Law and History Review (2023), 41, 65–92

doi:10.1017/S073824802300010X

O R I G I N A L A RT I C L E S

The Redefinition of Clandestine Marriage by

Sixteenth-Century Lutheran Theologians and
Jurists

Paolo Astorri
Centre for Privacy Studies, University of Copenhagen, Copenhagen, Denmark
Email: [email protected]

Abstract
Within the medieval Catholic Church, the term ‘clandestine betrothal’ was associated
with the absence of witnesses, solemnities, and other formalities. Parental consent
was not a legal requirement for betrothal or marriage, which was based on the free deci-
sion of the spouses. However, Martin Luther held that the will of the parties was not
sufficient, because the couple was joined by God, and God’s will was reflected in parental
consent. Luther intended the parents to be a public authority, and he therefore pro-
posed a different definition of clandestine marriage that combined the absence of wit-
nesses with the lack of parental approval. Medieval canonists had enumerated
numerous types of clandestine betrothal. However, in their treatises, the jurists
Johannes Schneidewin, Conrad Mauser, and Joachim von Beust translated Luther’s def-
inition into legal terms, reducing the types of clandestine betrothal to only two. The
first type, absence of witnesses, continued to be regulated by canon law, with some
exceptions. The second, lack of parental approval, was governed by Roman law reinter-
preted according to Scripture. Cardinal Bellarmine criticized this definition as confused,
prompting the Lutheran theologians Paul Tarnov and Johann Gerhard to reply that
‘clandestine’ had acquired a new meaning: violation of the law imposing parental
approval.

In his Quaestiones iuris tam civilis quam saxonici, Peter Heige (1559–1599), a pro-
fessor of law at the University of Wittenberg and a judge at the supreme court
(Hofgericht) of the Albertine Electorate of Saxony, declared that clandestine
marriages were void. He added:

The pontifical [doctors] call marriages clandestine when either the mar-
riage is contracted without the presence of any spectators and witnesses
or they are present but there are no banns in the church. However, in our
© The Author(s), 2023. Published by Cambridge University Press on behalf of the American Society for Legal
History. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence
(https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduc-
tion in any medium, provided the original work is properly cited.

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 66 Paolo Astorri

church and the Reformed churches, we call clandestine betrothals prop-

erly and strictly those contracted secretly and without the participation
of witnesses, or, if witnesses were present, without the consent of the
parents.1

Heige was pointing out a significant novelty. For centuries, the Roman
Church had maintained that clandestine marriages were those contracted with-
out witnesses and public banns in church. Such marriages were discouraged,
but once contracted they were binding.2 Instead, Heige informed his readers
that in the churches instituted in the Reformation, the meaning of clandestine
betrothals was expanded: they included not only marriages without witnesses,
but also marriages without the consent of the parents. The word parentes,
which in Roman law specifically identified fathers, now referred to both father
and mother.
To support his statements, Heige quoted the Lutheran jurists Joachim von
Beust (1522–1597) and Basilius Monner (1524–1566), who attributed this defini-
tion to Martin Luther (1483–1546). He also referred to Roman law, and to the
Church ordinance by Electoral Prince August of Saxony (1526–1586), issued in
1580. Finally, he explained that the reason for this change was that marriage as
a holy thing concerned the whole of life, and as such it was not suitable to be
arranged in secret. Many things could be perpetrated fraudulently and secretly,
and clandestineness was associated with perverse opinion.3 Thus, Heige
concluded:

Therefore, even those who have the legal ability to act must not begin a
very holy thing without spectators, but must practice publicly the order of
public law. The Romans judged that sacred things that occurred in private
were impious: why should we then do of this sacred thing something
private?4

Private marriages were void. The “private” was here associated with fraud
and perversion, while what was sacred belonged to the “public.” Marriage
was a holy thing, to be contracted not in private but in compliance with the

1
Peter Heige, Quaestiones iuris tam civilis quam saxonici… (Wittebergae: 1601), 300: “…pontificii clan-
destinas nuptias vocant, quoties vel absque ullis testibus matrimonium contrahitur, vel his quidem praesen-
tibus, absque tamen denunciationibus ecclesiae ….In nostris autem et Reformatis Ecclesiis clandestina
sponsalia vocamus proprie et stricte, quae clam arbitris, et nullis testibus intervenientibus, aut his quidem
praesentibus, verumtamen sine parentum consensu contracta sunt…”
2
Although they represented different stages of the process of marital formation, the terms
“marriage” and “betrothal” were often used interchangeably. See John Witte, Jr., From Sacrament
to Contract: Marriage, Religion and Law in the Western Tradition, 2nd ed. (Louisville, KY: Westminster
John Knox Press, 2011), 142–3. This probably due to the fact that Luther rejected the canon law
distinction between present and future promises to marry.
3
Heige, Quaestiones, 300.
4
Heige, Quaestiones, 301: “Itaque non debent, etiam qui sui iuris sunt, clam arbitris, rem sanctissimam
inchoare: sed ordinem iuris publici, publice celebrare. Sacra olim privata habere, nefas Romani judicabant: cur
igitur hoc sacrum privatum faciemus?”

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 Law and History Review 67

prescriptions of public law. “Public” was intertwined with connotations of the

divine, “private” with the sinful. This points to a greater aversion to clandes-
tine marriages compared with the Catholic Church, an aversion that can be
traced to Luther and was further developed by Lutheran jurists.
The Lutheran Reformation of marriage law has been the subject of a great
deal of scholarship. Certain studies—albeit without neglecting the conjunction
between clandestineness and parental approval—have treated the two problems
separately. Thus, for instance, Dieterich has explored the positions of Lutheran
theologians and jurists on the requirement for witnesses and parental authority.5
Ozment has shown that Reformers criticized the Catholic recognition of clandes-
tine marriages as a cover for marriage based on sexual desire.6 For Roper paren-
tal consent was an instrument to subject the institution of marriage to the needs of
civic society. The analogy between parental and political authority could be used
to regulate marriages on the basis of economic or social conditions.7 Harrington
has claimed that the requirement of parental authority was intended to reestab-
lish patriarchal authority and impede relationships between people of unequal
wealth and prestige.8 Other studies have stressed that the Reformers changed
the process of marriage formation. Schwarz has shown that Lutheran marriage
ordinances invalidated marriages contracted without parental approval as “clan-
destine” and established different age limits beyond which such approval was no
longer necessary.9 Similarly, Kirstein has observed that betrothals required the
presence of witnesses and parental consent. In the absence of these conditions,
betrothals were clandestine and void.10 Witte has noted that the requirements of
witnesses, parental consent, and the church registration of vows were functional
for making marriage a public institution.11
These outstanding publications have painted an accurate portrait of
Lutheran ideas about marriage, but the notion of clandestine marriage requires
further exploration. As Kirstein has rightly asserted, the fact that Reformers
identified clandestine marriage not only with a lack of witnesses, but also

5
Hartwig Dieterich, Das protestantische Eherecht in Deutschland (München: Claudius Verlag, 1970),
56–59, 123–27, 193–204.
6
Steven Ozment, When Fathers Ruled: Family Life in Reformation Europe (Cambridge, Mass. and
London: Harvard University Press, 1983), 28.
7
Lyndal Roper, The Holy Household: Women and Morals in Reformation Augsburg (Oxford: Clarendon
Press, 1989), 162–63.
8
Joel F. Harrington, Reordering Marriage and Society in Reformation Germany (Cambridge:
Cambridge University Press, 1995), 169–214. On political and economic issues related to marriage
before the Reformation, see Michael Schröter, “Wo Zwei zusammenkommen in rechter Ehe…” Sozio-und
psychogenetische Studien über Eheschliessungsvorgänge vom 12. bis 15. Jahrhundert (Frankfurt a. M.:
Suhrkamp, 1985).
9
Ingeborg Schwarz, Die Bedeutung der Sippe für die Öffentlichkeit der Eheschliessung im 15. und 16.
Jahrhundert (Tübingen: Fabian, 1959), 60–66.
10
Roland Kirstein, Die Entwicklung der Sponsalienlehre und der Lehre vom Eheschluss in der deutschen
protestantischen Eherechtslehre bis zu J.H. Böhmer (Bonn: L. Röhrscheid, 1966), 154–5.
11
John Witte, Jr., “The Reformation of Marriage Law in Martin Luther’s Germany: Its
Significance Then and Now,” Journal of Law and Religion 4, no. 2 (1986): 293–351 (325–30); John
Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge:
Cambridge University Press, 2002), 199–256; Witte, From Sacrament, 140–2.

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 68 Paolo Astorri

with the absence of parental approval, should not be underestimated.12 This

article is the first attempt to closely investigate this aspect for both its theo-
logical underpinnings and its legal repercussions. It will show that the adjec-
tive “clandestine” (clandestinum) obtained a different meaning: it became a
violation of God’s order and will. This mutation lays in the Lutheran assump-
tion that marriage was not simply a choice of the spouses but was dependent
upon God’s will. Parents (father and mother) became vested with divine
authority, and spouses were obligated to ask for their consent. Any rebellion
against the parents was an act of Satan and disobedience to God. On the
legal side, while canon law was partially abrogated, Roman law was reinter-
preted in light of the fourth commandment of the Decalogue (“honor thy father
and thy mother”) and gained the force of divine law.
This article reconstructs the main coordinates of the theological and legal
debate by focusing on some influential works written by theologians and
jurists.13 It is divided into nine sections, which follow a chronological rationale.
The next section presents a brief sketch of the notion of clandestine marriage
before the Reformation. The section “Without the Presence of Orderly Public
Authority” grapples with Luther’s definition of clandestine marriage, its justi-
fication, and its legal implications. Section “Is the Roman Law Imposing
Parental Consent a Divine Ordinance?” analyzes the opinions of Johannes
Brenz (1499–1570) and Melchior Kling (1504–1571) regarding whether the
Roman law instituting parental approval complied with divine law. The section
“Interpreting Roman Law in the Light of Scripture” turns to the jurist Basilius
Monner, who offered aninterpretation of Roman law centered on the fourth
commandment of the Decalogue. Sections “The Legal Definition of
Clandestine Betrothal” and “Von Beust and the Marriage Law of Saxony” illus-
trate how Luther’s notion of clandestine betrothal was translated into legal
terms by the jurists Conrad Mauser (1506–1548), Johannes Schneidewin
(1519–1568), and Joachim von Beust. The penultimate section engages with
the discussion between the Roman Catholic Cardinal Robert Bellarmine
(1542–1621) and the Lutheran theologians Martin Chemnitz (1522–1586), Paul
Tarnov (1562–1633), and Johann Gerhard (1582–1637). This is followed by the
conclusion.

Parental Consent and Clandestine Marriage before the Reformation

With the Gregorian Reform of the eleventh century, the Church secured its
jurisdiction over marriage. Marriage was a sacrament governed by canon
12
Kirstein, Die Entwicklung, 112.
13
Marriage was the subject of great discussion among the reformers, and numerous essays were
dedicated to it. However, considering the limited space available in this article, we had to make a
strict selection. We focused on sources that addressed the problem of clandestine marriage in a
detailed way and were relevant to the discourse because they were often cited. For example, some
authors focused more on other issues (such as divorce, marital impediments, or priest marriage),
and less on clandestine marriage (see for instance, Philip Melanchthon, De arbore consanguinitatis et
affinitatis sive de gradibus dissertatio published in 1540, id. De coniugio sacerdotum, 1540, or Niels
Hemmingsen in Libellus de coniugio, repudio, et divortio published in 1572).

