Note 1032 — Chapter VIII · RISE OF ECCLESIASTICAL MARRIAGE: THE CHURCH DEVELOPS AND ADMINISTERS MATRIMONIAL LAW

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.