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University Microfilms 300 North Z u b Road Ann Arbor. Michigan 48106 A Xerox Education Company 73-2016

HARVEY, Judith Walters, 1943- THE INFLUENCE OF THE REFORMATION ON NURNBERG MARRIAGE LAWS, 1520-1535.

The Ohio State University, Ph.D., 1972 History, modern

University Microfilms, A XEROX Company, Ann Arbor, Michigan

*

© 1972

JUDITH WALTERS HARVEY

ALL RIGHTS RESERVED

4

THIS DISSERTATION HAS BEEN MICROFILMED EXACTLY AS RECEIVED. THE INFLUENCE OF THE REFORMATION ON N^RNBERG

MARRIAGE LAWS, 1520-153 5

DISSERTATION

Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University

By

Judith Walters Harvey, B.A,, M.A,

The Ohio State University 1972

Approved by PLEASE NOTE:

Some pages may have

indistinct print.

Filmed as received.

University Microfilms, A Xerox Education Company ACKNOWLEDGMENTS

The encouragement and generosity of numerous indivi­

duals and institutions made possible the completion of this

study. The primary source materials made available by the

Center for Medieval and Renaissance Studies at The Ohio

State University aided in my preparation for later research,

A travel grant provided by the Department of History of The

Ohio State University and the continued assistance of the

NDEA Fellowship Office enabled me to undertake the necessary

research in Niirnberg, Germany.

In Niirnberg, the advice and gracious cooperation of

the following persons greatly facilitated my research:

Professor Gerhard Pfeiffer and Dr. Gottfried Seebass,

University of Erlangen; Archivdirektor Dr. Otto Puchner,

Niirnberg Staatsarchiv; and Archivdirektor Dr. Gerhard

Hirschmann, Nurnberg Stadtarchiv, and their respective staffs.

I also wish to thank my husband and family for their continued understanding and encouragement. Above all, an

ii immense debt is owed to Professor Harold J. Grimm who, with patience and wise counsel, has guided me through graduate years. VITA

31 July, 1943 Born - Appleton, Wisconsin

1965...... B.A., Ohio University, Athens, Ohio

1967-1969.... NDEA Fellow, Department of History, The Ohio State University, Columbus, Ohio

1968...... M.A., The Ohio State University, Columbus, Ohio

1969-1970.... Graduate Associate, Department of History, The Ohio State University, Columbus, Ohio

1970-1972.... NDEA Fellow, Department of History, The Ohio State University, Columbus, Ohio; Research in Nurnberg, Germany

FIELDS OF STUDY

Major Field* Renaissance and Reformation. Professor Harold J. Grimm

Medieval Europe and England, Professor Franklin J. Pegues

Tudor and Stuart England. Professor R. Clayton Roberts

Colonial America. Professor Bradley Chapin

iv TABLE OF CONTENTS

Page ACKNOWLEDGMENTS...... ii

VITA ...... iv

LIST OF ABBREVIATIONS...... vi

INTRODUCTION ...... 1

Chapter

I. MARRIAGE CUSTOMS AND THE CANON LAW IN PRE-REFORMATION GERMANY...... 13

II. EARLY PROTESTANT MARRIAGE DOCTRINES...... 39

III. DEVELOPMENT OF THE NURNBERG MARRIAGE COURT . , 74

IV. THE TREATMENT OF ADULTERERS IN NURNBERG BEFORE AND DURING THE REFORMATION...... 113

V. THE ISSUES OF^DIVORCE AND REMARRIAGE IN REFORMATION NURNBERG ...... 153

VI. CLANDESTINE MARRIAGES — THE NEED FOR A NEW SOLUTION TO AN OLD PROBLEM...... 189

VII. IMPEDIMENTS TO MARRIAGE — A VICTORY FOR THE STATUS Q U O ...... 224

CONCLUSION...... 254

APPENDIX

A ...... 259

B ...... 263

C ...... 265

D ...... 267

BIBLIOGRAPHY...... 270

v LIST OF ABBREVIATIONS

ARG Archiv fur Reformationsgeschichte

GNM Germanisches Nationa1-Museum, Nurnberg

MVGN Mitteilungen des Vereins fur Geschichte der Stadt Nurnberg

NKirchA Landeskirchliches Archiv, Niirnberg

NStadtA Stadtarchiv, Niirnberg

NStadtB Stadtbibliothek, Niirnberg

Ratschi. b Ratschlagbilcher

RB Ratsbilcher

Rep. Repertorium

RV RatsverlSsse

St AN Staatsarchiv, Niirnberg

WA D. Martin Luthers Werke (Weimar, 1883- ).

vi INTRODUCTION

The political, cultural, and economic preeminence which

was Nurnberg's at the beginning of the sixteenth century has

previously received such thorough treatment that it would be

both senseless and presumptuous to attempt a fresh presenta­

tion of the facts. One need only say that, in 1500, Nurnberg

was among the largest and most prosperous cities of the

Empire. Its legal and political status was that of an

imperial city or Reichsstadt. Nurnberg proudly acknowledged her allegiance to the emperor, for, historically, she had

received her many liberties and privileges from him.

Without the force of the Empire, weak as it was, serving to

counterbalance the territorial and economic particularism of

the princes, Nurnberg's existence as an autonomous and commercxally-thriving city would have been seriously jeopard­

ized, It is not surprising, then, that the government of the city strove always to maintain its partnership in good standing with the emperor.

The social structure of Nurnberg, as that of other medieval cities, consisted of several tiers. At the risk of

1 2 oversimplification, one may say that these included, at the apex, a narrowly-defined group of forty-three ancient families (by the sixteenth century called patricians or

Geschlechter) whose prosperity derived from commerce.

Beneath the former in political power and social standing, but not necessarily in wealth, were the successful merchants and professional men, the lawyers and physicians. These were designated as "honorable" citizens or Ehrbare to distinguish them, on the one hand, from the patricians and, on the other, from the tradesmen or artisans who worked with their hands.

Of least stature were the day-laborers who lived in the surrounding villages, but came to the city by day to ply their trades.

The arrangement of Nurnberg's government was directly related to her social structure. All authority was retained in the hands of the patrician families. The term which has been most frequently and aptly applied to the activities of the government is paternalism, a term which certainly accorded with that body's own conception of its role. Both the governed and the governors believed that it was natural and proper that this select group of the city's most success­ ful burgher-merchants bear responsibility for the community's welfare. From the period of Nurnberg's earliest endeavors toward autonomy, they had gained the respect and obedience of the citizenry with their wisdom and statecraft. Their past successes had earned the patricians the right to exer­ cise an all-encompassing supervision over the activities of the citizens, patrician and artisan alike.'*' Their aim at all times was the protection of the city's sovereignty against external encroachments and the preservation of the peace, unity, and well-being of the community. It is not surprising, then, that the patrician-oligarchy held all aspects of governance (executive, legislative, and judicial) in its hands.

Nurnberg's affairs were theoretically conducted by two 2 Councils. The larger was composed of about two hundred of the "honorable" citizens (in this case, called Genannte).

Membership in the Greater Council was considered an honor.

These matters ranged from the most momentous (for example, raising an army) to the most petty (such as regula­ ting the number and kinds of cakes served at a wedding feast). 2 The information presented in the following brief out­ line of the Nurnberg city government may be found in a more detailed form in several works. Among these are Gerald Strauss, Ni1 r ember q in the Sixteenth Century (New York, 1966); Kent Robert Green field, "Sumptuary Law in Nurnberg; A Study in Paternal Government," Johns Hopkins University Studies in Historical and Political Science, XXXVI, 2 (1918), 15-31; Julie Meyor, "Die Entstehung des Patriziats in Nurnberg," MVCN, XXVII (192G), 1-96; and Emil Rcicke, Geschichte der Reichsstadt Nurnberg (Nurnberg, 1896). although the body itself exercised little or no power. The

Genannte wore chosen by the smaller Council which, in turn, selected its own members from among the patriciate. Only the latter were considered ratsfahig , that is, qualified to sit in Council. Of the forty-two members of the smaller body

(usually termed the City Council or chrbar Rat) only twenty- six actively functioned as administrators. These were the thirteen Senior and thirteen Junior Mayors. Of the thirteen

Senior Mayors, a select seven (the Seven Elders or altere

Herren) held the real nucleus of decision-making authority.

All grave matters were discussed by them in secret before they were put to the Council as a whole. From the Seven

Elders, three "supreme officials" (Oberste Hauptmanner) were chosen. Two of these became the city's treasurers or

Losunger. The senior Losunger — the most powerful man in the city — acted as the chief of the administration.

The City Council not only created and administered the laws of the city; it also heard confessions, passed sentence upon, and executed penalties against transgressors of these laws. The Seven Elders heard penal cases. Those which involved capital punishment were tried by the Council as a whole. The determination of civil cases was the responsi­ bility of the Stadtgericht or City Court. Although its 5 eight members were chosen from the Genannte, it, too, was guided by and subordinate to the Council, Three or four doctors of law or jurisconsults (Ratskonsulenten) served as

legal advisers to the courts.

The City Council seldom delegated its functions beyond

its own members. Indeed, at all times it sought to preserve

its total monopoly of power. In this sense, it believed that the city's best interests and its own were most often served by the perpetuation of traditional policies in such matters as political relationships, legal procedures, and

regulation of social behavior. The Council looked with suspicion upon innovations. How, then, did it react to a movement such as the Reformation which created pressure for modifications in nearly all facets of human existence?

Soon after Luther's sermons and pamphlets became avail­

able to the general public, popular pressure for reform grew

in Nurnberg. The City Council could not long ignore it.

Historically, the city government — almost as successfully as in secular matters — had managed to maintain a guiding hand in church affairs. It had slowly but surely won or purchased concessions (such as a decisive voice in the selec

tion of priests to the two oarish churches) from its spirit­ ual overlord, the bishop of Bamberg, Traditional govern- 6

mental and political principles dictated that the Council

now retain control of the religious reformation as well*

None of this was as machiavellian as might appear on the

surface. Many of the city's leaders were genuinely sympa­

thetic if not convinced by evangelical doctrines. Neverthe­

less, the movement afforded the Council an opportunity

finally to bring the whole ecclesiastical establishment

under its authority. It could create a religious organiza­

tion responsive to the needs of both government and society.

For a very cogent reason, however, achievement of this goal

was not immediate.

The Diet of Worms, in 1521, issued a decree of pro­

scription against Luther and his followers. Lutheran books

and pamphlets were to be suppressed. The Council was forced 3 to temporize. For a time, the Council's policy of publicly

disavowing religious innovations while tacitly permitting

reforms to proceed was successful. However, in 1525, it

seized an opportunity to hold a public disputation between

the anti-Lutheran clergy and the reform-minded theologians.

From 1521 on, says Pfeiffer, "the bipolarity of Nurn­ berg politics began: obedience to the word of God, whose manifestation in Christ received new illumination through Luther, but also obedience to the emperor as the temporal lord of the Reichsstadt." See Gerhard Pfeiffer, ed., Nurn­ berg— Geschichte einer europaischen Stadt (Munich, 1971), p. 148. 7

Although not stated, it intended thereby to convince the

Catholics to bow to the inevitable and accept the new creed.

The outcome of the Religious Colloquy of March, 1525, was,

as expected, a victory for the pro-Lutheran theologians.

Thereafter, the Council openly acknowledged the Reformation

movement within the city. At the same time, it took steps

to control its speed and direction. Gradually, it assumed a

position similar to that of a bishop of Nurnberg, thus

filling the lacuna created when the ecclesiastical jurisdic­

tion of the bishop of Bamberg over the city ceased.

One immediate result of the Council's newly won

administrative responsibilities was its assumption of the

jurisdiction over marriage cases formerly in the purview of

the Bamberg ecclesiastica1 court. With this situation in

mind, one may pose a question. Given the existence of a

paternalistic government w h o ^ superintendence influenced

every aspect of daily life and given the presence of a

religious reform movement which was to be supervised as much

as possible by this same government, what effect might the

Reformation in Nurnberg have upon the institution of marriage and the laws governing it?

Many studies have dealt with Luther's doctrines on marriage and man's sexuality, and as many have sought to broaden our understanding of Protestant marriage law in 5 general. Yet, few have investigated the type or extent of modification which may have occurred in the marriage laws of

a city or state as the result of the Reformation.^ Few have offered an explanation as to why a city such as Nurnberg created a secular marriage court while often in the princely territories, ecclesiastical consistories were instituted.

Some of these include Olavi Lahteemaki, Sexus und Ehe bei Luther (Turku, 1955) ; Reinhold Seeberg, "Luthers Anschau- ung von dem Geschlechtsleben und der Ehe und ihre geschicht- liche Stellung," in Jahrbuch der Luther-Gesellschaft, VII (1925), 71-122; Lilly Zarncke, "Luthers Stellung zur Ehe- scheidung und Mehrehe," in Zeitschrift fur systematische Theoloqie, XII (1934-35), 98-117. 5 See the following: Hartwig Dieterich, Das protestan- tische Eherecht in Deutschland bis zur Mitte des 17. Jahr- hunderts (Munich, 1970); Werner Elert, "Eine Richtigstellung zur Geschichte des evangelischen Ehescheidungsrechts," in Neue kirchliche Zeitschrift, XXXVIII (1927), 522-48; Emil Friedberg, Das Recht der Kheschliessung in seiner geschicht- lichen Entwickelung (Leipzig, 1876); Adolf Dombois and Fried­ rich Karl Schumann, ed., Weltliche Eheschliessung und kirch­ liche Eheschliessung . Beitraqe zur Fraqe des Eheschliessungs rechts (Gladbeck, 1953); Adolf von Scheurl, Die Entwicklung des kirch1ichen Eheschliessungsrechts (Erlangen, 1877); and Rudolf Sohm, Das Recht der Eheschliessung aus dem deutschen und canonischen Recht qeschicht1ich entwickeIt (Weimar, 1875) 6 Two exceptions, among others, are Walther Kohler, "Die Anfange des protestantischen Eherechts," in Zeitschrift der Savigny-Stiftnnq fur Rechtsgeschichte, LXI (Kanonistische Abteilung XXX, 1910), and Adrian Staehelin, "Die Einfuhrung der Ehescheidung in Basel zur Zeit der Reformation," in Basler Studien zur Rechtswisscnschaft, LXV (1957). 9

Of the very scant number of works which have dealt in depth with marriage law in Nurnberg, most have not attempted to relate it to the reform doctrines prevailing in the early sixteenth century.^ Two exceptions are the studies by

August Jegel and Gottfried Seebass. Unfortunately, while space is devoted to the Reformation and Nurnberg's marriage laws, that space is necessarily brief, being contained in g works of a larger scope. Without detracting from the great value of these studies, then, one must acknowledge the need for further investigation. In an attempt to enhance our understanding of social change during the Reformation era,

7 n See Adolf von Scheurl, "Beitrage zur Geschichte des Eheschliessungsrechts aus einem Nurnberger Familienarchiv," in Zeitschrift ftir Kirchenrecht, VII (1889), 308-21. The author presents a brief composed by the jurisconsult, Christoph Scheurl II (1531) which suggested measures for dealing with clandestine marriages. Besides Scheurl's work there are two studies which investigate Nurnberg marriage laws as contained in the Revised Civil Code of 1564: Bertha Kipfmuller, Die Frau im Rechte der Freien Reichsstadt Nurnberg (Dillingen a. Donau, 1929) and Andreas Michel, Die historische Entwicklung der Auflosunq der Ehe nach Nurnberger Recht (Nurnberg, 1893). O M See August Jegel, "Altnurnberger Hochzeitsbrauch und Eherecht, besonders bis zum Ausgang des 16. Jahrhunderts," in MVGN, XLIV (1953), 238-74 and Gottfried Seebass, Das reformatorische Werk des Andreas Osiander (Nurnberg, 1967). The latter work was the most helpful of any utilized. Although only one chapter was devoted to marriage concerns, the material therein was directly related to the Reformation. 10 the present study will focus upon the possible influence of the Reformation upon Nurnberg's marriage laws.

As wo have seen, after 1525, the responsibility for regulating marriage concerns fell upon the City Council.

It had not only to determine the composition of the court before which marriage cases would be heard; it also had to enforce existing laws as well as create new legislation to govern matrimonial affairs. Consequently, the task of this study will be to investigate to what extent the reform-minded clergy were successful in influencing the Council's inter­ pretation of existing marriage laws and in promoting the passage and application of new legislation which conformed to Protestant doctrines.

Certain aspects of marriage law have been chosen for treatment above others because in deliberations over them, the evangelical theologians and the City Council and its jurisconsults evinced the greatest divergence of opinion.

Other marriage concerns (although significant or controver­ sial) were touched upon only briefly or eliminated altogether because to afford them the depth of treatment which they deserve would require more space than a study of an intro- 11 g ductory nature would permit.

The chronological limits of this study were not chosen because they defined any particular set of events or period.

Yet, one can perceive that within this period, the City

Council had managed to create the initial elements of a new body of marriage legislation — "new" because it was forced

to create instruments to replace those of the Catholic courts. Of course, many of the laws were modified during the sixteenth and seventeenth centuries as circumstances and the evolution of Nurnberg's civil codes required it. In addition, the eventual effect of the Reformation upon matri­ monial concerns was, as Liermann points out, the almost 10 complete secularization of marriage law. This should.

g Two examples 'e the creation of the Brandenburg- Nurnberg Church Ordinances of 1528 and 1533 and their provi­ sions for marriage matters and the question of the second marriage of the clergy. The latter issue created a contro­ versy which elicited the polemical talents of such persons as Luther, Osiander, Lazarus Spengler (the City Council's "first secretary") and Willibald Pirckheimer, a noted Nurnberg lawyer and humanist. For discussions of this controversy see Gustav Kawerau, De Digamia Episcoporum. Ein Beitraq zur Lutherforschung (Kiel, 1889), and the same author's "Dor Nurnberger Streit uber die zweite Ehe der Geistlichen," in Beit rage zur bayerischen Kirchengeschichte, X (1904). See also Emanuel Hirsch, Die Theologie des Andreas Osiander (Gottingen, 1919), pp. 280-84.

^Hnns Liermann, "Evangelisches Kirchenrecht und Staat- liches Ehcrccht in Deutschland," in Existenz und Ordnung. Festschr i f t f tlr Er ik Wo If (Frankfurt a. M. , 1962) , p. 110. however, in no way discourage us from trying to discover what effects the Reformation might have had upon ccclcsias tical doctrines and governmental legislation concerning marriage in the early sixteenth century. CHAPTER ONE

MARRIAGE CUSTOMS AND THE CANON LAW

IN PRE-REFORMATION GERMANY

In order to fully comprehend the manner in which policies governing marriage law evolved in Nurnberg during the early sixteenth century, it is necessary to be informed about the customs and laws which affected marriage in Germany in the period before and during the Protestant Reformation.

The following pages will include a brief overview of early and late medieval Germanic customary and code law; of the canon law which became, to a large extent, the exclusive guide in regulation of marriage affairs during and after the twelfth century, and, finally, of the Protestant marriage law of the early sixteenth century.

The terminology employed in a discussion of Germanic marriage law is complex since a variety of formulas existed which, as in all customary law, developed through direct application to life experiences. Several difficulties arise.

Scholars do not always concur in their use of terms, although

13 14 describing apparently identical processes. Second, it is sometimes difficult to arrive at a precise translation for these expressions. Consequently, in order to be as accurate as possible, one must occasionally employ rather awkward phrases. Where feasible, German terms will be substituted 1 for English in order to avoid distracting circumlocution.

For the sake of clarity and harmony throughout the discussion, there will be a more marked dependence on certain works above others because the former provided, for this student, more intelligible accounts of the customary and canon marriage laws in Germany.^

A glossary with translations or explanations of key German terms is provided in Appendix D. 2 For Germanic and canon law, those accounts which seemed most comprehensible were as follows: Siegfried Reicke, "Geschichtliche Grundlagen des Deutschen Eheschlies- sungsrechts," in Weltliche Eheschliessung und kirchliche Eheschliessunq . Beitraqe zur Frage des Eheschliessungs- rechts, ed. by Hans Adolf Dombois and Friedrich Karl Schumann (Gladbeck, 1953), pp. 27-62. Hereafter cited as Reicke, "Eheschliessungsrecht"; Hermann Conrad, Deutsche Rechts- qeschichte, Vol. I: Fruhzeit und Mittela Iter (Karlsruhe, 1962). Hereafter cited as Conrad, Rechtsgeschichte. For Protestant marriage law, among the more helpful works was Hartwig Dieterich, Das protestantische Eherecht in Deutsch­ land bis zur Mitte des 17. Jahrhunderts, Vol. X of Beitrage zum evangelischen Kirchenrecht und zum Staatskirchenrecht, ed. by Axel Frhr. von Campenhauscn,et al. (Munich, 1970). Hereafter cited as Dieterich, Eherecht. 15

Early Germanic Marriage Processes

In early Germanic law, entry into marriage was initiated with a contract made between a prospective husband and the young woman's father or relatives. The latter person or persons had authority (Munt) over the girl. This marriage may be designated as a Muntehe. It was a purely civil and business transaction which in no way came under the purview of the Church. There were two basic elements which deter­ mined the legal nature of the transaction: the element of dominion and the element of marital partnership or associa- 3 tion.

The element of dominion or authority existed in the acquisition by the husband of the Munt, the power to protect and control the wife. This element was fully present when the marriage contract was fulfilled with the surrender of the bride into the power of the bridegroom — a process

3 Reicke, "Eheschliessungsrecht," pp. 29-30. See also Rudolf Sohm, Das Recht der Eheschliessung aus dem deutschen und canonischon Recht geschichtlich entwickelt. Eine Antwort auf die Frage nach dem Verhaltniss der kirchlichen Trauung zur Civilehe (Weimar, 1875), pp. 22-24. Hereafter cited as Sohm, Eheschliessung . 16

known as Muntubortragunq (Latin: traditio puc Ilae) .^

The Munt-contract was a business of solemn obligation.

If either the bridegroom or the father broke the contract,

he was forced to make compensation to the injured party.

The bride was obliged to be faithful to the bridegroom.

Breach of faith (Treubruch) through sexual encounter with

another man was a crime deserving of death.^

Although certain aspects of it (notably the authority

of the husband over the wife) survived, the use of the

Munt-contract eventually disappeared as the central, legal

component of the marriage process. The second element, that

4 t, There were two initial steps before the Muntubertrag- ung took place. First, there were the transactions for the Munt which occurred in the presence of the girl's family and culminated in a contract (Muntvertrag). This process had very materialistic overtones; several tribal laws referred to it as Brautkauf or purchase of a bride (Latin: emptio puellae). The second step was the payment of a certain price (Muntschatz) to the father or relatives as compensation for their loss of authority. See Conrad, Rechtsgeschichte, I, 56, 153. See also Reicke, "Eheschliessungsrecht," pp. 31- 32, and Sohm, Eheschliessunq , pp. 22-34. Rudolf Sohm and other scholars also call this agreement or Munt-contract a Verlobunq or Verlobnis. Reicke, however, points out that the term Verlobunq (Latin: sponsalia) meaning a betrothal or mutually binding vow to marry did not come into use until the thirteenth century. He prefers to call it, if anything, a Muntverlobunq .

Conrad, Rechtsgeschichte, I, 153. 17

of household and marital association, had greater longevity.

From the beginning no marriage was legally complete without

it.

This second phase of the marriage process, even in the

early period, required an active participation of the bride

as she cooperatively joined the bridegroom in the establish­

ment of a life partnership. In this joint and public matter,

the "Ja," or assent to the marriage, became the token of the 6 unified wills of the bridal pair. Nevertheless, there were

occasions when the girl's assent may not have represented her genuine inner desire. She may have been expressing the will of her family who had forced their choice upon her. In early Germanic custom forced marriages were prevalent, as

can be perceived by the vigorous battle against this practice 7 waged by the Church since the ninth century.

Reicke, "Eheschliessungsrecht," p. 34. 7 Ibid., pp. 35-36. Reicke believes that there were instances where the girl refused to agree to a marriage against her will, despite probable punishment. The marriage did not take place, although a Munt-contract had already been negotiated. A further clue to the fact that the coopera­ tive element was essential for establishing a proper marriage was the existence — demonstrable since the ninth century — of marriages which occurred totally without the Munt-contract business. These were the so-called Muntfreie- or Fricdel- marriages in which the woman was never subordinated to the authority of the husband. They wore most common among the nobility. See also Sohm, Eheschliessung , p. 50, The procedures which created the element of marital

association included the He imf till rung and the Boilaqer or nuptials. The Heimfuhrung was the festive procession of the bride, escorted by the wedding party, to the couple's new home. The Beilager was the symbolic consummation of the marriage in the presence of witnesses tBeschre iten des

Ehebetts or Bettsetzunq). Connoted in this act was the public founding of the life-long marital relationship.

Legally, the property-right effects of the marriage began at this point. Both the Heimfuhrung and Beilager were legally essential components of a complete marriage process.

It should be noted that the Heimfuhrung and Beilager, which comprised the element of partnership and, thus, completed the marriage, were "publicly" executed. Tradition ally, only publicly witnessed events could produce legal g consequences. As the Church became more involved in the

Reicke, "Eheschliessungsrecht," p. 33. See also Conrad, Rechtsgeschichte, I, 154. 9 Reicke, "Eheschliessungsrecht," p. 34. The signifi­ cance of this publicity becomes clear when such a proper marriage bond is compared to sexual unions (Unehc or Kebsverbindung) which were entered into informally and non- publicly. The concubine was never the mistress of the house or partner of the husband. 19

lives of the population, it, too, stressed that the

completion of the marriage be undertaken in the presence of witnesses. For the rest, the Church acquiesced in the civil marriage formulas, but was eager for a religious consecration 10 of the marriage by a priest.

Marriage Impediments, Adultery, and Divorce

in Early Germanic Law

For the most part, early Germanic law possessed only a very rudimentary system for dealing with such aspects of marriage as impediments, adultery, and divorce. Generally, it was the influence of the Christian Church which instigated changes in these facets of the native marriage customs.

Among these developments were attempts to end polygamy and concubinage, the evolution of an extensive system of marriage impediments, an amelioration of the harshness with which an adulterous wife was punished, the development of equal penalties for the adulterous husband as well as the wife, and the establishment of the doctrine that marriage was 11 indissoluble.

10 Conrad, Rechtsqeschichte, I, 154. 11 The following brief yet informative works provide further details on the above-mentioned aspects of early 20

The Influence of the Church on

Germanic Marriage Customs

During the High Middle Ages, there were developments in family and marriage customs which allowed the Church eventually to become more deeply involved in German marriage law. One of these was the decline of the authoritative role of the father and family in marriage-making. With this, the

Munt concept in the traditional marriage transactions 12 diminished. The marriage process lost some of its early materialistic features to be replaced by a greater moral and personal character. The Church had its share in this development. It resisted forced marriages, although it still exhorted children to be obedient to their parents. Matched with this was a growing consideration for the wishes of the bride. The Church emphasized that marriage was built upon mutual obligations of fidelity. By the twelfth century,

Germanic marriage laws: Hermann Conrad, Deutsche Rechts- geschichte, Vol. I; Fruhzeit und Mittelalter (1962) ; Rudolf His, Geschichte des deutschen Strafrechts bis zur Karolina (1928): Margarete Hollesch, Die Strafbarkeit des Ehebruches in geschichtlicher und lechtsvergleichender Darstellung (1932). A more extensive work in this sphere is Hermann Knapp, Das alte Nurnberqer Kriminalrecht (1896). 12 Sohm, Eheschliessunq . pp. 50-53. See also Reicke, "Eheschliessungsrecht," p. 37. 21

the concept of the two-sided assent or agreement of wills

(hTi 1 lcnsubcroinstimmunq) of the couple had moved to the

foreground. Its formal expression was the solemn vow of

consent made within the family circle., 13

At the same time, a new terminology for the phases of

the marriage process came into use. The term Verlobung or

Verlobnis began to have currency with reference to the

mutual declaration of consent to marry. Of course, other

expressions, some of them colloquial, could be found. In

Nurnberg and elsewhere, for example, in addition to Verlobung

such terms and phrases as the following were employed:

Handschlaq, meaning the shaking of hands as a pledge;

Handschlag und Verlobnis; Heirath und Ehegelfibd, meaning the 14 giving of marriage vows; Handqeben und Zusagen, meaning

a handclasp and promise; 15 Handfestung, meaning solemn

13 Reicke, "Eheschliessungsrecht," p. 37. See also Conrad, Rechtsgeschichte, I, 402. 14 Adolf von Scheurl, "Beitrage zur Geschichte des Eheschliessungsrechts aus einem Nurnberger Familienarchiv," in Zeitschrift ffir Kirchenrecht, VII (1889), 309. Hereafter cited as Scheurl, "Geschichte des Eheschliessungsrechts." 15 Hermann Knapp, Das alte Nurnberger Kriminalrecht (Berlin, 1896), p. 209. Hereafter cited as Knapp, Kriminalrecht. 22 16 promise, betrothal, or marriage vow.

The term Trauunq came to signify the process — although

altered from its earlier form — of the surrender of the bride into the husband's authority. As with the various distinct phases of the older Muntehe which they replaced, both the Verlobung and Trauunq remained until well into the sixteenth century the essential components of a complete, 17 legal marriage.

The essence of the Verlobung was the founding of a mutual relationship of fidelity through a direct declaration of the intent to marry. It was the central focus of the

Konsensgesprclch or "dialogue of consent" which took place in the presence of the family. It constituted the legal obligation to complete the marriage process by undertaking 18 the Trauunq.

The Trauung was still related to the older Muntuber- tragung or delivery of the bride to the groom; however, in its new form, it henceforth connoted the entrusting (trauen,

August Jegel, "Altnurnberger Hochzeitsbrauch und Eherecht, besonders bis zum Ausgang des 16. Jahrhunderts," in MVGN, XT,IV (1953), 244, 247. Hereafter cited as Jegel, "Hochzeitsbrauch und Eherecht." 17 Reicke, "Eheschliessungsrecht," p. 37. 18 Conrad, Rechtsgeschich te, I, 402. 23

coinmendare) of both tho bride and bridegroom into each 19 other's care. The formula for the Trauunq consisted of

ascertaining again the mutual intent of the couple, an

exchange of rings, and mutual vows of fidelity (Zusammon- 20 sprechen).

A further development in the marriage customs was the

requirement for broader publicity attending the matrimonial

events. The earlier Muntehe satisfied the legal need for

publicity through participation of the family or community.

With the decline of the older forms, a new and more far-

reaching means of publication was needed. The Verlobung

still generally took place in the house of the bride. In

some cases, guests were invited to a festive meal (Mahlzeit), and on this occasion the Verlobung took place. The number

In this sense, the act was divorced from the original intent of establishing the dominion of the husband. This was now considered to be a consecutive effect of the Trauunq. See Reicke, "Eheschliessungsrecht," p. 39. 20 Conrad, Rechtsgeschichte, I, 402. See also Sohm, Ehesch1iessung , p. 89. Since the authority of the father or guardian was no longer the key element in the matter, the couple were free to choose a third person, not necessarily from the family, to conduct the Trauunq ceremony. This person, a layman, became known as the Treuhander, Fursprecher, Orator. See Reicke, "Eheschliessungsrecht," pp. 38-39, and Sohm, Eheschliessunq, pp. 69-71. 24

of witnesses present most likely served as a satisfactory

21 means of publicizing the event.