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 Law and History Review 69

law, and it could be contracted in two ways: first, through an exchange of

promises to marry in the future (contract of betrothal or sponsalia de futuro),
followed by sexual intercourse; second, through an exchange of promises to
marry in the present (sponsalia de praesenti).14 The spouses’ free consent was
the crucial element. Consent expressed in the present constituted a marriage,
while consent expressed for the future constituted a betrothal. In the absence
of sexual intercourse, an exchange of consent expressed for the future did not
constitute a marriage. Since it was crucially important to express one’s consent
in the present or for the future (and to prove the existence of such an agree-
ment), there were specific formulae in which to do so. Their interpretation was
often a difficult matter.15
Canon law required neither formal writings nor witnesses, nor parental, sec-
ular, or ecclesiastical approval, for the validity of a marriage.16 Roman law
required the consent of the paterfamilias for the validity of the marriage of
his children.17 Medieval Germanic laws further set out that a person holding
legal authority over a woman could determine a suitable husband, and that
parents could disinherit a child who had married against their will.18
However, the Church insisted on freedom of choice.19 Before God, all men
were free to choose their state, whether this be marriage, priesthood, or
monastic profession.20 Marriage was a sacrament based on the free consent
of the spouses. As long as the parties gave their free consent, the marriage
was valid; parental consent was not an essential element.21

14
The bibliography on medieval marriage, and especially on the doctrine of consent as it was
reshaped by Pope Alexander III (1159–1181), is abundant. A short selection: James A. Brundage,
Law, Sex, and Christian Society in Medieval Europe (Chicago and London: Chicago University Press,
1987), 331–37; Charles Donahue, Jr., Law, Marriage, and Society in the Later Middle Ages, Arguments
About Marriage in Five Courts (Cambridge: Cambridge University Press, 2007), 16–17; Philip
L. Reynolds, How Marriage Became One of the Sacraments: The Sacramental Theology of Marriage from
Its Medieval Origins to the Council of Trent (Cambridge: Cambridge University Press, 2016), 155–288.
15
Brundage, Law, Sex, and Christian Society in Medieval Europe, 235–9.
16
Witte, From Sacrament, 112.
17
George Hayward Joyce, Christian Marriage: An Historical and Doctrinal Study (London and
New York: Sheed and Ward, 1933), 71–72; Susan Treggiari, Roman Marriage, Iusti Coniuges from the
Time of Cicero to the Time of Ulpian (Oxford: Clarendon Press, 1991), 323–31. See also, Charles
Donahue, Jr., “The Case of the Man Who Fell into the Tiber: The Roman Law of Marriage at the
Time of the Glossators,” American Journal of Legal History 22, no. 1 (1978): 1–53 (esp. 45–52).
According to Donahue, medieval glossators supported the Roman legal rule that required parental
consent; however, their possible impact is unclear, as jurisdiction over marital cases lay within the
purview of the Church, which applied canon law rules.
18
Ozment, When Fathers Ruled, 27.
19
Richard H. Helmholz, The Spirit of Classical Canon Law (Athens and London: The University of
Georgia Press, 2010), 240.
20
The choice was not always free, however. For economic or political reasons, people were often
forced into particular states of life. This was especially so in the case of women, who were often
forced to become nuns, prostitutes, or concubines. See, for example, Ulrike Strasser, State of
Virginity: Gender, Religion and Politics in an Early Modern Catholic State (Ann Arbor: The University
of Michigan Press, 2004); Michelle Armstrong-Partida, Defiant Priests: Domestic Unions, Violence, and
Clerical Masculinity in Fourteenth-Century Catalunya (Ithaca, NY: Cornell University Press, 2017).
21
Joyce, Christian Marriage, 73.

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 70 Paolo Astorri

Even though specific solemnities were not strictly required for the validity
of the marriage, they were often demanded nonetheless. Canonists such as Ivo
of Chartres (1040–1115) and some local synods stated that a marriage had to be
contracted through the public exchange of vows, marriage gifts, a wedding
ring, and a blessing by a priest. Those who performed a clandestine marriage
might be forced to undertake penitential sanctions.22 The Decretum Gratiani also
included the provision that a marriage was unlawful and clandestine in the
absence of the permission of those who had power over the woman, a
dowry, and a sacerdotal blessing.23 Canon fifty-one of the Fourth Lateran
Council (1215) established that a marriage had to be announced publicly in
church by a priest. This requirement was necessary to ascertain the presence
of any impediments. Canon law forbade certain relationships. For example,
consanguinity or affinity up to the fourth degree, and legal or spiritual rela-
tionships (e.g. godparent and godchild), were named “impediments” and inval-
idated the marriage.24 Without some sort of publicity, it was difficult to find
out whether these impediments existed. Thus, the Lateran Council set out
that the priest had to check for the presence of impediments. If he assisted
a marriage where the public banns had not been proclaimed, he would be sus-
pended from office.25
A marriage contracted in the absence of publicity (without witnesses or other
evidence), solemnities, or public banns was called “clandestine.”26 Canonists and
theologians, as well as episcopal courts and synods, offered various and not
always uniform classifications of clandestine marriage.27 Cardinal Enrico da
Susa (Hostiensis, 1200–1271) wrote that clandestine betrothals were defined in
four or six ways: (1) the solemnities (sacerdotal blessing, a request to the father
of the spouse, dowry, and handing over) were omitted; (2) the betrothal was con-
tracted secretly, without witnesses; (3) the betrothal was contracted breaking a
previous betrothal to marry someone else or a previous marriage without the
licentia of the bishop; (4) the public banns in the church were lacking.28

22
Brundage, Law, Sex, and Christian Society, 189.
23
Aliter, c. 30 q.5 c.1.
24
For the complete list, see Donahue, Law, Marriage, and Society, 18–31.
25
This requirement was encapsulated in the Liber extra, under the title dedicated to clandestine
betrothal (de clandestina desponsatione, X 4.3.3).
26
As Schmugge points out, “clandestine” did not necessarily mean “secret,” but it could also
simply denote the lack of procedural requirements such as the public banns. See Ludwig
Schmugge, Marriage on Trial: Late Medieval German Couples at the Papal Court, trans. A. Larson
(Washington D.C.: Catholic University of America Press, 2012), 92.
27
See Beatrice Gottlieb, “The Meaning of Clandestine Marriage,” in Family and Sexuality in French
History, eds. Robert Wheaton and Tamara K. Hareven (Philadelphia: Pennsylvania University Press,
1980), 49–73; Donahue, Law, Marriage, and Society, 4, calls it a “troublesome term because it can mean
a number of things.” See also, A.J. Finch, “Parental Authority and the Problem of Clandestine
Marriage in the Later Middle Ages,” Law and History Review 8, no. 2 (1990): 189–204; José
Sánchez-Arcilla-Bernal, “La formación del vinculo y los matrimonios clandestinos en la Baja
Edad Media,” in Cuadernos de Historia del Derecho 17 (2010): 7–47.
28
Enrico da Susa (Card. Hostiensis), Summa aurea (Coloniae: Lazari Zetneri, 1612), 1139–40. The
fifth case is related to the betrothal of minors without the licentia of the bishop, and the sixth case
is a betrothal against an interdictum of the church.

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 Law and History Review 71

Angelo Carletti di Chivasso (1411–1495), in his Summa angelica stated that a clan-
destine marriage occurred in three cases: (1) the absence of witnesses;29 (2) the
absence of the solemnities (which thereby entailed that no promise of marriage
had been made to the woman’s parents) and sacerdotal blessing;30 (3) the absence
of the public banns.31 Late medieval German synods identified clandestineness
with the absence of the public banns, and not with secrecy.32 In particular,
Bavarian synods and church courts used the adjective “clandestine” to refer to
incorrect marital behavior, while secrecy was referred to with the words secrete
or clam, and if an element of the contract could not be proved, the word used
was occulte.33 In Regensburg’s marriage court cases, the word clandestine was
used to signify the existence of a matrimonial impediment. Clandestine was
used in opposition to a public and subsequent marriage with another partner.34
A clandestine marriage was illegal and sinful, but it was still valid, because it
was based on the free consent of the spouses.35 As Thomas Aquinas (1225–1274)
opined, in a hidden marriage (in occulto matrimonio) the required matters of the
sacrament, the people, and the lawful form—the consent of the spouses—were
still present. Therefore, it was a true marriage.36 A provision included in the
Liber extra stated that no dispensation for the required solemnities was necessary.
The Church does not judge about things that are hidden (Ecclesia de occultis non
iudicat), and therefore if the spouses did not publish the marriage, there was
nothing the church could do about it. The tricky issue, however, was to provide
evidence of such a marriage. A clandestine marriage could not be presumed but
had to be proved by the plaintiff.37 The confession of both spouses was sufficient
to prove a clandestine marriage, but not to prevent the validity of a public mar-
riage. The public marriage prevailed over the clandestine.38 The consequence
was extremely problematic: one or both of the parties to the first, clandestine
marriage had to live in a second (public) marriage as a perpetual adulterer.39

29
Quod nobis, X 4.3.2.
30
Aliter, c. 30 q.5 c.1.
31
Angelo de Chivasso, Summa angelica de casibus conscientialibus (Venetiis: Sansovinus, 1569), 74b.
X 4.3.3.
32
Schröter, “Wo Zwei zusammenkommen”, 322. He distinguishes between episcopal synods, where
the word “clandestine” was used to mean absence of the banns, church courts, where it meant the
absence of witnesses, and secular courts, where it also meant the absence of parental approval. For
sixteenth century court practices, see Thomas Max Safley, Let No Man Put Asunder. The Control of
Marriage in the German Southwest: A Comparative Study, 1550–1660 (Kirksville, MI: The Sixteenth
Century Journal Publisher, 1984), 152–53; 186–87.
33
Klaus Lindner, “Courtship and the Courts: Marriage and Law in Southern Germany, 1350–
1550” PhD diss., (Harvard: Harvard University Press, 1988), 94.
34
Christina Deutsch, Ehegerichtsbarkeit im Bistum Regensburg 1480–1538 (Köln: Vandenhoeck &
Ruprecht, 2005), 271–72.
35
Adhémar Esmein, Le mariage en droit canonique (Paris: Sirey, 1929), 1, 205; Donahue, Jr., Law,
Marriage, and Society, 16–18.
36
Thomas Aquinas, In quatuor sententiarum, d. xxviii, q. 1, art. 3 cit. in Joyce, Christian Marriage, 73.
37
X 4.3.1.
38
Esmein, Le mariage, 214.
39
Esmein, Le mariage, 213, 219. On this problem, see Monique Vleeschouwers-Van Melkebeek,
“Bina matrimonia: matrimonium praesumptum vs. matrimonium manifestum. Hoe passen de

