[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.
[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.