Within the medieval Church, the term ‘clandestine betrothal’ was associated with the absence of witnesses, solemnities, and other formalities. Parental consent was not a requirement for betrothal or marriage (the terms ‘marriage’ and ‘betrothal’ were often used interchangeably). For example, Hostiensis (1210-1271) argued that clandestine betrothals were defined in four ways: 1) the solemnities were omitted; 2) the betrothal was contracted 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. Angelo Carletti da Chivasso (1411-1495) stated that a clandestine marriage occurred in three cases: 1) the absence of witnesses; 2) the absence of the solemnities and sacerdotal blessing; 3) the absence of the public banns.
At the beginning of the sixteenth century, Martin Luther (1483-1546) held that the presence of 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 parents were the public authority that also had to be present: they signaled God’s will. Thus, he proposed a new definition of clandestine betrothal that combined the absence of witnesses with the lack of parental approval. The jurists Conrad Mauser (1506–1548), Johannes Schneidewin (1519–1568), and Joachim von Beust (1522-1597) translated Luther’s definition into legal terms. Clandestine betrothals (sponsalia clandestina) 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. 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 reinterpreted according to Scripture, and by new marriage ordinances issued by Lutheran territorial princes.
This paper will focus on the redefinition of clandestine marriage and its legal discipline in sixteenth-century Lutheran Germany. It will show that the adjective ‘clandestine’ (clandestinum) obtained a new meaning: it became a violation of God’s order and will. Canon law (X 4.3.1,2,3) was not completely discarded, but rather modified in its application.