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 72 Paolo Astorri

In practice, despite the absence of the requirement of publicity for the valid-
ity of a marriage, families and ecclesiastical and secular authorities controlled
and directed the consent of the spouses. Marriage had important economic and
political implications,40 and secular law demanded that rights and duties be
determined with reasonable certainty.41 This custom varied from place to
place. As Donahue has argued concerning France and England, it is
possible that parental control was increasingly consistent and effective.42
Similarly, Ribordy has claimed that Aristocratic families in France enforced
parental control, and as Gottlieb has shown, this also happened in
Champagne.43 However, clandestine marriage, especially between minors,
remained widely practiced.44 In the majority of the cases, the plaintiff was a
woman who had lost her virginity. After a man had promised to marry her,
the couple had had sexual intercourse, but the man had subsequently disap-
peared or refused to fulfill his obligations.45 In most of the cases, in the absence
of witnesses or because of interpretative problems linked to the complicated
scheme of verba de praesenti and verba de futuro, it was impossible to prove
the promise, and the marriage could not be enforced.46 In other cases,
instead, courts ordered the parties to regularize their marriage publicly in

officialiteiten van Kamerijk en Brussel in de vijftiende eeuw canoniek recht en doctrine terzake
toe?,” in Auctoritates. Xenia R.C. Van Caenegem oblata. De auteurs van de rechtsontwikkeling, eds.
Serge Dauchy, Jan Monballyu and Alain Wijffels (Leuven: Peeters, 1997), 245–55; Id. “Oui, je le
veux”: paroles de mariage prononcees en secret ou en public. Le Justice face au Succès de
Mariages Clandestins. Le cas des Pays-Bas Méridionaux du 15e Siècle,” in Secret et justice: Le secret
entre èthique et technique?, eds. Jean-Pierre Royer and Bernard Durand (Lille: Espace Juridique,
1998), 164–76.
40
Ozment, When Fathers Ruled, 27–28; Harrington, Reordering Marriage, 173–74.
41
Charles Donahue, Jr., “The Canon Law on the Formation of Marriage and Social Practice in the
Later Middle Ages,” Journal of Family History (Summer 1983): 144–58 (146).
42
Donahue, Jr., “The Canon Law,” 156.
43
Geneviève Ribordy, “Mariage aristocratique et doctrine ecclèsiastique: Le tèmoignage du rapt
au Parlement de Paris pendant la guerre de Cent ans,” Crime, History & Societies 1, no. 2 (1998): 29–48;
Beatrice Gottlieb, “Getting Married in Pre-Reformation Europe: The Doctrine of Clandestine
Marriage and Court Cases in Fifteenth-Century Champagne,” PhD diss. (Columbia University,
1974), 233–307.
44
Harrington, Reordering Marriage, 29.
45
Men who wanted to have sex with a woman outside marriage often deliberately used this tac-
tic. See, for instance, Silvana Seidel Menchi, “Percorsi variegati, percorsi obbligati. Elogio del matri-
monio pre-tridentino,” in Matrimoni in dubbio: Unioni controverse e nozze clandestine in Italia dal XIV al
XVIII secolo, eds. Silvana Seidel Menchi and Diego Quaglioni (Bologna: Il Mulino, 2002), 43–45.
46
However, the female plaintiff could demand compensation for her loss of virginity or a sum of
money for the expenses associated with the child. Richard Helmholz, Marriage Litigation in Medieval
England (Cambridge: Cambridge University Press, 1975), 25–73; Monique Vleeschouwers—Van
Melkebeek, “Self-Divorce in Fifteenth-Century Flanders: The Consistory Court Accounts of the
Diocese of Tournai,” in Tijdschrift voor rechtsgeschiedenis 68 (2000), 83–98; Christina Deutsch,
Ehegerichtsbarkeit im Bistum Regensburg 1480–1538, 268–80; Silvana Seidel Menchi and Diego
Quaglioni, eds., I Tribunali del matrimonio (secoli XV-XVIII) (Bologna: Il Mulino, 2007); Kirsi Salonen,
“Marriage Disputes in the Consistorial Court of Freising in the Late Middle Ages,” in Regional

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 Law and History Review 73

church.47 In some German ecclesiastical synods, marriages between minors against

the will of their parents were punished with excommunication and disinheritance.48

“Without the Presence of Orderly Public Authority”

The canon law regulation of marriage suffered a critical setback in sixteenth-
century Germany. Beyond proposing a set of reforms that affected marriage’s
nature, formation, and impediments, as well as divorce,49 Luther put forward
a different definition of clandestine marriage. He rejected the distinction
between the present and future exchange of marital vows as misleading, and
he proposed that all promises should be considered promises in the present
(sponsalia de praesentia). Such a promise would have to be made at the presence
of two witnesses, have parental consent, and be repeated publicly in church
before consummation. Thus, the definition of clandestine marriage comprised
not only marriages in the absence of witnesses, but also those without parental
approval. In his sermon On Marital Matters (1530), Luther wrote:

I define a clandestine betrothal [heimlich verloͤ bnis] as one which takes

place without the knowledge and consent of those who are in authority
and have the right and power to establish a marriage, such as, father,
mother and whoever may act in their stead. Even if a thousand witnesses
were present at a clandestine betrothal and it nonetheless took place with-
out the knowledge and consent of the parents, the whole thousand should
be reckoned as acting in the darkness and not in the light, as only one
voice, and as assisting treacherously in this beginning without the pres-
ence of orderly public authority [ordenlicher, offentlicher macht].50

This definition was quoted innumerable times, and it codified a fundamen-

tal shift in the history of marriage law.51 For Luther, the presence of

47
Brundage, Law, Sex, and Christian Society, 499–500.
48
Harrington, Reordering Marriage, 179.
49
Dietrich, Das protestantische, 24–74; Witte, From Sacrament, 113–58. Bibliography on Luther and
Marriage is abundant, see, for example, Hans Hattenhauer, “Luthers Bedeutung für Ehe und
Familie,” in Luther und die Folgen, eds. Hartmut Löwe and Claus-Jürgen Roepke (München: Kaiser,
1983), 86–109 Georg Kretschmar, “Luthers Konzeption von der Ehe,” in Martin Luther: Reformator
und Vater in Glauben, ed. Peter Manns (Stuttgart, 1985), 178–207; Jane Strohl, “Luther on
Marriage, Sexuality, and the Family,” in The Oxford Handbook of Martin Luther’s Theology, eds.
Robert Kolb et al. (Oxford: Oxford University Press, 2014), 370–82; Thomas Kaufmann,
“Reformation der Lebenswelt: Luthers Ehetheologie,” in Der Anfang der Reformation: Studien zur
Kontextualität der Theologie, Publizistik und Inszenierung Luthers und der reformatorischen Bewegung ed.
id. (Tübingen: Mohr Siebeck, 2012), 550–64; Christian Volkmar Witt, Martin Luthers Reformation
der Ehe: Sein theologisches Eheverständnis vor dessen augustinisch-mittelalterlichem Hintergrund
(Tübigen: Mohr Siebeck, 2017). For a summary, see Trevor O’Reggio, “Martin Luther on Marriage
and Family,” (2012). Faculty Publications. 20. https://digitalcommons.andrews.edu/church-his-
tory-pubs/20.
50
Martin Luther, On Marriage Matters in LW 46, 1967, 259–320 (268). See WA 30/3, 205ff. (207).
51
The Lutheran definition was used until at least the eighteenth century. See Kirstein, Die
Entwicklung, 154.

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 74 Paolo Astorri

witnesses was not enough to constitute the publicity of a marriage, as the

witnesses did not have the public authority to establish a marriage. The par-
ents were the public authority who also had to be present: they signaled
God’s will. In their absence, a marriage was made “in the darkness” (im fin-
stern). The “public” was here associated with the authority of the parents,
which reflected God’s will, while the “clandestine” consisted of a treacherous
(meuchling) act.
Luther justified this definition with arguments from divine law, Roman law,
early canon law, and natural law, as well as practical considerations.52 He
explained the necessity of parental consent by referring to Matthew 19:6:
“What therefore God hath joined together, let no man put asunder.” This passage
showed that there could be two joinings: one by God, the other without God.
Joining by God meant that a marriage was made by God’s word and command-
ment. Joining without God was marriage by the spouses alone, without corre-
sponding to God’s word and commandment. For Luther, a clandestine betrothal
could not be proven to be God’s will.53 A marriage should be contracted in the
presence of the parents, because without their authorization there would be no
way to prove that the marriage was God’s will. Obedience to one’s parents was
obedience to God. This was a crucial point. For Luther, a Christian was called to
obey the word of God, and this obedience passed through the will of the
parents.
A few years before, in The Estate of Marriage (1522), Luther had argued that
God had instituted marriage, brought husband and wife together, and ordained
that they should beget children and care for them.54 The passage of Genesis
1:28 (“be fruitful and multiply”) was a divine ordinance: “It is not a matter of
free choice or decision but a natural and necessary thing, that whatever is a man
must have a woman and whatever is a woman must have a man.”55 Yet men and
women were not entirely free to select their partners. It was God that brought
a man and a woman together: he operated through the will of the spouses’ par-
ents. In the 1524 tract, That Parents Should Neither Compel nor Hinder the Marriage
of Their Children, and That Children Should Not Become Engaged without Their
Parents’ Consent, Luther insisted that parental approval was justified by the
fourth commandment of the Decalogue.56 Jeremiah 29:6 (“give husbands to
52
Luther, On Marriage, 268–70.
53
Luther, On Marriage, 276–77.
54
Martin Luther, On the Estate of Marriage in LW 45, 38. See also, Marjorie Elisabeth Plummer, “On
the Estate of Marriage,” in The Annotated Luther. Christian Life in the World, eds. Hans J. Hillerbrand
et al. (Minneapolis: Fortress, 2017), 33–77.
55
Luther, On the Estate, 18. As Roper observes, for Luther sexuality is a force impossible to be
governed and only to be directed according to God’s order. See Lyndal Roper, “Luther: Sex,
Marriage and Motherhood,” History Today 33 (1983): 33–38.
56
On the crucial importance of this commandment in the Reformation, see Robert James Bast,
Honor Your Fathers: Catechisms and the Emergence of a Patriarchal Ideology in Germany 1400–1600 (Leiden:
Brill, 1997). For more in general on the role of the Decalogue for the Reformers, see Harold
J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal
Tradition (Harvard: Harvard University Press, 2003), 71–100; Antti Raunio, “Divine Law and
Natural Law in Luther and Melanchthon,” in Lutheran Reformation and the Law, ed. Virpi Mäkinen
(Leiden: Brill, 2006), 21–62; Mathias Schmoeckel, Das Recht des Reformation (Tübingen: Mohr

