THE NEW SCHAFF-HERZOG
mum is conceivable among Christians, but not a
matrimonium legitimum non ratum; for a marriage
answering only to secular and not to
4. Ratum ecclesiastical law can not, by canon and Legriti- law, be considered a marriage among
mum Mat- believers, whereas to contract mar-
rimonium. riage in disregard of secular law does not diminish the sacramental character of matrimony, even when secular law does not recognize such a union as marriage. Only by the French theory can a matrimonium legitimum non ratum exist among believers. In the ecclesiastical Protestant concept, this distinction is impossible, since it does not regard the Church as having authority to pass laws on marriage. A civilly valid marriage, therefore, can no more be ecclesiastically invalid than a civilly invalid marriage can be ecclesiastically valid, provided that the enactments of the civil law are not absolutely inconsistent with the divine Word. From a Protestant point of view the question of a matrimonium legitimum non ratum could exist only in the figurative sense of a marriage not approved by the Church and hence not blessed. 2. Theory and Contracting of Marriage: Roman law distinguished between betrothal and marriage, defining the latter as " the union of a man and a woman," which might also be contracted by a simple informal agreement to enter at once upon the wedded state; and considering betrothal as " a declaration and counter-promise of future marriage." The Church recognized the validity of the Roman law on marriage, but never held that 1. Influence a divine command defined the form of
of Roman contracting marriage, though it always Law. regarded it as a necessary expression of Christian piety not to marry without ecclesiastical approval and without " thanksgiving and sanctification through the word of God and prayer." On the other hand, it never made the legal status of marriage dependent on the fulfilment of these demands of Christian piety. Like the Roman law, the Church regarded the consent of the parties as the sole necessary condition for marriage. Though the Roman practise was essentially adopted, the distinction between betrothal and marriage was drawn less sharply, even while betrothals were blessed, and while marriage after betrothal was regarded as stronger than had been the case among the Romans. Moreover, the Bible terms the marriage of Mary and Joseph a betrothal, and for these reasons the Fathers distinguished betrothal and marriage less clearly. Necessity, however, demanded a distinction. Betrothal was soluble, whereas marriage was regarded by the Church as indissoluble; betrothal was no sacrament but marriage was, though the precise reason was doubtful, since the existence of non-sacramental marriages was also acknowledged. The questions whether marriage is a sacrament, and whether or for what reasons marriage is indissoluble, were much disputed, and formed the basis of profound differences of opinion.
To substantiate their views, the schoolmen and canonists found themselves obliged to adduce citations, especially those passages of the Bible in which Joseph and Mary are called sponsus and spunsa.
The difficulties of the interpretation were overcome by distinctions. Gratian distinguished between the desponsatione (i.e., consensu) initiatum and the copula perfectum coniugium (only the latter being sacramental and indissoluble); while the schoolmen, beginning with Hugo of St. Victor, distinguished two kinds of espousals, one having the effect of the Roman betrothal, and the other that of the Roman marriage, sponsalia de futuro and sponsalia de prcesenti (the latter being sacramental and indissoluble even without a copula). In Germany the Church likewise found a national law of marriage, and retained it like the Roman in the Roman Empire. Teutonic law did not everywhere answer to the general development of the Teu-
2. Teutonic tonic state and law, and it is a vain Elements, effort to deduce a uniform picture from
the many tribal laws. Nevertheless, certain general characteristics can be fixed. According to these, the marriage contract diminished from an actual purchase of the wife to a purchase of mund, or power (mundium), over the wife from him who had it. Thus the marriage normally followed in consequence of the surrender of the mund and the payment of the purchase money. The contract, or betrothal, preceding the marriage, as to the future surrender of the bride and the amount of the purchase money, indeed had its effect, which was greater than in the case of the Roman betrothal, so that the betrothal could not be dissolved without monetary damages, although it was not considered a real marriage. Whereas the marriage originally took place by the acquisition of the mund (normally by its transfer from its owner to the groom), while the will of the bride was a matter of no concern, her wishes became more and more important, until they, and not the acquisition of the mund, were the decisive factor. Thus the actual purchase became fictitious. The Teutonic development accordingly came to coincide with the Roman principle that the consent of the parties brings about the marriage.
Canon law seriously interfered with this evolution, for, although it had hitherto acknowledged, and had been obliged to acknowledge, the validity of the laws of individual peoples, since the secular courts alone determined the validity of marriage, ,■ a change took place in the time of
3. Relation Alexander III. The Church now acof Canon to quired jurisdiction over marriage, and Roman and with it the power of carrying out her
Teutonic principles. As concerned the con- Law, tracting of marriage, the Church took her stand on the simple maxim of Roman law, consensus facit nuptias, and expressed this maxim in the scholastic form of both espousals. The consent with reference to the future (accipiam te) produced a betrothal in the Roman sense {sponsalia de futuro) ; the consent with reference to the present (e.g., accipio te in uxorem [or in mantum]) produced marriage (sponsalia de prasenti). If the copula carnis was conjoined with the sponsalia de futuro, it was considered a prwsumptio iuris et de iure for the conjugal consent, and required marriage. Nevertheless, all this was merely a new terminology for the simple principles of Roman law.