exercise a similar control? But even in this domain her exclusive jurisdiction was affirmed.

[1069] Peter Lombard (d. 1164) was a professor in the University
of Paris, and later was ordained a bishop: _cf._ SOHM,
_Eheschliessung_, 121 ff.; ESMEIN, _op. cit._, I,
119 ff. His theory is set forth in the _Sententiae_, lib. iv,
dist. 27, 28: "Efficiens autem causa matrimonii est consensus,
non quilibet, sed per verba expressus: nec de futuro sed de
praesenti. Si enim consentiunt in futurum, dicentes, Accipiam te
in virum, et ego te in uxorem, non est iste consensus efficax
causa matrimonii": dist. 27, § 3. "Consensus, id est pactio
conjugalis, matrimonium facit, et extunc est conjugium etiamsi
non praecessit, vel secuta est copula carnalis": dist. 27,
§ 4. The _consensus_, if expressed by a verb of the present
tense, _accipio te_, constitutes a valid marriage without
_copula_. Opposed to this is a promise, expressed by a verb in
the future tense, _accipiam te_, which is binding only when
followed by _copula_. Compare TANCRED, _Summa de
mat._, 3 ff.; and see the masterly discussion of the history of
the distinction, in SOHM, _op. cit._, chap, iv, and
his _Trauung und Verlobung_, 73-109. _Cf._ SCHEURL,
_Kirch. Eheschliessungsrecht_, 76 ff.; DIECKHOFF, _Die
kirchl. Trauung_, 115 ff.; SEHLING, _Unterscheidung der
Verlöbnisse_, 72 ff., 115 ff.; FREISEN, _Geschichte des
can. Eherechts_, 179 ff., 205 ff.; KENT, _Commentaries_,
II, 87; BISHOP, _Marriage, Divorce, and Separation_,
I, §§ 313 ff., 353 ff.; FRIEDBERG, _Eheschliessung_,
203, 206; STEPHENS, _Laws of the Clergy_, I, 672
ff.; especially POLLOCK AND MAITLAND, _Hist. of Eng.
Law_, II, 366 ff.; ESMEIN, _op. cit._, I, 119-37;
SALIS, _Die Publikation des trid. Rechts_, 2, 3.

[1070] SOHM, _Eheschliessung_, 124 ff.

[1071] This is proved by SOHM, _op. cit._, chap,
iv; _idem_, _Trauung und Verlobung_, chap, iii; and by
ESMEIN, _op. cit._, I, 119-37.

Magister Vacarius, who lived in England _ca._ 1148-98 and
probably taught law at Oxford, has a theory differing from
that of Gratian or Lombard. According to him, the "true act of
marriage, the act which marks the moment at which the marriage
takes place, is the mutual delivery (_traditio_) of man and woman
each to each. Of course as a condition there must exist a pact
of the appropriate kind.... Again, as a condition there must be
the natural power of effecting a carnal union; but the _carnalis
copula_ is unessential." The marriage is _made_ by the tradition:
MAITLAND, "Magistri Vacarii summa de matrimonio,"
_Law Quart. Rev._, XIII, 136-38. In the same volume, 270-87,
MAITLAND publishes the text of the Summa.

On the two kinds of canonical _sponsalia_ see the dissertations
described in Bibliographical Note VIII.

[1072] POLLOCK AND MAITLAND, _op. cit._, II, 366.

[1073] This doctrine was already sanctioned by Innocent III.
(1130-43): ESMEIN, _op. cit._, I, 126.

[1074] ESMEIN, _op. cit._, I, 85. _Cf._ POLLOCK AND
MAITLAND, _op. cit._, II, 366.

[1075] The effect of this neglect on clandestine marriage is
forcibly described by LUTHER, _Tischreden_, foll. 355,
356. "Dass aber die Juristen fürgeben und anziehen den Canon,
und sagen: Dass der Eltern Autoritet, Rath, und Will wol Ehren
halben möge dabey sein, aber nicht auss not, dass es also sein
müsste, denn die Bewilligung derer, die mit einander wollen
Ehelich werden, ist die Substantz, die nötig ist. Der Eltern will
aber ist ein _accidens_, ein zufellig ding, das nur Erbarkeit und
Ehrenhalben geschieht, macht aber noch hindert nicht die Ehe.

"Es ist ein Gottloser Canon, und der Canonisten wahn wider Gott,
gleich als ein Buler, der in der ersten Brunst und unsinnigkeit
daher gehet, nicht viel nach Erbarkeit fragt. Also gehet der
Eltern autoritet, ansehen, gewalt, und gehorsam zu Boden."