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 Law and History Review 75

your daughters and wives to your sons”) and other similar passages ordered chil-
dren to obtain parental approval. Finally, Adam and Eve had not chosen for
themselves, but rather God had brought Eve to Adam.57
In Luther’s view, the foundation of marriage was not the will of the parties,
as it was for Catholics, but the will of God. The will of God was reflected in the
will of the parents. Spouses could not marry without their parents’ consent, as
to do so would be an arbitrary decision and a violation of God’s will. However,
Luther did not seek to overturn the Catholic definition of clandestine marriage.
He required the presence and consent of the parents, but he also required the
presence of witnesses. Since marriage was a public estate (offentlicher stand), he
wrote, it should also begin publicly, in the presence of witnesses. In Matthew
18:16, Christ affirms: “Every matter may be established by the testimony of two or
three witnesses.” If two people had become engaged in secret, one could not
be sure that consent had really been given.58
Thus, Luther blended the requirement for parental approval with a require-
ment for the presence of witnesses. Both elements were essential for the valid-
ity of a marriage. When they were lacking, the marriage was clandestine, and
the spouses were committing a theft from God:

Marriage is a public estate ordained by God and not a shady business to be

carried on in dark corners, he who seeks it in corners and dark places or
enters into it secretly is a marriage-thief, for he has stolen it and not
obtained it honestly from God and through obedience to his word, as is
fitting so honorable an estate.59

Once again, clandestine marriage was associated with darkness, while public
marriage was connected to the light of God. Clandestine spouses were like thieves,
because they disobeyed God’s word. Indeed, a clandestine marriage amounted
to the theft of children from their parents, who had raised their offspring with
great care and attention only to see them married away without their consent.60
On the other hand, parents had the responsibility to help their children to find an
appropriate woman/man and get married.61 They must not behave like tyrants
and oppress their children with unjustified refusals or forced betrothals.62 In

Siebeck, 2014), 24–38; Martin Heckel, Martin Luthers Reformation und das Recht (Tübingen: Mohr
Siebeck, 2016), 406–88.
57
M. Luther, That parents should neither compel nor hinder the marriage of their children, and that
children should not become engaged without their parents’ consent in LW 45, 390. On the necessity of
parental control, see Dietrich, Das protestantische, 56–60.
58
Luther, On Marriage, 268.
59
Luther, On Marriage, 283–84.
60
Luther, On Marriage, 269–70. Harrington, Reordering Marriage, 187–8 suggests that the charac-
terization of children as property could be associated with the attempt of secular authorities to
control marriages.
61
Witt, Martin Luthers, 259.
62
A problem which occurred often in the practice. See, for example, Daniela Hacke, “Non lo
volevo per marito in modo alcuno: Forced Marriages, Generational Conflicts, and the Limits of
Patriarchal Power in Early Modern Venice, c. 1580–1680,” in Time, Space, and Women’s Lives in

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 76 Paolo Astorri

this case, Luther stated, the children should ask ministers and friends, and then
the public authority, to compel the fathers.63 Later on, the children could seek
remedy from the Consistorium, an institution composed of theologians and jurists
with the competence to resolve marital cases.64
Luther’s approach to clandestine betrothals clashed with canon law. As we
saw earlier, canon law deemed that clandestine marriages were binding. Where
a public and a clandestine betrothal coexisted, canon law recognized the clan-
destine marriage as valid if both spouses confessed it and made it public.
However, this opened up greater problems: if the first (clandestine) marriage
could not be proved, a spouse had to keep it on his/her conscience. S/he
was obligated to remain with the second spouse, who could prove their mar-
riage because it had been publicly attested.65 Paying attention to these issues
arising from everyday practice,66 Luther sharply repudiated this solution,
and contended that a clandestine marriage must not prevail over a public one:

A marriage obtained by treachery and stealth, secretly and dishonestly,

should yield to one obtained openly and honestly with God and honor.
Private arrangements must yield to public ones…. Likewise living together
in secret shall yield to that which is public.67

For Luther, clandestine marriages were void; in case of a conflict between a

clandestine and a public marriage, the latter must always be preferred. He
believed that in this way it could never happen again that a party to a clandes-
tine marriage would be obligated to live in a public marriage while remaining
bound in conscience to the clandestine party. Luther admitted one exception:
when the marriage had been consummated. In this case, Luther argued that the
clandestine marriage could be valid, in order to avoid dishonoring the woman
and her family. Thus, the woman received special protection. To avoid the prej-
udice she would suffer from the new regulation, the clandestine marriage was
exceptionally considered to be valid.

Is the Roman Law Imposing Parental Consent a Divine Ordinance?

Luther’s reshaping of clandestine marriage was shared by other leading theo-
logians of the Reformation. Philip Melanchthon (1497–1560), Johannes

Early Modern Europe, eds. Anne Jacobson Schutte, Thomas Kuhen and Silvana Seidel Menchi
(Kirsksville: Truman State University Press, 2005), 203–21.
63
Luther, On Marriage, 304–09.
64
Uwe Sibeth, Eherecht und Staatsbildung: Ehegesetzgebung und Eherechtsprechung in der
Landgrafschaft Hessen (-Kassel) in der frühen Neuzeit (Darmstadt and Marburg: Selbstverlag der
Hessischen Historischen Kommission Darmstadt, 1994); Ralf Frassek, Ehegericht und
Ehegerichtsbarkeit in der Reformationszeit (Tübingen: Mohr Siebeck, 2005).
65
Luther, On Marriage, 270–71.
66
Luther’s attention to customary practices has been noticed by Thomas Robisheaux, “Peasants
and Pastors: Rural Youth Control and the Reformation in Hohehlohe, 1540–1680,” Social History 6,
no. 3 (1981): 281–300 (283fn 11).
67
Luther, On Marriage, 283–84.

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 Law and History Review 77

Bugenhagen (1485–1558), Niels Hemmingsen (1513–1600), and many others

published sermons and treatises where they supported Luther’s ideas.68
These theologians continued to associate clandestineness with the absence
of parental approval. They justified the need for parental approval by referring
to Roman law, as “imperial” law.69 The key argument was that as Roman law
required the consent of the fathers before a marriage could be contracted,
this law was consistent with divine law and had to be considered a divine ordi-
nance. Thus, parental consent was not only expressed in divine law, but was
directly applied in human law—Roman law. Since there is insufficient space
to examine all of these theologians here, I will take Johannes Brenz as my
example. As Anneliese Sprengler-Ruppenthal has observed, Brenz was one of
the principal defenders of the use of Roman law, and he even convinced
Luther to adopt it.70
Brenz graduated in theology at Heidelberg (MA 1518). He joined the
Reformation in 1522 and became a preacher at St. Michael’s Church in the
imperial city of Schwäbisch Hall.71 As a counselor to political authorities, he
formulated numerous Church ordinances and participated in the most impor-
tant theological and political debates of the day. In 1531, he authored a sermon
on marital cases. This sermon featured a preface by Luther himself, was trans-
lated into Latin, and was later also included in Georg Dedekenn’s (1564–1628)
influential collection of cases of conscience.72 For Brenz, Scripture alone
could establish what was divine and what was not.73 In Matthew 19:6, Christ
said: “What therefore God hath joined together, let not man put asunder.” Brenz
commented:

68
Dieterich, Das protestantische, 94–97; Witte, From Sacrament, 113–58.
69
The use of Roman law became an essential feature of the Reformation after 1530. See James
Q. Whitman, The Legacy of Roman Law in the German Romantic Era (Princeton: Princeton University
Press, 1990), 3–40; An emblematic case is marriage law, as Anneliese Sprengler-Ruppenthal, “Zur
Rezeption des Römischen Rechts im Eherecht der Reformatoren,” ZRG Ka 112 (1978): 363–418,
has shown. For the “reception” of Roman law by the reformers, see also, Gerhard Günther,
“‘Altes Recht’, ‘Göttliche Recht’ und ‘Römisches Recht’ in der Zeit der Reformation und des
Bauernkrieges,” Wiss. Zeitschrift der Karl-Marx-Universität Leipzig, 14. Jahrgang (1965): 427–34;
Gerald Strauss, Law, Resistance, and the State: The Opposition to Roman Law in Reformation Germany
(Princeton: Princeton University Press, 1986); Georg Dahm, “On the Reception of Roman Law and
Italian Law in Germany,” in Pre-Reformation Germany, ed. Gerald Strauss (London: Macmillan,
1972), 282–315; Isabelle Deflers, “Melanchthon und die Rezeption des römisches Rechts in
Eherecht der Reformation,” in Sachsen im Spiegel des Rechts, eds. Adrian Schmidt-Recla et alia
(Wien: Böhlau Verlag, 2001), 185–203. More in general, see Lorena Atzeri, “Römisches Recht und
Rezeption,” in Europäische Geschichte Online, ed. Leibniz-Institut für Europäische Geschichte
(Mainz, 2017). URL: http://www.ieg-ego.eu/atzeril-2017-de (March 9, 2021).
70
See Sprengler-Ruppenthal, “Zur Rezeption des Römischen Rechts,” 369–75.
71
On Brenz see James Martin Estes, Christian Magistrate and Territorial Church: Johannes Brenz and
the German Reformation (Toronto: CRRS, 2007).
72
I quote from the Latin edition: Johannes Brenz, Libellus casuum quorundam matrimonialium
utilissimus (Basileae: Westheimer, 1536). Georg Dedekenn, Thesauri consiliorum et decisionum volumen
tertium mixta et inprimis matrimonialia continens (Jenae: Nisius, 1671), 110–13. The German version:
Wie yn Ehesachen, vnd jnn den fellen, so sich derhalben zu tragen, nach Göttlichen billichen Rechten,
Christenlich zu handeln sey (Wittenberg: Rhaw, 1531).
73
Brenz, Libellus, 9b.

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 78 Paolo Astorri

From these words, we very openly teach that between the spouses it is not
the manner of that connubial pact that has to be contemplated, but
whether they were divinely joined together. Indeed, Christ did not simply
say: they who have joined together, but what God has joined together.74

Therefore, marriage was not a work of man but an act of God. The essential
point was that God united the spouses. Brenz stressed that Roman law applied
the tenets of Scripture. Exodus 20:12 sets out “honor thy father and thy mother.”
This honor was obedience not only to Scripture, but also to Roman law ( jus
Caesareum), which applied parental obedience to the marital contract. As this
law complied with Scripture, Brenz wrote, it had to be observed as a divine
ordinance, as Paul says in the Letter to the Romans (Romans 13).75 The
Romans required parental approval, and as this was consistent with divine
law, it had to be observed like a divine ordinance. Accordingly, the requirement
in civil law for parental consent was an application of the precept of divine law
that demanded that children honor their father and mother.
In a similar way, for Brenz, Deuteronomy 7:3—“neither shalt thou make
marriages with them; thy daughter thou shalt not give unto his son, nor his
daughter shalt thou take unto thy son”—meant that children could only
marry by parental consent.76 When Roman citizens contracted marriage, the
children asked the permission of the pater familias, because they were subjected
to his potestas. As Roman law met the precepts of divine law in requiring child-
ren’s obedience to their parents, Brenz concluded that this law had to be con-
sidered divine law and respected as such.77 As Roman law abided by divine law,
it had the same effect as divine law. On the other hand, Brenz argued that
canon law was not binding, because it did not comply with Scripture.78 He
averred that a clandestine marriage arose from Satan. What God had joined
together could not be separated; but what had been put together by Satan,
man could certainly separate.79 Therefore, a clandestine marriage, carried
out against the will and consent of the parents, was void.80
Brenz’s and the other theologians’ assumption that Roman law’s imposition
of parental approval was like divine law did not find immediate acceptance
among all jurists.81 For instance, Melchior Kling, a professor of law at the
74
Brenz, Libellus, 9a: “E quibus apertissime docemur, inter coniuges non modo pactum illud connubiale
contemplandum esse, sed an divinitus etiam coniuncti sint. Christus enim non simpliciter ait, qui coniuncti
fuerint, sed quod Deus coniunxerit.”
75
Brenz, Libellus, 10a. This biblical passage was used many times to give moral support to legal
norms. See Richard J. Ross, “Binding in Conscience: Early Modern English Protestants and Spanish
Thomists on Law and the Fate of the Soul,” Law and History Review 33 (2015): 803–37.
76
Brenz, Libellus, 10a–10b.
77
Brenz, Libellus, 10b–11b.
78
Brenz, Libellus, 11b–12.
79
Brenz, Libellus, 12. Pivoting on moral dishonesty, Erasmus also argued that clandestine mar-
riages were not a sacrament because they were contracted by sexual attraction, or else the parties
were drunk when they exchanged consent, and they could be manipulated by persons who stood to
profit from them. Brundage, Law, Sex, and Christian Society, 497.
80
Brenz, Libellus, 16b.
81
Witte, From Sacrament, 157. See also, Witte, “The Reformation,” 327–8.