On the other hand, the Trauunq was now moved to a

public place. As the desire for ecclesiastical blessing of

the marriage became more prevalent, the Trauunq was per­

formed before the church doors. The couple could then

proceed immediately into the church to receive the blessing

(Brautsegen) and Holy Communion. In Nurnberg there were

particular doors under which the ceremony took place, the

so-called Brautture or bridal doors. These are still

preserved today on the churches of Saint Lorenz and Saint

Sebald and are decorated, characteristically, with statues 22 of the five wise and five foolish virgins.

Often, however, an announcement (Lautmerung) occurred as a distinct act after the Verlobung . Frequently, this included information on the details of the marriage contract. Only rarely did the Verlobung transpire in a public place, such as the Rathaus. See Scheurl, "Geschichte des Eheschliessungsrechts," pp. 309-10. Here, Scheurl was describing examples of the Nurnberg Verlobung-process as they were recorded for the years 1534-1542 in the diary of Dr. Christoph Scheurl, the sixteenth-century Nurnberg jurist. See also Knapp, Kriminalrecht, pp. 209-10. 22 Jegel, "Hochzeitsbrauch und Eherecht," p. 252. See Hans Liermann, "Rechtsgeschichte in der frankischen Landschaft," in Jahrbuch fur frankische Landesforschung, XXIII (1963), 224. 25

The Dovelopment of the Canonica1 Marriage Law

During the twelfth century, the Church began building

its own proper marriage law code. The movement, which

involved far more than marriage laws alone, was probably related to the reforms radiating from Cluny and Gorze and a turning away from the sovereignty of civil authorities in the regulation of the Church. Accompanying this was the development of an independent ecclesiastical legal system whose source lay in the Decretals of Gratian (ca. 1140) and 23 subsequent decretal collections of the popes.

The leadership in formation of the marriage law went first to France. The doctrine of the sacramental nature of the marriage was of decisive importance for the Church's claims of exclusive competence in marriage concerns. This doctrine, as well as the notion that the couple themselves were administrators of the sacrament, were concepts formu- 24 lated by the Parisian theologians.

The canon law was influenced by Roman law which had been dominant in the early Church. This connection was

23 Reicke, "Eheschliessungsrecht," p. 41. 24 Ibid. See also Conrad, Rechtsgeschichte, I, 403. 26

favorable to the northern Italian law schools. Under their

influence, the concept that marriage was established purely by consent of the parties (nudus consensus facit nuptias) 25 became the ruling principle in the canon law. Yet, among

the jurists there was lack of unanimity about whether the

legal completion of the marriage did not also require consum- 26 mation (copula carnalis). Gratian decreed that the marriage was "initiated" (matrimonium initiatum) with the vows of consent, but became complete or "perfected"

(matrimonium consummaturn) through the physical mingling of 27 the couple*

On the other hand, the Parisian jurists claimed that the marriage was completed to full effect by consent alone.

In the search for a solution, the canonical distinction between consensus per verba praesenti and consensus per

verba de futuro was developed. If a couple vowed their

intent to marry, directing these vows (sponsalia) to the

Reicke, "Eheschliessungsrecht," pp. 42-43. 26 Rudolf Sohm pointed out that the Corpus Juris Justinian considered the marriage completed by consensus nuptial is which meant cohabitation with maritalis affectio and not merely word-consent. See Sohm, Eheschliessung, pp. 109-10.

Sohm, Eheschliessunq, p. 113 citinq Gratian: Diet, ad c. 34C. XXVil qu.~2’. 27 immediate present, then an immcdintely-effective marriage

(sponsnlia de praesenti) was instituted without any need of consummation. Otherwise, the type of declaration which was expressly directed toward a future completion of marriage

(sponsa1ia de futuro) meant only a binding obligation for future marriage. This doctrinal interpretation triumphed in the Church in the course of the twelfth century; Pope

Alexander III (1159-1181) decreed that the consent of the couple sufficed for the realization of an effective 28 marriage.

The canonical sponsalia doctrine was confusing to many in the German population since, to some extent, the distinc­ tion between sponsalia de futuro and sponsalia de praesenti deceptively seemed to correspond to the two acts, Verlobung and Trauunq, of German marriage law. That this was not so becomes clear on closer examination. In the first place, it should be noted that the declaration of consent given in the

German Verlobung was never intended, of itself, to establish a valid marriage. The Trauunq was an equally essential component. Second, unlike the Verlobung, the sponsalia de

Conrad, Rechtsgsschichte, I, 403. See also Sohm, Eheschliessung , pp. 119-25. 28 futuro was not considered an integral part of the marriage process. It was, rather, a promise of future marriage in the Roman sense. Yet, according to canon law (again, in contrast to German custom), the sponsalia de futuro sufficed to institute a marriage if a consummation took place in conjunction with it. The latter was regarded as a conclu­ sive expression of the intent to immediately establish a 29 marriage.

It may easily be perceived that these subtle distinc­ tions were never understood or accepted by many segments of the population. In fact, the application of canon rules became the source of misunderstanding and harm. The people clung tenaciously to the traditional legal customs which consisted chiefly of the Verlobung made within the family circle and the Trauung, for publicity's sake, performed 30 before the church doors.

The ecclesiastical authorities certainly did not oppose the observance of the Trauung act, although, as will be seen, they attributed no legal significance to it. They too had

29 Reicke, “Eheschliessungsrecht," p. 43. See also Sohm, Ehcschliessung, p. 142.

^°Reicke, "Eheschliessungsrecht," p. 44. 29

a great interest in making public the marriage process.

The important matter, however, was that the exclusive

authority claimed by the Church in marriage affairs be

recognized. Therefore, it now required that the Trauunq, hitherto conducted by a lay person in the presence of the

clergy, be now executed by the priest himself. This stipula­

tion meant the prohibition of the lay-Trauung. The priest now became the only legitimate mediator of the Trauunq in

the eyes of the Church. It never succeeded, however, in 31 fully dislodging the practice of the lay-Trauung.

Frequently, unfortunate and even deleterious situations arose from popular misunderstanding of the canon law. One aspect of this, already indicated, was the discrepancy between popular and ecclesiastical perceptions of the signi­

ficance of the Trauunq. For the common man the formal and public Trauunq was the act which conclusively established

the marriage. For the Church, however, it merely signified

the solemn confirmation (solemnisatio in facie ecclesiae) of the marriage. The couple, themselves, according to canon law, administered the sacrament of marriage by

Conrad, Rechtsqeschichte, I, 403-04. See also Sohm, Ehesch1iessung , pp. 153-55, 164-G8; Scheurl, “Geschichte des Eheschliessungsrechts,“ pp. 309-10. 30 declaring their consent to marry. This took place in the

Ver1obung which the Church considered to be a sponsalia de 32 praesenti.

Despite these differences in interpretation the Trauunq continued to exist unaltered. The antithesis of views only came to the fore in cases where the popular interpretation

led to a violation of Church law. Among such instances were the so-called "secret” marriages (matrimonium clandes-

tinum or Winkelehen) where marriage vows were made either without proper witnesses, or without family consent. Such

informal unions continued to plague both the ecclesiastical and civil authorities because the Church rigidly held to the doctrine that pure consent, given with or without witnesses, 33 actually established the marriage.

32 Reicke, "Eheschliessungsrecht," pp. 44-45. See also Sohm, Eheschliessung, pp. 167-69. 33 Reicke, "Eheschliessungsrecht," pp. 45-46. See also Conrad, Rechtsgeschichte, I, 403. That this was the case in Nurnberg as well, was indicated by Adolf von Scheurl, "Geschichte des Eheschliessungsrechts," pp. 308-10: by Jegel, "Hochzeitsbrauch und Eherecht," p. 247,* and by Emil Reicke, "Der Liebes- und Ehehandel der Barbara Loffelholz, der Mutter Willibald Pirckheimers, mit Sigmund Stromer zur goldenen Rose," in MVGN, XVIII (1908), 139-40. Hereafter cited as E. Reicke, "Barbara Loffelholz." Reicke's entire article confirms the fact of these unfortunate conditions in the marriage law. See also Emil Reicke, WillibaId Pirckhoirner, Leben, Fami lie, und Person lichke it (Jena, 1930) . 31

It seems to have made little difference that the Church, in the Fourth Latcran Council of 1215 and in subsequent synods, stressed the need for publicity — a publicity 34 already present in the traditional German forms. The

Church was unable to eliminate this ill, since, although such clandestine unions were threatened with dire ecclesias­ tical punishment, the marriage itself, once established, was 35 valid in the eyes of the ecclesiastical courts. As long as the Church refused to raise the formula of consent in the

Trauunq to a compulsory requisite (thereby making the marriage process necessarily a public act), some marriages would continue to transpire without witnesses, parental . . 36 consent, or ecclesiastical participation.

34 The Church Councils repeatedly declared that not only the sponsalia de praesenti, but also the sponsalia de futuro were to be accomplished before the priest and witnesses. "Secret" marriages were emphatically forbidden. Conrad, Rech tsqeschichte, I, 403-04. 35 E. Reicke, "Barbara Loffelholz," p. 139. According to Adolf von Scheurl, the problem continued well into the sixteenth century and was as critical in Nurnberg as else­ where in Germany. As will observed in subsequent chapters, the fact that Nurnberg became Protestant did not immediately eliminate the difficulties. Scheurl, "Geschichte des Ehe­ schliessungsrechts," pp. 308-13. 36 Reicke, "Eheschliessungsrecht," p. 46. See also E. Reicke, "Barbara Loffelholz," p. 139, and Sohm, Eheschliessung, pp. 137-90. 32

As a result of the Church's inflexible position in this matter, the ecclesiastical courts were burdened with a great number of cases involving precisely such "secret" marriages.

At times these were cases of conscious exploitation of one party by another for immoral purposes; at other times, the couple had simply become ensnared in the confusing canoni­ cal distinctions. Linguistic misunderstanding relating to the two types of sponsalia was a factor here. It was exactly for this reason, as will be seen, that Luther criticized the canon sponsalia doctrine. The large majority of complainants in the court cases were women who sued for recognition of their marriage. Often, however, they were frustrated by lack of proof. The occurrence of an unwitnessed sponsalia de praesenti was easily denied. It was not until the Council of Trent that the Catholic Church 37 finally took steps to eliminate this abuse completely.

Sohm Eheschliessung, pp. 190-94. It was declared in the decree Tametsi (November 11, 1563) that the initial vows of consent (previously made informally in the Verlobung and then publicly repeated in the Trauunq) were now to be given before the priest and two or three witnesses. Therewith, the public entry into marriage had become a statutory requisite for the validity of the marriage. 33

Impediments, Advil to ry, and Divorce in Canon Law

During the Middle Ages a complex system of marriage impediments was formed within the canon law. At the same time casuistic practices developed, particularly in the dispensation and annulment practices, which concealed certain dangers. Because of its sacramental nature, marriage was considered to be indissoluble. Yet, by means of the complicated system of absolute and dispensable impediments, a marriage might be declared valid and permanent or null and void depending upon political, financial, or other factors.

The entanglement of consciences and the financial abuses arising from the complexities of the canon regulations were 38 the object of vigorous criticism by Protestant reformers.

The canon doctrine distinguished between invalidating or absolute impediments (impedimenta dirimenta) and delaying or dispensable impediments (impedimenta impedientia).

The first made the marriage invalid, while the second prohibited the marriage, but did not invalidate a union 39 concluded despite this prohibition. Among the dispensable

38 Dietcrich, Eherecht, p. 32. 39 Conrad, Rechtsqeschichte. I, 404. See also Rev. Stanislaus Woywod and Rev. Callistus Smith, ed., 34

impediments were those of simple vows (for example, of virginity, of perfect chastity, vows not to marry, or vows to receive sacred orders) or of legal relationships arising 40 from adoption. Absolute impediments arose from several circumstances. Among these were physical conditions such as age and impotence; disparity of cult (where one person was not baptized); crimes such as abduction, adultery with the promise of marriage, or murder by conspiracy; an existing marriage; or the marriages of others which created impedi­ ments of consanguinity and affinity; and spiritual or legal 41 relationships.

The most important of the absolute impediments were those of an existing marriage (impedimenturn ligiminis), of blood relationship (impedimenturn cognationis), and of affinity (impedimentum affinitatis). The impediment of an existing marital bond stemmed from the principle of the indissolubility of a sacramental marriage. Not even in the

A Practical Commentary on the Code of Canon Law, I (New York, 1952), 670. Hereafter cited as Woywod and Smith, Canon Law. 40 Dieterich, Eherecht, pp. 63, 67-68. See also Woywod and Smith, Canon Law, I, 694-704. 41 Woywod and Smith, Canon Law, I, 707-7 39. 35 case of adultery did the canon law allow dissolution of a consummated marriage. More frequently, marriages were declared invalid. This was particularly so with bigamous marriages which wore not rare, since, until 1563, the Church 42 lacked an enforceable standard for entry into marriage.

In addition, nullification of marriages often occurred as a result of the wide extension of the impediment of consanguinity in the collateral line. Since the eighth century, the Church had extended the prohibition of marriage among blood relatives to the seventh degree of relatedness.

As a result of this extension, countless marriages were made in violation of the law. Reform became necessary. The

Fourth Lateran Council (1215) restricted the marriage impediments of consanguinity in the collateral line to the fourth degree. The impediment of affinity, arising between one spouse and the relatives of the other spouse, was 43 similarly restricted.

As indicated, the canon law strictly forbade divorce.

Based upon the sacramental nature of marriage, a valid and

42 Conrad, Rcchtsgeschichte, I, 404. See also Sohm, Eheschliossung, pp. 137-38, 190. 43 Conrad, Rechtsgeschichte, I, 404-05. 36

cons unimated marriage contracted between two baptized persons

could bo dissolved only by death. On the other hand, an

unconsumiuatcd marriage between two baptized persons, or

between a baptized and unbaptized person, could be dissolved

on the basis of one member's entry into a spiritual order or

by dispensation from the pope. A marriage between two

unbaptized persons (matrimonium non ratum) could be dissolved

if one spouse became baptized and the other refused to per­

mit him to practice his religion. The Christian could

simply enter into a new marriage. This was the so-called 43 Pauline Privilege.

For two baptized persons who had contracted a valid

and consummated marriage, there could be no recourse to

divorce. If the court so decreed, they were permitted

instead a "separation from bed and board" (separatio quoad

thorum et mensam). This could be a permanent or temporary

(for a specified or unspecified period) separation. For the

total and permanent separation of a married couple, one

ground alone was recognized: adultery. Neither party in

43 Andreas Michel, Die historische Kntwicklung der Auflosung der Ehe nach Nurnberger Recht (Nurnberg, 1893), pp. 4-5, Hereafter cited as Michel, Aufldsung der Ehe. See also Woywod and Smith, Canon Law, I, 803-06. 37 44 this instance obtained the right to remarry*

Aside from adultery, no grounds, no matter how weighty, allowed of permanent separation. Only those circumstances which might, of themselves, cause the destruction of the marriage or for reasons affecting the security and physical or spiritual well-being of the spouse were considered valid grounds for a temporary separation. Among these were hate, abandonment, refusal to fulfill the marital obligations, temptation of the partner into immoral or criminal acts, defection from the Church, physical persecution, and dangerous illnesses. Connected with the permanent separation was a complete division of the marital property. The tempo­ rary separation resulted only in the granting of alimony 45 and other temporary regulations.

From this brief outline of Germanic and canon law, one

44 <> Michel, Auflosung der Ehe, pp. 6-7. To initiate a separation, the verdict of the ecclesiastical court was required. On the other hand, the restoration of the married life, with mutual consent in writing, could occur without the need for special authorization since, in the eyes of the law, the marriage still existed. 45 Ibid., pp. 7-8. Michel noted that the above- mentioned canon divorce regulations naturally had full validity in Nurnberg until the Reformation. It was not until the revised law code of 1564 that regulations on separation and divorce were printed in code form in that city. 38

perceives that by the end of the sixteenth century, there

existed a complex legal system which the Church attempted to

apply to all aspects of marital affairs. In many respects

it was not entirely satisfactory, for several reasons.

Chief among these appear to be the fact that the canon law had not been fully successful in smoothing out some of its

own inner doctrinal contradictions. In the second place,

the canon law had not been able either to adapt itself to,

or assimilate into its own structure, the endemic legal

patterns and notions. As has been observed, certain

persistent, social and legal difficulties were the unfortu­

nate result.

It now remains to discuss briefly the early Protestant marriage doctrines as they were presented in the writings

of Luther and certain other evangelical theologians, as well as in the evangelical church ordinances. The intent will be to discover to what extent these altered or improved the existing laws and what difficulties they faced. Where possible, specific examples from the Nurnberg Church

Ordinances will be included. CHAPTER TWO

EARLY PROTESTANT MARRIAGE DOCTRINES

In the early sixteenth century there was unanimity among the Protestant reformers concerning at least one fact: the marriage law of the Catholic Church was, in great measure, in need of reform. Yet, their strong criticism of

Catholic marriage law notwithstanding, the reformers did not succeed in creating a marriage law free of difficulties.

There were several reasons for this. In contrast to the

Catholic Church which possessed organs for centralized legislation, the Protestants lacked the means for accom­ plishing a universal reform of marriage law. The canon law, as it operated in the civil sphere, was common law in

Germany. The reformers, therefore, could attack the abuses in the marriage law only on a doctrinal or spiritual plane or, at most, by means of special legislation created by 1 those governments which favored the Reformation.

Hans Liermann, "Evangelisches Kirchenrecht und Staat- liches Eherecht in Deutschland, Rechtsgeschichtliches und

39 For a considerable period of time, certain aspects of

the evangelical marriage law remained essentially a modified

form of the medieval Germanic and canon law. As might be expected, some of the same difficulties attended its administration. As will be seen, for instance, the reformers initially taught that the declaration of consent alone (as it occurred in the Verlobung) established the 2 marriage. The result was a contradiction, as in the canon law, between the repudiation of "secret" marriages and the espousal of the consent doctrine. In addition, the evan­ gelical authorities required a definite measure of church sovereignty in marriage matters. There were, then, similarities between the evangelical practice and the

Gegenwartsprobleme," in Existenz und Ordnung, Festschrift fur Erik Wolf (Frankfurt a. M. , 1962), p. 110. Hereafter cited as Liermann, "Eherecht." See also Walther Kohler, "Die AnfSnge des protestantischen Eherechts," in Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte. Vol. LXI (Vol. LXXIV of the Zeitschrift fur Rechtsgeschichte), Kanonistische Abteilung XXX (Weimar, 1941), p. 273-74. Hereafter cited as Kohler, "Eherecht." 2 Sohm, Eheschliessung, p. 198, citing Luther: "Wenns bei schlichtem Verlobnis bleibt, so ist bald geurteilt, dass hernach kein ander Verl6bnis gelten soil, denn es ist eine rechte Ehe fur Gott und der [sic] welt" (Von Ehesachen. 1530, Erlanger Ausgabe 23, 120). See also Dieterich, Eherecht, p. 54. 41

judicial organization and procedures of the canon law. As a consequence, the Protestant regulations were, likewise, 3 at times in opposition to popular modes of thinking.

One of the first principles of canon law to be rejected by Luther and his contemporaries was the sacramental nature of marriage. In conjunction with this, Luther made his well-known declaration that marriage was "a civil matter.*'

The statement created confusion then and later because it 4 was often misunderstood. Luther meant, however, that marriage was a "civil matter" in the sense that even among

Christians, because of original sin, marriage had become a physical and temporal thing. Therefore, all aspects of marriage which were derived from its corporeality were civil matters coming under the civil law. Yet, Luther also stressed that the Christian who conducts his affairs and lives his married life with Christian love should have no

3 Reicke, "Eheschliessungsrecht," pp. 50-51. 4 <■ Liermann, "Eherecht," p. 110. See also Kohler, "Eherecht," p. 271. Cf. Roland Kirstein, Die Entwicklunq der Spor.salienlehre und Lehre vom Eheschluss in der deutschon protostantischen Eherechtslehre bis zu J. II. Bohmer. Vol. LXXII of the Bonner rechtswissen- schaft1iche Abhandlungan (Bonn, 1966), pp. 26-27. Hereafter cited as Kirstein, Sponsalienlehre. 42 5 need of recourse to the civil courts. Luther never

intended to say that marriage is solely and exclusively a

civil matter, but only that it has a secular side as well 6 as being an institution of divine law.

In relegating the non-spiritual aspects of marriage to the sphere of civil courts, the reformers did not intend to turn marriage affairs over to a realm closed to divine control. The civil authority to whose jurisdiction these matters were assigned was considered { by reformers and governments alike) to be God's executive organ on earth.

This authority was to administer the law and conduct the courts in harmony and cooperation with the theologians.

There were, of course, variations in the types of courts established. In some cities, for example, Nurnberg and

Zurich, the city councils created special marriage courts; while in the princely states, the territorial sovereigns

5 Dieterich, Eherecht, pp. 31, 41-42, citing Luther, Von Ehesachon, 1530, WA 30 III, 20, 12; 246, 25; and 205, 18. In this, the other reformation theologians generally agreed with Luther's standpoint. Dieterich, Eherecht, p. 79. See also Ernst Kinder, "Luthers Auffassung von der Ehe," in Bekenntnis zur Kirche, Festqabe fur Ernst Sommer lath zum 70. Geburtstag (Berlin, 1960), p. 327. Hereafter cited as Kinder, "Luthers Auffassung von der Ehe." 6 . .... Lierniann, "Eherecht," p. 110. Cf. Kirstein, Sponsalien- lehre, pp. 26-27. 43 cooperated in the establishment of consistories. The laws which were administered by these institutions were

frequently based upon evangelical doctrine, which was codi- 7 fied in the various evangelical church ordinances.

As stated, one of the idiosyncracies inherited by the evangelical authorities from the canon law was the trouble­ some Verlobung-sponsalia doctrine. Luther recognized the canonical distinction between betrothals anticipating a future marriage (sponsalia de futuro) and the marriage proper (sponsalia de praosenti). However, he felt the distinction, as understood in the canon law, was linguisti­ cally incompatible with German usage. In his Von Ehesachen

(1530), Luther declared that the church courts had dissolved many a valid marriage and made binding some which were not valid because the wording of the German betrothal formula

Liermann, "Eherecht," pp. 110-11. See also Kohler, "Eherecht," p. 278, and Reicke, "Eheschliessungsrecht," p. 52, and Gunther Petsch, Das Kurnberger protestantische Kirchonrecht der reichsstadtischen Zeit (Duren-Rhld, 1933), pp. 39, 44-45. Hereafter cited as Petsch, Kirchenrccht. Petsch states that the Nilrnberg authorities found the concept of the civil aspects of marriage very much suited to their frame of mind. The City Council evolved a city marriage law over several years (somewhat by trial and error) with the advice of its jurists and theologians. The Brandenburg- Nurnberg Kirchenordnung did not appear until 1533 and had few specific guidelines for actual marriage problems. 44 was not compatible with the Latin. The ecclesiastical courts had interpreted the German forms, "Ich will Dich zum

Weibo haben," or Ich will Dich nehmen," to be sponsalia de futuro, when what was really intended was a sponsalia de praescnti. The Church directed the prospective husband, when the intent was a sponsalia de praescnti, to use the words

"Accipio te in uxorem" or "Ich nehme Dich zu meinem Weibe" failing to perceive that this form was not customary in the

German language. Again, Luther pointed out that no German used the words "Ich werde Dich haben" (Latin: accipiain te) to indicate a sponsalia de futuro as the Church wished them to do. "Indeed," he said, "I, myself, do not really know how a youth or maid ought or can betroth themselves per verba de futuro in the German language; because when one 8 becomes betrothed, it means per verba de pracsenti."

Wishing to eliminate the confusion, and especially the problem of clandestine marriages which arose therefrom,

Luther sought to replace the canon definition with a new and simpler one. Only those betrothals (Verlobnisse) in

Sohm, Eheschliessung, p. 139, citing Luther, Von Ehe- sachen (1530) Erlanger Ausgabe 23, 102-103. See also Emil Friedberg, Verlobung und Trauung. Zugleich as Kritik von Sohm: Das Recht der Eheschliessung (Leipzig, 1876), p. 59, as cited in Kirstein, Sponsalicnlchre, p. 31. 45 which the contract expressly stipulated some future condition or event, he said, wore sponsalia do future. All other vows wore immediately effective and, thus, true marriage vows (sponsalia de pracsenti), Luther believed he was removing the confusing distinctions between the sponsalien so that every vow would effect a marriage unless 9 a reservation to the contrary was expressly made.

Whenever evangelical jurists attempted to apply canon law to marriage cases, Luther's indignation knew no bounds.

Yet, the reformer, himself, could not fully avoid arriving at conclusions which were basically identical to the Catholic 10 position. If all unconditional betrothals were really sponsalien de praosenti, then marriage rested, as in the canon law, directly on the consent of the couple. Luther's doctrine was an unaltered repetition of the German betrothal law and merely a more precisely worded canonical sponsalia doctrine.11- This remained true for evangelical marriage law,

g Kirstein, Sponsalienlehre, p. 31, citing Luther, Von Ehesachcn, 1530, WA III, 211, 27; 212, 5; 212, 11; 212, 31. See also Sohm, Ehoschliessunq, pp. 197-206.

1^Reicke, "Eheschliessungsrecht," pp. 52-53. 11 Sohm, Eheschliessunq, pp. 205-06. 46 in general, throughout the sixteenth century. Several accounts of the city's marriage laws indicate that this was 12 the case in Nurnborg as well.

The quality which distinguished the evangelical betrothal doctrine from the Catholic was the requirement for publicity in a special new sense. In the battle against

"secret" marriages, the absoluteness of the marriage vows came to bo equated with the degree of openness and publicity 13 with which they were given. For Luther, this was chiefly expressed in parental or guardian consent, something not required by canon law. It was a natural conclusion drawn from the Fourth Commandment and the fact that, in accordance with divine law, the marital state should be an open and public, as opposed to a secret, one. The need for parental

In one of the latter, it is stated that "the betrothal (Verlobung) has not merely obligatory but also judicial efficacy...; the betrothal...produces the indis­ soluble marriage bond between two parties.... In this sense, the public betrothal is ...completion of the marriage settle­ ment; the public betrothal is...contractum matrimonium." Scheurl, "Geschichte des Eheschliessungsrechts," pp. 309-11. Scheurl also cited the diary of Dr, Christoph Scheurl II wherein the latter stated that the persons attending or presiding at the Verlobung-affair "made the marriage" between the two parties. See also Petsch, Kirchenrecht, pp. 41-42, and Jegel, "Hochzeitsbrauch und Eherecht," p. 247.

Reicke, "Eheschliessungsrecht," p. 53 47 consent created obligations for both the children and the parents. Children were not to consent to marriage behind

their parents' backs, but the parents were to provide for a suitable and timely marriage for their children because the marital state was a divine institution and every normal person was called to it. What the requirements were for

individuals who had no parents or guardians, Luther did not 14 expressly state.

Luther's doctrine was generally accepted by his contemporaries and successors. The church ordinances, however, did not universally require consent of parents.

Sometimes these stressed parental consent, sometimes the presence of honorable witnesses, or sometimes betrothal in

the church. The legal effects of an unapproved betrothal were also variously determined. In some cases, the betrothal was nullified; sometimes the participants were punished.^

14 Kirstein, Sponsalicnlehre, pp. 32-33, and Dxetench, Eherecht, pp. 35-56, citing Luther, Von Ehesachen, 1530, WA 30 III, 207, 15; 207, 23; and Pass Eltern die Kinder zur Ehe nicht zwingen sollen, 1524, WA 43, 296, 12; Genesis- Vorlesunqen, 1535-1545, WA 43, 296, 12; and Predigten uber das ers Ue fiuch Mosc, 1527, WA 24, 420, 19.

15 Sohm, Eheschliessung, pp. 206-07. 48

The Drandenburg-Nurnberg Church Ordinance of 1533 gave no specific guidelines for the actual betrothal process, but confined itself to directions for announcing the accom- 16 pi ished betrothal in the churches and communities.

Practically speaking, the limited publicity of the bride's home where parents, relatives, and friends were present was considered sufficient to indicate parental consent and to 17 guarantee witnesses to the betrothal.

By these means (parental consent, presence of witnesses, or announcement), the evangelical authorities sought to prevent the unwitnessed or unapproved marriages such as those for which they so vehemently criticized the Catholic

Church. Yet, they were by no means completely successful, and for several reasons.

The Brandenburg-Nilrnberg Church Ordinance of 1528 stated that the marriage of the couple should be announced, as was the custom, on three Sundays before the nuptials so that scandal would be avoided in case the marriage was, for some reason, not permitted. See Emil Sehling, ed., Die evanqe1ischcn Kirchenordnungen des XVI Jahrhunderts, Vol. XIs Bayern, Part Is Franken, Section III 3: Die brandenburgisch-nurnbergische Kirchenordnung, 1528, p. 138, and Section III 4a: Die brandenburgisch-nurnbergische Kirchenordnung, 1533, p. 200. Hereafter cited as Sehling, Kirchenordnungen.

^Scheurl, "Geschichte des Eheschliessungsrechts,11 pp. 309-10. For Scheurl's discussion of the practices in Nurnbcrg, see above, pp. 23-24. 49

For sortie time, in evangelical marriage law (as in canon

law) , the consummation continued to be viewed as the act

which made every union, including the unwitnessed or 18 unapproved betrothal, a binding and indissoluble marriage.

A second factor was that the need for witnesses or approval.

was not universally raised to a requirement which governed 19 the validity of the marriage. Thirdly, as a result of this

lack of a unified approach and the continued use of the

confusing sponsalia or betrothal doctrine, the evangelical

theory and practice was in conflict with the legal convic­

tions of the people. Abstract conceptual distinctions could

not penetrate the popular legal consciousness. The idea

that a vow or declaration of consent (Verlobung) made in

the privacy of the home could be the basis of a legal marriage was hardly conceivable. In no way could the

average person comprehend how the courts could view him as married when he considered the marriage process as not yet

18 Dieterich, Eherecht, pp. 53, 93, 99. Luther, in conformity with the canonistic distinction between matrimonium in it iatum and ma trimonium con surtima turn, required the consummation for the completion of the marriage process. Here, Dieterich cites Von Ehesachen, 1530, WA 30 III, 212, 10. See also Sohm, Eheschlicssunq, p. 209.

Sohm, Eheschliessung, pp. 206-07. 50 complete. For him, the Verlobung created the solemn obli­ gation to complete the marriage by means of the public

Trauung . Finally, the fact that from the legal standpoint the violation of such an informal betrothal vow meant adultery, and that the betrothal could be dissolved only by means of a magisterial divorce proceeding was quite irrecon- 20 cilable with popular opinion.

It can easily be perceived that the problem of the so-called clandestine marriages would continue to plague the courts under the evangelical laws and why the jurists wished to force the theologians out of legal administration. Quite relevant in this respect is Adolf von Scheurl's study of the efforts of a well-known N^irnberg jurist who sought a 21 remedy for this ill. The jurist was Dr. Christoph

Scheurl II, a legal adviser to the City Council from 1512 to

20 Reicke, "Eheschliessungsrecht," pp. 54-55. See also Scheurl, "Geschichte des Eheschliessungsrechts,” p. 311. 21 Scheurl, “Geschichte des Eheschliessungsrechts," p. 308t "The endeavor to remedy the abuse...of clandestine marriages... formed the chief contents of the history of marriage law from the sixteenth century on." Wishing to contribute to the understanding of the extent of this problem in Uurnberg, Scheurl had printed a hitherto unknown legal opinion from the year 1531. It was tendered to the City Council by Dr. Scheurl in the hope that the suggestions in it would inspire a law to end once and for all this nuisance. 51 22 1545 and one of the city's most important servants.

