Note 1169 — Chapter IX · THE PROTESTANT CONCEPTION OF MARRIAGE

In his "Von Ehesachen" (1530), Bücher und Schriften, V, 247, he says directly that a public betrothal, that is a marriage, not followed by copula should yield to an earlier secret betrothal cum copula. It is argued, however, that by "secret" he means a betrothal without witnesses, but with consent of the parents: Friedberg, Eheschliessung, 209 n. 2, 210 n. 1; Sohm, Eheschliessung, 206 n. 16. Luther's "Von Ehesachen," Bücher und Schriften, V, 237-57, is mainly devoted to a discussion of secret and public betrothals.

As a matter of fact, I find the consistory court of Wittenberg dissolving a betrothal for lack of parental consent: Schleusner, Anfänge des protest. Eherechts, 137. In another interesting case a girl was persuaded by her lover to marry him without the consent of her mother or step-father, but saying: "I would not, however, offend my dear mother." The two clerical judges held the contract to be conditioned on getting the mother's consent, and therefore void, since the condition had not been fulfilled and the law of Saxony forbade marriages without parental consent. The two lay judges, however, held the contract binding, because the girl's father being dead, to whom real authority belonged, she was free to marry whom she chose. The case was referred to Luther and another person as arbiters. Luther, in opposition to his associate, held the marriage void because conditional and a violation of the fourth commandment, and the court accepted his opinion: Schleusner, op. cit., 138, 139.