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 Law and History Review 79

University of Wittenberg and an expert on marital cases, received the new

teachings with skepticism. Kling was educated in Wittenberg by the
Lutheran professors Hieronymus Schurff (1481–1554) and Johann Apel (1486–
1536). He obtained the title of doctor utriusque iuris (doctor in civil and canon
law), and in 1536 he became a professor of canon law at the same university.
He was an assessor at the Schöffenstuhl (bench of jurymen) and the Hofgericht,
but not at the Consistorium.82 In his 1553 treatise on marriage cases, Kling
refused to adopt Luther’s definition of clandestine marriage. Instead, he fol-
lowed his master Schurff, who did not second Luther’s thesis on the necessity
of parental consent,83 and he repeated the traditional canon law definition: a
clandestine marriage was when the contract was concluded by the spouses
alone, without witnesses.84 Thus, no parental consent was necessary, and the
only rationale for witnesses was the necessity to prove the marriage.
Following the medieval canonist Hostiensis,85 Kling held that clandestine
marriages were forbidden because of the danger to the souls ( periculum anima-
rum). If one of the spouses in a clandestine marriage changed his/her mind, the
judge could not trust him/her, and the court would consider the spouses to be
able to marry. However, the first marriage existed in conscience. The party
who contracted a new marriage would be obliged to pay his/her conjugal
debt and have sex with the new spouse, under pain of excommunication; but
on the other hand, s/he would be bound to the first spouse. For Kling, in
this case the spouse should rather be excommunicated than offend his/her
conscience.86 Luther indicted the disobedience to God, but for Kling and the
canonists the moral concern was different. The problem was not the absence
of parental consent, but rather the validity of a clandestine marriage even if
it could not be proved: this entailed that a party was obliged to live as a per-
petual adulterer in a public marriage. For Kling, parental consent was not a
strict requirement, because it was not sufficiently supported by law. Civil
law, Kling observed, established that the consent of the father was necessary,
but not that of the mother. Canon law did not require this consent for the
validity of the bond, but only for its honesty. The theologians affirmed that
if the marriage had also been consummated with sexual intercourse, then it
82
Heiner Lück, “Zur Grundlegung des evangelischen Eherechts in Wittenberg,” in Katharina von
Bora. Die Lutherin: Aufsätze anlässlich ihres 500. Geburtstages, ed. Martin Treu (Stiftung
Luthergedenkstätten in Sachsen-Anhalt: Wittenberg, 1999), 161–77, (167); on the Wittenberg jurists
see also, Heiner Lück, “Beiträge ausgewählter Wittenberger Juristen zur europäischen
Rechtsentwicklung und zur Herausbildung eines evangelischen Eherechts während des 16.
Jahrhunderts,” in Reformation und Recht: Ein Beitrag zur Kontroverse um die Kulturwirkungen der
Reformation, ed. Christoph Strohm (Mohr Siebeck: Tübingen, 2017), 73–109; on the Schöffenstuhl,
the Hofgericht, and the Consistorium, see Heiner Lück, “Wittenberg als Zentrum kursächsischer
Rechtspflege: Hofgericht-Juristenfakultät-Schöffenstuhl-Konsistorium,” in 700 Jahre Wittenberg, ed.
Stefan Oehmig (Weimar, 1995), 213–48; Id., Die kursächsische Gerichtsverfassung 1423–1550 (Köln,
Weimanr, Wien: Böhlau, 1997).
83
Hieronymus Schurff, Consiliorum seu responsorum iuris, centuria prima (Francofurti: Egelnoff,
1594), 150–1.
84
On Kling’s approach to canon law, see Witte, From Sacrament, 72–3.
85
Enrico da Susa (Card. Hostiensis), Summa aurea, 1140; Esmein, Le mariage, II, 149.
86
Kling, Tractatus, 68b–69. See also, Dieterich, Das protestantische, 122–4.

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 80 Paolo Astorri

was valid. However, civil law did not accept this solution, because it invalidated
all marriages contracted without parental approval, regardless of
consummation.87

Interpreting Roman Law in the Light of Scripture

Unlike Kling, Basilius Monner endorsed Luther’s definition of clandestine mar-
riage. Monner studied law in Wittenberg with Apel, Schurff, and Goede. He was
also a student of Luther. He became a member of the Wittenberg Consistorium in
1539, and in the same year he was also appointed councilor to Johann Friedrich
of Saxony (1503–1554). In 1554, he became a professor of law at the Gymnasium
in Jena. With the foundation of the University of Jena, Monner was appointed
professor of law in 1558; he later became prochancellor and dean.88 In his 1561
treatise on marriage, Monner did not define clandestine marriage, but he
nonetheless associated clandestineness with the lack of parental consent. He
responded to Kling’s objections by proposing an original interpretation of
Roman legal sources, influenced by his reading of the fourth commandment
of the Decalogue. The fourth commandment was presented as a cornerstone
of society that demanded that children should obey their father as a represen-
tative of God. Disobedience to fathers would lead to the dissolution of society,
and therefore clandestine marriages had to be forbidden.
Kling had contended that Roman law only demanded the consent of the
father and not of the mother. Monner replied that some passages in Roman
law also required the consent of the mother.89 For instance, in Cum de nuptiis
(C. 5.4.1), the transfer of a daughter required the consent not only of the guard-
ian, but also of the mother.90 In addition, Roman law used the term parentes
several times where it also included the mother, grandparents, and all ances-
tors.91 Finally, in De raptu virginum seu viduarum, consent was required from
parents or from others who were suitable in this regard (parentes vel alios
quos decet).92 Monner concluded that Roman law did not restrict potestas over
the children to fathers, but had a much broader conception. When Roman
law required consensus parentum,93 it referred to the consent of the father
and the mother.94 In Roman law, the term parens was mostly associated with

87
Kling, Tractatus, 78a and 78b.
Eyk Ueberschär, “Basilius Monner (um 1500 bis 6. Januar 1566)—Ein treuer Diener seiner
88

Herren,” Rechtsgelehrte der Universität Jena aus vier Jahrhunderten ed. Gerhard Lingelbach (Jena:
Bussert und Stadeler, 2011), 5 ff.
89
C. 9.13.1.
90
Basilius Monner, Tractatus duo: I de matrimonio; II de clandestinis coniugiis, secunda editione
(Jenae: Steinmann, 1604), 247–8.
91
Monner, Tractatus, 244–45. D. 2.4.4.2 and D. 50.16.51.
92
C. 9.13.2.
93
I. 1. 10, de nuptiis.
94
Monner, Tractatus, 240. See also, Dieterich, Das protestantische, 124–5. The necessity of parental
consent became an opinion shared by the great majority of Lutheran jurists. See Witte, From
Sacrament, 59.

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 Law and History Review 81

the father and not with the mother. However, Monner contended that the word
parentes could refer to both parents and not only to the father.
Monner’s innovative interpretation of Roman law was determined by the
crucial importance he attributed to the fourth commandment of the
Decalogue. For Monner, this commandment

is not to be disdained or neglected as if it were said by a greengrocer

somewhere or a drunken farmer, but it is the voice of the divine majesty,
resounding in the skies and commanding all sons, of whatever condition
and dignity, to obey their parents. This obedience is not performed
towards men but to God.95

The fourth commandment spoke about obedience in general, and following

the theologians, Monner held that this encompassed marriage. If a son or
daughter were taken from the parents in secret, such a transfer would have
no effect, and a theft would have been committed.96 The point, Monner
explained, was that obedience was not simply to parents; most of all, it was
obedience to God. Thus, he concluded that civil law was like a divine
ordinance.97
For Monner, the first virtue in civil affairs was obedience to parents, and to
those who occupied similar positions, such as masters and magistrates.
Following a standard assumption in Lutheran two kingdoms doctrine,98
Monner argued that God had put these people in his place, as his vicars,
with regard to that which pertained to the economy, the state, and the obser-
vance of external discipline, and had commanded obedience to them.99 This
obedience was necessary because it preserved public utility.100 God required
this virtue of obedience in the first table of the virtues (of the Decalogue) in
order for us to know that

we are not dealing with childish and light things, but with the most
important of all things by which human society and the entire city are
maintained when we obey the ones who command, or it is turned
about when we refuse to obey, as immediately the authority of the parents
and the magistrates would be overthrown.101

95
Monner, Tractatus, 232: “Atque hoc praeceptum nullo modo contemnendum aut negligendum est:
quasi dictum sit ab holitore quopiam, aut ebrio rustico: sed est vox Maiestatis divinae, de coelo sonantis
ac praecipientis omnibus liberis, cuiuscunque conditionis et dignitatis, obedientiam erga parentes. Haec
enim obedientia non homini praestatur: sed Deo.”
96
Monner, Tractatus, 232.
97
Monner, Tractatus, 242.
98
See Witte, Law and Protestantism, 87–118.
99
Monner, Tractatus, 233.
100
Monner, Tractatus, 234.
101
Monner, Tractatus, 234: “… ut sciamus, agi non de re puerili ac levi: sed de re omnium maxima: qua
societas humana et universa politia, vel conservatur, si praecipienti obtemperavimus: vel vertitur, si parere
noluerimus. Statim enim atque parentum et magistratuum autoritas fuerit labefacta.”

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 82 Paolo Astorri

If adultery, lust, and theft were not forbidden, the bond would be dissolved
or abolished. Monner concluded that this would also happen if we would per-
mit clandestine marriages without the consent of the parents.102 Obedience to
fathers, masters, and magistrates was functional for the preservation of human
coexistence. God empowered these figures with authority to maintain order
within society. They must avoid immoral behaviors such as adultery.
Clandestine marriages were along the same lines, and therefore they should
be outlawed. In substance, Monner’s work highlighted that the requirement
of parental authority was anchored in the two kingdoms doctrine.