In essence, in his advice to the Council, Scheurl laid the blame for the continued problem of "clandestine" marriages on the intervention of the church in marriage law and on the doctrine which held that the mere consent of the parties, with or without parental approval or witnesses, created a permanent marriage bond which could not be 23 dissolved. His proposals for nullifying all "secret" marriages and the Council's reaction to them will be discussed in later pages.

There is further evidence that quite early the

Nurnberg Council was grappling with the problem of clandes­ tine marriages. In 1525, it ordered that henceforth all betrothed persons (praut und preutigam) were to have their names inscribed in the marriage registers (Ehebflcher or

Trauregister) of the parish church to which they belonged.

This attempt at keeping a record of those who entered the married state was an innovation. One purpose was to enable

22 For a discussion of Scheurl's role as jurisconsult in Ntirnberg, see Phillip N. Bebb, "Christoph Scheurl's Role as Legal Adviser to the Nurnberg City Council, 1512 to 1525" (unpublished Ph.D. dissertation. The Ohio State University, Columbus, 1971). 23 Scheurl, "Geschichte des Eheschliessungsrechts," p. 315. 52 the authorities to discover which, if any, persons were cohabiting without being properly married (ajn der unoe 24 s itz).

In their attempts to eliminate irregularly-concluded marriages, the church and civil authorities in Nurnberg and elsewhere also had to come to terms, in this sphere, with other legal customs among which the nuptials or Beilager and the Trauung were most important.

The Beilager as a symbolic consummation of the marriage was preserved in the folk custom. It had by now lost some of its earlier legal significance with regard to the establishment of a valid marriage. In Nurnberg and else- 25 where it, at times, preceded the Trauung. That this was not a recent development is indicated by August Jegel in his "Altntirnberger Hochzeitsbrauch und Eherecht...." Jegel cites one of the oldest city statutes (possibly from the fourteenth century) according to which it was a legal marriage if the couple, with the assent of the family, concluded the nuptials (beigelegen) after the Verlobung,

24RV 723, 13v (November 21, 1525) and Jegel, "Hochzeits­ brauch und Eherecht," p. 265. 25 Conrad, Rechtsqeschichte, I, 403. See also Reicke, "Eheschliessungsrecht," p. 56. Cf. Kohler, "Eherecht," pp. 292-93. 53 although the church Trauung did not take place until the 26 following morning. By the sixteenth century, however, the crucial point of the significance of the Beilager had shifted from the idea of the symbolic consummation to a narrower, informal sense: an initiated cohabitation which 27 produced the full, actual partnershxp of the spouses.

Since for Luther, all open and unconditional betrothals were fully legal marriages, he advised that the nuptials and the founding of the joint household follow as soon as 28 possible thereafter.

26 Jegel, "Hochzeitsbrauch und Eherecht," p. 244. If, however, the Trauung were postponed beyond the morning after the Beilager, the circle of participants attending it was restricted in number by the law. See also Emil Reicke, Geschichte der Reichsstadt Nflrnberg (Nurnberg, 1896), p. 666. Hereafter cited as E. Reicke, Geschichte.

27 Reicke, "Eheschlxessungsrecht," p. 56.

28 Dieterich, Eherecht, pp. 54-55, citing Luther, WA Tischreden, 1912 ff. 4, 569, 13 Nr. 4886. See also Reicke, "Eheschliessungsrecht," p. 56: The historical-judicial significance of the Beilager was based on Gratian's formula which distinguished the initiated marriage from the consum­ mated marriage. Furthermore, there was support for the Beilager in traditional Germanic law according to which for each contractual act (here the betrothal) there must be a consummating act (the nuptials). Luther, however, did not require copula carnalis for "perfection" of the marriage. The marriage became indissoluble, for Luther, simply by means of establishment of the marital cohabita­ tion. See Friedberg, Verlobung und Trauung, p. 59, as cited by Kirstein, Sponsalionlehre, p. 35. 54

It also remained true in the Protestant marriage law, as in the canon law, that informal or secret and conditional betrothals assumed the character of fully valid marriages if they had been consummated. A weaker binding power was attached to open and unconditional betrothals in which cohabitation had not yet commenced. Hence, several ordinances permitted dissolution of such unconsummated 29 marriages. Eventually, however, the nuptials were pushed into the background by the importance of the Trauung.

Although the people had been long convinced that the marriage became legally effective solely in the public

Trauung, it was only gradually and in a round-about manner, during the sixteenth century, that the Trauung was accepted

29 Reicke, "Eheschliessungsrecht," pp. 56-57. See also Dieterich, Eherecht, pp. 59-60. An indication of how complicated this doctrine could be is seen in Luther's remarks on the occurrence of several betrothals. He stated that if, after conclusion of an open and unconditional betrothal, there was a second betrothal (whether "secret" or "open") in which copula carnalis occurred, it was to be judged as adulterous and dissolved, even though children might have been procreated. If a "secret" betrothal were followed by a second "secret" betrothal in which consumma­ tion occurred, the second betrothal prevailed. Or, if a "secret" consummated betrothal were followed by an open, unconditional betrothal, the first betrothal was still the valid one. Here Dieterich cited Luther, De^ captivitate BabyIonica, 1520, WA 6, 556, 24; Vom ehelichen Leben, 1522, WA 10 II, 286, 20; and Von Ehesachen, 1530, WA 30 III, 224, 8; 230, 17; 218, 13; 225, 8. 55 into the statutes and practices of the evangelical marriage 30 law.

While from the viewpoint of Luther and other theolo­ gians, a marriage without any Trauung was a valid one, the reformers did emphasize the religious and moral aspects of the married state. In this sense, they believed that the

Trauung was desirable for the instituting of a Christian 31 marriage under God's blessing. Although the Trauung was eventually transferred from before the church doors into the church itself (the City Council of Nurnberg issued a v 32 decree to this effect in 1525), for a long time it did

30 Reicke, "Eheschliessungsrecht," p. 57. See also Jegel, "Hochzeitsbrauch und Eherecht," p. 251. Cf. Kohler, "Eherecht," pp. 292-93. 31 Dieterich, Eherecht, pp. 55, 93, 122: Although he saw no legal significance in the Trauung , Luther also said: "However, if we are requested to bless the married couple before the church or in the church, to pray over them or even to give them into each other's care (trauen), we are obliged to do the same." Dieterich citing Luther, Traubuch- lein, 1529, WA 30 III, 75, 2. See also Kirstein, Sponsalien- lehre, pp. 28-29,39-40, citing Willibald Maria Plfichl, Geschichte des Kirchenrechts, II (Vienna and Munich, 1960, 1962), 310-11, and Rudolf Sohm, Trauung und Verlobung. Eine Entgegnung auf Friedberg: Verlobung und Trauung (Weimar, 1876), p. 121. 32 RV 723, 3 (November 4, 1525): "Zu beden Pfarren ansagen das bey hinfuro die hochzeit nicht mer vor den kirchen, sonnder vor der alter einem einlaiten." 56 not have the legal character of establishing the marriage.

It remained solely a confirmation of, and blessing for, a 33 marriage already concluded in the betrothal and nuptials.

Gradually, however, the church ordinances began to require the Trauung by the pastor as a legal ingredient of the marriage. The role of the nuptials as an act which com­ pleted the initiated marriage was taken over by the Trauung.

In connection with this development and as a result of reformatory efforts toward improvement of discipline and morals, the temporal order of the Beilager was changed.

Ultimately, the evangelical ordinances required that it follow the Trauung. By this means, the Trauung became the 34 true consummatio coniugii or perfecter of the marriage.

The course of this development was slow and it is not definitely known when the new order became law in Nilrnberg.

It is evident, however, that the movement toward placing greater stress on the Trauung was in progress by the 1530's, if not before. As early as 1527, the Nurnberg City Council

33 Jegel, "Hochzeitsbrauch und Eherecht," p. 252. See also Dieterich, Eherecht, p. 55; and Sohm, Eheschliessung, pp. 222-29. 34 Reicke, "Eheschliessungsrecht," pp. 54, 59. See also Jegel, "Hochzeitsbrauch und Eherecht," p. 244. described the Trauung as follows: ",..[w]hen two people

marry, they are obliged to come to the church where they are

given into each other's keeping (Zusamirmngegeben) by one of

the church officers, publicly, before all of the people...."

From these remarks it would appear that the City Council

viewed the Trauung as an essential. Yet, later evidence

qualifies this conclusion.

Traditionally, in Nurnberg and elsewhere, it was the

custom, after the Verlobung but before the Trauung, to

describe the couple only as bride and bridegroom ratherthan

as man and wife. The bride was still addressed by her

family name. The betrothal founded a legal marriage, but it

was not the act by which the couple passed from the bridal 36 state into the married state. The Brandenburg-Nurnberg

35 "Verzaichnus der geenderten misspreuch und ceremonien so in kraft des wort Gottes zu Nurnberg abgestelt und gepes- sert seyen" in Gerhard Pfeiffer, Quellen zur Nurnberger Reformationsgeschichte ("Einzelarbeiten aus der Kirchen- geschichte Bayerns," Vol. XLV, Nurnberg, 1968), pp. 440-47. Hereafter cited as Pfeiffer, Quellen. See also Theodor von Kolde, "Uber das Kirchenwesen in Nilrnberg im Jahre 1525," in Beitrage zur bayerischen Kirchenqeschichte, XIX (1913), 57-74. Hereafter cited as Kolde, "Kirchenwesen." Kolde dates this "Verzaichnus" from 1525 and indicates it was written in connection with a letter to the Burgermeister and Council of Strassburg explaining the steps Nilrnberg had taken in the religious Reformation.

^"Geschichte des Eheschliessungsrechts," p. 311. 58

Church Ordinance of 1533 clarified soim what the meaning of this transition into the married state and the function of the ecclesiastical consummation. In essence, it said that the people who were bound by the betrothal to conclude marriage ought not to pass from the bridal state into the state of marital cohabitation and life association "without understanding the word of God" and without an expressed confirmation of the promised obligation to marry. This should be given before a servant of the church in the name of the triune God. The purpose of conducting the Trauung before all the church was to attain the certainty (acquired 37 through the prior ecclesiastical publication of the banns) that the intended marriage faced no ecclesiastical impedi­ ments. This was done so that "they are not joined together today in ignorance only to be divorced later in shame and scandal." Accordingly, after the mutually repeated declara­ tion of the desire to take each other "as married spouse," they were instructed from God's word concerning marriage and

37 The Church Ordinance of 1533 required that the couple, after the Verlobung but "a goodly time" before they came to the church for the Trauung, were obliged to notify the pastor of their betrothal so that this could be announced in the cities and towns once and in the villages three times. 59 reminded, through reading of the Scripture, of their marital duties to one another. Rings were exchanged. Then, with their hands clasped, the couple solemnly repeated the vows of their betrothal ("I, _____ , take you, ______, to myself as a married spouse and pledge you my faith.") before God and the community. The pastor admonished that "that which

God has joined together, no man shall put asunder." Finally, concluding the Trauung were the prayers and blessing of the 38 marriage.

That this Brandenburg-Nurnberg Church Ordinance of 1533, did not yet stipulate that the Trauung was an essential ingredient for the validity of the marriage is indicated by the text of the ordinance itself, as well as by other accounts of Ntirnberg marriage law. In his remarks on the form of the Trauung in Nurnberg during the 1530’s, Adolf von Scheurl stressed that the ecclesiastical consummation of the marriage had a highly religious, but no legal, signifi- 39 cance.

38 Sehling, Kirchenordnungen, Vol. XI, Part I, Section III 4a: Die brandenburgisch-nurnbergische Kirchenordnung, 1533, pp. 200-02: "von eeleuten, wie man die einleiten solle."

39 Scheurl, "Geschichte des Eheschliessungsrechts," p. 312. See also Petsch, Kirchenrocht, p. 42. 60

According to Emil Sehling, the Council of Nurnberg continued to take the view that the "pledge and handclasp" of the betrothal created a permanent marriage even after

it had become customary for the couple to come to the church for the Trauung, In 1537, the city issued a mandate which required the couple to go to the church at least ten days before the Trauung and to express to the pastor or other church officer their intent or desire to marry. The betrothal was to be announced from the pulpit on two consecutive Sundays before the Trauung could take place.

Nevertheless, the Council did not declare specifically that 40 the Trauung itself was obligatory. At some time during

15 37, however, the Council may have accepted the view that marriage could no longer be validly concluded through the 41 betrothal alone. This possibility is supported by a case

from the Ratschlagbuch, Vol. X (1537-1540) in which the

jurists declared that the promise to marry could not be

40 Decretum in Senatu (July 11, 1537) in NStadtA, A 6: Mandate, Ordnungen und Druckschriften, I: Der gedruckten Mandate and Ordnungen der Reichsstadt, 1486-1806.

^Sehling, Kirchenordnungen, XI, 485. Cf. developments in Ulm, Augsburg, Geneva and Zurich. See Kohler, "Eherecht," pp. 296-97. 61 viewed as a marriage.,.: "for the handclasp and promise

, ,.42 make no marriage.

In conjunction with this new position, cohabitation before the Trauung became a punishable offense in Nilrnberg.

It became the rule that if the couple had already had marital relations beforehand, the Trauung was held in dishonor. The form this took depended on the social status of the persons involved. The very lowest classes, for example, had to hold their Trauung in the city prison

(Lochgefangnis). Others might have their Trauung in some 43 part of the church, but not before the altar.

From the foregoing remarks, it can be perceived that

42 Knapp, Kriminalrecht, p. 211, citing the Ratschlag- buch, Vol. X, p. 162. 43 Jegel, "Hochzeitsbrauch und Eherecht," p. 253, citing the Ratsverlass of November 6, 1582, and Karl Roetzer, "Die Delikte der Abtreibung, Kindstotung sowie Kindsaus- setzung und ihre Bestrafung in der Reichsstadt Nurnberg" (unpublished Inaugural-Dissertation, Friedrich-Alexander University at Erlangen, 1957), p. 9. Hereafter cited as Roetzer, "Delikte." See also Georg Andreas Will, Historisch Diplomat isches Maqazin fur das Vaterland und anqrenzende Gegenden, II (Niirnberg, 1782), 253 ff. Cf. similar develop­ ments in Zilrich and Geneva in the sixteenth century. In Zurich, a fine was imposed after 1534, and in Geneva, three days imprisonment on bread and water (after 1561) for those who consummated the marriage before the Trauung. See Kohler, "Eherecht," p. 294. 62 the Reformation created a somewhat confusing state of affairs in marriage law in Nilrnberg. Fortunately* the evolution of a formal regulation making the public Trauung an essential legal component of a marriage helped to bring evangelical marriage law into line with popular legal notions. As a result, it also assisted in eliminating the problem of

"secret" or unwitnessed and unapproved marriages.

Impediments, Adultery, and Divorce

in Evangelical Marriage Law

Initially, Luther accepted the canon law with respect to marriage impediments. However, it was not long before

Old Testament examples of marriages between related persons led him to oppose the canonical extension of consanguinous impediments. He came to the conclusion that only marriages between those persons expressly named in Leviticus 18 were to be considered prohibited. Those who were not named, although they were related in degrees corresponding to those named, were not forbidden to marry. Thus, Luther recognized an absolute impediment merely up to the second degree of the 44 collateral line.

44 Dieterich, Eherecht, p. 61, citing Luther, Sermone, 1514-1520, WA 4, 612, 19; An den christlichen Adel, 1520, 63

Other evangelical theologians, in general, also relied on Leviticus 18, which they considered to be natural, as well as divine, law. Luther's stricter view, that degrees not expressly mentioned by Moses were not prohibited, was not universally accepted by the other theologians. Indeed, some (for example, Brenz) carried the invalidating impedi­ ments in certain cases to the third or fourth degree of 45 consanguinity.

In the matter of affinity, Luther was equally clear in his rejection of the excessive growth of impediments in

Catholic law. Here, again, he recognized only those prohi­ bitions expressly stated in Leviticus 18, and believed these extended only to the first degree. The canonical impediment of publica honestas, or quasi-affinitive relationships established by betrothals, Luther expressly rejected. In addition, he could countenance neither the impediments of

WA 6m 446m 29; WeIche Personen verboten sind zu ehelichen, 1522, WA 10 II, 266, 8; and De^ captivitate BabyIonica, 1520, WA 6, 555, 19. 45 Dieterich, Eherecht, pp. 97-99, citing Johannes Brenz, Wie in Ehesachen..,2, Frage; Andreas Osiander, Von den verbotenen Ileirathen; and Philipp Mclanchthon, commentar. in epist. Pauli ad Corinthios CR 15, 1082; De arbore consanguinitatis et affinitatis CR 16, 512 f.; and De coniugio CR 21, 1057, 1058. 64 legal relationship, such as arose through adoption, nor of spiritual relationships such as occurred through baptism and confirmation. These, he believed, existed solely for the sake of providing money for churchmen who controlled the dispensation practice. Luther believed that the impedi- 46 ment of impotence was a basis for dissolving a marriage, but he did not recognize blindness, deafness, or dumbness 47 in the same light.

For the most part, the other theologians concurred with

Luther in restricting the impediment of affinity, although in some cases they extended it to the second degree. They also agreed in rejecting the impediment of spiritual rela­ tionship. Little was said among the reformers about a minimum age for marriage, although Luther did recommend that marriage not be too late. Impotence which was present before

Dieterich, Eherecht, p. 64, citing Luther, De capti- vitate BabyIonica, 1520, WA 6, 558, 20; Vom ehelichen Leben, 1522, WA 10 II, 278, 32: At first, Luther advised the wife to encourage her impotent husband to consent to a second secret marriage. In case he would not agree, she should go into another country and there remarry. Later, Luther questioned the wisdom of this remedy and no longer advised it. 47 Dieterich, Eherecht, pp. 62-64, citing Luther, De capt ivita te Babylon ica, 1520, WA 6, 555, 23; 556, 8; 555, 34; Vom ehelichen Leben, 1522, WA 10 II, 281, 13; 284, 14; 282, 2; and Welche Personen verboten sind zu ehelichen, 1522, WA 10 II, 266, 1; 266, 12. 65 the marriage was usually considered a basis for nullifying the marriage. Johannes Brenz, however, suggested that the nullification should not occur until three years of married life had passed during which the spouse had been unable to 48 complete the copula carnalis.

With respect to ecclesiastical regulations on impedi­ ments in Nurnberg, the church ordinances say little. The

Schwabach (or Nurnberg Doctrinal) Articles of 1528, a list of twenty-three doctrinal articles about which the rural pastors were to be instructed and examined, stated that marriage should be forbidden to no one on account of any blood relationship, affinity, or sponsorship (the spiritual relationship of godfather) other than those which God has 49 forbidden. Less informative still was the Brandenburg-

Nurnberg Church Ordinance of 1533. While it stressed that before the Trauung the news of the betrothal ought to be

48 Dieterich, Eherecht, pp. 100-01, citing Brenz, Wi.e in Ehesachen...2. Frage und 8. Frage; Osiander, Von den ver- botenen Heirathen; Melanchthon, De^ arbore consanquinitatis et affinitatis CR 16, 518; De^ coniugio CR 21, 1058, 21, 1068. 49 Sehling, ed., Kirchenordnungen, Vol. XI, Part I, Section III 2: Die Nurnberger 23 Lehrartikel, 1528, p. 132, Article 18: "Vom eelichen Stand," Nr. 8: "Das man kainer gesipschaft, schwagerschaft, noch gevatterschaft die ee soli verpieten, dann so fern sie Gott verpoten hat." 66

published in order to ascertain whether any impediments to

the marriage existed, the ordinance did not specify what 50 those impediments might be.

In the meantime, the City Council dealt with this issue

as cases arose and relied on its jurists and theologians for

advice. Just as among the evangelical theologians in

general, so also among the ecclesiastical and civil

authorities of Nurnberg, there was often a lack of unanimity

as to the precise extent of the impediment system. Some of

the factors in and results of these disagreements will be explored in later chapters.

The question of granting divorces and the right of

remarriage was another aspect of the reformed marriage law which deeply affected Nvlrnberg and all of evangelical

Germany. One of the differences between the Protestant doctrine and the canon law was that the reformers reestab­

lished the full dissolution of the marriage bonds (the true divorce of the Roman and Mosaic laws) in place of the permanent separation. Since the number of nullification

Sehling, ed., K irchenordnungen, Vol. XI, Part I, Section III 4a: Die brandenburgisch-nurnbergische Kirchen­ ordnung, 1533, p. 200: "von eeleuten, wie man die ein- leiten solle." 67

grounds was diminished, a new view of divorce arose and,

with it, added grounds for this solution. In addition to

adultery, for example, desertion was recognized. In some

church ordinances persecution (ins idias vitae) and cruelty

(savitien) were also recognized as reasons for dissolving

the marriage bonds. A further development was the growing 51 tendency to allow remarriage for the divorced person.

Luther held that when a person committed adultery, he

fell away from not only his spouse, but also from God. The

guilty one destroyed himself spiritually and should be considered as dead. This concept, as well as Luther's belief that man was meant to have access to the married

state, was the basis for his stressing that the innocent 52 divorced person ought to be permitted remarriage. Of course, the adultery ought to be proved before a civil judge so as to avoid the difficulties arising from divorces under-

51 Michel, Auflflsung der Ehe, pp. 9-10. See also Werner Elert, "Eine Richtigstellung zur Geschichte des evangelischen Ehescheidungsrechts," in Neue Kirchliche Zeitschrift, XXXVIII (1927), 522-23. Hereafter cited as Elert, "Ehescheidungs- recht." See also Dieterich, Eherecht, p. 69, and Emil Friedberg, Lehrbuch des katholischen und evangelischen Kirchenrechts (Frankfurt a. M., 1965), pp. 512-14. 52 Elert, "Ehescheidungsrecht," pp. 523-24. See also Kinder, "Luthers Auffassung von der Ehe," pp. 325-25. 68 taken independently. The civil government also was obliged, said Luther, to provide help and guidance to the innocent party. Of course, among Christians, love ought to direct the innocent person to forgive the adulterous spouse and be 53 reconciled to him wherever possible.

According to canon law, a Christian was permitted to remarry if he were deserted by a nonchristian spouse because of religion (Privileqium Paulinum). For Luther, such a nonchristian had proven himself to be spiritually dead; the

Christian spouse should, thus, have the right to remarry.

Within this Pauline Privilege, Luther also included the case of willful abandonment, because the deserter had shown that he was, in any case, a Christian in name only. Willful desertion was the instance in which one spouse departed from the other without the latter's knowledge or consent and 54 without writing or providing for the deserted one's support.

53 Dieterich, Eherecht, pp. 69-70, citing Luther, De captivitate Babylonica, 1520, WA 6, 559, 29; Vom ehelichen Leben, 1522, WA 10 XI, 288, 1. See also Elert, "Ehescheid- ungsrecht," p. 524. 54 Dieterich, Eherecht, pp. 70-71, citing Luther, Das siebente Kapitcl S^, Pau 1 i zu den Corinthern, 1523, WA 12, 123, 6; 123, 26; 123, 9; De cap!ivitate Babylonica, 1520, WA 6, 660, 3; Von Ehesachcn, 1530, WA 30 III, 242, 9, 15. See also Ludwig Richter, Beitr^ge zur Geschichte des 69

Luther's contemporaries were certainly not in harmony about the matter of divorce. However, adultery was accepted as the chief ground for divorce, based on

Christ's words in Matthew 19: 9. The second ground generally accepted by other theologians was willful abandonment. There was, however, little agreement as to proof for or the definition of the circumstances of desertion, although it was felt that adultery was often connected with it. Brenz included under this head the willful failure of the man to conclude the Trauung with his bride. For such an abandoned woman there should be a 55 right to remarry.

The third ground for divorce, from Luther's standpoint, was the refusal to fulfill one's marital duties. This was not surprising in view of his conception of man's sexuality and of the sense and purpose of

Ehescheidunqsrechts in der evangelischen Kirche (Berlin, 1858), pp. 16-17. Hereafter cited as Richter Ehescheidungsrecht. 55 . . Dieterich, Eherecht, pp. 105-06, citing Brenz, Wie in Ehesachen...9. Frage; Johannes Bugenhagen, Vom Ehebruch und heimlichen Weqlaufen; Melanchthon, De^ coniugio CR 21, 1064, 1066; and Martin Bucer, De^ regno Christi liber. IX c. 31, p. 186s.; 36, p. 201; 41, 215s. See also Michel, fluflftsung der Ehe, p. 11. 70

56 marriage.

The only reformer besides Luther to deal with refusal of marital duties was Brenz; he considered it to be as serious as adultery or desertion. Other theologians, such

as Melanchthon, Martin Bucer, and Johannes Bugenhagen, extended the grounds for divorce to include such abuses as 57 cruelty and persecution. As for sickness. Brenz and

Melanchthon did not consider even so severe a disease as

leprosy to be a valid basis for dissolving a marriage.

Bucer, on the other hand, believed that in cases of such

illnesses as leprosy and insanity, the healthy spouse 58 should be permitted to remarry.

56 Dieterich, Eherecht, p. 72, citing Luther Vom ehelichen Leben, 1522, WA 10 II, 290, 5; 291, 1; and Das siebente Kapitel Pauli zu den Corinthern, 1523, WA 12, 119, 26. See also Richter, Ehescheidungsrecht, p. 16; and Elert, ’’Ehescheidungsrecht, " p. 525. 57 Dieterich, Eherecht, pp. 106-07, citing Brenz, Wie in Ehesachen...9. Frage; Melanchthon, Commentar. in epist. Pauli ad Corinthios CR 15, 1087; De coniugio CR 21, 1068s; Bucer, D£ regno Christi liber. II c. 40, p. 213; Bugenhagen, Vom Ehebruch und heimlichen Weglaufen. See also Elert, "Ehescheidungsrecht," pp. 531-32. 58 Dieterich, Eherecht, p. 108, citing Brenz, Wie in Ehesachen. . . 7. Frage; ;’.elanchthon, De coniugio CR 21, 1069; Bucer, Des regno Chr ist i liber. II c. 42 p. 217. See also Elert, "Ehescheidungsrecht," pp. 538-39; and Richter, Ehescheidungsrecht, p. 36. 71

Initially, Luther also counted as a fourth basis for divorce the circumstance in which a man forced his wife to commit thievery, adultery, or other crimes against God.

Subsequently, he came to believe that with the help of friends and the authorities such cases could be solved without recourse to divorce* With respect to other diffi­ culties or disputes within marriage, Luther felt that, if at all possible, the Christian must bear these as a cross laid upon him by God. Yet, if one were too weak to bear these burdens, a separation from bed and board was permitted 59 "in order to avoid greater evil."

Evangelical theologians, in general, accepted the idea of a temporary separation. It occurred in cases where no adequate grounds for divorce were present, but where there were causes (for example, unreconcilable hostility between the spouses) which made cohabitation impossible for one or 60 . . both people. This, of course, allowed for a reconcilia­ tion. Properly, it was the duty of the civil courts, said

Dieterich, Eherecht, p. 72, citing Luther, Das siebente Kapitel S^. Pauli zu den Corinthern, 1523, WA 12, 121, 3; Von Ehesachen, 1530, WA 30 III, 244, 11; Vom ehe- lichen heben, 1522, WA 10 II, 291, 15. See also Elert, "Ehescheidungsrecht," p. 537. 60 i * Michel, Auflosung der Ehe, p. 12. Luther, to deal with such matters, especially where non-

Christians were involved. 61

According to Luther, for the true Christian there were

limitations on the right to divorce; however, for the non-

christians, in order to prevent worse societal ills, there was the more lenient approach as comprehended in the freer 62 Mosaic divorce law.

In the question of divorce, as in the matter of impedi

ments, the church ordinances were initially of little help 63 to the Ntirnberg civil authorities. Neither the Schwabach

Articles of 1528 nor the Brandenburg-Niirnberg Church Ordi­

nance of 1533 specified any grounds for divorce other than

adultery. The Schwabach Articles stated that "nothing can m64 terminate the marital duty except death or adultery."

61 Dieterich, Eherecht, pp. 72-73, citing Luther, Vom ehelichen Leben, 1522, WA 10 II, 291, 18; Von Ehesachen, 1530, WA 30 III, 243, 31. See also Elert, "Ehescheidungs­ recht," pp. 524-26. 62 Dieterich, Eherecht, p. 73, citing Luther, Prediqten tiber Matth. 5-7, 1532, WA 32, 277, 37. See also Elert, "Ehescheidungsrecht," p. 527; Richter, Ehescheidungsrecht, pp. 12-15, 17; and Kinder, "Luthers Auffassung von der Ehe, pp. 330-31. 63 Petsch, Krrchenrecht, pp. 45-46. 64 Sehling, ed., Kirchenordnunqen, Vol. XI, Part I, Section III 2: Die Nurnberger 23 Lehrartikel, 1528, p. 132 The Church Ordinance of 15 33, on the other hand, made only an indirect reference to a divorce law. The Trouung- formula quoted Christ's remarks on divorce in Matthew 19: 9:

"Whoever divorces his wife, except on account of adultery,

6 S and takes another, he commits adultery....1

Despite the silence of the church ordinances, the

Nurnberg authorities dealt with divorce cases and estab­ lished its particular posture vis-a-vis this issue. The legal philosophy of the City Council, jurists, and theolo­ gians of Nurnberg in matters of divorce, their differences of opinion, and the practical results thereof will be examined closely in a subsequent chapter.

Having observed the evolution of custom, canon, and, finally, evangelical marriage laws, it is now possible to turn more specifically to the development of a proper marriage court and a comprehensive marriage code in the imperial city of Nflrnberg.

Artikel 18: "Vom eelichen Stand," Nr. 7: "Das Eeliche Pflicht niemand kttnn schaiden, dann der Todt und der Ehebruch. 6 5 Sehling, ed., Kirchenordnungen, Vol. XI, Part I, Sec­ tion III 4a: Die brandonburgisch-nurnbergische Kirchenord- nung, 1533, p. 201: "von eeleuten, wie man die einleiten solle." See also Hans Christian Dieterich, Evangelisches Ehescheidungsrecht nach den Bestimmungen des 16. Jahrhun- derts (Erlangen, 1892), p. 14. CHAPTER THREE

DEVELOPMENT OF THE NURNBERG MARRIAGE COURT

The Ndrnberg Marriage Court did not become operative until 1526. For centuries before this year, the citizens of Niirnberg who were involved in cases relating to ecclesias

tical (and frequently civil and even criminal) matters were cited before the episcopal court of Bamberg. The judicial relationship between the bishop and Nurnberg was not neces­ sarily a satisfactory one from the latter's standpoint.

Indeed, because of certain abuses and inconveniences, as well as a desire for greater control over its own citizens,

Nurnberg had attempted since the fourteenth century to free 1 itself from dependence on the Bamberg court. Despite its

Heinrich Straub, Die Geistliche Gerichtsbarkeit des Domdekans im alten Bis turn Bamberg von den Anfanqen bis zum Ende des 16. Jahrhunderts, III Kan. Abt., Vol. IX of Munch- ener Theologische Studien, ed. by Joseph Pascher, et^ al. (Munich, 1957), pp. 14, 188. Hereafter cited as Straub, Bistum Bamberg. See also Johann Christian Siebenkees, ed., Materialien zur Nurnbergischen Geschichte, II (Nurnberg, 1792), 439-43. Hereafter cited as Siebenkees, Mater ialien.» and Josef Kraus, "Die Stadt Nurnberg in ihren Beziehungen zur Romischen Kurie wahrend des Mittelalters," in MVGN, XLI (1950), 6-10, 48-52. Hereafter cited as Kraus, "Nurnberg."

74 75 '

frequent appeals to Rome petitioning for its own ecclesias­

tical judge and law court, the city was never successful in

its endeavor.