On the marriage of minors see SELDEN, _Uxor ebraica_,
99-104; _Opera_, III, 605-8; MORGAN, _Marriage,
Adultery, and Divorce_, I, 283 ff.; LAUGINGER, _De
consensu parentum_, quaest. viii ff.; LOHEN, _De
parentum ad nuptias a liberis contrahendas consensu_ (Regiomonti,
1685).

[1076] On the lack of prescribed conditions see ESMEIN,
_op. cit._, I, 149 ff.; FREISEN, _Geschichte des can.
Eherechts_, 307-29.

[1077] SALIS, _Die Publikation des trid. Rechts_,
14, 15, 31 ff.; FRIEDBERG, _Eheschliessung_, 103,
122, 123; FLEINER, _Die trid. Ehevorschrift_, 3;
WATERWORTH, _Canons and Decrees_, 196 ff., ccxxvi ff.

[1078] ESMEIN, _op. cit._, I, 85, 86; POLLOCK AND
MAITLAND, _op. cit._, II, 367-72; SALIS, _op.
cit._, 3, 4.

[1079] _Ibid._, 44-47, notes, where the evidence is collected
from the sources. _Cf._ also RIEDLER, _Bedingte
Eheschliessung_, 12, 18 ff.; ESMEIN, _op. cit._, I,
78 ff.; II, 159 ff.; FRIEDBERG, _op. cit._, 109;
WATERWORTH, _op. cit._, pp. ccxxv ff., 193-96.

II. CLANDESTINE MARRIAGES THE FRUIT OF THE CANONICAL THEORY

The way was thus cleared for clandestine marriages. All efficient restraints upon hasty unions were rejected; and often it became impossible for the courts or even the parties themselves to know whether a man and a woman were legally husband and wife or their children legitimate. Seldom have mere theory and subtle quibbling had more disastrous consequences in practical life than in the case of the distinction between _sponsalia de praesenti_ and _de futuro_. The difference was not essential, but purely verbal.[1080] The canonist had before his mind the tense inflections of a Latin verb. He insisted on a distinction which found no place in popular ideas and which the usages of popular speech refused to observe. In the English as well as the German idiom the contrast between the present and the future tense is not always sharply defined.[1081] This anomaly is described by Martin Luther in his usual trenchant style. "They have played a regular fool's game," he says, "with their _verbis de praesenti vel futuro_. With it they have torn apart many marriages which were valid according to their own law, and those which were not valid they have bound up.... Indeed I should not myself know how a churl ... would or could betroth himself _de futuro_ in the German tongue; for the way one betroths himself means _per verba de praesenti_, and surely a clown knows nothing of such nimble grammar as the difference between _accipio_ and _accipiam_; therefore he proceeds according to our way of speech and says: 'I will have thee,' 'I will take thee,' 'thou shalt be mine.' Thereupon 'yes' is said at once without more ado."[1082]

[1080] SOHM, _Eheschliessung_, 133 ff.; _idem_,
_Trauung und Verlobung_, 1 ff., has demonstrated that in
their "content" the two kinds of _sponsalia_ are identical;
the one is no more nor less a betrothal than the other, each
looking to a subsequent perfected marriage. The distinction
is not "eine Unterscheidung verschiedener Thatbestände,
sondern nur eine verschiedene rechtliche Behandlung desselben
Thatbeständes."--_Eheschliessung_, 137. The differences in tense
were arbitrarily made to have different legal consequences.

On the controversy as to the legal significance of the two kinds
of _sponsalia_ with Sohm compare SCHEURL, _Kirch.
Eheschliessungsrecht_, 76-107; _idem_, "Zur Geschichte des kirch.
Eheschliessungsrechts," _ZKR._, XV, 65-92, who agrees with
Sohm that both species of _sponsalia_ are forms of betrothal
(_Verlobungen_), but insists that they have different legal
consequences. This article is criticised by BIERLING,
"Kleine Beiträge," _ZKR._, XVI, 288-316; who is answered by
SCHEURL, "Consensus facit nuptias," _ibid._, XXII,
269-86. See also DIECKHOFF, _Die kirch. Trauung_, 115
ff.; SEHLING, _Unterscheidung der Verlöbnisse_, 40 ff.,
60 ff., 72 ff.; LYNDWOOD, _Provinciale_ (Oxford, 1679),
lib. quart., tit. I, 270, 271; SANCHEZ, _Disputat. de
s^{to}. mat. sac._, I, 3-220; SELDEN, _Uxor ebraica_
(ed., 1673), 92 ff., or _Opera_, III, 599 ff.

[1081] "Es kam hinzu, das der Gegensatz der Zeitform in der
deutschen Sprache regelmässig überhaupt unerkennbar war, denn
zu deutsch heisst es nicht: 'ich nehme dich,' noch: 'ich werde
dich nehmen,' sondern 'ich will dich nehmen.'"--SOHM,
_Eheschliessung_, 135.