The Legal Definition of Clandestine Betrothal

Monner supported Luther’s association between clandestineness and parental
approval. Yet he did not elaborate on Luther’s definition of clandestine mar-
riage. Two law professors at the University of Wittenberg, Conrad Mauser
and Johannes Schneidewin, made a further step by translating Luther’s notion
of clandestine marriage into a coherent legal formulation. This formulation
integrated previous canon law teachings with those proposed by the
Lutheran theologians. Conrad Mauser became a professor of Institutiones at
the University of Wittenberg in 1536. He was also appointed assessor at the
Schöffenstuhl, the Hofgericht, and the Consistorium.103 In his legal treatise on mar-
riage (1569), Mauser combined the canon law definition of clandestine mar-
riage with Luther’s.104 Clandestine betrothals (sponsalia clandestina), he wrote,
were divided into two types: first, properly and strictly, when they were started
secretly and with nobody present; second, in a more general sense, when they
were contracted in the presence of witnesses but without parental consent.105
Mauser first reduced the number of cases of clandestineness described by canonists
to only one: the absence of witnesses. Public banns in church, ecclesiastical prohi-
bitions, and other Catholic solemnities were not mentioned. Then he added
Luther’s definition. Thus, by arguing that clandestine betrothals had both a strict
and a general meaning, Mauser developed an innovative double definition.
The strict notion of clandestine betrothal was governed by canon law.106 Yet
Mauser claimed that there was an exception. When a public and a clandestine
marriage coexisted, the public betrothal always had to be preferred. Thus, if
one or both spouses confessed a prior, clandestine marriage, their confession

102
Monner, Tractatus, 234.
103
Lück, “Zur Grundlegung,” 168.
104
For the use of Canon Law in Protestant context, see Richard Helmholz, ed., Canon Law in
Protestant Lands (Berlin: Duncker & Humblot, 1992); John Witte Jr., “Canon Law in Lutheran
Germany: A Surprising Case of Legal Transplantation,” in Lex et Romanitas: Essays for Alan Watson,
ed. Michael Hoeflich (Berkeley: Robbins Collection, 2000), 181–224; Kenneth Pennington,
“Protestant Ecclesiastical Law and the Ius Commune,” Rivista internazionale di diritto comune 26
(2015): 9–36.
105
Conrad Mauser, Tractatus juridicus de nuptiis (Jenae: Nisius, 1682), 10: “Primum proprie et stricte,
quando prorsus clam, et nemine praesente sunt inita. Secundo large, quando quidem in praesentia testium
sunt contracta, tamen sine consensu parentum.”
106
X 4.3.1,2,3.

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 Law and History Review 83

could not prejudice the public marriage.107 This was the same solution pro-
posed by Luther, and it reversed the canon law teachings. Civil law and divine
law governed the second type of clandestine betrothal. As with Monner previ-
ously, the fourth commandment served here as a pillar for a new interpreta-
tion of Roman legal sources. For Mauser, civil law required parental consent
because of the effects of the patria potestas.108 Yet under civil law, a filius eman-
cipatus would be able to marry without parental approval. This conclusion,
Mauser observed, should be rejected, because the fourth commandment of
the Decalogue, which was perpetual and immutable, could not be removed
by civil law.109 The fourth commandment did not set any age limits, and it
was always broken when children married without parental approval.110
Concerning the consequences of disobedience, Mauser did not claim that
this would constitute theft; rather, he suggested that in such cases the child
acted at his/her own risk against God and his/her conscience.111 He reported
that a pragmatic solution was often adopted in the Consistorium. If a son or
daughter had married a dishonest person, the marriage had to be rescinded;
if s/he had married a person who was honest and at the same social level,
then the betrothal could be tolerated.112 This should not be a surprise as mar-
riages had important economic consequences.113 Furthermore, Mauser main-
tained that the child could not be disinherited: Justinian’s Novellae had
specified a list of reasons for children to be disinherited, which could not sim-
ply be extended. For him, the consequence of an annulled marriage was that
the transfer of the dowry was invalid, as it could not exist without marriage.114
The other Wittenberg professor who inserted Luther’s notion of clandestine
marriage into a legal framework was Johannes Schneidewin. Schneidewin,
whose marriage was celebrated by Luther himself, studied in Wittenberg
with Schurff, Goldstein, and Kling. In 1551, he obtained the degree of doctor
utriusque iuris, and in 1555 he was appointed professor of Institutiones. He was
a member of the Spruchkollegium of the law faculty, the Schöffenstuhl, the
Hofgericht, and later the Consistorium.115 In his posthumously published treatise
on marriage, he defended Luther’s view on clandestine marriage. He started his
chapter on clandestine betrothals by observing that Hostiensis had classified
clandestine marriages according to six kinds, and in the end had included
everything that could be defined as a clandestine marriage according to eccle-
sial prohibitions. Panormitanus (1386–1445) had acted in a similar way.116 In

107
Mauser, Tractatus, 10–11.
108
Mauser, Tractatus, 46.
109
Mauser, Tractatus, 47.
110
Mauser, Tractatus, 49.
111
Mauser, Tractatus, 51.
112
Mauser, Tractatus, 52.
113
Harrington, Reordering Marriage, 187–97.
114
Mauser, Tractatus, 53. N. 115. 3, Causas.
115
Lück, “Zur Grundlegung,” 169.
116
For Hostiensis, see before section “Parental Consent and Clandestine Marriage before the
Reformation”. Niccoló Tedeschi (Panormitanus), Commentaria in quartum et quintum decretalium
libros, tomus 7 (Venetiis: Iuntas, 1617), 17v.

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 84 Paolo Astorri

our churches, however, Schneidewin continued, there were only two kinds of
clandestine betrothal:

First, properly and strictly, when the promises are contracted secretly,
after the removal of the spectators and without the presence of any wit-
nesses. Second, in a general sense, when they are contracted in the pres-
ence of witnesses, but without the consent of the parents.117

In the first case, a marriage defined as clandestine was governed by canon

law.118 The second case followed Luther’s definition. If a public betrothal and a
clandestine one coexisted, Schneidewin endorsed Luther and contended that
the public betrothal should prevail over the clandestine, because a male spouse
could easily corrupt a female, then repent and marry another. If there were
two marriages, one public and the other private, but the private marriage
had been consummated, the public marriage had to yield to the private. For
Schneidewin, this solution rested on the greater damage to the woman and
the honor of her family.119
In his commentary on the four books of sentences by Peter Lombard (1100–
1160), the Spanish Dominican theologian Domingo de Soto (1494–1560)
adopted a similar formulation. He wrote that the canonists recognized at
least six ways in which a marriage could be clandestine, and he concluded
that only two meanings were relevant. First, in the strictest sense, a marriage
was clandestine in the absence of witnesses. Second, in a broader sense, the
marriage was clandestine if ecclesiastical procedure (especially the banns)
had not been followed.120 While the first meaning was very similar to
Schneidewin’s, the second differed. Most probably, Schneidewin, and Mauser
before him, had borrowed the definition of clandestine betrothals from de
Soto, replacing the failure to comply with ecclesiastical procedure with the
absence of parental consent.
In substance, drawing upon de Soto, Mauser and Schneidewin reduced cases
of clandestine betrothal, which the canonists had classified in various ways, to
only two. They coined a legal definition of clandestine betrothal that gave new
life to Luther’s theological statements. Canon law was not completely dis-
carded, but rather modified in its application: a public marriage always pre-
vailed, while a private marriage could be maintained only if it had been
consummated. The need for parental approval was certainly inspired by
Luther. However, these jurists also referred to Roman law, which was inter-
preted in the light of the fourth commandment.
117
Johannes Schneidewin, In quatuor institutionum imperialium D. Justiniani libros, commentarii
(Coloniae Agrippinae: Metternich, 1698), 100: “Sed secundum hodierna tempora in ecclesiis nostris duo-
bus tantum modis dicuntur clandestina sponsalia: stricte et proprie videlicet, quae clam, remotis arbitris et
nullis testibus praesentibus, contrahuntur…large quando in praesentia testium, sed sine consensu
parentum…”
118
X 4.3.1,2,3, and c. 30 q.5 c.1.
119
Schneidewin, In quatuor institutionum, 101.
120
Domingo de Soto, In quartum sententiarum commentarii tomus secundum (Venetiis: Zenarium,
1584), d. 28, q. 1, a. 1, 151; Reynolds, How Marriage, 799.

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 Law and History Review 85

Von Beust and the Marriage Law of Saxony

If Roman law was useful to defend the new regulation of clandestine marriages,
the actual breakthrough happened via Church and marriage ordinances, which
invalidated marriages without parental consent.121 Joachim von Beust incorpo-
rated some of these ordinances into a coherent edifice that was based on pre-
vious theological and legal works. He marshaled the most convincing
arguments, thus favoring the process of consolidation. Von Beust was an asses-
sor at the Consistorium and a professor of law at the University of Wittenberg. In
1586 he published his Tractatus de sponsalibus et matrimoniis, which became the
standard guide to the nascent Lutheran marriage law.122 As von Beust was a
Wittenberg jurist, he paid special attention to Saxon law: the Cellische
Ehebedenken (1545) and a Church ordinance of Elector August of Saxony
(1580).123 The former did not include Luther’s definition but it did invalidate
clandestine betrothals.124 The Church ordinance of Electoral Prince August
adopted Luther’s definition that a marriage was clandestine and not binding
if both parents’—or if they were dead, the grandparents’—consent was lacking.
If the children had neither parents nor grandparents, their marriage was clan-
destine if only a single witness attended, and it had to be repeated in front of
“honest people.” This ordinance also issued heavy sanctions to repress clandes-
tine marriage. If the children married against their parents’ will, the ordinance
permitted the fathers to disinherit their children. Moreover, if the children
were discovered to have had carnal intercourse after a clandestine betrothal,
they had to be punished with prison or another discretionary punishment.125
Von Beust inscribed the Church ordinance of August and the Cellische
Ehebedenken into the tradition of the Church. Their antecedents, he wrote,
were the Church fathers and medieval canon law.126 He also observed that
canon law did not require parental consent and was only based on the consent

121
This practice also existed in many city laws. On the new marriage ordinances, see Roper, The
Holy Household, 157–62; Witte, From Sacrament, 138; Henning P. Jürgens, “Eheordnungen - Ordnungen
für die Ehe als ‘weltlich Ding’,” in Gute Ordnung. Ordnungsmodelle und Ordnungsvorstellungen in der
Reformationszeit, eds. Irene Dingel and Armin Kohnle (Leipzig: Evangelische Verlagsanstalt, 2014),
221–37; Saskia Lettmaier, “Marriage Law and the Reformation,” Law and History Review 35, no. 2
(2017): 461–510 (473–89). With regard to parental consent and clandestineness, see also,
Schwarz, Die Bedeutung der Sippe, 60–66; Gottlieb, Getting Married, 124–137. Certain ordinances estab-
lished criteria according to which the parents could lawfully deny their consent, see Sibeth,
Eherecht, 120–21.
122
Lück, “Zur Grundlegung,” 170–2.
123
The latter ordinance was also discussed beyond Saxony. See, for instance, the erudite work by
the Schleswig jurist Paul Cypraeus (1536–1609): De connubiorum iure tractatus (Francofurti:
Porssius,1605), 347. On August of Saxony see Staatliche Kunstsammlungen Dresden, Kurfürst
August von Sachsen: Ein nachreformatorischen “Friedensfürst” zwischen Territorium und Reich. Beiträge
zur wissenschaftlichen Tagung vom 9. bis 11. Juli 2015 in Torgau und Dresden (Dresden: Sandstein, 2017).
124
Emil Sehling, Die evangelischen Kirchenordungen des XVI: Jahrhunderts (Leipzig: Reisland, 1902),
vol. 1 first part, 294. The necessity of parental consent was established in another paragraph: von
ehegelubden ane bewilligung der eltern. See p. 292.
125
Sehling, Die evangelischen, 386.
126
Joachim von Beust, Tractatus de sponsalibus et matrimoniis ad praxin forensem accommodatus
(Witebergae: Ruhelii, 1588), 208–09; Kirstein, Die Entwicklung, 66–7.