In 1361, for example. Pope Innocent VI agreed that the

citizens of Nurnberg were no longer obliged to appear before

the court of the cathedral dean of Bamberg. He decreed

instead that the dean's court should sit in Nurnberg when

it heard processes which involved citizens of that city.

The reasons given — the real motive was not stated — were

that almost one-third of the population of the diocese of

Bamberg lived in Nurnberg. Furthermore, the distance between Bamberg and Nurnberg required a long day's journey

through large forests where the lives of the travelers were 2 endangered by roving bands of robbers.

The "Privilege of 1361" was not satisfactory, however, because the Nurnberg authorities wished to achieve a position of influence over the ecclesiastical court. This was possible if the judge lived and worked within the city but not if he only occasionally came to Nurnberg to hold court. Hence, the city continued to petition for the

2 Siebenkees, Materialien, II, 439-40. See also Kraus, "Nurnberg," p. 7. 76 3 privilege of having their own judge.

In 1402, Pope Boniface IX, in the Bull Sincere

devot ioni.s, awarded to the Nurnbergers the requested

privilegium de non evocando. They were no longer obliged,

in civil and criminal matters, to appear before the Bamberg,

or any other, ecclesiastical court, but only before their

own judge. Unfortunately, this bull aroused such protests

from the bishop, dean, and cathedral chapter of Bamberg

that Boniface, in another bull, recalled the Nurnberg

privilege within the same year. After this experience, Rome

never again considered appointing an individually authorized,

judge for Nurnberg. Nevertheless, the possibility was left

open that the meeting place of the Bamberg dean's court

might be transferred to Nurnberg whenever the court heard 4 cases pertaining to Nurnberg citizens.

II The Nurnbergers continued to petition throughout the

fifteenth century against what they claimed to be the abuses

of the ecclesiastical court. Obviously, they were not yet

3 Kraus, "Nurnberg," p. 8. 4 Straub, Bistum Bamberg, pp. 188-89. See also Johann Looshorn, Die Geschichte des Bisthum Bamberg, Vol. IV: Das Bisthum Bamberg von 1400-1556 (Bamberg, 1900), p. 53. Hereafter cited as Looshorn, Bamberg. See also Siebenkees, Materialien, II, 440-41, and Kraus, "Nurnberg," p. 10. 77 5 satisfied with the jurisdictional situation. It is no

wonder, then, that with the reception of the Reformation

in Nurnberg, the City Council quickly accomplished its

long-existing aim of dissolving its ties with the Bamberg

6 it court. To better understand the development of the Nurn­

berg marriage court and laws, it is useful to know something

of the judicial structure and procedures which they replaced.

The Position of the Cathedral Dean in

the Bamberg Court Structure

In Bamberg, the judicial competency for a large portion

of the cases, including most of the marriage processes, was held by the cathedral dean. This circumstance was made

legal by the Bamberg Dean's Court Ordinance of 1463

(Bamberger Dekanatsgerichtsordnung or Reformatio Iudicii

5 Siebenkees, Materialien, II, 441-43. Siebenkees presents a synopsis of ten distinct agreements between Nurnberg and the ecclesiastical authorities promising to the former freedom from "foreign’1 jurisdictions, Cf. Gerald Strauss, Nuremberg in the Sixteenth Century (New York, 1966), p. 47. Hereafter cited as Strauss, Nuremberg. Strauss indicates that the bishops of Bamberg gradually allowed N(lrn- berg's Council to take more and more ecclesiastical control into its own hands. However, this related to patronage rights in the two town parishes rather than jurisdictional freedoms.

6 Eugen Franz, Nurnberg Kaiser und Reich; Studien zur ReichsstSdtischen Aussenpolitik (Munich, 1930), p. 91. 78 7 PecanatuG). After the confirmation of this ordinance by

Pope Pius II, the Bamberg cathedral dean could feel that 8 his judicial competence was secured for the whole diocese.

At the time of this papal confirmation, the cathedral dean, Hertnid von Stein, was in Rome. It was very important for him that his judicial competence over the whole bishop­ ric, including the free imperial city of Nurnberg, be rati­ fied, It is highly probable that he was in the Holy City to make certain that the pope made no alterations in the court ordinance to the benefit of Nurnberg. In point of fact, the Nurnbergers themselves had petitioned that the pope confirm the ordinance. If they could not manage to obtain a special judge for themselves, at least they would strive to obtain a means of combating the abuses in the

Its forty-two articles contained regulations about the cathedral dean, his deputy or Offizial (who presided in his stead), the other court personnel (sealer, advo­ cates, procurators, legal scholars, and notaries), and the court procedures. See Straub, Bistum Bamberg, pp. 11, 135-36, 195-200. g Straub, Bistum Bamberg, pp. 11-14. See also Johannes Kist, Das Bamberger Domkapitel von 1399 bis 1556, Vol. VII of Historisch-Diplomatische Forschungen, ed. by Leo Santifaller (Weimar, 1943), p. 13. Hereafter cited as Kist, Bamberger Domkapitel. 79 dean's court. 9 Of particular importance for Nurnberg *i in this respect were articles eight and nine of the ordinance.

These forbade summonses in civil matters and summonses 10 without a statement of the subject of the suit.

Both the Nurnberg City Council and the cathedral dean feigned dissatisfaction with papal confirmation of the

Reform, but at the same time exerted pressure for this confirmation in the hope that they would be able to check the ambitions and encroachments of the other side. In the final analysis, however, the result of the Bamberg

Dean's Court Ordinance was to secure the position of the 11 dean.

g Straub, Bistum Bamberg, p. 14. The abuses most frequently cited were the issuance of summonses in civil matters without any declaration of the subject of the suit, the misuse of power for the judge's own purposes, and frequent unjust pronouncement of the severest punishments upon individual citizens or upon the whole populace. See Kraus, "Ndrnberg," p. 7.

^ T h e Niirnbergers were not satisfied for long, however, because they interpreted civil matters to mean all matters except those which concerned faith, perjury, tithes, marriage, and usury. The cathedral dean, on the other hand, held matters to be purely civil only if they involved no sin — in fact, this meant a very small portion of cases were exempt. Kraus, "Nurnberg," p. 50.

^^"Straub, Bistum Bamberg, p. 15. See also Kraus, "Nurnberg," pp. 7, 50. 80

Representatives of the Doan's Jurisdjction

in the Parishes

The Bamberg cathedral dean had a very extensive power

to investigate and punish the transgressions of clergy and

laymen, but the press of his duties in the episcopal city prevented him from personally presiding in all the indivi­ dual parishes. As a result, there developed in the fif­ teenth century the practice of having the local parish clergy hold hearings fPfarrsend or Rugetaq). In these local hearings the clergy were to investigate their parishioners' alleged misdeeds. Among these offenses were those which pertained to marriage and sexual morality. They were as follows: adultery; incest; violation of virgins; unnatural sex acts; the keeping of concubines; clandestine marriages, or being present at such a marriage; and marriages in viola­ tion of the impediments of consanguinity, affinity or spir­ itual relationships. The results of these inquisitorial processes were reported to the dean's court. Thereafter, the resulting legal proceeding or perhaps merely the pro­ nouncement of an ecclesiastical punishment took place in 81 12 Bamberg.

The Judicia1 Sphere of Competence

of the Doan1s Court

Long before the Court Ordinance of 1463, the dean had

managed to become the regular judge (iudex ordinarius) of

the city and diocese of Bamberg. In addition to those

cases in which the offenses of the parishioners throughout

the diocese were investigated and punished, all legal

contests (StrextfalleI t or causae simp.llcis * * querolae) v of an

ecclesiastical nature, which were in the first instance, 13 belonged to the cathedral dean. in the following list

are some of those legal matters in the dean's jurisdiction

12 Straub, Bistum Bamberg, pp. 143, 144-46. See also E. Reicke, "Barbara Loffelholz," p. 144. This case verifies the use of parish clergy to take testimony. Barbara Loffelholz, a Nurnberg resident, did not go to Bamberg to testify. Instead, several Dominican fathers took a deposition of her testimony and sent it to Bamberg, where the case was being heard. 13 Straub explains that a precise list of the cases for which the dean was competent is not available for the medieval period. In addition, the long jurisdictional conflicts between the bishop and the dean blurred the lines distinguishing the two spheres of competence. The author was forced to rely on a source from 1640 (one which did, however, refer back to a statute of 1422 and to the ordi­ nance of 1463) for clues as to the dean's judicial competence. See Straub, Bistum Bamberg, p. 183. 82 which related specifically to matrimonial affairs: causae matrimoniales in genere et in specie, causae sponsaliorum, consanguinitatis, affinitatis, cognationis spiritualis, defloration is, impraegnat ion is etiam ante sol.emnisat ionem nuptiarum, divorti i, separationis quoad thorum et monsam, 14 cognitionis adulterii, incestus, and raptus.

Besides those cases which belonged particularly in the dean's jurisdiction, there also existed a concurrent compe­ tence with the court of the bisnop's vicar. This included processes involving marriage impediments, marriage dowries, and paternity before the marriage. In 1482, certain types of cases were transferred from the dean’s court and reserved to the bishop or to the vicar's court. Included among these was the authority to grant dispensations for matrimonial impediments.^

The Handling of Marriage Processes

in the Bamberg Dean's Court

The Bamberg Dean's Court Ordinance of 1463 devoted an article to the proper manner for proceeding in marriage

14 Straub, Bisturn Bamberg, pp. 182-84.

15Ibid., pp. 185, 186. 83

cases. It began, perhaps idealistically, with the following

words: "In the marriage processes, one ought to have pure 16 hands, proceed in a Godly way and with justice." Whether

the admonitions of this article were, in practice, truly

the guiding principles in marriage cases cannot be ascer- 17 tained. Unfortunately, the sources are too sparse to

form a conclusive picture of the marriage processes heard

16 The article goes on to direct that "as soon as it is established through the judicial admission of both parties that no marriage and no betrothal exists, the one person ought to be free from the other and monetary demands avoided. In addition, the arra or Angeld, which was given as security in the betrothal, can be retained by each. Only if the marriage is definitely unlawful, does it come before the ecclesiastical court. If the pl aintiff cannot prove his contention that the marriage has been concluded, no money may be received.... Since there are other ecclesiastical punishments, the judge ought not to rashly decree the highest punishment, excommunication, against the disobedient." Article 40 of the Bamberger Dekanatsgerichtsordnung of 1463, cited by Straub, Bistum Bamberg, pp. 33-34.

1 7 The Bamberg documents and records suffered a very troubled history, including fire and violent destruction. During the Peasants' War and the disorders in Bamberg at the beginning of the Reformation, the rebels broke into the archives and destroyed books, registers, letters, and court records. See Looshorn, Bamberg, IV, 576. See also Germania Sacra: Ilistorisch-Stat istische Beschreib- ung der Kirche des alten Reiches, II Abteilung: Die Bistumer der Kirchenprovinz Mainz, Vol. I: Das Bistum Bamberg, Part I, ed. by Erich Freiherr von Guttenberg (Berlin-Leipzig, 1937), pp. 15-17. 84 18 in the Bamberg court before the Reformation.

* Nevertheless, some idea of the manner of procedure employed

in the pre-Reformation period can be obtained by a study of 19 the records of a marriage case from 155 7. As in so many

of the suits in this period, it involved a so-called clandestine marriage whose occurrence was denied by the defendant.^

This process began on June 25, 1557, before the dean's court. The plaintiff was Elisabeth Krasserin from Zecken- dorf; the defendant was Bartholmaus Trapp from Geisfeld.

On the above date the plaintiff appeared before the

Offizial (the dean's deputy who presided in his absence).

He approved her request that the defendant be forbidden to conclude a new marriage or to have any already secretly concluded marriage consecrated by the Church. A document

18 Straub, Bistum Bamberg, p. 209, n. 33. 19 Ibid., p. 210, The following synopsis of this case is taken from Straub (pp. 210-16) who cites a Latin manu­ script from the Herzog-August-Bibliothek at Wolfenbuttel: Cod. 2397=36. 17 Aug., fol. 34-74.

20 Roetzer, "Delikte," pp. 65-68. Roetzer discusses the tribulations of young women in the sixteenth and seventeenth centuries (especially those who were pregnant) who brought suit in the courts for recognition of their irregularly concluded marriages. 85 to this effect v/as composed and sealed by the notary. It was then sent to the priest in Geisfeld. The penalty for violation of this prohibition was excommunication and a fifty gulden fine for the defendant.

On the following Wednesday, Elisabeth Krasserin 21 appeared again before the dean's Offizial. Her procurator presented her suit against the defendant: that between the two of them, through mutual consent, a valid marriage had been concluded; that despite numerous amicable requests for consecration of the marriage in the presence of the Church and for assumption of the marital association, the defendant had to this date refused. The girl, therefore, requested that the defendant be adjudged by the court to be her hus­ band and by legal means be forced to conclude the marriage with a church ceremony and to begin the marital cohabitation.

The defendant, through his procurator, denied ever concluding a marriage with the plaintiff and requested that he be absolved from her demands and all court costs.

21 Each party could appoint a procurator (Prokurator) to represent him during the process and to speak in his behalf before the bench. These were not legal advocates (Advokaten) in that they gave no advice as a lawyer might to his client. The procurators served at the mandate of their party. See Straub, Bistum Bamberg, pp. 196-98. 86

At the next meeting of the court, the procurator of the plaintiff presented the disputed points of testimony to which the defendant was to respond. These points related to the events at the alleged marriage on September 29, 1556.

On this date, the plaintiff and several other girls were at a church-festival dance in Melkendorf. They were standing before an inn. The defendant, sitting inside the inn, observed the plaintiff and three times had her called to him.

When she refused to come, he finally had her led inside to his table. He then said: "If you will be my sweetheart, then I will serve you; but I do not wish to serve you for a 22 year, but for always."

23 After this the defendant gave a coin, a Taler, to the girl and drank to her, saying: "Now, if you wish to be mine then take the Taler on the holy sacrament of marriage

22 "Als wiltu mein maid werden so will ich dich dienen, will dich aber nit dienen upf ein jar lang, sonder upf den ewigen dienst." Straub, Bistum Bamberg, p. 213. 23 In connection with this, Roetzer explains that when a girl brought suit in court she had to produce evidence for the validity of her claims. She attempted to establish the fact of the reciprocal and honest intent in the Verlobnis and to present, where possible, a coin which the defendant had allegedly given her as a token of his desire to marry (das Geldstuck auf die Ehe gegeben). Roetzer, "Delikte," p. 65. 87

24 and I will also bring one to you at the wedding." The plaintiff then took the coin, drank to the defendant, and answered him. Finally, all those in the inn wished the pair a prosperous life and everything good in the just- concluded marriage.

After this recital of the events, the truth of which the plaintiff confirmed by oath, her procurator proposed that the judge recognize this validly concluded marriage and require its ecclesiastical solemnization.

The process now took another course. During the court

25 . . recess, the two procurators appeared before the Offizial and explained that their clients were poor people — merely of servant status — and a long process would have detri­ mental effects on them. Consequently, they requested that the Offizial immediately continue the case in summary

24 "Nun wilt du mein sein, so nim den Thaler uff das heilig sacrament der ehe, und wil dir auch eins hiemit uff die ehe bringen." Straub, Distum Bamberg, p. 213, 25 The process hearing was interrupted because, as was the custom, the Offizial had suspended all cases pending before him until August 24th in order not to interfere with the harvest period now beginning. Straub, Bistum Bamberg, p. 214. 88 26 form in order to avoid unnecessary costs and delays.

The Offizial agreed to this proposal.

When the hearing was again in progress, it was the

defendant's turn to respond, under oath, to the disputed

points. In his statement, the defendant denied that he

had ever intended marriage with the plaintiff. He claimed

that he had spoken the words to all the girls present and had meant the Taler to be used to pay for his drinks.

On Friday, September 3, the two procurators waived all

further hearings with the intent of sparing their clients unnecessary expenditures. On September 24, the procurator

for the plaintiff asked that the Offizial announce his 27 verdict. After all records, witnesses, and testimony had been reexamined, the verdict was given. The Offizia1's

26 The Council of Vienne, 1311, under Clement V decreed that in certain cases (particularly those involving elections, provisions, benefices, tithe disputes, usury, and in marriage processes) the ecclesiastical courts could employ a summary process. Many of these cases required a swift resolution for both the spiritual and material welfare of the parties. The practical consequences were that judges could eliminate those portions of the process which were most time consuming, thus allowing some cases to be dispatched within one day — something not possible with regular proceedings. Straub, Bistum Bamberg, pp. 206-08. See also Looshorn, Bamberg, III, 327. 2 7 * Three witnesses for the plaintiff had testified under oath before the court notary. 89 decision was that the marriage concluded publicly and in the presence of witnesses, between the plaintiff, Elisabeth

Krasserin, and the defendant, Barthomaus Trapp, was legiti­ mate and must be solemnized in the presence of the Church,

The defendant was ordered to pay the court costs.

On Friday, October 1, the procurator for the defendant began the process of appeal from the sentence of the

Offizial to the bishop and his vicar-general. This appeal process probably lasted for several months more; its outcome is not known.

Straub cites a number of other examples of cases from the sixteenth century. Four of the examples {between 1535 and 1575) were of marriage cases; all four involved 28 disputed or "secret" marriage vows. It may be assumed that the facts pertaining to all of the above cases from the sixteenth century hold true, as well, for the court procedures used in Bamberg during the Middle Ages.

Having reviewed the facts about the personnel and procedures employed in the Bamberg ecclesiastical court, we may turn to the events in Nurnberg in the years 1524 to

28 Straub, Bistum Bamberg, pp. 217-21, 90

1527, During this period, the City Council attempted to

create adequate substitutes for a court structure and pro­ cedures which had been in existence for centuries.

The Suspension of Bamberg 1s Ecclesiastical

Jurisdict ion over Nurnberg

With its acceptance of the Lutheran Reformation,

Nurnberg also achieved that for which it had striven for two centuries; freedom from its ties to the ecclesiastical court of Bamberg. Although the citizenry and authorities were naturally pleased with this new freedom, the break with the episcopal court created certain difficulties. The

City Council was suddenly faced with the prospect of deter­ mining the outcome of a multitude of cases — chief among

them, matrimonial processes — for which it had had little experience.

Before a marriage court and laws could be instituted, several key issues had to be resolved. Among these were

the following: what manner of court ought to be established, who was to preside and pass sentence in these matters, ought there to be a reformation of the laws, and what proce­ dures were to be employed in determining the outcome of cases and in punishing delinquents. Progress in finding 91

solution to these questions was slow and not always smooth.

The development of Nurnberg marriage laws was characterized

by frequent expression of differences of opinion between

the city's theologians on the one hand and the Council and

its legal advisers on the other. To arrive at a better

understanding of the manner in which such a marriage court

and laws evolved in Nurnberg and the roles of the Council,

clergy, and jurists therein is the purpose of the present

study.

Steps in the Council's Assumption of

Jurisdiction in Marriage Affairs

The precise date at which the City Council assumed the

jurisdiction in marriage concerns is not known. Certainly,

the doctrinal debate (Religionsqespr^ch) which took place

in March, 1525, ended the jurisdiction of the Bamberg court over Nurnberg. The outcome of this colloquy effectively showed the Council's disposition to sanction the changes wrought by the evangelically minded theologians and to allow further reforms — despite the objections of the bishop. Hence, with this decision, the jurisdiction over matrimonial cases must have devolved upon the Nurnberg City 92 29 Council.

There is evidence, however, that even before this date

changes were under way. In March, 1524, for example, the

Council decided to defend the right of the provost of

St. Lorenz (Hector Pomer) to continue with the process and

absolution from excommunication in a case involving two

Nurnberg citizens (Helena Nutzel and Georg Bermeter), despite the Bamberg dean's prohibition to the contrary.

Apparently, Bermeter had brought suit against Helena in

Bamberg and the court had forbidden her to marry during

the course of the legal process. In spite of the prohibi­

tion, she had married and, as a result, had been excom­ municated, The Council's decision was motivated not by 30 an interest in the subject of the marriage dispute itself but by the fact that the cathedral dean had forbidden the provost to interfere in the case. This was a violation of

29 Gottfried Seebass, Das reformatorische Werk des Andreas Osiander ("Einzelarbeiten aus der Kirchengeschichte Bayerns," Vol. XLIV, Niirnberg, 1967), p. 183. Hereafter cited as Seebass, osiander. 30 The court prohibition against her marriage tends to indicate that the case was one of a disputed betrothal. Cf. the case of Krasserin vs. Barthomaus. See above, p. 84. 93 31 the Council's "privilege'1 or "freedom." The decision

of the Council indicates that it was willing to oppose the

illegal suspension of its papal privilege by the ecclesias­

tical judge. It was further prepared to appeal to Rome for

support in its case against the dean. Yet, the fact that

the Council denied any concern with the central issue of

the Nutzel-Bermeter dispute itself shows that it had not as yet assumed jurisdiction in marriage cases.

In April, 1524, the Council referred to the Bamberg court a case in which a woman wished a separation from her 32 husband because of his cruel behavior toward her. While

31Ratschl. b. 4, 107v, 112v-116, 126-127v: "Alls der gaistlich Richter zu Bamberg herrn Hector Bomern probst zu Sannt Lorentzen ein privilegium hat verpfund (?) unnd insinuirn lassen, in maynung ine den brobst an seinem pro­ cess den er in sachen zwischen Helena Nutlin und dem Bermeter als conservator in crafft eins erbern Rats habender frey- heit furgenomen zuverhindern vermeint, was einem erbern Rate zu hanndthaben irs privilegiums zehanndln geziemen wolle, ist geradschlagt wie nSchsten." See also RB 12, 224, and Gerhard Pfeiffer, "Die Einfuhrung der Reformation in Nurn­ berg als kirchenrechtliches und bekenntniskundliches Prob­ lem," in Blotter fur deutsche Landesqeschichte LXXXIX (1952), 114. Hereafter cited as Pfeiffer, "Die Einfdhrung der Reformation." 32 RB 12, 237: "Katherina Hanns Ochssin so irem eeman von wegen seins unfreuntlichen und grausamen lebens und wesens nicht will beywonen. Soil man gein Bamberg an das gaistlich recht weysen ir angezogen ursach gegen irem eeman rechtlich ausszefurn, und das sy soliche rechtvertigung zu Bamberg in vier wochen den nechsten furnehm." 94 the case was pending, however, the Council ordered the woman to continue living with her husband. When she refused, she was threatened with imprisonment and expulsion 3 3 from the city. Apparently (possibly in the interests of keeping good order in the city), the Council frequently kept married couples together by force until the ecclesias- 34 tical court decided otherwise.

There is evidence, too, of the Council's role as secular executor of the spiritual court's decisions. In

September, 1524, upon the supplication of a woman who had been granted a separation from her adulterous husband by the Bamberg court, the Council undertook to force the 35 latter to pay the court-ordered alimony.

33RV 704, 18v (June 16, 1524); RV 705, 3v (June 26, 1524); "Mit Katharina Ochssin von rats wegen sagen und verschaffen, das sy irem eeman wider elich beywonen, oder dise Stat meyden soil, so lanng bis sy die sach am gaist- lichen gericht gegen im furgenomen und aussgetragen hab." See also RV 705, 5v (June 28, 1524); RV 705, 6 (June 28, 1524); RV 705, 16 (July 9, 1524); RB 12, 249 (June 29, 1524). 34 There were further examples of such Council decrees during these months before the break with Bamberg. See RV 705, 16 (July 9, 1524); RV 707, 14 (September 6, 1524); RV 714, 4v (March 8, 1525). 35 RB 12, 263: "Auff suplication und statlich anruffen Barbara Gebhartin in crafft irer erlangten und erstanden urteil und gerechtigkeit zu Bamberg, zu und wider Sebastian 95

That the Council had not yet begun to hear and deter­ mine marriage cases on its own authority is evident from the Council records. As late as December 24, 1524, it referred to the ecclesiastical court a case in which a wife 36 refused to live with her husband.

By January, 1525, however, the Council seems to have taken positive steps toward developing its own jurisdiction.

On January 1, 1525, it ordered that one Adam Satler be held in the city prison (Lochgefangnis) on charges of bigamy.

This, in itself, was not unusual, since it was customary to hold suspected criminals in prison until they came to 37 trial. Such offenses as adultery and bigamy violated

Gebhart ires hausswirt von dem sie eebruchshalben geschiden und ir alimenta sampt achthundert gulden ires zugeprachten guts zuerkandt seyen, gegen dem selben Sebolt Gabhart odor seinem guttern zuverhelffen,"

36 RV 711, 15: "Hansen Mendorffer paternosterer auf- legen, das er zu Bamberg gegen seym weyb der Beywonung halb auf den ersten gerichtstag nach den ferien rechtfertigung furnem." 37 For discussions of the city prison and treatment of criminals, see Strauss, Nuremberg, pp. 225, 227; E. Reicke, Geschichte, pp. 626-38; Knapp, Kriminalrecht; Hartmut H. Kunstmann, Zauberwahn und Ifexenprozess in der Keichsstadt Nurnberq, Vol. I of Nurnberger Werkstilcke zur Stadt- und Landesqcschichte, ed., by Gerhard Hirsc'nmann, e_t al. (Nurnberg, 1970), pp. 122-33. Hereafter cited as Kunstmann, Zauberwahn und Hexenprozess. 96 imperial as well as canon law and were a threat to the peace and order of the city.

The departure from custom in this instance occurred when the city's legal advisers and theologians were asked to give their advice on how the Council ought to proceed in

Satler's case. This indicates that the case was not to be referred to Bamberg. The opinion of both groups was that

Adam Satler was guilty of marrying another woman during the lifetime of his first wife, and that the second marriage was adulterous. They went on to suggest that such trans­ gressions ought to be stringently punished because they were a violation of divine and human law. It was incumbent upon the civil government to prevent such abuses and perversions of the marital state. Nevertheless, the jurists and clergy could not advise that Satler be given the severest punishment — death — since crimes of this nature had not hitherto been treated with severity. They suggested he be imprisoned in a tower (Turmstrafe) for a 38 period of time, or else expelled from the city. The

Council records of January 23, indicate that it did indeed sentence Satler to a term of imprisonment in one of the

^®Ratschl. b, 4, 190 {January 17, 1525), 97

39 city 1s towers.

During the time that it was considering Adam Satler's bigamy, the Council also requested more general advice from

its jurisconsults and clergy. It wished their opinion on how to deal with the marriage cases which were "daily

increasing" in the city, "so as to avoid the much worse troubles which might arise therefrom" and so that these 40 cases "are not all referred to Bamberg." From this it would appear that some months before it openly espoused the

Reformation principles, the city government had already determined to assume control over at least some of the matters which belonged in the jurisdiction of the ecclesias­ tical courts.

The Establishment of a, Marriage

Court in Niirnberg

One of the first decisions to be made in the develop­ ment of Nurnberg's marriage laws was the determination of

39RV 712, 15v

712, 11 (January 18, 1525) : "Zu den eehendlen, die sich teglich zutragen, soli man pey den gelerten rad- schlagen und bede probst und prediger samt den doctorn dazu ziehen, damit vil boser sachen, so daraus folgen mochten, abgestellt und nit alle gen Bamberg gewisen werden." 98

which court was competent to hear marriage cases. After

the suspension of the episcopal jurisdiction, but before a

decision about the court had been made, the clergy of St.

Lorenz and St. Sebald had the responsibility for handling

marriage affairs. On November 4, 1525, Andreas Osiander,

the preacher at St. Lorenz, submitted a recommendation to

the City Council for the institution of a proper marriage

court. He recommended that the court should consist of the

two provosts and two preachers of St. Lorenz and St. Sebald

as well as two Council members. Before this bench, the

simpler marriage cases were to be heard. If the process were so complex as to require the hearing of witnesses and

evidence, it could be tried before the regular City Court

(Stadtgericht).^ *

With Osiander's recommendations in hand, the Council

turned to the jurists and the other theologians for their

opinions on the marriage court. The Council wished to know

“where and how to handle marriage cases," especially adul­

tery and divorce; "also s that if an objection is raised

41 Seebass, Osiander, pp. 184-85. See also Ratschl, b. 26, 261-264v as cited by Seebass, Osiander, p. 185. 99 _ _ . 4 2 in Bamberg (_the CouncilJ is protected against it. " It may

be assumed that no promising results came of this request,

for on January 13, 1526, the Council again asked its legal

advisers for their opinion on Osiander's proposals for the 43 marriage court.

In their brief the jurisconsults applied themselves to

the following questions: how to deal with the increasing

number of marriage cases, whether it would be "a good and

useful thing" to have a special consistory, and before whom

cases of adultery should be heard and decided. They agreed

that marriage affairs were the business of the city and

that the Council, as the divinely ordained government, must

take serious measures against adulterers and others whose

acts caused irregular and evil life-patterns and disrupted

the good order in the city. Yet, the jurists were opposed

to an individual consistory because it would create still

more difficulties. They asserted that in Bamberg, violators were treated so leniently, they had nothing to fear from

that court. The legal advisers were also opposed to having

42 RV 723, 9v (November 14, 1525). See also Ratschl. b. 5, 85 (November 21-30, 1525)

^Seebass, Os lander, p. 185 citing RV 725, lOv. See also Jegel, "Hoch^eitsbrauch und Eherecht," p. 266. 100 the clergy determine cases "because of their lack of experience and understanding" in those matters. It was suggested that before a final decision was made in particu­ larly difficult cases the Council could, if it wished, ask the advice of the clergy and legal scholars. It was the jurists' opinion, however, that the hearing and final sentence in matrimonial cases could occur in no "more suit­ able place" than before the regular City Court. They suggested that the court sit three times a week. As for the precise procedure to be employed in these cases, the 44 jurists were not yet prepared to advise.

The City Council apparently concurred with the lawyers’ feelings about a consistory which included the clergy.

Even before the Reformation, the Council restricted as much as possible its referrals to the clerical courts. It was merely being consistent with its traditional policy when the Council persisted in refusing the clergy any share in the administration of justice. The slightest indication of clerical encroachment in civil affairs was eyed with distrust. Hence, the Council was careful to avoid creating consistories in which the marriage court jurisdiction might

^Ratschl. b. 5, 85 and 98-99v; Ratschl. b. 26, 163-65. 101 45 be the chief occupation.

In keeping the clergy from the direct decision-making process, the Council could claim that it was merely con­

forming to Luther's view of the secular aspects of

46 marriage. Luther believed that the clergy would soon be

"drowned in the water of worldly affairs" if they once 47 began to act as judges in marriage cases.

The City Court and Marriage Cases

On January 18, 1526, the Council made its decision.

It declared that since a great number of cases of open

adultery, dissolution of existing marriages, and instances of remarriage had increased in the city, and since the

45 n Petsch, Kirchenrecht, p. 39. See also Kohler, "Eherecht," p. 279. The same phenomenon, says Kohler, occurred in Zurich and other cities.

46 According to Hans Liermann, Luther's viewpoint and the resultant intervention of the civil government into what had been the sphere of the ecclesiastical courts was only the beginning of the wider secularization of marriage law which came to prevail in modern times. Liermann, "Eherecht," pp. 1 1 0 -1 1 . 47 ii Von Ehesachen, 1530, in D£. Martin Luthers sammtliche Werke, Vol. XXIII {Erlangen, 1838), p. 94. See also On Marriage Matters, 1530, trans. by Frederick C. Ahrens, Vol. XLVI of Lutherf s Works (American Edition) ed. by Robert c. Schultz (Philadelphia, 1967), p. 266. 102

Council found that these improprieties (so disgraceful for the city government) resulted from the fact that there was no judge and no regular means of punishment in the city, henceforth these matrimonial concerns would not be referred to the ecclesiastical court in Bamberg. Instead, all such cases would be heard, debated, and determined in the regu­ lar City Court in Nurnberg — regardless of any protests raised by Bamberg against its loss of ecclesiastical 48 jurisdiction. If the court found any cases of open adul­ tery, or if it was unable to reach a verdict in any marriage suits, the members were to refer them to the City Council 49 for consideration.

