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.[328]

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 Gentleman Usher (1606), represents the riteless marriage of his hero and heroine, which the latter thus introduces:—­

                “May not we now
        Our contract make and marry before Heaven? 
        Are not the laws of God and Nature more
        Than formal laws of men?  Are outward rites
        More virtuous than the very substance is
        Of holy nuptials solemnized within?
        ....  The eternal acts of our pure souls
        Knit us with God, the soul of all the world,
        He shall be priest to us; and with such rites
        As we can here devise we will express
        And strongly ratify our hearts’ true vows,
        Which no external violence shall dissolve.”

And to-day, Ellen Key, the distinguished prophet of marriage reform, declares at the end of her Liebe und Ehe that the true marriage law contains only the paragraph:  “They who love each other are husband and wife.”

The establishment of marriage on this sound and naturalistic basis had the further excellent result that it placed the man and the woman, who could thus constitute marriage by their consent in entire disregard of the wishes of their parents or families, on the same moral level.  Here the Church was following alike the later Romans and the early Christians like Lactantius and Jerome who had declared that what was licit for a man was licit for a woman.  The Penitentials also attempted to set up this same moral law for both sexes.  The Canonists finally allowed a certain supremacy to the husband, though, on the other hand, they sometimes seemed to assign even the chief part in marriage to the wife, and the attempt was made to derive the word matrimonium from matris munium, thereby declaring the maternal function to be the essential fact of marriage.[329]