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appears that it was not until 1164, in Peter Lombard's
_Sentences_, that clear and formal recognition is found of
matrimony as one of the seven sacraments (Howard, op. cit., vol.
i, p. 333).
The Church, however, had not only made marriage a religious act; it had
also made it a public act. The officiating priest, who had now become the
arbiter of marriage, was bound by all the injunctions and prohibitions of
the Church, and he could not allow himself to bend to the inclinations and
interests of individual couples or their guardians. It was inevitable that
in this matter, as in other similar matters, a code of ecclesiastical
regulations should be gradually developed for his guidance. This need of
the Church, due to its growing control of the world's affairs, was the
origin of Canon law. With the development of Canon law the whole field of
the regulation of the sexual relationships, and the control of its
aberrations, became an exclusively ecclesiastical matter. The secular law
could take no more direct cognizance of adultery than of fornication or
masturbation; bigamy, incest, and sodomy were not temporal crimes; the
Church was supreme in the whole sphere of sex.
It was during the twelfth century that Canon law developed, and Gratian
was the master mind who first moulded it. He belonged to the Bolognese
school of jurisprudence which had inherited the sane traditions of Roman
law. The Canons which Gratian compiled were, however, no more the mere
result of legal traditions than they were the outcome of cloistered
theological speculation. They were the result of a response to the
practical needs of the day before those needs had had time to form a
foundation for fine-spun subtleties. At a somewhat later period, before
the close of the century, the Italian jurists were vanquished by the
Gallic theologians of Paris as represented by Peter Lombard. The result
was the introduction of mischievous complexities which went far to rob
Canon law alike of its certainty and its adaptation to human necessities.
Notwithstanding, however, all the parasitic accretions which swiftly began
to form around the Canon law and to entangle its practical activity, that
legislation embodied--predominantly at the outset and more obscurely
throughout its whole period of vital activity--a sound core of real value.
The Canon law recognized at the outset that the essential fact of marriage
is the actual sexual union, accomplished with the intention of
inaugurating a permanent relationship. The _copula carnalis_, the making
of two "one flesh," according to the Scriptural phrase, a mystic symbol of
the union of the Church to Christ, was the essence of marriage, and the
mutual consent of the couple alone sufficed to constitute marriage, even
without any religious benediction, or without any ceremony at all. The
formless and unblessed union was still a real and binding marriage if the
two parties had willed it so to be.
Whatever hard things may be said about the Canon law, it must
never be forgotten that it carried through the Middle Ages until
the middle of the sixteenth century the great truth that the
essence of marriage lies not in rites and forms, but in the
mutual consent of the two persons who marry each other. When the
Catholic Church, in its growing rigidity, lost that conception,
it was taken up by the Protestants and Puritans in their first
stage of ardent vital activity, though it was more or less
dropped as they fell back into a state of subservience to forms.
It continued to be maintained by moralists and poets. Thus George
Chapman, the dramatist, who was both moralist and poet, in _The
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