The Municipal and Marriage Court (Stadt- und Ehe- gericht), as it was now called, was under the chairmanship of Sebastian Haller who had already become a deputy judge

(Assessor) in the City Court in 1520. He was assisted by

48 The bishop entered a protest in late 1525 before the Schwabian League against the loss of his spiritual jurisdiction at the hands of the Nurnberg clergy and govern­ ment, The Nurnberg representatives at the League declared that the League was not competent to judge in this matter and suggested it be taken up at a future Reichstag. See E. Reicke, Geschichte, p. 826, and Strauss, Nuremberg, p. 179. See also Ratschl. b. 5, 110-114. 49 RB 13, 53v. 103 50 two other "jurors" (Schoffen)t The Marriage Court was to meet one or two times a week, and its members were to 51 receive one-fourth gulden for each sitting. Eventually,

the Court's competence included the granting of full

divorces, separations from bed and board, the nullification

or verification of marriage vows, and the handling of suits

concerning paternity, dowry, maintenance for seduced women, 52 alimony, and other such matters. Appeals from the

decisions of the Marriage Court were made to the City

Council. In matters involving sums greater than 600 gulden,

50 Jegel, "Hochzeitsbrauch und Eherecht," p. 267. The City Court was composed of eight members of the Genannte or Greater Council. In addition, there were two members from the City Council who presided over the two benches (the eight were divided into two groups). Since 1497, the City Court had jurisdiction over all the important civil cases arising in the city and its lands. Matters involving small sums (less than thirty-two gulden) were handled summarily. Matters of greater moment were considered by both benches sitting together. The City Court was assisted by three or four doctors of law. See E. Reicke, Geschichte, pp. 626-30; Strauss, Nuremberg, p. 66; and "Christoph Scheurls Epistel uber die Verfassung der Reichsstadt Nurnberg, 1516," Die Chroniken der deutschen Stadtet Nurnberg, Vol. XI (Leipzig, 1874), p. 801. 51 Ratschl. b. 13, 201 and Ratschl. b. 26, 213 as cited by Jegel, "Hochzeitsbrauch und Eherecht," p. 267.

5 2 4 Leonhard Christian Lahner, Einleitunq in die burger- lichen Rechte, besondcrs die Nurnbergische (Frankfurt and Leipzig, 1785), pp. 348-49. Hereafter cited as Lahner, Einleitunq. 104 appeals could be made to the Imperial Chamber Court. 53 However, such appeals were rare.

That marriage concerns were under the jurisdiction of the civil government was apparently acceptable to the

Nurnberg clergy as well as to the jurists. Additional information as to their views regarding the court and pro­ cedures to be employed in matrimonial cases is available from the year 1531. In August of that year, the Margrave of Brandenburg sent to Nurnberg fourteen articles (drawn up by his advisers) touching on certain marriage problems and the type of court to deal with them. The Margrave wished to have the opinions of the Nurnberg legal scholars and 54 theologians regarding these articles.

53 For an example of an appeal see the case of Veronica Meisenhamerin vs. Johann (Anndre) Matzo, below, p. 220, n. 44. Although the Nurnberg City Court represented the imperial law in criminal matters, and although theoretically appeals were to be made to the Imperial Chamber court, tradi­ tionally, the City Council had vigorously opposed such appeals. See E. Reicke, Geschichte, p. 627. 54 Petsch, Kirchenrecht, p. 39. The Margrave's Articles were divided as follows: articles 1-3 dealt with the mar­ riage court; articles 4-8 with the marriage of minors; arti­ cles 9-13 with divorce; and article 14 dealt with the prob­ lem of inheritance rights in the case of the death of a married evangelical pastor. The Margrave was apparently satisfied with the opinions of the jurists and theologians although in many respects they differed. See Seebass, Osiander, p. 186. The two groups responded separately, presenting their written opinions to the Council in October, These were then sent to the Margrave, According to both views, the matrimonial affairs belonged before the civil courts. The jurists declared that such matters ought to be heard by

"learned, judicious, upright persons who are experienced in the courts and law." Furthermore, they claimed that marriage cases had "originally belonged to the secular magistrate to decide."

The theologians' opinion was that "the marital state is of such a form that its treatment affects not only the conscience before God, but also external, civil, police, inheritance, succession, and other secular, public matters.

Thus, when difficulties arise in such matters it is proper that those who preside should bear the public, civil judge' office, "with these conditions and stipulations: that the latter pass sentence in marriage concerns according to divine law," and that they be pious, learned, and judicious persons. The theologians added that the Gospel did not bestow any secular, legal authority on the clergy, and if they practiced such an office, it was only with the consent 106 of the secular government.

The Determination of Legal

Procedures and Penalties

The Council had hitherto had little practical experi­ ence in dealing with all aspects of marriage law.It was initially troubled, then, by the lack of guidelines for legal procedures and penalties. In April, 1525, the government asked its legal scholars and the city'sclergy 56 for their opinions in these matters. The question of procedures, however, brought to the fore certain basic 57 differences between the two groups.

Traditionally, the imperial and canon laws were closely bound together, being in essence the common laws of the Empire. The Council and the jurists, fully aware of their political position vis-a-vis the Emperor, sought

55StAN S I. L.10 Nr. 24: "Von Ehesachen der Juristen und Theologen Bedencken."

5^RV 714, 20v (March 28, 1525) : "Zu dem ratslag der eesachen pey den predigern einzenemen sind verordent." RV 715, 7v (April 5, 1525): "Dem ratschlag der eesachen halben soli man nachgedencken und dann bey aim gesamelten rat wider furlegen. 11 57 Seebass, Osiander, p. 185. 107 5 8 largely to preserve the status quo in the law. The theologians, on the other hand, being of a reformatory bent, were intent on making revisions. These differences became evident first with respect to questions concerning proce­ dures in cases of adultery, divorce, and remarriage. Lack of agreement seems to have been a major stumbling block to the immediate formation of a comprehensive marriage law 59 code.

There is some evidence that after the ties with the

Bamberg court were severed and while the Council, jurists, and clergy were wrestling with procedural issues, the moral condition of the city with respect to marriage concerns was 60 worsening. It is possible that historians whose predis-

58 i Niirnberg was an imperial city (civitas imperialis or Reichsstadt). It belonged to the Empire. Its liberties and rights were privileges granted by the emperor. Peace and order in the Empire were essential for the city's econo mic growth. Its very existence depended on the survival of the Empire, for the alternative to this was the complete independence of the territorial states whose "ambitious and aggrandizing" princes were concerned only with their own independence and power. See Strauss, Nuremberg, pp. 6-7, 46-47. 59 Seebass, Osiander, pp. 183-85.

^Friedrich Roth, Die Einfuhrung der Reformation in Niirnberg, 1517-1528 (Wurzburg, 1885), p. 212. Hereafter cited as Roth, Reformation. See also Petsch, Kirchenrecht, p. 40 108 position was not one of sympathy for the Reformation may have magnified this aspect of Nurnberg1s history. It is also true that the City Council feared just such a break­ down of moral discipline, A laxer conception of married life has been attributed to misunderstanding of Lutheran 61 doctrine. It may have been (as was intimated by the

Council) a temptation to misuse one's "Christian freedom.11

Sometimes adultery, bigamy, "frivolous" divorces, and speedy remarriages were the result — all under the appearance of 62 following God's word.

A second possible cause for the increased moral laxity

At least this is the manner in which some have per­ ceived it. See E. Reicke, Geschichte. p. 826. The City Council, too, may have believed that misunderstanding or abuse of Reformation concepts contributed to marriage prob­ lems. On the other hand, Roetzer indicates that morals had begun to relax long before the Reformation. The City Council, during the fifteenth and sixteenth centuries, repeatedly issued decrees and proclamations decrying the unchastity of its citizens and threatening punishments for adulterers, bigamists, and others. Yet, in fact, the Council did not proceed very harshly against the offenders and this leniency as much as any other factor can be blamed for the continued immorality in the city. See Roetzer, "Delikte," pp. 1-3. 62 This was as the City council interpreted it. See RB 13, 264v (April 5, 1527): "...und daneben der christen- licher freyheit offenlich misspreuch, auch unter dem scheyn gotlichs worts, vil straflicher sundiger hanndlung bedeckt haben." 109 was that the Council had been kept fully occupied during and after the Peasants' Revolt (1524-1525) with problems other than the moral lapses of its citizens. It could deal 63 only with the very worst abuses of this nature. The most cogent reason, however, was the inability of the Council to quickly decide upon and establish a proper marriage court and marriage ordinance. Thus, for more than a year there 64 was "no judge and no punishment," and for more than two years no comprehensive marriage legislation. In this respect, the suspension of the episcopal jurisdiction had been, at least temporarily, detrimental to Nurnberg*s public

A c welfare. In the interim, when there was no established

63 „ Adolf Engelhardt, "Die Reformation in Nurnberg," in MVGN, XXXIII (1936), 237. Hereafter cited as Engelhardt, "Die Reformation." 64 See RB 13, 53v and RV 725, 13 (January 18, 1526), 65 The well-known patrician and humanist scholar of Nurnberg, Willibald Pirckheimer, once said that the state of affairs was so bad that "if the executioner were not on hand...a veritable Platonic republic" would develop. However, it must be remembered that Pirckheimer, although at first quite sympathetic to Luther, soon became disen­ chanted with the reform movement. See Pirckheimer's letter to his friend, Baumeister Tschertte in Vienna (1528), as cited in Johann Joseph Dollinger, Die Reformation, ihre innere Entwicklung und ihre Wirkungen im Umfanqe des Lutherischen Bekenntnisses, I (Regensburg, 1846-1848), 178. Hereafter cited as Dttllinger, Die Reformation. 110

means of proceeding against them, some people used the

situation to realize ignoble purposes; the more liberal

principles of Luther with regard to divorce may have served here as a pretext. Those guilty of marital abuses were not

exclusively Nilrnberg citizens. There were some from outside

the city who were attracted to Nurnberg because they believed that previous marriage bonds could be dissolved 66 and new marriages contracted more easily there.

The Marriage Laws of Apr i 1, 1527

While the Council was faced with ever-increasing disorder in matrimonial affairs (a disorder which it believed threatened its authority as well as civil order 67 and unity), and while it repeatedly requested opinions of its lawyers and clergy on how to deal with these 68 matters, the city continued without the necessary marriage

66 Roth, Reformation, p. 212. See also RB 13, 264-264v (April 5, 1527), For a capsulized, though one-sided, pic­ ture of the Nurnberg Council's difficulties with bigamy, adultery, and irregular divorces during the crucial years 1524-1525, see Dollinger, Die Reformation, II, 442-45.

67RB 13, 264v (April 5, 1527).

68RV 728, 7 (March 27, 1526); RV 730, 2 (May 3, 1526); RV 740, 3v (February 9, 1527); Ratschl. b. 5, 187 (November 8, 1526) , Ill ordinance. Both groups of advisers submitted several opinions, but failed to concur on the manner of handling 69 adultery and divorce cases. It was not until April, 1527, that the Council was able to issue a marriage ordinance

(Ehoordnung) by which the Court, the lawyers, and the theo­ logians could be guided.

Briefly, this marriage ordinance — actually, in the form of several Council decrees issued between April 5 and

11, 1527 — took the following steps to bring order into marriage affairs in Nurnberg: it threatened adulterers with a term of imprisonment on bread and water; it declared that the granting of divorces was to be severely restricted, if not eliminated; and it forbade any remarriage of divorced 70 persons during the lifetime of their ex-spouse. This, of course, was not a definitive body of legislation. As will be seen, the Council continued to issue decrees

The details of these differences between the clergy and the jurisconsults will be discussed fully as the several aspects of marriage law (adultery, divorce, remarriage, and other matters) are taken up separately in subsequent chap­ ters . 70 RV 742, 2v-3 (April 5, 1527); RV 742, 5v (April 8, 1527); RV 742, 10 (April 10, 1527); RV 742, lOv (April 11, 1527); RB 13, 264-266. Or, see NStadtA, Rep. B5, Kirchen— amt Nr. 22, fol. l-9v: "Edict in Ehesachen." See also Seebass, Os iander, pp. 185-87. 112 regulating these and other aspects of marriage law. Later these individual Council mandates were incorporated into 71 the revised editions of the city's civil code. The

Nurnberg marriage laws as they will be considered in the following chapters, include those which applied to adultery, divorce, and remarriage as well as those governing marriage of minors, clandestine marriages, broken or disputed betrothal vows, and marriages in violation of the impedi­ ments of consanguinity and affinity.

VI This was the Nurnberg Reformation of Statutes and Laws, a codification of the civil laws which was first published in 1484 and reissued with additions and correc­ tions several times during the sixteenth century. See Strauss, Nuremberg, p, 221; and Daniel Waldmann, "Die Ent- stehung der Niirnberger Reformation von 1479 (1484) und die Quellen ihrer prozessrechtlichen Vorschriften," in MVGN, XVIII (1908), 1-98. CHAPTER FOUR

THE TREATMENT OF ADULTERERS IN NURNBERG

BEFORE AND DURING THE REFORMATION

Until the late Middle Ages in Germany, adultery was usually viewed as an offense which was to be handled privately by the families involved. Nevertheless, there were occasions when it was considered to be a public crime and was punished as such by the authorities. The great

German law codes of the thirteenth through the sixteenth centuries provided guidelines for treatment of adulterers and other criminals for the cities and territories within the Empire. Among these codes were two from the late thirteenth century: the Sachsenspieqe1 for northern

Germany and the Schwabenspieqel for southern Germany. Later codes included the Bamberg Criminal Code of 1507 (Bamberger

Halsgerichtsordnung or Bambergensis) and Emperor Charles V's code of 1532 (the Constitutio Criminalis Carolina).

113 114

Adultery in the Early Crimina1 Codes

In the Schwabenspiegel adultery was defined as an act in which a man had sexual relations with another man's wife.

The law mentioned only the instance in which the wife was guilty of adultery; it did not treat of a husband's adul­ tery.^" If brought before a court, both the adulterer and 2 the adulteress were to be sentenced to death.

Since adultery was primarily viewed as a private matter affecting the honor of the husband, by custom the husband had the right to punish the adulterers himself. If he discovered another man with his wife he could, without fear of legal retribution, kill the adulterer. This was the right, recognized by law, of private vengeance (Rachbefuqnis or Totunqsrecht). Although it continued to exist into the sixteenth century, this privilege was less emphasized in

^Indeed, the term "adulterer" (Ehebrecher) initially seems to have meant only the outsider — the man who was not the woman's husband. It did not refer to the husband who committed adultery. 2 Margarete Hollesch, Die Strafbarkeit des Ehebruches qeschichtlicher und rechtvergleichender Darstellunq (Kaldenkirchen, 1932), pp. 44-45. Hereafter cited as Hollesch, strafbarkeit. 115 3 the law codes after the thirteenth century.

During the fourteenth century, more and more cases of adultery were referred to the ecclesiastical courts. These had a concurrent jurisdiction with the civil courts in the

sentencing of adulterers. The civil authorities generally punished only adulterers who were caught in the act (hand- hafter Ehebruch). The penalty was death. The courts could also pass sentence in adultery cases where the injured husband brought suit, even if the accused had not been caught in the act. In this case the penalties were usua lly those of exile, imprisonment, fines, or special chastise­ ment designed to bring disgrace upon the offenders (Ehren- strafe). The latter included placing the man in a pillory, ducking the woman in a pond, or forcing her "to carry the 4 'burden-stone' (zum Tragen des Lastersteins)."

Hollesch says that the Schwabenspiegel did not mention the Totunqsrecht ? however, it is present again in the Bamber- qensis of 1507 and the Carolina of 1532. Further, many of the city criminal codes (for example, in Hamburg, Lubeck, Vienna, Zurich, Riga, and Ltineburg) of this period recog­ nized the privilege, but attempted to restrict it (the hus­ band had to kill both persons immediately) in order to keep peace within the city walls. Hollesch, Strafbarkeit, pp. 44, 46-47, 48-50. 4 Rudolf His, Geschichte des deutschen Strafrechts bis zur Karolina, Abt. ill of the Handbuch der Mittelalter- lichen und Neueren Geschichte, ed. by G. von Below et al. 116

Punishment of the husband who committed adultery was only a late development and involved comparatively mild penalties. Clear evidence for this aspect of the law is present only in sources from the late fourteenth century.

In the fifteenth century his penalty was commonly exile or 5 a fine.

The Bamberqensis, 1507

During the fifteenth and early sixteenth centuries,

German law was increasingly influenced by Roman law. The first attempt to assimilate these foreign legal notions into German law was undertaken by Johann von Schwartzenberg in the Bamberg Criminal Code,

As a result of the Roman influence, the delineation between the civil and spiritual spheres of competence was somewhat altered in the Bamberg code. In conformity to

Roman criminal law, Schwarzenberg viewed adultery as a

{Munich and Berlin, 1928), p. 150. Hereafter cited as His, Strafrecht. See also Hollesch, Strafbarkeit, p. 47. 5 The city law of Vienna from 1340 punished the adul­ teress with death, while the adulterous husband was merely referred to the spiritual court for sentencing. In 1380, a citizen of Ulm was banished because of his adultery with his wife's sister. An ordinance of Basle in 1457 decreed banishment for the adulteress, but fined the adulterous husband. His, Strafrecht, p. 150. 117 6 delictum fori communis. He referred it to the civil courts.

Of course, the ecclesiastical courts continued to impose spiritual penalties upon adulterers. It was in their competence, also, to handle those marriage cases which were a consequence of adultery (for example, separations).

In the Bambergensis adultery was defined as an offense

in which a wife had sexual relations with a man other than her husband. The punishment for the adulterer was desig­ nated as "death by the sword." Conviction of the adulterous wife meant loss of her property rights and possibly

imprisonment. That adultery was still considered a private matter is evinced by the fact that the denunciation or suit by the husband was a prerequisite for the initiation of court proceedings against the adulterers. If the husband refused to bring suit in court, the judge could officially proceed against the transgressors only if it were a case . 7 of "open, undoubted, and scandalous" adultery.

The Bambergensis included in the definition of adultery the extramarital relations between a husband and a woman

6 Hollesch, Strafbarkeit, p. 47. 7 Bambergische Halsqerichts und Rechtliche Ordnunq (Mainz, 1531), p. 22, Article CXLV: "Straff des Ehebruches." 118 other than his wife. Yet, his penalties were chiefly those of dishonor. On the other hand, if a husband found his wife with another man and, "in heated temper,'* killed one or both, he was not subject to any penalties.

The Constitutio Criminalis Carolina, 1532

The code of Emperor Charles V served to systematize the previous German criminal codes. It does not appear to have made major alterations with respect to chastisement of adulterers. The definition of adultery was the same as in the earlier codes. Both the husband and wife had the right to bring suit against their offending spouse. Theoretically, the penalty for the lover was death. The adulteress was to be placed in a convent. If she were Protestant, she was to 9 receive a whipping and be banished for life from the land.

The Carolina left unclear what penalties the adul­ terous husband might receive. According to the commentaries on the code, the authorities were to take action against him only if he had left his wife and was living with a

g Bambergische Halsgerichts und Rechtliche Ordnung (Mainz, 1531), p. 22, Article CXLV: "Straff des Ehebruches." 9 Halsgerichtsordnung Kaiser Karls V. (Mainz, 1531), p. 25v, Article CXX: "Straff des Ehebruches," 119 person of ill repute in such a manner as to arouse public scandal. In addition, the Carolina followed the precedent of earlier codes in permitting an injured husband to kill 10 the adulterer without fear of legal retribution.

The Murder of Two Adulterers from Ulm

That vengeance killings continued to take place in the sixteenth century is indicated by the following case which involved the Nurnberg City Council and its legal scholars.

In 1528, a barber from Ulm killed his adulterous wife and her lover. He had previously confronted his wife with her unfaithfulness and warned her that if he caught her he would have "less regard for her than for a fly." He had also requested that both her parents and her priest urge her to cease her adultery. She ignored all warnings and the inevitable happened. The husband was summoned before the court, but the Ulm authorities were not certain how they ought to proceed. They sent a letter to Nurnberg

^ Halsger ichtsordnung Kaiser Karls V. (Mainz, 1531) , p. 25v, Article CXX; "Straff des Ehebruches," See also Hollesch, Strafbarkeit, pp. 49-51, citing the glosses and commentaries on the Carolina. 120 11 requesting the advice of its jurisconsults.

In their written opinion, these jurists unanimously

concluded that according to "public law" no punishment was

to be inflicted upon a husband who, finding another man

with his wife, took the adulterer's life. Since, however,

the barber had also killed his wife, he might be subject to

a penalty. It was the option of the judge, said the

jurists, to increase, ameliorate, or completely set aside

penalties according to the circumstances of the act.

For their part, the jurisconsults felt that since the

husband had warned his wife and others to no avail, and

since he had suffered pain "through the defilement of his

marriage bed," he had "sufficient cause and motive" to

commit this deed. He should not be punished for either

slaying. Furthermore, the jurists recommended that the kin

of the dead man were to have no right of vengeance against

the barber. This was suggested not only because the law

imposed no penalty upon him, but also because it would have

^Joseph Baader, ed., "Nurnbergisches Rechtsgutachten uber die Ermordung zweier Ehebrecher zu Ulm im Jahr 1528," in Anzeiqer fur Kunde der deutschen Vorzeit, II (1864), 134. Hereafter cited as Baader, "Ermordung." Baader says that it was common at that time for other cities to request advice of the Ndrnberg legal scholars who were highly respected for their learning 121

a frightening effect upon others. Thus, it might aid in preventing such open adultery even when the authorities did 12 not choose to take action against it.

The preceding case provides evidence that in the

sixteenth century, city governments and courts did not

intervene in all cases of known adultery. Nevertheless, it

is also clear that the Nurnberg jurisconsults considered adultery to be so great a scourge that all means must be employed to discourage it — even the frightening example of murder.

Adultery Laws in Nurnberg before the Reformation

In the very earliest sources — from the fourteenth century — there is no trace of any sort of punishment of

adultery in Nurnberg. Its atonement was left to the devices of the families. It was in the fifteenth century

that the authorities began to levy penalties of exile and 13 imprisonment against adulterers.

12 i The Nilrnberg jurists also suggested that since the dead man's relatives might be so incensed as to take action against the barber, the Ulm government ought to oblige both parties to submit their differences to arbitration before the court in order to avoid any further evil conse­ quences. Baader, "Ermordung," pp. 135-36.

13 Knapp, Kriminalrecht, p, 224. 122

Throughout the fifteenth, sixteenth, and seventeenth centuries, the Council passed innumerable decrees with respect to adultery and its punishment. From the frequency with which these mandates appeared, it is evident that they did not achieve the desired effect. It has been suggested that their ineffectuality stemmed from their comparative leniency. For example, the unequivocal mandate of 1471, which declared that if a married man were found with a prostitute (Hure), both were to be imprisoned, was never earned out.*. 14

The Bambergensis and the Carolina as well as earlier codes proposed relatively harsh penalties, particularly for the man who violated the sanctity of another man's marriage.

Although the Nurnberg Council and jurists were influenced by these criminal codes, it must be said that they rarely, if ever, employed the most stringent penalties available to them under German law.

In 1485, the Council issued an edict which gave notice of the government's intent to punish adultery. The law stated that the Council would impose penalties either upon the person or property of anyone guilty of adultery.

14 Jegel, "Hochzeitsbrauch und Eherecht," p. 267. 123

Whether they were "man or woman, rich or poor," there would be no exemptions. This was to be valid for both

those caught in the act and those denounced to the court as suspected persons.

Furthermore, anyone who cooperated or gave assistance

in the realization of such transgressions was to be impri­ soned and publicly chastised. Any woman who had been found guilty of adultery and repeated this offense was to be forced "to carry the stone"; that is, she must carry the

"burdenstone" (Lasterstein) around the market place, thus 15 bringing public attention to her immoral behavior.

Approximately one-half year later, the Council put more teeth into this law. The adulterer was to receive a four-week term "in a locked chamber" — usually one of the city's towers. A similar term of confinement was the fate of a convicted adulteress: she was to be "fettered to a bench." During this period the prisoners were to have 16 "only water to drink." Procurers and those who helped to promote adultery were to be put into the city prison (Loch-

^Nurnberg city Council Decree of July, 1485 in StAN, Rep. Nr. 16a, B-Laden-Akten, S I. L. 180, Nr. 9.

^ F r o m later sources we find that the prisoners also had food — usually bread — to eat. 124 qefangnis).■ % 17

According to Knapp, this rule was standard from 1486 to the beginning of the seventeenth century. If a person were convicted of adultery a second time the term of con­ finement was doubled. The adulteress, according to the law of 1485, carried the Lasterstein. In exceptional or grave cases a penalty of exile was imposed. Pardons were not rare. It is not surprising, says Knapp, that the problem . . 18 of adultery continued to plague the civil authorities.

For over two centuries, the Nurnberg Council produced a monotonously repetitive series of such decrees against adultery. The format and wording in some cases appeared to be simply a reiteration of the laws of 1485 and 1486.

In 1514, the Council again proclaimed that it would take steps to suppress "the shameful vice of adultery" which had become so prevalent among both men and women in the city. Reciting a theme which would become quite

17 RB 4, 322 as cited by Knapp, Kriminalrecht, p. 225. See also Jegel, "Hochzeitsbrauch und Eherecht," p. 267, citing a Ratsverlass from December 17, 1486. 18 Knapp, Kriminalrecht, p. 225. See also Roetzer, "Delikte," pp. 2, 14; and Jegel, "Hochzeitsbrauch und Eherecht," p. 267. 125

familiar in the next decades, the Council said that this

state of affairs aroused the "wrath of God" and brought down misfortune and calamity upon the city.

In this law we find indications of class distinctions

in the imposition of penalties. Those who had previously been convicted of adultery and who were again found to be guilty of this offense were to be fined or forbidden to wear the Sturz, a headgear worn by "honorable" fehrbar) women.

Other persons merely suspected of adultery were also 19 to be brought before the authorities. If no clear proof was produced, they were to be warned and obliged to swear

to avoid all future association with those with whom they wore suspected of adultery.

Thirdly, those women who were convicted of being

procuresses, and those maid- and menservants who were guilty

of immoral behavior were to be placed in the Lochgefangnis.

this case it was the Seven Elders. These were the seven most important members of the Council, chosen from among the thirteen senior Councilmen of the Small or Inner Council. In serious criminal cases, the Seven Elders sometimes sat in secret session to decide upon the verdict. See Kunstmann, Zauberwahn und Hexenprozess, p. 123. See also Kent Robert Greenfield, "Sumptuary Laws in Nitrnberg, " in Johns Hopkins University Studies, XXXVI (1918), 22, 26. Hereafter cited as Greenfield, "Sumptuary Laws." 126

If they were "honorable" women, however, they were forbid­ den to wear the Sturz. Finally, the Council ordered that each of its members was obliged, when he heard any reports 20 of such sinful activities, to inform the proper authorities.

The inferences to be drawn from the above are that immorality was not a vice of the lower classes alone, and that the Council might adapt its penalties to fit the station of the person who committed the crime. Indeed,

Knapp suggests that one possible reason for the Council's relative leniency was its awareness that even the 21 "honorable" citizens had "feet of clay."

Quite soon (1520) after the Edict of 1514, another

Council proclamation was made with respect to prostitution, adultery, and other unchaste behavior. From the introduc­ tory sentences, it is clear that all the preceding laws had had little effect. The Council complained of the fact that

"by day and night, inside and outside of the city...many and various sins and evils of unchastity" were taking place

"completely unconcealed and without shame." It threatened

20 RB 10, 120-120v (March 1, 1514). See also Knapp, Kriminalrecht, p. 225, and Jegel, "Hochzeitsbrauch und Eherecht," pp. 267-68. 21 Knapp, Kriminalrecht, p. 226. 127

the offenders with imprisonment in the Loch and banishment 22 from the city.

Pract ica1 Application of the Nurnberg Laws

before the Reformation

The German criminal codes allowed in certain circum­

stances for active prosecution of adulterers by the secular

courts. From the legal records of the fifteenth and six­

teenth centuries, it is evident that, in Nurnberg, govern­

ment intervention in these matters was not rare. With

these extensive case records, it is possible to observe the

manner in which authorities actually implemented their laws 23 against adulterers. Although by no means a complete

22 Council Decree of August 1, 1520, StAN, Rep. Nr. 16a, B-Laden, S I. L. 180, Nr. 9. 23 We are fortunate in this respect to have, among other sources, a compilation of cases (giving the date, name of the person, his crime, and the penalty imposed) extracted from the Nurnberg court and penalty records from 1470 to 1535. These extracts were the result of a dispute (ca. 1535) between Nurnberg and Brandenburg over jurisdiction in cer­ tain criminal (fraischlich) matters. These compilations were to be used to prove their respective jurisdictional claims. Those for Nurnberg are known as Extrahirte und Transsumirte Falle auss den uralten Perqamen Nvlrnbergischen Acht und Straffbuchern (or Replicae cum annexis actibus Super add it is Niirnberq contra Brandenburg) . They are to be found in the Nurnberg Stadtbibliothek under the signature Amb. 491-495, 2* and Amb. 497-499, 2*. Hereafter cited as Extrahirte Falle. 128 survey, the following is a representative picture of the methods employed in punishing adulterers in the years 24 shortly before the Reformation.

In general, the penalties imposed were in accordance with the statutes of 1485, 1486, and 1514, Not all of the offenders were from Nurnberg; some were from neighboring villages and districts which were under the authority of the Nurnberg Council.

In many of the records, the name of the law court which heard and determined these cases is not indicated.

It is probable that the court was the Schoffenamt, or higher 25 criminal court. It was composed of thirteen Schoffen, or

"jurors," who were, in fact, members of the City Council,

To be quite accurate, it must be said that the verdict and penalty were actually determined by the City Council as a

24 For further examples of cases, see Appendix A

25 The jurisdiction over life and death (Blut- und Hals­ ger icht) had been granted to the Nurnberg Council by Emperor Friedrich III in 1459. See Kunstmann, Zauberwahn und Hexen- prozess, p. 124; E. Reicke, Geschichte, p. 627; and Ludwig Oellrich, "Der Straffprozess in Nurnberg wahrend der letz- ten 3 Jahrhunderte der Selbstandigkeit der freien Reichs- stadt" (unpublished Inaugural-Dissertation, Friedrich- Alexander University at Erlangen, 1947), pp. 7-8. Hereafter cited as Oellrich, "Straffprozess." 129 whole (in extremely serious cases, by the Seven Elders in secret session). The Schof fen, in giving the final sentence, spoke only as they had been instructed by the

■ , 26 Council.

The law of 1486 established imprisonment as a normal penalty for adultery. This does not mean that other penalties were no longer imposed. In 1498, Christina Rottin from Galgenhof was twice banished from the city in addition 27 to being forced "to carry the stone." Nevertheless, the records indicate that imprisonment for adultery was very common after 1486. In 1507, one Jacob Sengel was sentenced 28 to a lengthy period in a tower, on bread and water. Nor were women exempt from such penalties. In 1519, a woman was fettered to a bench for fourteen days and her request to be absolved of the remaining days of her penalty was

26 >i The Schoffen (usually two were chosen from the thirteen for each case) did the necessary investigative work of gathering evidence, hearing testimony and confes­ sions. On this evidence, the Council then made its deci­ sion. See Oellrich, "Straffprozess," pp. 40-42. For discussions of the criminal court and procedures in English, see Strauss, Nuremberg, pp. 224-230, and Greenfield, "Sumptuary Laws," pp. 25-26. 27 NStadtB, Extrahirte Faille, Amb. 497, 2*, 6c, p. 12. See also Roetzer, "Delikte," p. 14.