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 86 Paolo Astorri

of the spouses. However, it was no longer applied in Saxony (hodie in his terris
non observatur):

Canon law removed discipline and obedience to the parents and offered the
children a matter of sin. Therefore, it cannot and must not have the validity
of law among good and pious men, because a law must be honest.127

Thus von Beust concluded that today, in these lands, the civil law concern-
ing parental approval applied. Von Beust integrated the teachings of canon law
with the positions of Luther, Schneidewin, and Mauser, and the Church ordi-
nance.128 He stressed the difference between the new Lutheran marital law
and canon law. Hostiensis and Panormitanus had maintained that clandestine-
ness alone did not invalidate a marriage, provided that both spouses confessed
the clandestine marriage. However, because of the new ordinance, von Beust
remarked, clandestine betrothals were not valid, even if they had been made
in the presence of a single witness. Such betrothals must be repeated publicly
in the presence of honest people.129 In cases where a clandestine and a public
marriage coexisted, the public betrothal had to be preferred to the “private
and clandestine” one, unless the former had not been consummated.130

The Debate with Bellarmine and the New Meaning of “Clandestine”

While the new regulation of clandestine marriage was spreading throughout
the Reformed lands, the Council of Trent reaffirmed the Catholic traditional
teachings on consent. Despite strong demands for the repression of clandestine
marriages, mostly from France and Spain, the requirement of parental consent
was rejected.131 The decree Tametsi established the necessity of observing pub-
lic formalities in order for the bond to be created. The betrothed couple had to
exchange consent before a parish priest and at least two witnesses.132 Luther’s
definition of clandestine marriage was debated but eventually brushed aside.
The reasons for this rejection were multiple, and there is no room to examine
them in detail here. It should suffice to mention one: under divine law, mar-
riage was based on the free consent of the spouses.133 Parental authority

127
Joachim von Beust, Tractatus, 202: “…tamen hodie in his terris quod ad consensum parentum attinet,
servatur ius civile, l. si ut proponis C. de nupt. [C.5.4.5] et non ius canonicum, quod tollit disciplinam et obe-
dientiam erga parentes, ac praebet liberis peccandi materiam, unde nec debet, nec potest apud bonos et pios
ullam vim legum habere, cum lex debeat esse honesta.”
128
Joachim von Beust, Tractatus, 21.
129
Joachim von Beust, Tractatus, 22.
130
Joachim von Beust, Tractatus, 23.
131
Jutta Sperling, “Marriage at the Time of the Council of Trent (1560–70): Clandestine
Marriages, Kinship Prohibitions, and Dowry Exchange in European Comparison,” Journal of Early
Modern History 8 (2004): 65–108 (76–77); Reynolds, How Marriage, 896–982.
132
See “Concilium Tridentinum,” Sessio XXIV (November 11, 1563), in Conciliorum oecumenicorum
decreta, eds. Giuseppe Alberigo et al. (Bologna: Dehoniane, 1962), 753–59.
133
Charlotte Christensen-Nugues, “Parental Authority and Freedom of Choice: The Debate on
Clandestinity,” Sixteenth Century Journal XLV/1 (2014): 51–72 (59).

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 Law and History Review 87

would limit the children’s freedom, which must be complete in spiritual mat-
ters.134 As we saw earlier, for Luther it was God, and not the spouses them-
selves, who joined spouses together—and God’s will was expressed through
obedience to fathers. For Catholics, the fathers’ power could not affect the sac-
rament, because this centered on the will of the parties. Moreover, as a sacra-
ment, marriage was the purview of priests, and parental or secular authority
could not intervene.
The Reformers rebuffed the decisions of Trent. In particular, Martin
Chemnitz, a leading theologian of the Church of Braunschweig and coauthor
of the Formula of Concord, published an imposing critique of the Council of
Trent’s decrees, Examen decretorum concilii Tridentini (1565–1573).135 Chemnitz
restated Luther’s and the other theologians’ ideas on clandestine marriage.
Once again, he understood Roman legal teachings in the light of Scripture.
The patria potestas was not only established by civil law but was also a divine
order, he said. Divine law granted paternal authority over children not only
in civil contracts, but also in contracting marriage. The fourth commandment
and various biblical passages (Deuteronomy 7:3; Jeremiah 29:6; 1 Corinthians
7:36) supported this conclusion.136 In his later work, the Loci theologici,
Chemnitz also insisted that Luther had intended marriage not as a political
or human union, but as a divine union: it had to be contracted according to
lawful form, which was expressed by the word of God (Genesis 2:22; Matthew
10:6).137 Clandestine marriages were a machination and work of the Devil
(machinatio et opus diaboli) that disturbed the divine order.138 Thus, for
Chemnitz, a marriage without parental approval was a violation of divine
law and clandestine.
Cardinal Robert Bellarmine argued that Chemnitz had confused marriage
without parental consent with clandestine marriage. A marriage could be clan-
destine, he wrote, and nonetheless be contracted with parental approval; con-
versely, a marriage might be not clandestine but public and before the church,
but nonetheless celebrated without parental approval.139 Bellarmine’s com-
ment stressed the novelty of the Lutheran definition of clandestine marriage,
which incorporated the need for parental approval. For Bellarmine, as for tra-
ditional Catholic teachings, a marriage with or without parental consent was

134
Christensen-Nugues, “Parental Authority,” 66. For the whole discussion, see 64–70. See also,
Reinhard Lettmann, Die Diskussion über die klandestinen Ehen und die Einführung einer zur Gültigkeit
verpflichtenden Eheschliessung auf dem Konzil von Trent (Münster: Aschendorff, 1967).
135
Theodor Mahlmann, “Chemnitz, Martin,” RPP, vol. II, 2007, 509–10.
136
Martin Chemnitz, Examen concilii tridentini (Francofurti ad Moenum: Sande, 1707), 610.
137
Martin Chemnitz, Loci theologici (Witebergae: Meisner, 1615), 251.
138
Chemnitz, Loci, 251.
139
Roberto Bellarmino, Disputationum de controversiis christianae fidei … tomus tertius (Lugduni:
Pillehote, 1610), c. XIX, 1548–9: “In eadem sententiam descendit Martinus Kemnitius in 2 ar. Exa
Concilii Tridentini, pa. 1272, 1273 et sequentibus, ubi tamen non recte, confundit matrimonia filiorum sine
consensu parentum, cum matrimoniis clandestinis: potest enim fieri ut matimonium sit clandestinum, et
tamen cum parentum consensu contractum: et contra non sit clandestinum, sed publicum et coram ecclesiam
et tamen insciis et invitis parentibus celebratum.”

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 88 Paolo Astorri

not clandestine but public, even if it was celebrated without the knowledge or
will of the parents.
Bellarmine’s words sparked a heated reaction among the Reformers. Paul
Tarnov and Johann Gerhard,140 two leading theologians of the so-called
Lutheran orthodoxy, responded that Bellarmine had to consider the different
meanings of clandestine betrothal.141 As Mauser and von Beust had written
earlier, in a proper and stricter sense “clandestine betrothal” referred to
betrothals contracted secretly (clam) where nobody was present. Usually, how-
ever, and in a more general sense, clandestine betrothals were those contracted
in the presence of witnesses but without parental consent. For Tarnov and
Gerhard, the crucial point was that these clandestine betrothals lacked the pub-
lic authority of the parents, which the law of God expressed as a requirement
for marriage.142 Therefore, Gerhard claimed that “it was not without reason”
that such betrothals should also be included in the group of clandestine betrothals,
being so called not because of the location but because of the manner (non tam
a loco quam a modo), because they were contracted against the laws and public
law (contra leges et jus publicum), which required parental consent.143
Tarnov and Gerhard clarified that in the Lutheran definition of clandestine
marriage, the adjective “clandestine” was employed to delimit not only the
absence of publicity, but also the lack of parental approval. A clandestine mar-
riage was a marriage that breached the divine order. In this sense it was not
clandestine because of the location, but because of the manner: it was con-
tracted in violation of divine law and civil law. The spouses had disobeyed
the public authority instituted by God. They had breached the laws (divine
law and Roman law) and public law (the new marriage ordinances).144
“Public” was linked to the authority of fathers and magistrates, which was
divinely established by God. “Private” was instead the fruit of an evil choice
by the spouses, who had disobeyed God. This was the innovation introduced
by the Reformers.
Bellarmine not only attacked the Lutheran definition of clandestine mar-
riage, but also censured the motivation for the necessity of parental consent.
He maintained that God was the author of marriage, in two ways. First, God
had created marriage as an institution. Second, he inspired the couple to
140
Markus Friedrich, et alii, eds., Konfession, Politik und Gelehrsamkeit: Der Jenaer Theologe Johann
Gerhard (1582–1637) im Kontext seiner Zeit (Stuttgart: Steiner, 2017).
141
Paul Tarnov, De conjugio libri tres (Rostochi: Pedani, 1614), 5–6.
142
Johann Gerhard, Loci theologici (Berolini: Schlawitz, 1869), tom. 7, 89.
143
Gerhard, Loci, 89: “…ideo haud immerito clandestinorum sponsaliorum censui eadem adscribuntur,
ratione appellationis petita non tam a loco, quam a modo, quod contra leges et jus publicum, quod consensum
parentum requirit, contrahuntur.” In a similar way, Tarnov, De conjugio, 4–5.
144
The discipline of public law was still embryonic at the time. However, Gerhard refers here to
von Beust and Mauser. The former cites the new Church ordinance, while the latter cites Roman
law and divine law. Therefore, we can assume that the term leges refers to Roman law and divine
law, while “public law” identifies the law of magistrates. On the emergence of public law in early
modern Germany, see Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland, I (München:
C.H. Beck, 1988), 73–224; Bernardo Sordi, Diritto pubblico e diritto privato: Una genealogia storica
(Bologna: Il Mulino, 2020), 29–36. On the words “public” and “private,” see the classic work by
Peter von Moos, «Öffentlich» und «privat» im Mittelalter (Heidelberg: Winter, 2004).