^ Extrahirte Fa lie, Amb. 497, 2*, 6c, p. 10. 130 29 denied.

From the early 1520's we find further examples of

incarceration as punishment for adultery. Thus, Hans

Wurmer, a miller from Deinschwannck, was imprisoned for

four weeks in the Nurnberg city prison with "only water to

drink.The same penalty was decreed for the peasant,

Mathes, in early 1522 when he laughingly admitted to the

court that "the maid was more friendly to him than his wife was. ..31"

Occasionally, depending upon the severity of the case,

the usual punishment was altered. In serious cases the

death penalty might still be employed, although this was

indeed rare. In 1508, Christina, the wife of a map-maker, was buried alive under the gallows as punishment for her

29RV 641, 16v (October 10, 1519).

^Straffbuch, StAN, Rep. Nr. 4, Differential-akten 33c, p. 226v, fol. 104 (May 25, 1521). It is probable that he also had bread to eat. 31 Haderbuch, StAN, Rep. Nr. 4, Differential-akten 33d, p. 267, fol. 37: "Mathes von Annwennden ein pauer, der ist umb sein offenlich beganngen Eebruch den er mit lachendem munnd also begangen vor den herrn bekannt, Unnd gesagt, Ime sey die maid freuntlicher dann sein weib, als ein eebrecher vier wochen inns loch gestrafft worden, unnd sol als paid in die straff geen. 131 32 "gross harlotry" (grosser hurery).

On the other hand, the circumstances might require a different approach. In 1517, Hans Vogel was fined ten gulden for having had an adulterous relationship with

Bergitta Hummerin. Since he had procreated a child he was also required to pay child-support costs. Bergitta, however, 33 was banished five miles from the city for three years.

If a person were suspected of adultery, but no proof could be obtained, he was usually warned of the conse­ quences of his behavior and obliged henceforth to avoid all association with those with whom he was suspected of mis­ behaving. Such was the case in 1518 with Hanns Kelermann 34 from Leynburg.

Exile continued to be applied as punishment in excep­ tional cases. Margaretha Lindtnerin, whose cousin was the priest at Mogeldorf, was accused of having sinful relations with that cousin. For this she was banished for life in 35 1519.

32NStadtB, Will I, 530, 2*, Ubelthaters Buch, p. 20.

33Straffbuch, p. 213v, fol. 19.

34Ibid., pp. 220-220V, fol. 59. 35 Ibid., p. 222, fol. 65. 132

With these cases, we have reached the early years of

the Reformation in Nurnberg. Only a few examples have been

presented. For purposes of further comparison, a more

extensive list of adultery cases has been compiled in

Appendix A. From this compilation, it appears that no

changes had occurred in the basic treatment of adulterers between 1485 and the early 1520's.

The foregoing recital of Council decrees and penalties might be summarized as follows. The Nurnberg government

frequently expressed concern about what it viewed as immoral

behavior on the part of some of its subjects. The Council

passed several laws during a period of forty years in an

attempt to suppress the vice. In addition, it actively

prosecuted and punished at least some who were guilty of

adultery. Yet, the number of such transgressions does not

seem to have decreased during these years.

Adultery continued to be a vice with which the Council had to contend in the early Reformation years (1520-1535).

We must now consider the question as to whether — and, if

so, in what ways — the Protestant movement affected

adultery laws and penalties in Nurnberg. 133

Adultery Laws after 1525

Shortly after the Religious Colloquy of March, 1525, the Council asked for the advice of its theologians con­ cerning marriage matters. Their opinion was submitted on

April 5, 1525, That the Council was not satisfied with this opinion is indicated by its request that the clergy continue work on it.

The theologians as well as the jurisconsults deliber­ ated throughout the summer and fall of 1525 apparently with no satisfactory results. Again, in November, 1525, the

Council requested that the jurists and clergy restudy the 36 adultery and divorce questions. A number of undated

legal and theological opinions are preserved from this period. In all likelihood, they were written in response 37 to the Council requests for advice.

In the first of these the theologians (except for a

36RV 714, 20v (March 28, 1525); RV 715, 7v (April 5, 1525); and RV 723, 9v (November 14, 1525) as cited by Seebass, Osiander, p. 185,

3^Seebass (Osiander, p. 185) cites the Gutachten in Ratschlagbuch 26, 167v-204, 213v-219 as probably belonging to this period. He dates them from November 14, 1525 through February 9, 1527, 134 brief reference to the Mosaic death penalty for adultery)

restricted themselves to the questions of divorce and 38 remarriage. The jurisconsults, however, expressed them­

selves or, all three aspects of marriage law. They commenced by saying that through the "negligence'1 of the authorities,

sexual excess had become "so deeply rooted" in many places

that it threatened the destruction of the government * 39 (qernein Reglerunq).

The jurists were of two opinions as to what remedy the

situation demanded. The advice of one group was that since

the imperial and other codes had "changed, graduated, and

ameliorated" the penalties for adultery and since the cases

occurred under many different circumstances, the jurists

felt that they could not advise the Council to punish

adultery according to expressed, certain penalties.

Instead, it should punish transgressors only according to

the circumstances of the deed and only after a previous summons and warning.

A second group of jurists, however, feared that this

Theologians' Ratschlag und Bedencken m Ratschl. b. 26, 167v-179. 39 Ratschl. b, 26, 199. 135 indeterminate approach would solve nothing. Rather,

"unavoidable necessity" required that a regular ordinance be established which would punish all evil doers "of high and low estate" alike. To execute this law, a tribunal should be established which had a precise juridical mandate.

According to the proposed law, those convicted of adultery were to be imprisoned for a certain period (zu ver- ordent N. Monatt). If they were convicted a second time the penalty was to be doubled. On the third conviction they were to be declared "dishonorable" (Ehrloss), removed from office (unvehig = unfahig). Certainly, the latter penalties would have applied only to the patrician and

"honorable" classes since they alone could hold office.

For other members of society, the jurists suggested a lashing, but left this to the Council to determine.

When adultery was so notorious or open that it needed no proof, the offender was to receive a physical chastise­ ment. Yet, the advisers indicated their ambivalence toward both physical penalties and imprisonment by suggesting that a convicted person might commute part of his sentence into a money fine.

The jurists noted that court proceedings in adultery 136 cases depended to a large extent on someone bringing charges against the suspects. Therefore, all subjects were to be ordered to inform the authorities about any trans­ gressions which came to their attention so that the 40 officials could bring these persons to trial. Persons suspected of adultery could be cleared through an oath.

Both the exonerated and convicted persons were to swear to avoid all suspected associations in the future.

If, in the case of a third conviction for adultery, a penalty more extreme than the civil penalties (burgerlicher

Straff) outlined seemed necessary, then the matter was to 41 be discussed before the Council or the City Court.

This legal opinion from late 1525 is of interest

A number of suggestions with regard to a proper court, personnel, and procedures were included in the Rat- schlag. Briefly, the jurists recommended that the Council appoint six or more judicious persons to serve as judges. These should be sworn to exempt neither rich or poor from penalty. The proceedings were to be oral, in summary form, and to depend upon the testimony of witnesses. Those who failed to appear in court were to be fined or (on repeated failure to appear) imprisoned. Whoever believed he had been punished unjustly could appeal to the Council by presenting a written complaint to the secretariat. 41 All of the foregoing suggestions were included in the jurisconsults' written opinion which has been preserved i-n Ratsclilagbuch 26, 199-204. The probable date for this Ratschlaq is November, 1525. 137 primarily because it indicates the lack of unanimity among the jurists with respect to the stringency or leniency of penalties for adultery.

During 1526 and early 1527, the Council continued to press its advisers for conclusive guidelines on the marriage 42 laws. Although the jurists and theologians remained far apart on the issues of divorce and remarriage, they were closer to an accord with respect to punishment of adultery.

Both agreed that adultery occurred with such frequency as to be a threat to good order and the spiritual health of the city and that the remedy was to be found in a more 43 energetic policy on the part of the government.

The theologians, in particular, recommended that extreme measures be taken against adulterers. In his

"Advice on Ceremonies" (February, 1526), for example,

Osiander warned that the Council would soon see great

42 See RV 730, 2 (May 3, 1526). 43 Ratschl. b. 5, 189v, and Ratschl. b. 26, 207v. See also Jegel, "Hochzeitsbrauch und Eherecht," p. 267, citing Ratschl. b. 4, 190 and Ratsch. b. 5, 213 in which the jurists blamed the leniency of the Council's measures for the frequency with which adultery occurred. See also Osiander, "Gutachten uber die Zeremonien” (NKirchA, Fen. IV, 906, 2*, p. 69v) in which he stressed that the authorities were duty-bound by God to punish adulterers. 138 mischief occur if it did not employ the penalties which God 44 established for adulterers.

On November 8, 1526, the jurists and clergy gave their opinions in a case of divorce resulting from adultery. The theologians expressly referred to God's command that adul­ terers be sentenced to death. They suggested, further, that

if this sinful and scandalous act of adultery were punished by the authorities according to divine law, which they are obliged and bound to do according to God's word and law, then [the situation] would soon be remedied.^

The Council, however, was simply not prepared to employ the death penalty against adulterers as the clergy wished it to do.

On February 9, 1527, the Council once more reviewed all the past legal and theological opinions on marriage affairs.

It then asked for a reconsideration of the issue of penalties for adultery. The theologians refused to again offer their opinions because, as they explained to the

Council, they had already clearly expressed themselves on the matter. The city fathers had decided, contrary to their

II Osiander, "Gutachten uber die Zeremonien," p. 69v. 45 Ratschl. b. 26, 205 and Ratschl, b. 5, 187v. See also Kohler, "Eherecht," p. 299. 139 advice and God's express commands, not: to employ capital punishment against adulterers. In the face of this decision, the clergy felt that it would be a waste of time 46 for them to submit any further advice.

Hereafter, the Council, knowing well the attitude of the theologians, tended largely to rely on the advice of its jurisconsults whenever a difficult adultery case 47 arose.

The jurists submitted their brief on April 3, 1527.

The sense of their remarks indicates that perhaps they had been influenced by the severity of the theologians' stance.

They, too, urged the Council to take a strong position against offenses of unchastityr the government was estab­

lished by God to rule over men and was obliged to execute

God's commands.

The jurisconsults outlined a number of penalties in their report, the sharpness of which is surprising. This

is particularly so in light of their own later recommenda­ tions in individual cases. The suggested penalties are as

46 "Der Herren Theologen letzter bericht der ehesachen halben," Ratschl. b. 26, 210v-213v (February 9, 1527).

47 Seebass, Osiander, p. 187. 140 follows: convicted adulterers and adulteresses were to be sentenced to death "without mercy"; those who cohabited but were unmarried were to suffer penalties affecting their honor, person, or property — whichever was just; persons who willingly permitted or abetted the adultery of their spouses were to be penalized with loss of honor or with physical chastisement; and unmarried persons who aided or promoted the adultery of others were to suffer physical penalties or loss of property.

In order to facilitate the execution of these laws, the jurists suggested that every person was to have the author­ ity and right to inform the Council about any known adul­ terers. Informers were to suffer no prejudicial effects.

Finally, the jurists urged that these laws be valid for all

Nurnberg citizens and subjects inside and outside of the cxty,*«. 48

Given the Council's past policy in the treatment of adulterers, it is not surprising that it never implemented the preceding recommendations. Indeed, considering the jurists' own reluctance in this matter, one wonders if they really intended that their suggestions become law. Perhaps

48 Ratschl. b. 26, 213V-219. 141 their intent was merely to have the Council frighten the citizenry into moral rectitude.

The Ordinanco of 1527

After two years of debate and scrutiny of the numerous legal and theological opinions submitted to it, the Council issued its first general marriage ordinance. With respect to punishment of adultery, the Ordinance of April 5, 1527 decreed that whoever was convicted of open adultery was to be imprisoned for four weeks in a tower. The prisoners were to receive no sustenance other than bread and water.

In very serious cases the penalty was to be sharpened and 49 "openly publicized before the court."

It is evident that the adultery law of 1527 was simply a reiteration of the Council's previous policy. The govern­ ment was still not prepared to employ the severe measures 50 which both the theologians and counselors had proposed.

49 RV 742, 2v (April 5, 1527): "Offenlich ehepruch,... sol man vier wuchen auff ein thurn mit wasser und prot straffen und kein andere cost zulassen, doch nit eyner offen hand. Wie sich ein fal so beschwerlich und strefflich zutrug die Straff zuverhohern, und solichs sol vor gericht offenlich publiciert werden." 50 See Kohler, "Eherecht," p. 299, The author indi­ cates that short terms of imprisonment or expulsion were the most common penalties for adultery in other Protestant 142

Spheres of Judicial Competence

in Adultery Cases

The question of the judicial competencies in adultery cases for the period after January, 1526 requires clarifi­ cation. The lines of delineation are difficult to distin- 51 guish. According to the decree which established the

Marriage Court in 1526, all marriage affairs which touched upon adultery, divorce, and related matters were to be heard by that court. There was, however, a distinction made between marriage problems arising from adultery and the adultery itself. The latter was to be referred to the 52 Council. It may be assumed that the term, "Council," referred to the higher criminal court constituted by the

Schoffenamt and Council.

At the same time, there is evidence that some adultery cases were heard by a lesser court, the "Court of Five"

cities — paticularly in Switzerland and southern Germany. Ulm, however, still beheaded adulterers as late as 1531. 51 We must rely upon the Council decree which estab­ lished the Marriage Court and assume that it, in fact, remained valid in practical application. 52 RB 13, 53v. See above, p. 102. 143 •i 5 3 (Punf Herron or Fun forger icht) . This tribunal, of five

Council members handled less serious offenses such as slander and injury. The procedures were summary and there 54 were no appeals from the court's decision.

Thus, the Marriage Court operated in conjunction with both the Court of Five and the superior criminal court. The procedure (except in cases of open adultery when the superior court had already intervened) was for marriage cases to first be brought before the Marriage Court and 55 then, where applicable, referred to the proper tribunal.

RV 726, 7 (February 5, 1526); RV 739, 15v (January 31, 1527); RV 740, lOv (February 16, 1527); RV 742, 14 (April 13, 1527); Ratschl. b. 5, 279 ff. (August 22, 1527). 54 See Strauss, Nuremberg, p. 64, and Greenfield, "Sumptuary Laws," p. 26-27 for a brief discussion of the competence of the Court of Five. For a more detailed treat­ ment, see Oellrich, "Straffprozess," pp. 23-40. 55 In August, 1527, a procedural difficulty appears to have arisen with respect to the competence of the Court of Five. It resulted from the fact that, constitutionally, there could be no appeals from the decision of this court. The suggestions offered by the jurisconsults in their attempt to solve this difficulty help clarify the boundary lines in the concurring jurisdictions of the three courts. The scholars suggested that the Court of Five not declare a final sentence in adultery cases. Rather, it was to first hear those facts which the judge of the Marriage Court had ascer­ tained pertaining to the case. After hearing these facts, the Court of Five, if it found adequate evidence against the accused, could have him held in the city prison. If he were 144

Decrees and PenaIties after 1527

The evidence indicates that between 1522 and 3.527, the most common forms of punishment for adultery were either a four-week imprisonment in a tower or expulsion 56 from the city.

After the declaration of the Marriage Laws of 1527, as might be expected, penalties for adultery remained much the same as they had been in the preceding forty years. Some of the examples included in the following survey may not appear to bear this out. They have been included because of certain interesting peculiarities or because they point up a tendency toward leniency among the Council's legal advisers.

In August, 1528, for example, Cordula Kerlin was banished from the city because she had had unchaste rela­ tions with a number of different men. The rationale behind this penalty exemplifies a motive which appeared frequently in the government's dealings with immorality, crime, and

found guilty, then the penalty would be imposed not by the Court of Five, but by the Council (Ratschl. b, 5, 279, August 22, 1527). The sentence of the Council theoretically could be appealed to the Imperial Chamber Court. 56 See Appendix A. 145 other disruptive activities: preservation of the good order and peace of the community. The jurists advised that since this woman appeared to be mentally deranged, a harsh physical punishment would not be proper. On the other hand, if she were given only a light penalty, others in the city might expect the same lenient treatment in the future.

Therefore, the advisers suggested that Kerlin be banished from the land as "quietly" as possible.

In another case, a man was convicted of incest with his wife's sister. The jurists again recommended expulsion.

This was a relatively mild punishment given the presence of a double crime: incest and adultery. According to imperial law the court would have been justified in executing the man. The advisers acknowledged this fact, but recommended amelioration of the penalty because the adulterer had young children at home. He was to be whipped and banished, with 58 his children, from the territory.

On June 12, 1529, the Council received the opinion of its legal advisers in the adultery case of a minor crafts-

57Ratschl. b. 6, 117.

^Ratschl. b. 6, 154 {January 14, 1529) and RV 765, ll-14v (January 9-14, 1529) 146 man named Hans Gall. Despite their own forbearance, the

jurists felt compelled to urge the Council to take more strenuous action against adulterers. A penalty more severe

than exile was required since adultery was becoming "so common" that it threatened to call down upon the city not only "great temporal evil" but also the “wrath of God."

The jurisconsults reminded the Council that if it were

inclined it could, by law, sentence adulterers to death.

'■* £ Yet, in the very next breath, they said that since this extreme punishment was no longer common, it should not be applied to so lowly a person as Hans Gail. Instead, the scholars advised that he be placed in a tower on bread and water and then expelled from the city.

In the three preceding instances, the jurists had once again indicated their ambivalence toward the use of the death sentence in adultery cases. This hesitancy may have been a result of an innate conservatism which seems to have

affected both the jurists and the Council. They appear to have been torn between their unwillingness to depart from traditional methods and the realization that the conven­ tional approach was having no effect.

59Ratschl. b. 6, 211 (June 12, 1529). 147

A case from 1530 indicates that the concern for moral rectitude was related, in part, to the Protestant movement.

The remarks of the jurisconsults show that they were con­ cerned about Nurnberg's reputation as well as about its moral welfare. In November, 1530, twenty-four "distin­ guished citizens" were sent to the city towers for having .... 60 had immoral relations with a woman named Anna Konigin.

This woman, with the knowledge and consent of her own husband, committed prostitution and adultery with these men.

The jurists who were to advise in this case expressed con­ sternation over the fact that Nurnberg, which was so famous for its being an "evangelical city," should punish such vices so lightly or not at all. In other cities and lands, they said, where the Gospel was not so freely preached, adulterers were given much stiffer penalties. The Council was urged to follow the example of Strassburg and other cities. As for Anna Konigin, she was to be imprisoned on bread and water and then expelled from the city. A few of the advisers also thought that her ears and nose ought

791, 8 (December 7, 1530). See also Knapp, Kriminalrecht, p. 226. The author cites this case as an example of the fact that leading citizens were not immune to the temptation of extramarital affairs. See above, p. 126. 148 to be "shortened.It is not known whether the Council took the jurists' advice. According to Knapp, Anna Konigin 62 was ordered to "carry the stone. "

In light of the frequent appeals for stricter measures, we might expect the Council to have finally passed very repressive laws against adultery. This apparently never happened. To be sure, two men were beheaded in 1529 and

1530 respectively. One had committed incest with his two sisters and the other, a schoolmaster, had molested two of

6 3 his young students. Yet, with common "garden-varlety adultery, the Council persisted in employing penalties established years before. In the most blatant cases the punishment was typically a short term of imprisonment. In

1534, for example, Hans German was convicted of committing adultery with his stepson's wife while his own wife was in the hospital. The jurisconsults agreed that this case was more serious than simple adultery and should be punished

^Ratschl. b. 7, 37v-40v (November 10-21, 1530) and RV 790, 19 (November 26, 1530). The jurists suggested also that Konigin's husband be whipped. 62 Knapp, Kriminalrecht, p. 226, citing the Malefiz- buch, 1531. £ 3 # fobelthaters Buch, pp. 22, 23. 149 with severity as an example to others. Nevertheless, they recommended that both persons be placed in the pillory and 64 thereafter punished "as other adulterers" were.

The examples of adxiltery cases offered in the preceding pages represent only a small portion of those indicated in the sources. In addition, we have dealt almost exclusively with instances of simple adultery, leaving untouched other types and instances of immoral behavior. Despite these limits, the examples presented are sufficient to indicate that the Nxirnberg Council's policy was relatively static in the years before and during the Reformation. According to

Roetzer, the number of Council decrees against immorality, adultery, and prostitution issued in the sixteenth and seventeeth centuries are innumerable. Yet, as late as 1640, the normal penalty for adultery was still a four-week incar- 65 ceration in a tower.

The Reformation appears to have had little effect in creating a noticeably more moral atmosphere in Nxirnberg.

The atmosphere of reform may have contributed to the large

64 Ratschl. b. 8, 75v (January 23, 1534) 65 Roetzer, "Delikte," p. 61, and Knapp, Kriminalrecht, p. 227, citing Ratschl. b. 49, 317 and 348. 150

number of mandates issued against immorality, but it is

also clear, says Roetzer, that "the principles of the Refor­ mation fell upon sterile soil with large portions of the

populace." Traveling prostitutes and "other twilight exis­

tences" continued to flood the city during the imperial diets and fairs and other festivals. Furthermore, the

inhabitants, themselves, did not desist from their unchaste activities.4.' -4.- 6 6

It is true that the ecclesiastical authority which had been, along with the civil government, the custodian of morals no longer held this position over Nurnberg. The

City Council had assumed an office not unlike that of a bishop of Nurnberg. It not only had responsibility for administration of church affairs, but it also had the final voice in the decisions of the Marriage Court. It is possible, then, that in this sense the Reformation brought a greater awareness of moral conditions in the city. The frequent admonitions of the theologians and jurists to the

Council regarding stringent repression of immorality, their references to God's law and the Gospel, and their concern

66 Roetzer, "Delikte," p. 61. 151

for Nurnberg's reputation as an "evangelical" city further suggest this awareness*

On the other hand, the heightened consciousness did not mean that the Council would take a radically new approach to problems of immoraltiy. This has been adequately proven by the foregoing study of decrees and cases from 1485 to 1535,

Kent Greenfield, in his study of sumptuary laws in

Nurnberg, found nothing to support either the contention that "the conscience of the city fathers was quickened by

Protestantism," or that they "instituted a housecleaning of community morals" because of the influence of Luther's

"stricter views" of public morality. In fact, Greenfield believes that Luther did not recommend more puritanical policies than were passed by men who were not inspired by his ideals. The author found that extant, fourteenth- century ordinances showed that "the Council had long felt

it to be its duty to restrain manners in just such particu­

lars as have been ascribed to an excess of Protestant zeal."

Laws which evinced concern for moral uprightness had

67 Greenfield, "Sumptuary Laws," p. 86. 152 repeatedly appeared for at least two centuries before the 68 Reformation.

What Greenfield found to be true in sumptuary legis­ lation, this study has proved to exist in another sphere of government regulations — the evangelical ideals did not result in radically new or markedly more stringent penalties for adultery.

68 Greenfield, "Sumptuary Laws," pp. 76-77. CHAPTER FIVE

THE ISSUES OF DIVORCE AND REMARRIAGE

IN REFORMATION NURNBERG

Although the Nurnberg City Council had espoused the cause of the Reformation within its territories, there were certain issues, raised in the course of the evangelical movement, which the Council viewed as a threat to the good order and reputation of the community. In such matters the evangelical theologians were not initially able to overcome the conservatism of the Council. Two of these issues were divorce and remarriage.

Unlike the Catholic Church which stressed the sacra­ mental nature and indissolubility of marriage, the Protestant doctrines presented the possibility of a full dissolution of a legal and consummated marriage — a full divorce in the sense of the Mosaic and Roman laws.

In the area of divorce the Nurnberg jurists and theo­ logians were not in full agreement — although there was less divergence here than in the question of remarriage.

153 154

The jurisconsults, who were trained in the Roman and canon

laws, knew of two types of divorce: the full dissolution

(or in canon law, the nullification) of the marriage and the temporary or permanent separation from bed and board.

Therefore, they recognized several grounds for "divorce.”

The jurists considered adultery to be a basis for a permanent or temporary separation of the spouses, but with no right of remarriage for either party. They offered the same solution in cases where one spouse threatened the life of the other or otherwise practiced excessive cruelty against his partner. Their purpose here was to allow an opportunity for a reconciliation. Hence, they relied upon the canon law, although they admitted that the Roman law 2 permitted a full divorce in these circumstances.

1 Seebass, psiander, p. 187. 2 See Ratschl. b. 26, 179-199: "Ratschlag und Bedenckhen der Herren Hochgelehrtten die Eheschaidtung unndt anderweitte verheurathung belangent" (November ?, 1525). See also "Gutachten der Juristen Nurnbergs uber die Ehesachen erstattet an Markgraf Georg zu Brandenburg" (October, 1531), ed. by Walther Kohler in Archiv ftir Refor- mationsgeschichte, XI (1914), 254. Hereafter cited as "Gutachten der Juristen," ARG, XI. See also "Gutachten der Juristen...uber 14 Artikel des Markgrafen Georg von Branden­ burg das Eherecht betreffend," StAN, S I. L. 10, Nr. 24, 16ff. 155

The jurists did recognize instances in which a full dissolution of the marriage was permitted: where one spouse, prior to the marriage, had been and remained incapable of completing the marital act; where one erred or was deceived about the status or identity of the person whom he had married; and where one person was forced into marriage against his will. From the characteristics of these grounds it is probable that here the jurists were speaking of a nullification in the canonical sense rather than a full divorce in the Roman sense.

Of a similar character was the instance in which one spouse would not consummate the marriage, would not proceed with the church ceremony (Trauung), and would not cohabit with the partner. In this case, the jurisconsults recom­ mended that, in order to avoid the greater troubles which might result from a forced union, the couple should be

"divorced."

As for the circumstance in which a willful desertion occurred after a marriage had been consummated and the couple had cohabited and perhaps procreated children, the jurists indicated that opinion was divided. Initially, they stated that "the canon as well as the civil law" did not wish the abandoned person to remarry in this case. On the 156 other hand, the jurists agreed that there were cogent arguments from the Scripture (X Cor. 7) for divorce and remarriage for the deserted spouse. Hence, they cautioned that if a party sued for divorce in such a case, the judge

ought to proceed with great discretion in order to make certain that the remaining person had not caused or encouraged the desertion. The deserted one was to prove on oath that the spouse had not left with his consent and that his whereabouts were unknown.

Where a man was called away from his wife for business or other reasons and departed with her consent, then, said the jurists, prolonged absence was no ground for divorce.

The husband might be "ill or imprisoned or in battle with the Emperor's armies against the Turks." According to

Roman law, before a wife could remarry, she had to show proof through honest and reliable witnesses that her 3 husband was dead.

One may conclude from these written opinions from 1525 and 1531 that the Nurnberg jurists readily acknowledged several grounds for "divorce," but the latter more often

3 "Gutachten der Juristen," ARG, XI, 254-257: Articles 9-12. 157 meant separation from bed and board or a nullification

than a regular divorce with the right of remarriage.

The Position of the Nurnberg Theologians

on Divorce and Remarriage

From the evangelical standpoint, divorce meant only one thing: full dissolution of the marriage, after which the innocent party could remarry. Naturally, in this matter, the clergy relied on the Scripture, which they

initially interpreted as meaning that only death or adultery 4 could sever the marriage bonds. The basis for their posi­ tion, the theologians found in the Gospels and First

Corinthians. In Matthew 19: 8-9, Christ said to the

Pharisees: "Moses permitted you to divorce your wives because of the hardness of your hearts, I say to you that whoever divorces his wife for any cause other than adultery, and marries another, he commits adultery."

From this, the theologians concluded that no grounds other than adultery permitted full dissolution of the

4 If Seebass, Osiander. p. 188. Cf. Kohler, "Eherecht,M p. 299. 158

marriage.'* Yet, they extended the definition of adultery

to comprehend another related circumstance. Referring to

Paul's doctrine concerning the freedom of a Christian to

remarry if his nonbelieving spouse chose to leave him, the

theologians concluded that desertion by anyone (Christian

or nonbeliever) was a ground for divorce for the abandoned

person. They argued that

such malicious desertion is adultery. It is written of marriage that it means indissoluble cohabitation. Therefore, whoever deserts his spouse (unless because of unavoidable necessity and with both consenting) and will not maritally cohabit, commits adultery, ®

In a matter related to desertion, the clergy initially

indicated (in conformity with Luther) that they might also

Ratschl. b. 26, 173v (November 14, 1525): "Ratschlag und Bedencken der Herren Predicanten, die Eheschaidung unndt anderweitte verheurathung...betreffendt. " See also "Gutachten der...Theologen Nurnbergs uber die Ehesachen erstattet an Markgraf Georg zu Brandenburg, ed. by Walther Kohler in ARG, XI, 265: Article 9. Hereafter cited as "Gutachten der Theologen," ARG, XI.

"Gutachten der Theologen," ARG, XI, 267. Compare Ratschl. b. 26, 178v: "Doubtless it is also lawful, when one spouse (who is nominally a Christian) deserts the other, for the deserted one to remarry (for between believers and nonbelievers a marriage is as valid as between two believers). If, then, no one may leave his spouse and remarry except because of adultery, then Paul must have considered deser­ tion to be adultery. otherwise, he would not have allowed the deserted one to remarry." 159 consider the refusal to fulfill the marital needs of one's spouse as grounds for divorce. Later, however, they stated that where one was deprived of his marital rights through the illness of a partner, he could only wait patiently and 7 ask God for the gift of continence.

In a written opinion from 1531, the theologians also named several instances in which a marriage ought to be declared null and void — in other words, a legal recogni­ tion that the marriage never existed in the first place.

Those circumstances included the following: where one spouse either had been born or had been made "unfit for marriage" — impotent; where one was deceived about the identity of his spouse (as occurred between Jacob and Leah); where one discovered that his wife was not a virgin; and 8 when a marriage was forced upon a person against his wishes.

Ratschl. b. 26, 178. In 1525, they stated that "when one spouse robs the other of his marital rights through desertion or other means for so long that the other spouse is in danger of commiting adultery...," then the latter should have the right of divorce and remarriage. Compare, on the other hand, their remarks in 1532 in the case of Peter Schnitzer from Ulm. See below, pp. 182-83. The key difference between these two situations was the fact of obstinate or willful as opposed to unintentional failure to fulfill the obligations.

Q "Gutachten der Theologen," ARG, XI, 266: Article 10. 160

On the other hand, in circumstances where "wrath, animosity, sickness, or danger (as when one attempts to kill or injure the other)" were present in a marriage, the theo­

logians did not believe a divorce was permissable. Their stand was based upon Christ's command in Matthew 19 as well as upon I Cor, 7: 10-11 in which Paul said:

To the married I give this command, which is not mine but the Lord's: a wife must not separate herself from her husband: if she does she must either remain unmarried or be reconciled to her husband; and the husband must not divorce his wife.

Thus, the clergy tacitly recognized the instrument of separation from bed and board in such cases.

In their interpretation of divorce grounds, the

Nurnberg theologians had proved to be relatively close to

Luther's doctrines. The differences which existed may have been rather a matter of emphasis than substance. Luther stressed that even in instances of adultery, and denial of marital rights, the Christian should be ruled by the law of love and forgiveness. He should seek to be reconciled to 10 his recalcitrant spouse wherever possible,

g "Gutachten der Theologen," ARG, XI, 266* Article 10.