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 Law and History Review 89

marry. It might occur that the recipient of the sacrament was inspired by the
Devil, if s/he received it not for the glory of God and the health of his/her soul
but for profit or a shameful or dirty advantage.145 Thus there was no need for
parental authorization, as the couple could be inspired by God in any case, and
marriage as such had been instituted by God. Gerhard responded that the
necessity of parental approval had already been established by the first mar-
riage of Adam and Eve. This marriage had been decided by God, not by the
spouses. Adam had not chosen his spouse of his own free will, nor had Eve
sought a spouse of her own will: it had been God’s will that intervened, and
this was now represented by the will of the parents.146 Gerhard straddled
the basic Lutheran assumption: it was God who joined the couple. What God
had once done in a nonmediated way, visibly and manifestly (immediate, visibi-
liter ac manifeste), Gerhard said, he now did mediately, invisibly, and hiddenly
(mediate, invisibiliter et occulte) in lawful marriages. Therefore, a lawful marriage
was a marriage where God was the author.147 Ultimately, the marriage did not
rest on the will of the parties, but was also an act of God.

Conclusion
The teachings of Luther, Schneidewin, Mauser, von Beust, and Gerhard gained
popularity in seventeenth-century legal discourse, as they were collected and
employed by Benedict Carpzov (1595–1666) in his Jurisprudentia ecclesiastica seu
consistorialis (1649). As the great German jurist and historian Rudolph Sohm has
argued, Carpzov is the best summary and the best evidence of the results
achieved by the Lutheran reformers.148 Carpzov repeated that clandestine
betrothals were not just betrothals without witnesses but also betrothals con-
tracted without parental approval, which were clandestine not because of their
location but because of their modality.149 In this way, Carpzov shows how the
work of the early Reformers had taken hold in legal thought. These jurists and
theologians were also leading practitioners (members of consistories, advisers
to nobles and judges, lawyers, authors of Church and marriage ordinances), and
so their ideas are likely to have found their way into practice. However, an
important limitation of this study is that it has not been able to examine
the court records of consistories.150
Luther and his fellow theologians and jurists managed to overhaul the
notion of clandestine marriage. Clandestineness was no longer limited to a

145
Bellarmino, Disputationum, 1554–5.
146
Gerhard, Loci, 45.
147
Gerhard, Loci, 45.
148
Rudolph Sohm, Das Recht der Eheschliessung aus dem deutschen und canonischen Recht geschicht-
lich entwickelt (Weimar: Böhlau, 1875), 241.
149
Benedikt Carpzov, Jurisprudentia Ecclesiastica seu Consistorialis (Hanoviae: Aubry, 1652), 379–
80. On Carpzov, see Mathias Schmoeckel, “Benedict Carpzov the Younger (1595–1666),” in Great
Christian Jurists in German History, eds. Mathias Schmoeckel and John Witte, Jr. (Tübingen: Mohr
Siebeck, 2020), 156–173.
150
See however, the cited works by Robisheaux, “Peasants and Pastors”; Steven Ozment, The
Bürgermeister’s Daughter: Scandal in a Sixteenth-Century German Town (New York: HarperCollins, 1997).

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 90 Paolo Astorri

lack of witnesses or other procedural requirements that could confirm what

had taken place; the definition was extended to include approval by the public
authority. This perspective marked a radical difference from Roman Catholic
teachings, according to which marriage was dependent upon the freedom of
the parties, and clandestineness delineated the absence of witnesses or legal
formalities. For Lutheran theology, God joined the spouses and placed children
under the authority of their fathers, who were the relevant “public” authority
that the children must obey; by extension, spouses must act publicly and seek
the consent of their parents, thereby adhering to God’s will. A “private” and
personal choice by the spouses signified a rebellion against God, and should
be dissolved.
For medieval canonists, the term “clandestine betrothal” could have various
and multiple meanings. From the works of Schneidewin and Mauser to the
monumental compilation by Carpzov, clandestine betrothal was reduced to
two types: the absence of witnesses, and the absence of parental approval.
Canon law continued to govern the first type, but this type of marriage
could always be annulled. The second type was clandestine not because of
the location, but because of the manner: it breached the commandment of
God. In this regard, the legislation was based upon theological interpretation
that informed a reassessment of legal sources. The theologians claimed that
Matthew 19:6 established that marriage was not only a free decision by the cou-
ple but an act that expressed the will of God. The fourth commandment of the
Decalogue imposed upon children that they obey their parents. A clandestine
marriage was disobedience to God, a theft, and an act of Satan; it could
never be valid.
Theologians and jurists clung to Roman law, which required the consent of
the fathers before a marriage was contracted. They claimed, however, that the
Romans also considered mothers, grandparents, guardians, and other individ-
uals who had authority over the children. Taking the fourth commandment as
a beacon, they interpreted the word parentes as referring to parents, and not to
fathers alone. Because Roman law complied with divine law, it had to be
observed as a divine ordinance, a law that was also binding on conscience.
Conversely, canon law had to be disregarded. Against divine law, it did not
require parental consent, and it accepted as binding marriages that had been
contracted in secret. The new marriage ordinances translated theological
teachings into legal norms, and imposed sanctions on couples who contracted
clandestine marriages.
The redefinition of clandestine marriage was necessary for social, legal, and
theological reasons. As Luther himself wrote, marital litigation regarding clan-
destine marriages was frequent and troublesome. In canon law, a clandestine
marriage was valid, but proving its existence could be extremely difficult.
The consequence was that if the marriage could not be proved, the parties
involved would be considered still able to marry. In that case, the party in
question would nonetheless remain obliged in conscience to his or her “clan-
destine” husband/wife, living as a perpetual adulterer and placing his/her
soul’s salvation in jeopardy. By declaring that clandestine marriages were inva-
lid, and requiring parental consent, Luther aimed to solve this problem. He

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 Law and History Review 91

wanted to eradicate the practice of clandestine marriages and instill obedience

to public authority.
At the same time, Luther’s solution rested on theological underpinnings, in
particular the two kingdoms doctrine. Luther’s anthropology started from
man’s sinfulness and incapacity to redeem himself, and in its most radical
form it denied freedom of will (a standard postulate of Catholic theology).
Man was corrupted by sin and unable to save himself. He was unable to per-
form virtuous acts alone, and was constantly dependent upon God’s grace.
Through faith he became a citizen of the heavenly kingdom, which was gov-
erned by the Gospel, but he was still a sinner and needed governance and guid-
ance in the earthly kingdom. In the earthly kingdom, God governed the world
through divine institutions, namely the Hausvater, the priest, and the magis-
trate. These natural offices had specific tasks that mirrored God in the gover-
nance of the world.151 Fathers had the divine task to nurture and educate their
children. Children had to obey their fathers.152 In this context, the association
between parental consent, marriage, and divine will becomes clearer, as does
the connection with clandestineness as a violation of divine order.
Luther redefined the essential elements of clandestine marriage, which led
to a transformation of the legal regulation. The legal framework was cemented
by a moral structure rooted in the fourth commandment and other biblical
passages. Certainly, the introduction of parental approval into the notion of
clandestine marriage was also determined by social needs. The necessity to
protect families against the risk that their power and riches might be dimin-
ished by the marriage of two unequally wealthy persons was a powerful engine
for this change. Moreover, the practical difficulties that affected the previous
canon law regulation undoubtedly prompted its revision. However, none of
these alone can explain the switch in the definition of clandestine marriage.
Lutheran theology provided the crucial argument for the reformulation of
the notion of clandestineness. Public and private took on new meanings that
were interwoven with obedience or disobedience to God. This seems ultimately
to have been an effect of the two kingdoms doctrine and the requalification of
the powers of state, Church and household within society. The Council of Trent
reacted against clandestine marriages and imposed public celebration in
church and in the presence of witnesses. These requirements made it hard
to escape family ties and parental influence. However, to preserve the funda-
mental principle of freedom in the matter of salvation, parental consent
could not be accepted.
Opposition to marriages without parental approval persisted in other coun-
tries across Europe. While Calvin eventually returned to canon law and refused
to annul clandestine marriages,153 in France an Édit contre les mariages
151
Witte, Law and Protestantism, 201.
152
See the classic study by Gerald Strauss, Luther’s House of Learning: Indoctrination of the Young in
the German Reformation (Baltimore: Johns Hopkins University Press, 1978).
153
John Witte, Jr., “Clandestine Marriage and Parental Consent in John Calvin’s Geneva: The
Gradual Synthesis of Theology, Statutes, and Case Law,” in Law and Marriage in Medieval and Early
Modern Times, ed. Per Andersen (Copenhagen: Djǿf, 2012), 273–98. A similar situation occurred in
England, where the Reformatio Legum Ecclesiasticarum (1553) would invalidate marriages contracted

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 92 Paolo Astorri

clandestins by Henry II in 1556 defined marriages contracted against the will of

the parents as clandestine marriages.154 In 1579, an ordinance obliged sons and
daughters to seek their parents’ or guardians’ permission to marry. Marriage
without parental consent was equated with kidnapping, and a son or daughter
could be disinherited and sentenced to death.155 In the Netherlands, a church
ordinance in Dordrecht (1578) invalidated marriages without parental
approval.156 This, however, is an aspect on which further studies will expand.
This article has only been able to shed some light on the notion of clandestine
marriage in sixteenth-century Lutheran thinking.
Acknowledgments. This research was funded by the Danish National Research Foundation
(DNRF 138). The author thanks Mette Birkedal Bruun, Philippe Cocatre-Zilgien, Johannes
Ljungberg, Lars Cyril Nørgaard, Lee Palmer Wandel, Gautham Rao, Merl Fluin, and the anonymous
reviewers for their helpful comments and his colleagues at the Danish National Research
Foundation’s Centre for Privacy Studies for their suggestions and fruitful discussion.

Paolo Astorri is postdoctoral researcher in legal history at the Centre for Privacy Studies,
University of Copenhagen. He is the author of Lutheran Theology and Contract Law in Early Modern
Germany (ca. 1520–1720), published in Brill’s new series Law and Religion in the Early Modern Period.

without parental approval. However, even though this measure enjoyed vast support, in 1597 the
parliament decided to keep the traditional rule that marriage is formed by the sole consent of the
spouses. See Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge:
Cambridge University Press, 1988), 134–5.
154
Henry II, Édit contre les mariages clandestins in François-André Isambert, Recueil général des anci-
ennes lois françaises, tome XIII (Paris, 1828), 469.
155
Ordonnance rendue sur les plaintes et doléances des états-généraux assemblés à Blois en novembre
1576, art. 41 and 42, in Isambert, Recueil, tome XIV/1 (Paris, 1829), 392.
156
See the classic study by Emil Friedberg, Das Recht der Eheschliessung in seiner geschichtlichen
Entwicklung (Leipzig, 1865), 480–1.

Cite this article: Paolo Astorri, “The Redefinition of Clandestine Marriage by Sixteenth-Century
Lutheran Theologians and Jurists,” Law and History Review 41 (2023): 65–92. https://doi.org/
10.1017/S073824802300010X

https://doi.org/10.1017/S073824802300010X Published online by Cambridge University Press