*^See the discussion of Luther's doctrines on divorce, above, pp. 67-72. 161

The Nurnberg City Council1s Attitude

toward Divorce

Although the Nurnberg theologians recognized very few grounds to be valid for a full dissolution of a legally instituted marriage,^ the City Council was averse to grant­ ing divorces for any reason. According to Knapp, many a wife preferred a period in the prison or tower to continued 12 subjection to a brutal or cruel husband. Yet, the Council repeatedly ordered such wives to return to their husbands although they may have given cogent reasons (such as mis­ treatment or "disorderly behavior") for leaving them. That such forced reconciliations may have violated the true sense of marriage seems not to have troubled the Council.

For the sake of the common good and peace, it believed it was better to preserve existing marriages than to rashly

11 Compare also the Schwabach Visitation Articles of 1528 and the Brandenburg-Nxirnberg Church Ordinance of 1533 which recognized only adultery as a divorce ground. Sehling, ed., Kirchenordnungen, Vol. XI, Part I, Section III 2: Die Ndrnberger 23 Lehrartikel, 1528, p. 132: Article 18, Nr. 7; and Die brandenburgisch-nurnbergische Kirchen- ordnung, 1533, p. 200: "von eeleuten, wie man die einleiten solle."

Knapp, Kriminalrecht, p. 22 3, citing Ratsverlasse from April 16, 1533 and February 28, 1534. 162 decree divorces. 13

Many are the instances recorded in the Council minutes in which a couple was forced to cohabit under threat of punishment for refusal. In 1524, Katherina Ochssin brought suit before the Bamberg ecclesiastical court for a separa­ tion from her churlish and cruel husband. The Council threatened her with exile unless she continued to cohabit with him until the ecclesiastical court had settled the 14 matter.

In August, 1526, a woman was put into prison after she brought suit against her husband for being "too ardent with 15 her in bed." On that same date (August 22, 1526) the

Council passed the following decree: * Where two married people will not live peaceably together, the Court shall make an investigation as to how the situation may be improved. And whoever will not abide by the legal decision...

13 Jegel, "Hochzeitsbrauch und Eherecht," pp. 266-67.

14RB 12, 237 (April 30, 1524); RB 12, 249 (June, 1524); RV 704, 18v (June 16, 1524); RV 705, 3v (June 26, 1524); RV 705, 5v (June 28, 1524); RV 705, 16 July 9, 1524); RV 706, 16v (August 12, 1524).

*^RV 733, 38v (August 22, 1526): "die frauen die sich beclagt Ir man sei Ir zu rosch Im bett ins loch fiirn zulassen." 163

1 / will be subject to stringent penalties.

Many examples could be cited showing the extent to which the Council implemented this decree. Three will suffice. In April, 1534, the Council issued the following order: "Say to Hanns Schober and his wife that if they do not return to each other today and cohabit as a married couple, they will be banished from the city.” One month later, the Council ordered another woman either to return 17 to her husband before nightfall or else leave the city.

In June, 1534, Ursula Fenntzlin was called before the

Council and told that it could not find, in her appeal to the Court, sufficient cause why she should not rightly cohabit with her husband. Therefore, it ordered her to return and live with him "as is proper for a wife to do.

Right of Remarriage for Divorced Persons

One of the problem areas in marriage law on which the

Nurnberg jurists and theologians could never reach a

16RV 733, 38v

17RV 835, 22 (April 27, 1534) and RV 836, 23 (May 30, 1534)

18RV 837, 22v (June 26, 1534) 164 consensus dealt with the right of remarriage for divorced

persons — chiefly remarriage for the innocent party in divorces resulting from the adultery of the other spouse.

The jurists' opinions, which seem to have been close to the canon doctrines, clashed with the reformatory disposition of the clergy. The Council sided with its jurisconsults in

this matter so that the clergy never had their way in a 19 reformation of the law.

Angered at the government's conservatism, Osiander was the most vehement champion of the evangelical cause. The

reformed clergy, following Luther's lead, wanted no restric­

tions on marriage which God had not ordained. Such restric­

tions which were not based clearly on Scripture appeared to 20 them to be a return to papacy.

As early as 1524, three prominent reform-minded theo- 21 logians (Schleupner, osiander, and Venatorius) declared

the right of the innocent, divorced person to remarry.

19 Seebass, Osiander, p. 187. 20 Roth, Reformat ion, p. 213. 21 Dominicus Schleupner, preacher at St. Sebald; Andreas Osiander, preacher at St. Lorenz; and Thomas Gechauf (Venatorius) at the Hospital Church. 165

Citing Matthew 19: 9, they wrote:

One sees clearly that marriage can be dissolved for no reason other than adultery. The innocent person, however, may remarry, for Christ makes an exception. It is not adultery when this person remarries.^

They also cited Proverbs 18 in which it was said that one can not force a person to maintain an adulterous spouse for 23 "whoever keeps an adulteress is a fool." II ( The Nurnberg clergy had another opportunity to address themselves to this problem during the Religious Colloquy of

March, 1525. The Twelfth Article in the agenda of articles to be debated posed the question: "Whether in adultery cases, the innocent party may remarry during the lifetime of the guilty spouse." Speaking for the Catholic side was a representative of the Franciscan friars. Not surprisingly, he rejected this right of remarriage. His reasoning was based on I Cor. 7: 10-11 and Matthew 5: 31-32 and he argued that nowhere in Scripture did it say that the innocent person could remarry. If this was permitted then many

22 NKirchA, Fen. IV, 906, 2*: "Ein Ratschlag aus der heyligen Schrifft...." by Dominicus Schleupner, Andreas Osiander, and Thomas Venatorius (1524), Section III, Article 12: "Ob man die Eeleut scheyden mog." Hereafter cited as "Ein Ratschlag aus der heyligen Schrifft...." 23_, . . Ibid. 166 marriages would be destroyed. The Catholic spokesman also suggested that if the logic of the evangelical clergy were carried to its conclusion, the guilty spouse would also have to be allowed to remarry, for often the "innocent" person was the cause of his spouse's adultery. On the other hand, said the Catholics, if an unbelieving spouse

leaves his Christian partner then the latter should not be 24 bound to remain unmarried.

Representing the reformed clergy, Osiander spoke to the issue in Article Twelve. His argument was brief and to the point. Christ {in Matthew 19: 9) had prohibited all divorce and remarriage with one exception: when one spouse committed adultery, the innocent person was not guilty of adultery if he or she divorced that spouse and married 25 another.

Georg Andreas Will, ed., Acta Colloquii Reliqionis Causa Norimbergae A. C. MDXXV: "Handlung Eynes Ersamen Weysen Rats zu Nurnberg mit iren Predicantten newlich geschehen etc., MD XXV," Article 12: Antwort der Barfusser, p. 50. Hereafter cited as Will, Acta Colloquii. See also Pfeiffer, Quellen, pp. 105-50: "Protokolle des Religions- gesprSch," especially pp. 145-50. See also Pfeiffer, Quellen, Publizistik: "Handlung eynes ersamen weysen rats," Publ. C XV, CIV/D, pp. 458-60. 25 Will, Acta Colloquii, p. 51, Article 12: Antwort Osiander. The theologians frequently pointed out that in 167

Several months later the evangelical clergy gave a much more comprehensive series of arguments as they further sought to substantiate this right of remarriage. They examined not only the Scriptures, but also imperial law and 26 canon law.

As for canon law, the clergy held that it had debated the problem but had determined nothing officially. Neverthe­ less, from long practice, the Catholic Church had estab­ lished that one had no right to remarry. This the reformers labelled as a "devils doctrine" for it was contrary to

Christ's teachings and those of St. Paul.

In the Roman law, said the theologians, not only were divorced persons permitted to remarry, but several grounds were recognized for such divorces.

As might be expected, the Nurnberg reformers placed the greatest weight in their defense of remarriage on scriptural proofs. They first cited the law of Moses (Deuteronomy 24)

Mosaic law, the adulterer was executed. Whether or not the government chose to execute that person was irrelevant. As Luther had said, the adulterer became as if spiritually dead because he had cut himself off from God and his spouse.

Seebass, Osiander, p. 188. What follows is from the Theologians' Ratschlag of November 14, 1525 (Ratschl. b. 26, 167-179). 168

which stated that when anyone took a wife and was not

pleased with her, he should write her a "bill of divorce."

After this she could become another's wife. Next, the

clergy quoted the familiar Matthew 5: 31 and 19: 3-13,

concluding that "one sees clc.irly that Christ spoke of no

other divorce than that after which one may remarry if he wishes." Yet, continued the l I mologians, if anyone divorced his wife for any reason whatsoever other than adultery and

they both remarried, then they both were guilty of adultery.

The man who took the divorced woman also committed adultery.

The exception to this rule wan divorce resulting from adul­

tery, for, by committing this :tin, the one spouse could no

longer be "one flesh" with the other. "As Paul (I Cor. 6:

16) says: 'whoever has relations with a prostitute becomes

one flesh with her.'" That man can never again be one

flesh with his wife; the first union must be dissolved.

The theologians noted further that Christ's command concerning divorce did not necousarily apply to everyone.

If one divorced an adulteress ,ind wished to remain unmarried and had been given the gift ot continence by God, then this was a blessing. If, however, the innocent spouse was in danger of committing adultery himself and thereby falling

into damnation, then he ought to marry again. "For as Paul 169 says, 'it is better to marry than to burn.'"

As previously indicated, the theologians concluded from

I Cor. 7: 12-16 that when one spouse deserted the other, the abandoned partner was free to marry again. This right of remarriage, said the clergy, was not based upon the deserter's nonbelief, but upon the fact that he had aban­ doned his spouse. By robbing a person of his marital rights by desertion or other means, the guilty one endangered the innocent spouse's soul. A Chrintian who deserted his spouse , 27 was a Christian in name only. Desertion was the same as adultery and therefore the abandoned spouse should not be 28 bound to remain unmarried.

Despite this lengthy work in defense of the right of remarriage, the theologians could not win over the jurists and Council to their point of vii'w.

At approximately the same t ime, the jurisconsults also submitted their brief on divorce and remarriage to the

27The theologians also ciLed I Tim. 5: 8: ’"When anyone does not care for his family, he has abandoned the faith and is worse than an unbeliever' since a man cannot treat his wife worse than to abandon her, leaving her not only in bodily danger, but also in danger to her soul." 23 Ratschl. b. 26, 167v-17‘>: "Ratschlag und Bedencken der Herren Predicanten die Bhosch.i idung, Auch die straff dess Ehebruchs betreffendt (November 14, 1525). 170

Council. They sought to prove in seven points that remar­

riage was not permitted by Scripture, the Church Fathers,

"ecclesiastical" (canon) law, the Church Councils, or 29 contemporary scholars or theologians.

The jurists argued that in Mosaic law adulterers were

stoned to death. There was no divorce. Therefore, it

could not be said that Mosaic law permitted the innocent

party to remarry after a divorce resulting from adultery.

In further scriptural proofs, the jurists chose to

stress Matthew 5: 32, Mark 10: 3-10, and Luke 16: 18 (rather

than Matthew 19: 9) in which, they said, Christ made no

exception for innocent divorced persons. These passages

could have only one interpretation; they permitted a man

to divorce his wife if she committed adultery. Nowhere in

the words or sense of Scripture was he permitted to remarry.

The jurisconsults also perceived I Cor. 7 in a

different light than had the evangelical clergy. For the

former, the true sense of Paul's words was that the wife

should not leave her husband for any reason. If she did she

The following remarks are based upon the jurists' brief in Ratschl. b. 26, 179-199: "Ratschlag und Bedenckhen der Herren Hochgelehrtten die Eheschaidtung unndt ander- weitte verheurathung belangent" (November ?, 1525). 171

was to remain unmarried or else be reconciled again to him.

Paul made no exception for adultery. Hence, the jurists

concluded:

From this it appears that divorce on account of adultery is not extended farther than from bed and board, and it is nothing else than a separation of any association until a reconciliation of the separated persons o c c u r s . ^0

Only death severed marriage bonds to the extent that a

second marriage could take place.

Next, the jurisconsults cited the canon law. Church

Councils, and such early Fathers as Augustine, Ambrose, and

Origin to indicate that the Catholic Church had not per­

mitted remarriage of divorced persons.

The jurists' fifth point was that "the teachers" of

their own time were in dispute over the issue of remarriage.

They admitted that Luther (Vom ehelichen Leben, 1522) inter­

preted Matthew 19: 9 and Proverbs 18 as permitting the

innocent, divorced person to remarry. Despite this, the

jurists declared that Luther (on I Cor. 7), Melanchthon

(on Mark 5), Pomeranus (on Mark 10 and Luke 16), and

Agricola (on Luke) gave no proofs from the Scriptures other

Here, the jurists drew their conclusions from Paul in Romans 7. than to the effect that adultery ought to be punished with death.

Finally, the jurisconsults concluded their advice with the opinion that since Christ had not permitted remarriage of innocent, divorced persons, it was fitting for a

Christian government to forbid it under threat of a physical penalty. To permit remarriage would be "more troublesome than to forbid it" because out of such freedom

"might arise destruction of the commom peace and order...."

Despite the opposing views of the jurists and Council the theologians continued to support the right to remarry.

In February, 1526, Osiander ("Advice on Ceremonies") again stressed to the Council that divorce meant freedom for the innocent party to remarry. Yet, in that same year two cases occurred which indicated that the Council remained of 32 a contrary opinion.

31 Ratschl. b. 26, 179-199: "Ratschlag und Bedenckhen der Herren Hochgelehrtten die Eheschaidtung unndt anderwoitte verheurathung belangent" (November ?, 1525) . 32 Seebass, Osiander, p. 188; and NKirchA, Fen, IV, 906, 2* : "Gutachten uber die Zereraonien" (February 5, 1526), p. 69v. 173

The City Council1s Attitude toward

Divorce and Remarriage

In March, 1526, a couple was brought to trial because the man was suspected of having murdered his first wife in order to marry the second. The Council, wishing to have a fundamental decision in this issue for governing future cases, requested the opinion of its jurists and theologians.

It wanted advice on how it could punish and prevent the marriage of persons who had already had relations with each 33 other during the lifetime of the first partner.

The theologians declared that according to "ecclesias­ tical" law where two persons, during the lifetime of their spouses, had made an agreement to marry and/or where they had had relations, they could not marry each other after the death of the first spouse. Furthermore, according to

Old Testament law such adultery was punished with death.

Yet in the "new divine law" this death penalty was abolished.

Thus, the theologians concluded that since this couple had already been joined together "according to divine ordinance" by the church, they should be allowed to remain together as

^■*RV 728, 3 and RV 728, 7 as interpreted by Seebass, Os iander, p. 189. 174

a married couple. Of course, they should still be punished

as adulterers.

The jurists, in their examination of the evidence,

determined that the husband had not been guilty of the

death of his first wife. In light of this circumstance,

they came to the same conclusion as the theologians. The 34 couple should be punished but not separated.

In November, 1526, the Council asked its legal counsel­

lors and theologians for advice in the case of a divorced woman who had remarried although her ex-spouse still lived.

The Council wished to know what to do when it had ordered

the divorced person to remain unmarried, but he or she

remarried despite this prohibition.

The theologians responded by saying that the innocent,

divorced person was not obliged to remain unmarried and

that the Council had no authority to forbid that person to

remarry. It was only the grace of God which permitted a

person to live in an unmarried state. Not only was it not

a punishable act to marry again, it was better that such

persons do so than be tempted to commit adultery.

34Ratschl. b. 5, 121-122 (March 24, 1526) 175

The theologians admitted that several of the early

Church Fathers such as Ambrose and Augustine were opposed to such remarriage. Nevertheless, they admonished the

Council not to hold the teachings of these men in higher regard than the Holy Scripture.

In this same case (November 8, 1526) the jurisconsults, as expected, expressed the opinion that remarriage of divorced persons could not be permitted. Furthermore, one of the advisers, Dr. Hepstein, expressed the view that if such remarriages were allowed, many more marriages in 35 Nurnberg would be dissolved.

The Prohibition of Remarriage in Nurnberg

The Council had not been swayed by the arguments of the city's clergy, for on December 12, 1526, it issued a mandate which prohibited at once both bigamy and remarriage of divorced persons. The Council had found, it said, that many of its citizens and subjects were wantonly leaving their spouses and remarrying, contrary to God's word and the

35 Ratschl. b. 5, 187-190v: "Ratschlag in Sachen die Rossen ehe betreffend" (November 8 ; 1526) by Osiander, Schleupner, Venatorius, and the Council's jurisconsults, Doctors Protzer, Gugel, Hepstein, Kotzler, and Mullner, 176

law. In the process they were "destroying brotherly unity"

and using Scripture as a cloak to hide their vices.

The Council could in no way permit such offenses and

godless abuse in its territory. Therefore, it decreed:

Henceforth, no one in this city or other of the Council's territories — be they citizens, inhabi­ tants, or subjects, male or female — who is married or betrothed is to leave his spouse or betrothed and take another during that person's lifetime without previous verdict and permission of the Court or government.

If any persons violated this law, they were to be subject 36 to penalties affecting their "life or limb."

In February, 1527, the theologians reiterated their

position on the right of innocent divorced persons to

remarry. They warned the Council that they (the clergy)

could not, in good conscience, keep silent about the freedom which God had granted them. "It is not only a civil ordi­

nance," they said, "but concerns much more the soul's 37 salvation."

36 RB 13, 2llv-212 (December 12, 1526): Council decree prohibiting remarriage during the life of one's first spouse. This decree was a result of the Seulich-Hardarin case (December 12, 1526, Ratschl. b. 5, 207) in which a couple had been betrothed to each other, but had broken their betrothal vows and each had married someone else. See below, p. 193.

"^Ratschl. b. 26, 210—213v (February 9, 1526) 177

Despite this effort of the theologians, the Council, in April, 1527, reaffirmed the law of the previous December which forbade any remarriages during the life of the first spouse. The Council requested that the clergy tell all those divorced persons who wanted to remarry that if they could not be chaste in an unwedded state then they must 38 reconcile themselves with their former spouse. The government assured its citizens that its intent was not to

"trouble" anyone in matters of conscience. Yet, since this right of remarriage was the custom "neither in the German

Empire nor among other Christian states," the Council did not wish to permit it in Nurnberg. This liberty would tend to produce "scandals and criminal wantonness" and would

"destroy the civil government, order, and unity." Therefore, the Council reiterated its law against remarriage and 39 threatened violators with exile.

Despite these Council prohibitions, the theologians were telling those parishioners who came to them for advice that the Scripture did not forbid remarriage. Fully aware

38 RV 742, 2v (April 5, 1527).

^ R B 13, 264-265v: Decretum in Consilio, April 8, 1527. 178 of this, the Council called all the provosts and preachers together. It explained to them that it did not wish to hinder the clergy from telling people who sought their advice what the Holy Scripture taught in such cases. Since the Council's law against remarriage would remain in force, however, it would be better if the divorced persons would have patience. In this way public disorder and scandal would be avoided and a chance for future reconciliation between the estranged spouses preserved.„ 4 0

At the same time, the Council ordered that the Marriage

Court was to dissuade therefrom those who sought a divorce and to urge them instead to make a reconciliation. In addition, the Court should report all such cases to the

Council so that, if need be, it could employ penalties against the obstreperous persons. 4 1

The Margrave's Fourteen Articles

on Marriage Matters

We have further evidence that the Council and clergy continued to be at odds over the question of divorce and

40RB 13, 265V-266.

41RB 13, 266 (April 8, 1527). 179

remarriage throughout the 1530's. The opinions of the

jurists and theologians written in response to the Margrave 42 of Brandenburg's "Fourteen Articles on Marriage Matters"

reflect this divergency.

The remarks of the jurists (from October 7, 1531), however, exhibit a softening of their earlier stand against

remarriage. They admitted that this question had been and was still highly disputed among legal scholars and theo­

logians. While the "ecclesiastical" law and many of the

Church Fathers were opposed to it, it was also true that

"another sector of the jurists" felt that it was "completely unjust for the innocent to suffer the prejudice caused by the adulterous person." The law of Moses and Christ's words

in Matthew 19 had been interpreted by some to mean that

remarriage was permitted. The Nurnberg jurisconsults also agreed that the imperial law, in that and all cases in which a marriage was dissolved for a good reason, permitted 43 the innocent one to remarry after a year's time.

42 To help solve the problems which arose in the admini­ stration of marriage law in Brandenburg, the Margrave had fourteen articles drawn up (1531) dealing with the court, marriage of minors, divorce, and marriage of preachers.

^"Gutachten der Juristen, " ARG, XI, 253-54: Article 9. 180

The theologians' response to the Margrave’s Articles was, as expected, by and large a repetition of earlier

remarks supporting the right of innocent persons to remarry.

However, they added qualifications which indicated that

they were trying to some extent to abide by the Council's wishes. They cautioned that the Marriage Court judges

ought to grant divorces only where the adultery had been

fully proven.

Furthermore, the innocent person should not be permitted to marry immediately after the divorce. Instead, a certain amount of time should pass in the hope that a reconciliation might be made with the guilty one and also to avoid evil at pearances as if the innocent one might have given the guilty cause to commit adultery so that he might be divorced and remarried.^

Practical Application of the Laws

Forbidding Remarriage

Three examples of marriage cases from the 1520’s and

1530's will serve to indicate that the Nurnberg Council maintained and enforced its policy of forbidding remarriage

for divorced persons throughout the early Reformation period.

44 "Gutachten der Juristen," ARG, XI, 265-66. 181

In July, 1528, the Council heard a case in which Marx

from Gangen had unwittingly married a woman who had been

divorced by her first husband because of her adultery. The

jurisconsults were asked for their opinion. They admitted

that Marx had good reason to believe his marriage would be

valid. The woman's first husband had already remarried.

Furthermore, the woman had produced a note in which a local

administrative official (Schaffner) allegedly gave permis­

sion for the marriage. Therefore, the jurists found no

cause for punishing Marx. On the other hand, the law did

not permit such a faithless woman to remarry; the jurists

advised that the two be separated. If the Council wished, 45 it could have Marx removed from its territory.

A more interesting case occurred in 1532 in which the city of Ulm once again requested advice of the Nflrnberg theologians and jurists. Peter Schnitzer of Ulm asked that he be allowed to remarry because his wife had been so mentally deranged that she had been kept in chains for seventeen years.

We might have expected that the Nurnberg theologians would sanction Schnitzer's remarriage. That they did not,

45 Ratschl. b. 6, lOOv (July 1, 1528). 182 however, was consistent with their position from the begin­ ning: only death or adultery could dissolve marriage bonds in such a way as to allow remarriage of the single person.

Their remarks indicate that in 1532 the clergy had not yet recognized failure to fulfill the marital needs of one's spouse as grounds for divorce.

The theologians admitted that papal law at times allowed dispensations in such cases, that the gift of con­ tinence had not been granted to everyone, and that such patriarchs as Abraham had had more than one wife. Neverthe­ less, they concluded that according to New Testament law

(I Cor. 7) no one may leave his spouse and marry another during the life of the first partner. The Scriptures did not say that three shall become one flesh.

In Schnitzer*s case neither death nor adultery were present as factors which would dissolve the marriage.

Married people, said the clergy, have vowed not to abandon each other in the face of affliction and adversity:

If God the Almighty imposes such a penalty upon one so that his spouse cannot fulfill the marital duties then he shall ask God for the gift of patience and abstinence and thus: bear the sorrow. For Scripture and divine law do not allow one to receive help from another spouse so long as 183 46 the first lives.

The jurists, too, agreed that Schnitzer could not

remarry. Although Roman and papal laws permitted

dissolution of a marriage for several grounds, Schnitzer's 47 case was not included among them.

In the final case to be cited, a woman who had pre­

viously been granted a divorce from her adulterous husband by the Marriage Court petitioned the Council (1535) for

the right to remarry. The city fathers replied that they would not prevent her from marrying, but since the law in

Nurnberg forbade such remarriage, the Council could not 48 permit her to live in its territory.

Grounds for Divorce and Remarriage ,

1564 and After

In the course of the development of Nurnberg marriage

law the grounds for divorce were slightly extended in scope.

With total divorce, the sentence was determined by the

Marriage Court, but was still submitted to the City Council

46 Ratschl. b. 7, 173-175 (April 13, 1532).

47Ibid., p. 175. 48 RB 17, 45 (May 14, 1535). 184 49 for ratification before it was pronounced.

In the revised civil code of 1564, the guiding princi­ ple remained that marriage, by the intent of God, was meant to be indissoluble. Therefore few grounds were recognized for divorce and separation. Chiefly, the bases for divorce were adultery and willful or malicious desertion. In order to prevent unwarranted divorces, however, there were certain precautions taken in all cases of desertion. The abandoned party must vow on oath that he or she had no knowledge of the whereabouts of the deserter. The plaintiff had also to prove that his own life had been blameless during the period 50 of abandonment.

Willful desertion was extended (in conformity with

Luther's doctrine) to include obstinate and unjust refusal by one spouse to fulfill his marital obligations to the other. By this means, it was felt, the marital fidelity had

Petsch, Kirchenrecht, p. 46 citing Ratsverlasse from November, 1579 and March, 1586. See also Michel, Auflosung der Ehe, p. 15. 50 Petsch, Kirchenrecht, p. 46. See also Bertha Kipf- muller, Die Frau im Rechte der Freien Reichsstadt Nurnberg, Eine rechtsgeschichtliche Darlegung auf grund der verneuer- ten Reformation des Jahres 1564 (Dillingen a. Donau, 1929), p. 22. Hereafter cited as Kipfmuller, Die Frau im Rechte. See also Michel, Auflftsung der Ehe, pp. 17-18. 185 been violated. There was, however, little agreement as to 51 what constituted such a refusal.

According to the Council decree of September 22, 1579,

the innocent party, in divorce cases resulting from adul­

tery or desertion, was allowed to remarry. This occurred only after the Marriage Court submitted the decision to the Council for its approval. Of course, the guilty party 52 was not permitted to remarry.

The Nurnberg code also suggested the possibility of a dissolution of a marriage as a result of impotence. This meant impotentia antecedans et perpetua; that is, after the marriage it became clear that one spouse was already

(although unknown to the other spouse) completely impotent prior to the marriage and the condition could not be recti­ fied by "natural means." Further, the impotence had to be proven by means of medical examination. The nonimpotent spouse could either "be patient" or else bring suit. In the latter case, the result was not a divorce, but a recog­ nition that the marriage had been null and void from the

51 Michel, Aufl5sung der Ehe, p. 18. 52 „ Petsch, Kirchenrecht, p. 46 and Michel, Auflosunq der Ehe, p. 18. 186 , . 53 beginning.

Leonhard Christoph Lahner in his commentary on the

Nurnberg code of 1564 also listed as grounds for nullifica­ tion of a marriage the instance in which the consent of one spouse had been obtained by means of force or deceit and when the marriage was concluded in contravention of the laws 54 of consanguinity and affinity.

There were no grounds other than those mentioned above which were the basis for a full dissolution of the marriage.

In circumstances where total destruction of the marital relationship was threatened — as with cruelty, persecution, or "intolerable behavior," and sometimes in caseu of refusal of marital duties — a separatio quoad thorum et mensam was 55 the court's solution.

Developments in Nurnberg marriage law with respect to

5 3 h Kipfmuller, Die Frau im Rechte, pp. 23-24. 54 Leonhard Christoph Lahner, Einleitunq in die burger- 1ichen Rechte, besonders die Nurnbergische (Frankfurt and Leipzig, 1785), p. 49. See also Lahner, Der heil. Romischen Reichs Freyen Stadt Nurnberg verneuerte Reformation de Anno 1564 samt,..Additiona1 Decreten...J-ii einen tabellarischen Entwurf (Nurnberg, 1770), Titl. XXVIII, Tab. XXXII.

^Michel, Auflosunq der Ehe, pp. 20-21, and Kipfmuller, Die Frau im Rechte, p. 23. 187

divorce and remarriage may be summarized as follows. The

jurists in the early Reformation period still viewed divorce

chiefly as a separation from bed and board or a nullifica­

tion. The Nurnberg theologians also accepted nullification

and separation as instruments for solving marital diffi­

culties. The grounds which the theologians and jurists

recognized for separation and nullification were similar.

The clergy, however, made one major exception: in cases of

adultery and willful desertion, the solution, if the inno­

cent party wished it, must be a full divorce. The marriage

was to be completely dissolved and the innocent person

legally and morally free to remarry.

On this issue all agreement between the theologians,

jurists, and Council disintegrated. The jurisconsults held

to the canon principles. The Council, not wishing to upset

the status quo or the peace and order of the community,

followed the line of the jurists. It had two further

concerns: Nurnberg1s reputation as a city of strict morals

(particularly as it was now evangelical) and its political

^ eg position vis-a-vis the Emperor who was a strict Catholic.

56 It xs helpful, here, if one recalls that in this same period, Henry VIII of England was openly seeking a means to have his marriage with Catherine (Charles V's aunt) nullified so that he could marry another. Indeed, Thomas Thus, for many years the Council restricted divorce and forbade remarriage. It was not until the second half of the sixteenth century that the Nurnberg authorities eased these restrictions so that the evangelical viewpoint finally prevailed.

Cranmer was in Nurnberg in 1532 and had won Osiander over to support of the King's wishes. See Wilhelm Mtiller, Andreas Osiander, Leben und augewahlte Schriften, Part V Leben und ausqewahlte Schr iften der Vater und Begrunder der luterischen Kirche (Elberfeld, 1870), pp. 154-56. Hereafter cited as Moller, Osiander. CHAPTER SIX

CLANDESTINE MARRIAGES — THE NEED FOR

A NEW SOLUTION TO AN OLD PROBLEM

The difficulties created by the confusing betrothal laws (found in both Catholic and evangelical doctrines) have been fully discussed in preceding chapters. One problem, in particular, which plagued authorities in Nurnberg and elsewhere was that of irregularly concluded and "secret" marriages.

This study seeks to investigate to what extent, if at all, the Reformation influenced the City Council's solutions to the problem of clandestine and/or illegitimate or unre­ cognized marriages.

Very soon after the Religious Colloquy of March, 1525 and before it had established the Marriage Court, the

Council took steps to prevent the occurrence of marriages which were not legally or ecclesiastically sanctioned. It ordered that the administrators of both parish churches

(St. Lorenz and St. Sebald) begin keeping a record (Ehebuch)

189 190 of all "brides and bridegrooms" in their parishes.1 The purpose for this was made clear when the Council, in a subsequent description (1527) of Nurnberg's marriage prac­ tices, explained that the records were kept to facilitate 2 discovery of persons who were cohabiting illegally. The establishment of "Marriage Books" or Trauregister seems to have been an innovation directly related to the evangelical movement in Nurnberg and the Council's assumption of respon­ sibility for marriage concerns.

The Council's battle against irregular conjugal unions continued through out the 1520's and 1530‘s. In 1527, it ordered its officers (Hauptmanner and Viertelmeister) to

RV 723, 13v,(November 21, 1525): "Dem Schaffer zu Sant Lorentzen lassen ansagen, das er in seine kirchen alhie praut und preutigam mit iren namen und zunamen, lass ein- schreiben wie der gebrauch zu Sant Sebaldt ist." Cf. to similar developments in such cities as Ulm, Biberach, and Kempten. See Kohler, "Eherecht," p. 292. 2 See "Verzaichnus der geenderten mispreuch und cere- monien...,” in Pfeiffer, Quellen, p. 443: "...und werden derselben vereelichten personen namen durch den kirchen- schaffner verzaichent und aufgeschriben, damit nit jemand an der unee sitz und furgebe, das er ein eelich wesen fure." Cf. Kolde ("Kirchenwesen," pp. 71-72) who dates this "Verzaichnus" from March, 1525, but points out that this is the first time a basis is given for the recording of names in the Trauregister. 191 make an investigation in their villages and districts to discover what persons were living together in an unmarried state. The offenders were to be brought before the Council 3 and punished. Again, in 1529, the government directed that all unions of this type were to be dissolved within eight days or the violators would be subject to expulsion from 4 the city and land. Despite these rulings, the Council was evidently not successful in eliminating such unorthodox unions, for the records indicate that similar decrees were 5 issued in 1534 and 1571. Of equal interest for the present investigation is the Council's search for a means of pre­ venting "secret" marriages. This problem stemmed directly from the binding nature of betrothals.

The Obligatory-Contractual Nature

of Betrothal Vows

During the first half of the sixteenth century in

Nurnberg and elsewhere in Germany, the courts and church

3RB 14, 5 (May 27, 1527) 4 RB 15, 81 and RV 778, 13v (December 29, 1529). In this inrtance, the Court of Five was responsible for executing the Council's order. 5 See Jegel, "Hochzeitsbrauch und Eherecht," citing Ratsverlasse from June 3, 1534 and June 18, 1571. 192 doctrine represented the view that the betrothal (Verlobung or sponsalia de praesenti) created a binding obligation to complete the marriage which it had initiated. The com­ pletion of the marriage process was a church ceremony called the Hochzeit or wedding (which included the previously discussed Trauung)^ and the establishment of a conjugal partnership and home. This usually took place within a few weeks after the betrothal. During that interim, public announcement of the betrothal and forthcoming wedding was made.

In the betrothal the couple vowed, before parents and witnesses, their desire and intent to live together as man and wife. These vows were also known as Ehegeltibde: marriage vows. Hence, the betrothal created an indissoluble 7 marriage bond and, as a consequence, it established a

The Trauung included the repetition of the marriage vows, previously given in the betrothal, as well as the blessing of the marriage by the pastor. The evolution and significance of both the Verlobung and Trauung portions of the marriage process have been adequately investigated in earlier chapters. See above, pp. 20-32 and pp. 52-62. 7 This fact becomes more evident when we see that betrothals were also variously designated as Heirat (marriage or wedding) or as proceedings whereby persons were "joined together in God's name." See Scheurl, "Geschichte des Eheschliessungsrechts," pp. 309-10. 193

complete impediment (trennendes Ehehindernis) vis-a-vis any

8 other marriage. To dissolve a betrothal bond, the courts

required a regular divorce proceeding. Anyone who married

a person other than the one to whom he had betrothed him- 9 self was considered to be a bigamist.

In December, 1526, a couple was placed in the city

prison on such a bigamy charge. Wolf Seulich and

Margaretha Harderin had violated their betrothal vows to each other and each had married someone else. The jurists were asked to advise on what type of punishment was to be

imposed. The traditional penalty for bigamy was death by drowning, but the jurists felt that this penalty should not be employed in the present case. Instead, the man was to be exiled and the woman was "to carry the stone." The juris­

consults took this occasion to urge that, before imposing

the death sentence in such cases, the Council ought to issue

a general warning and prohibition against bigamy and

remarriage. It should, however, leave itself "a free hand"

to use whatever penalties fit the circumstances of the

g Scheurl, "Geschichte des Eheschliessungsrechts," p. 311. 9 Jegel, "Hochzeitsbrauch und Eherecht," p. 265. 194

„ 10 offense,

On the same day, the City Council issued its decree forbidding any second marriage during the lifetime of the first spouse. The substance of the decree and its effects have been investigated in the preceding chapter.11

Clandestine Marriages, Marriage of Minors,

and Disputed Betrothals

According to canon law, betrothal vows were legally binding whether they were made openly or secretly, and with or without parental consent. The Protestant doctrine, while it stressed the need for witnesses and parental approval, also taught that the betrothal vows, when they were uncon­ ditional and directed toward the present, established a valid marriage. As a result, one of the recurring problems faced by fifteenth- and sixteenth-century authorities was

1^RV 737, 34v (December 10, 1526); RV 737, 35 (December 11, 1526); Ratschl. b. 5, 207v (December 12, 1526): The jurists suggested that the Council issue a decree similar to the following: "Where a married man, during the lifetime of his spouse, marries again, he shall be punished in life or limb according to the form of the offense.

11RB 13, 211v-212 (December 12, 1526): Council decree prohibiting remarriage during the life of one's first spouse. See also the discussion of this bill, its background and results on pp. 173-178, above. 195 that of the so-called clandestine marriage (Winkelehe).

These included marriages of adults which occurred without the presence of proper witnesses as well as marriages of 12 minors without parental consent.

Quite early — for example in the Police Ordinances for the years 1420 to 1490 — the Nurnberg City Council established a minimum age below which children could not marry without parental consent. Again, in Nurnberg's Legal

Reformation of 1479, it was stated that daughters who were less than twenty-five years of age and sons less than thirty were to have the approval of their parents before marrying.

In the revised civil codes of 1522 and 1564, this age was lowered to twenty-five for young men and twenty-two for girls. If young people married in contravention of this law, the parents were not obliged to provide a dowry or marriage portion (Aussteuer or Heiratsgut) for the children.

Furthermore, the parents were obliged to bequeath only the minimum legal share of their property to a disobedient child.

If the latter had married a "dishonorable” person, the

Cf, Kohler, "Eherecht," p. 291 196 13 parents could completely disinherit him.

Despite these laws and the City Council's attempts to restrict them, "secret" marriages became quite prevalent before and during the Reformation years as is indicated by 14 numerous cases in the Ratschlaqbucher and other sources.

Those who mutually vowed to marry were legally bound by their promise and could be forced to complete the marriage by action of the court. The occurrence of a clandestine marriage most frequently came to light when one party brought suit against another for failure to fulfill a secretly made marriage vow.

Disputed Betrotha1 and Unwed Mothers

For pregnant, unmarried women, the situation often proved extremely difficult. To achieve a forced completion

Franz Beyerle, Quellen zur Neueren Privatsrechts- qeschichte Deutschlands (Weimar, 1936), p. 7: Nurnberger Reformation, 1479, Twelfth Title, Second Law* "Von heyrat der Kinder hinter iren leiplichen eltern." See also Dieter Beck, "Die privatrechtliche Stellung der Minderjahrigen nach altem Nurnberg Stadtrecht" (unpublished Inaugural-Disserta- tion, Friedrich-Alexander University at Erlangen, 1950), pp. 65-66. Hereafter cited as Beck, "Minderjahrigen." See also Kipfmuller, Die Frau im Rechte. p. 14 and Knapp, Kriminalrecht, p. 213. 14 Chronological compilations of written advice offered to the Council by the jurisconsults. 197 of the alleged marriage might be impossible if the man had already left the city. This was frequently the case with itinerant laborers who had no ties in Nurnberg and with soldiers. If, on the other hand, the supposed fianc^ remained in the territory, but disputed the fact of the betrothal, the girl could try to prove her case in court.

She had to attempt to establish the fact of the reciprocal, honest Verlobung. The accused, for his part, might try to cast doubt on her reputation by claiming she had had rela­ tions with several others as well.^'*

The court attempted to clarify the facts in the case.

It heard the evidence and, in some cases, placed one or both parties under arrest. Occasionally, they were threatened with torture in the hope that they might more readily tell 16 the truth. Thus, there were instances when the woman's

15 Roetzer, "Delikte," pp. 65-66. 16 We have evidence from the Ratschlaqbucher that torture or the threat of it was employed in at least two cases of disputed betrothal vows. in March, 1529 (Ratschl. b. 6, 194v and 197v), the Council threatened a twelve-year-old girl who had had relations with an older man but denied any pro­ mise to marry him. She subsequently admitted otherwise. See below, p. 205. in November, 1531, a pregnant girl claimed that her lover had promised to marry her. This fact was denied by the latter. The Council wished to torture her, but the jurists advised against this move. See below, pp. 214. 198 testimony was shaken. If the girl had falsely accused the man, the latter could initiate libel charges against her.

For such a false accusation the woman could be severely punished. Furthermore, if there had been no promise of marriage in concomitance with the sexual relations, the woman could not demand a wedding. She was limited to asking for financial support for herself and the child. To ask for support was to admit to unchaste behavior; for this she was penalized.

If, on the other hand, there was evidence that a serious marriage vow had been made, the recalcitrant man was forced to complete the marriage, whether the woman was preg­ nant or not. This was indeed a "forced" marriage (Zwangs- trauung). If necessary, the man was led to the church in the company of two guards. A church official stood ready behind him in order, if the occasion required it, to speak 18 the Ja-Wort for him.

17Roetzer, "Delikte," pp. 66, 68.

18 n Ibid., pp. 66-67. See also Kipfmuller, Die Frau im Rechte, pp. 14-15. Women who had had relations with soldiers were faced with still greater difficulties. While in other circumstances a forced marriage might take place, for these women there was no such solution. Even if a valid Verlobung had occurred, soldiers were not permitted to marry during their term of service. See Michel, Auflosinq der Ehe pp. 26-27. 199

The Nurnberg Council1s Reaction

to Secret Betrothals

Although the laws governing the minimum age for marriage without parental consent had been on the books for decades, it was not until after the Nurnberg Council assumed responsibility for judging marriage cases that it was faced with the task of determining the validity of a betrothal accomplished without parental consent or witnesses.

Until then, such cases had been referred to the Bamberg ecclesiastical court. According to canon law, a betrothal or sponsalia de praesenti was valid despite the lack of parental approval.

In April, 1526, this question emerged for the first time in Nurnberg. The Council asked its jurists and theo- 19 logians for their advice in the case because the parents had made it known that they were adamantly opposed to this secretly concluded marriage. The question was whether the union could or should be dissolved.

The jurists and clergy were not entirely in agreement

19 RV 729, 2v (April 4, 1526). See also Seebass, Osiander, p. 190. 200 on how the situation should be handled. The jurisconsult,

Dr. Wentzel, held that since the "children" had broken the

Fourth Commandment by marrying contrary to their parents’ wills, this was not a Christian marriage. Thus, it might be dissolved. All the clergy and the other jurists stated that the marriage should not be dissolved. Although they agreed that young people did wrong by marrying despite their elders' prohibition, they could find nothing in Scripture which permitted a divorce on these grounds. Rather, the

Bible said that "what God has joined together no man may put asunder."

As a partial solution, the preachers Osiander and

Schleupner and the jurists Marstaller and Gugel suggested that the young people ought to be separated for two or three years while the young man learned a trade. The parents had claimed that the marriage would turn out disastrously because the young people "knew nothing and possessed nothing." The clergy and jurisconsults hoped that during this period the parents might decide to consent to the marriage and a reconciliation between the parties could 20 take place. On April 6, 1526, the Council told the young

20 Ratschl, b. 5, 124 (April 6, 1526). 201 people that their marriage was valid and need not be dissolved.^

Between 1526 and 1529, the Council did not ask for further advice from its jurisconsults on the issue of clan­ destine marriages. Nor did it seek to establish a funda­ mental law on this matter. This was perhaps a result of the fact that in these years no serious instances of secret or 22 disputed betrothals occurred.

It is also interesting to observe that, after 1526, the

Council did not again ask for the opinion of the theologians on the question of marriage of minors. That the clergy did not have a simple solution for the problem was evident in a 23 written opinion sent to the Margrave of Brandenburg in 1531.

Here, the clergy stated that children should not marry against the will of their parents. Yet, they would not say absolutely that the protests of the parents should annul the marriage in all cases. Parental protests might very well

21 RV 729, 6 (April 7, 1526). See Seebass, Osiander, p. 190. 22 Seebass, Osiander, p. 190. 23 Ibid. Perhaps their lack of a simple, positive solution was the reason that the Council did not seek the theologians' advice. 202 have unjust motives (for example, avarice). The theologians

recommended that the government issue a law forbidding

underage children to marry without parental consent. Then,

if the couple violated the law, the marriage judge must

attempt to decide whether or not the marriage was valid

according to the circumstances of each case. The clergy

also thought that the court should attempt to reconcile the

parents to their children.

Where parents failed to indicate either consent or

refusal, the theologians held that their silence could be

considered the same as consent. If two young people who had

no parents or guardians had vowed to marry each ether, but

changed their minds before the Trauung took place, the

clergy believed that the marriage was nevertheless a binding

one so long as the vows had been made publicly and with witnesses. if, however, the proper witnesses were lacking,

then a binding marriage did not exist. Remarriage was per-

missable, but the young people were to be punished for their 24 rashness.

The Nilrnberg theologians held a position not unlike

24 "Gutachten der Theologen, 11 ARG, XI, 243-44: Articles 4-8 from the Margrave of Brandenburg's Fourteen Articles on Marriage Matters. 203 that of Luther, although the latter appears to have been somewhat less hesitant with respect to annulment of secret marriages. Luther considered that marriage was, of neces­ sity, an open and public state, the entry into which must be witnessed. At the heart of his marriage doctrine, however, he put parental consent. Without this consent, the presence of a thousand witnesses was to no avail. Parents, for their part, must seek a "suitable and timely” match for their children. If they failed to do this, then the young person should seek help from friends, relatives, or the 25 authorities.

If a child, with no justification, married without his parents' consent, Luther considered this union non-binding.

The parents had the right to dissolve the marriage. Luther also declared that the nullification of a secret marriage could not be altered by the subsequent assent of the parents to the marriage. There was one key exception to this rule in Luther's thinking. If a secret betrothal was consummated

25Luther, Von Ehesachen. 1520, WA 30 III, 207, 223; and Pass Eltern die Kinder zur Ehe nicht zwinqen, 1524, WA 15, 166, 21, as cited by Dieterich, Eherecht, pp. 56-57. 204 26 through copula carnalis, it could not be dissolved.

Development of a Nurnberg Law

on Clandestine Marriages

For guidance in determining its policy toward clandes­ tine marriages, the Nurnberg City Council relied upon the advice of its jurists. As will be observed, the juriscon­ sults were certainly not in agreement among themselves on how to prevent this abuse or how to deal with a secret betrothal as a fa it accompli.

In late 1528 and early 1529, two cases of apparent secret betrothals were brought before the court. The 27 jurists were asked for their advice on both. In the first instance, a girl had been imprisoned for allegedly breaking a betrothal vow. The legal counsellors suggested that the

Council refrain from punishing her until further investiga­ tion had been made of both parties. Initially it appeared to the jurists that there was no cause for penalizing either

26Luther, Von Ehesachen, 1530, WA 30 III 210, 224, 215 23; Pass Eltern die Kinder zur Ehe nicht zwinqen, 1524, WA 15, 163, 17, 168,4; and Predigt 1544 EA 62, p. 240 as cited by Dieterich, Eherecht, p. 58. 27 RV 764, 17, 19, 20, 20v; RV 765, 3, 4v (December 17- 31, 1528); and RV 767, 22 (March 17, 1529). 205 person because the promises made seemed to refer to a future marriage, a sponsalia de futuro. If this were so, said the jurists, then either party had the right to renounce his 28 promise to the other.

A second case was much more_complicated. One Hanns

Hertzog brought suit against Brigitta Thalatin, a very young girl who, he claimed, had promised to marry him. The girl, who was discovered to be only twelve years old, denied this.

It was also found that she had had relations with the man.

The jurists tended to suspect the plaintiff's story because the girl was so young and because "she was wealthy and he was poor." The two were imprisoned and threatened with tor­ ture, whereupon the girl admitted that she had promised to marry Hertzog. This admission, however, may have been simply a consequence of fear.

A majority of the jurists decided that the union was a valid marriage. They did not suggest any further punishment.

The jurist Mullner, however, believed the plaintiff's story was highly suspicious and that the young girl had confessed to a betrothal which had not really occurred. Therefore,

28 Ratschl. b. 6, 149 (December 30, 1529). 206

he did not believe the marriage was a legal one. Perhaps

the best solution, said Milliner, was to expel them both

from the city. Then if they wished to marry after that it 29 would make no difference.

Immediately at the conclusion of this case, the Council

ordered the jurists to advise on "how to punish those who

entice children away from their parents without the latters' 30 . consent." What the jurists' response was is not known, bat it is clear that the Council was now giving serious

consideration to passage of legislation to prevent future

"secret" marriages.

In November, 1530, the Council again requested that its

jurisconsults make suggestions for a statute governing 31 marriages which occurred without parental consent. In

January of the next year, the Council received a comprehen­

sive report in which the jurists examined article by article

a statute proposed by the jurist Hepstein. The length and

29 Ratschi. b. 6, 194v and 197v (March 18 and 30, 1529); RV 769, 2 (March 31, 1529). 30 RV 769, 2v (March 31, 1529): "Und ain Statue lassen beratschlagen, Wie es mit Straff deren die den Eltern Ire kynnder aberwerben, ohn Iren Willen solle gehalten werden."

^ R V 790, 5v (November 8, 1530) . 207 complexity of this particular Ratschlag resulted from a

lack of unanimity among the legal counsellors. A basic conflict appears to have developed between the jurists

Scheurl and Hepstein. The latter claimed that he was attempting to remain true to the imperial law and believed that Scheurl's suggestions dangerously contradicted this law. We might describe Hepstein's position as essentially conservative, while Scheurl's point of view was, to say the least, innovative.

The introductory article of this proposed statute stated that sons under twenty-five and daughters under twenty-two years of age, whose parents were still living, could not marry without the latters' permission. After reaching this age, the young people who wished to marry were to ask their elders for approval. If no answer were forth­ coming within one month, the couple could proceed with the marriage. In this case, the parents were obliged to provide a proper dowry unless the son or daughter had married a dishonorable person.

To this article, Dr. Scheurl responded by suggesting that the Council forbid all young people to marry without their parents' approval. If they had no parents, they should marry in the presence of honest and honorable 208

witnesses. Any marriages concluded in contravention of this

law were to be declared null and void. If any child felt

that his parents were unfairly refusing his request, he

should appeal to his kin or to the Council and await that

decision.

Scheurl and the other jurists continued their analysis

of the proposed statute by stating that according to the

Fourth Commandment children were always to honor their

parents. Therefore, no age should be stipulated after which

children were free to evade this obedience. Nor was it

fitting to bind the parents to approve the marriage within

a month. All marriages were forbidden where parental con­

sent was lacking.

Dr. Hepstein defended his article by stating that the

“common law" extended to the Council no power to legislate

in this matter. His suggestions, he felt, showed the least

contradiction to the law and would cause the lea t opposi­

tion from the superior imperial court. Furthermore, he had

set the age limits for young people because, he said, some­

times parents refused their child's request out of "stingi­ ness, avarice, or excessive pride." Hepstein held that if a young person waited patiently and obediently for twenty- two or twenty-five years, thereafter he should be free to 209

marry because he had shown obedience and honor long enough.

In addition, the jurist did not interpret honor and obedi­

ence as extending to any occasion in which a parent

attempted to unite a son or daughter to someone for whom 32 that child had no inclination or love.

In another article, Hepstein explained that the pre­

viously mentioned laws did not apply to those who were widowed persons. They could marry without parental consent

(although they might be underage) as long as they had proper witnesses. If a child had done the parents' bidding in the

first marriage, he should be free to marry in the second without their approval. The other jurists, however, wanted

this article dropped. Young people who were widowed were

no less obliged to honor and obey their elders at that time

than before their marriage and widowhood.

To the next article, that all young persons under

eighteen years old who had no parents or grandparents should

not marry without the permission of their guardians, all the

32 Here, Hepstein sounded remarkably like Luther who suggested that a young person flee the country if his parents tried to force an unwelcome union upon him and if he could obtain no aid from his relatives or the authorities. See Luther, Pass Kltern die Kinder zur Ehe nicht zwinqen, 1524, WA 15, 166, 28, as cited by Dieterich, Eherecht, p. 57. 210

jurists agreed. Hepstein further suggested that persons

(of no matter what age or sex) who were subjects of the

City Council but had no parents, relatives, or guardians,

should not marry secretly. They were to invite as witnesses

at least two men who were Nurnberg citizens or (if it were

in the country) two landholders who were Nurnberg subjects.

On this clause, the remaining jurists were largely in agree­

ment .

The last article in the proposed law was the most

difficult for the jurisconsults. It dealt with the penal­

ties for those who violated this statute. Dr. Hepstein

suggested that exile, imprisonment, or other punishment

affecting the person or property of the offender be imposed.

Dr. Scheurl felt that these penalties would be useless.

First, they would not deter those who intended to marry.

In the second place — and here one learns that so-called

"contemporary" weaknesses and abuses in city government are,

in reality, not limited to the twentieth century — he

feared that the Council might be inclined, where rich people were concerned, to grant "dispensations" from the law "so that these citizens and their wealth would not leave the city." Therefore, Scheurl declared that the best solution was simply to annul all secret marriages. This could 211

legally be done, he said, because all marriage vows were

only "sponsalia11 and not binding until the church ceremony

(Trauung or Hochzeit) had been completed. Here, Scheurl

had introduced an idea which at that time was not yet fully 33 accepted even among Protestant theologians.

Dr. Scheurl went on to say that if a young person felt

that there was good reason for his marriage to be valid, he

could appeal to the court. Dr. Marstaller added to this

his opinion that if the parents subsequently agreed to the

marriage, it should be considered valid.

Dr Hepstein, on the other hand, refused to accept the

principle that all secret marriages were invalid. He

appealed to the "common law" and to the fact that sometimes

there were very good reasons for young people to marry

"behind their parents' backs." The law did not grant to the

Council authority to dissolve such marriages. If anyone

appealed from this decision to the Imperial Chamber Court,

the latter would probably not recognize the Nurnberg

Luther held that an unconditional betrothal which was not expressly directed at a future time created a valid and binding marriage without the occurrence of the Trauung. See above, p. 53. The principle that a public Trauung was necessary for completion of a valid marriage did not become widely accepted until the second half of the sixteenth century. 212

decision. This would result in the Nurnberg law being

annulled. Furthermore, Dr. Hepstein said that he had never

heard of Scheurl's idea that the marriage vows were not

binding until after the Hochzeit. In his remarks, Hepstein

had revealed not only the extent to which the Imperial

Court was influenced by the canon law, but also his own 34 dependence on it.

The other jurists tended to agree with Scheurl. Yet,

they, too, found it difficult to accept the idea of

annulling all secret marriages. Instead, they suggested

that the statute mention no penalties at all. It should

read as follows:

That any secret marriage which is concluded contrary to this statute should be null and nonbinding until, after sufficient investi­ gation of the parties before the City Court, it is recognized as valid and binding.^5

It is not surprising that Dr, Scheurl was not satisfied with the conclusions of the foregoing report. Not long

In that same year, the jurists had clearly stated that the imperial law permitted dissolution of a marriage contracted by minors contrary to their parents' will. See "Gutachten der Juristen," ARG, XI, 242, 244: Articles 4 and 5 of the Margrave's Fourteen Articles.

^Ratschl. b. 26, 2l9-233v (January 22, 1531): "Herr Doktor Hepsteins Bedenckhen der Winckel ehe halben." 213 after it wan completed, he submitted his own brief on the matter of cl.nnlostine marriages. In it Scheurl (a man who remained a Catholic until his death) declared that the canon doctrine on clandestine marriages was a product of "the devil's schoDl" and not from God. It was contrary to nature, the Old Test,nncnt law, and the Gospels. Matthew 19 states that what God had joined together, man must not separate.

Here, however, not man but the law divorces those who

"venture to marry punishably and contrary to the command­ ment, "

Furthermore, said Scheurl, the existing Nurnberg laws for penalizing children who married against the will of their parents wore of no help. Young people still "jokingly and indiscreol 1y" made marriages. Many did not know the difference belween a "vow to intend to marry" and a "vow to marry." Therefore, Scheurl again recommended his own solu­ tion: the Council must annul all secret marriages regard­ less of whether sexual consummation had taken place or not.

The latter suggestion was completely contrary to Catholic doctrine as well as Luther's marriage ethic.

Among these clandestine unions, in Scheurl's opinion, would be comprehended those which occurred without the approval of the couple's parents, relatives, or guardians 214 and those between persons who had no relatives or guardians but had married without honorable witnesses. Young persons could, however, substitute governmental or court approval

for parental consent if necessary. The requirement for 36 such approval was not limited to any age.

What reaction the Council had to this "advice" of

Scheurl's is not known. There was no comprehensive law immediately forthcoming. Instead, the Nurnberg court was faced with several additional instances of "secret" and disputed betrothals. In the first of these, a pregnant girl asked the court to intervene on her behalf against the man who had allegedly promised to marry her. As in an earlier case (Hertzog vs. Thalatin), one of the parties had obviously committed perjury. To discover the truth in these disputes proved to be among the most difficult and frustra­ ting of juridical endeavors. Dr. Scheurl suggested torture or the threat of it for the girl, but the other jurists hesitated to recommend this measure. Apparently they

■^Ratschl. b. 26, 234-242 (April 14, 1531) . See also Scheurl, "Geschichte des Eheschliessungsrechts," pp. 313- 321. The author believes that Scheurl's recommendations would have quickly and simply eliminated the tragedy of clandestine marriages. 215 realized that the results of this type of treatment were 37 not always reliable. Dr. Gugel added that it would be better to let two guilty persons go unpunished than to put

one innocent person into prison — an indication of the lack 38 of certitude which plagued this and many other such cases.

In February, 1532, a young woman brought suit for

fulfillment of a marriage vow. Before the case was heard, however, she had married someone else. The jurists dis­ covered that the first union was not binding because there had been no express or clear promise of marriage made by the suitor. They reminded the court that despite the canon rule

consensus facit matrimonium, it was much more important that the words and intent of a marriage vow be clearly manifested before witnesses. The jurists also stressed the weak position occupied by the government in dealing with cases of irregular marriages — a result of its failure to 39 issue an ordinance by which young people could be guided.

37 The jurists reminded Scheurl and the Council of what had happened when they had employed this measure in the former case, ^8 Ratschl. b. 7, 128-129v (November 11, 1531). 39 Ratschl, b. 7, 147-148v (February 21, 1532). 216

In another case in this same year, the jurists recom­ mended that the marriage of a couple should not be dissolved despite the fact that before this marriage they had secretly betrothed themselves to other persons. The jurisconsults cited Luther as their guide in this decision; the latter had written that when a previous marriage vow occurred without the parents' knowledge and a second open marriage followed the first, the second marriage should take precedence over 40 the previous, secret union,

A case of very similar circumstances occurred in July,

1532, Here, the jurists advised that the couple be punished for their irregular and "frivolous” behavior. Furthermore, they suggested that an order be sent out to all pastors in the territory commanding them not to marry anyone until they had determined whether or not the parties had been previ­ ously betrothed to someone else. In addition, it would be well, "as was the custom in several other states," to announce the proposed union from the open pulpit on three

40 Ratschl. b. 7, 155v-157 (March 28, 1532); p. 155v: "...dann der Lutter habs auch In etlichen buchlein lauter geschriben wann sich soliche fell zutragen, zuvor do die erste ee gelubtnus on vater unnd mutter wissen besheen ist, das man die anndern ehe so volzogen nit zereyssen soil, das muss man In disem fall auch tun." 217

different occasions before undertaking the marriage 41 ceremony.

The Ordinance of 1534

The continued appearance of irregularly concluded betrothals and consequent court cases made it abundantly evident that the government could no longer avoid taking action. A clear and strongly worded ordinance forbidding clandestine unions was required. Unfortunately, the statute proposed and debated by the jurisconsults in 1531 had been of little aid. The divergency among the advisers was too great.

In late 1532, the Council again requested assistance from its legal counsellors. On this occasion, the jurists were asked to present a unanimous report. This order proved to be wasted effort. The written opinions offered in

October and November, 1532, indicated that the jurisconsults were no closer to agreement.

The conflict lay especially between Dr. Scheurl, who persevered in his view that all secret marriages ought to be

^Ratschl. b. 7, 200v (July 19, 1532). This became part of the church law in the Brandenburg-Nurnberg Church Ordinance of 1533. See above, pp. 48, 58-59. 218 annulled and who wanted a brief and generalized statute enacted, and Dr. Hepstein, who insisted that the statute specify as much as possible what circumstances did or did not allow for validation of secret unions. The latter still contended that because the Council had no authority to annul marriages, the Imperial Chamber Court would rescind . . 42 the Nurnberg law and decisions.

With these judicial opinions in hand, the Council seems to have been little better prepared to enact comprehensive legislation against clandestine marriages. Yet, the highest necessity obligated it to create an instrument whereby young persons might be deterred from lightly or unknowingly making promises which, in fact, resulted in permanent unions in the eyes of the law.

The Council was unwilling to declare a wholesale annul­ ment of all secret marriages. Instead, on June 3, 1534, the city fathers issued a decree in which they seem to have taken a middle course between the extremes suggested by

Scheurl and Hepstein.

The law declared that sons under twenty-five and

42 Ratschl. b. 26, 253v-255v and 258-261 (October 21, 1532 and November 23, 1532). 219 daughters under twenty-two years of age, who were still under the authority of their parents or guardian, were not to marry without the latters' consent. Second, those who

"drew children away” from their parents or betrothed them­ selves to these children without the parents' consent were to have severe penalties imposed upon them. This applied likewise to any persons who encouraged, aided, or in any way participated in uniting young people in a marital or nonmarital sexual union without the parents' or guardian's knowledge or consent.

Yet, if young people betrothed themselves against the will of their elders, neither the betrothed nor their parents could dissolve this marriage. Instead, if the parents remained adamantly opposed or if the couple them­ selves no longer wished to maintain their marriage vows, the case must be taken to the City Court. There, after hearing the testimony of both sides and all facts in the case, the Court would determine if the union was to remain binding or not.

If par ents chose not to openly oppose or reject their child's secret betrothal, the law would regard their silence as an indication that the marriage was valid. Despite this tacit consent, they were not bound in these circumstances 220

to provide a dowry for that child.

Finally, the Council warned that stringent penalties would be levied against those who betrothed themselves to more than one person. Once a betrothal was made, it was,

"according to the law," a binding union so long as parental consent was present. No one thereafter could legally be betrothed to another. If the couple later wished to renounce these vows because they had been given in secrecy, or while the parties were in a drunken state, or in other like circumstances, then the couple must take the matter before the City Court and await its decision. Until that , . 43 decision they had no legal right to marry any other person.

What the immediate results of this law were are not known. Certainly, the problem of clandestine marriages did not instantaneously cease as is indicated by the number of 44 cases in the Council records and the Ratschlagbucher.

43 Decretum in Consilio, June 3, 1534: "Verpot der Winckelee...." 44 For example (RB 16, 161-161v and Ratschl. b. 8, 144: July 17, 1534) Hans Ochsner from Wurzburg asked the court to intercede to prevent the wedding and cohabitation of Marx Pflaum with Ursula Geckenheimerin because the latter was already betrothed to Ochsner. In another case (RB 16, 165v: July 29, 1534), a young man refused to await the Council's decision in the suit brought against him by his fiancee. 221

As might be expected, the Decree of 1534 was not the last to be issued against "secret" marriages. It was, however, the first and most significant and was incorporated in part into the revised civil code of 1564. In addition, a mandate issued in July, 1537, provided further means for ensuring that the entry into marriage was attended by the proper publicity. The Council decree declared that all betrothed persons were obliged to go to their pastor or other church officer ten days before their wedding and make known to the latter the fact of their betrothal. Thereafter, for two Sundays in succession, the betrothal was to be 45 announced from the pulpit.

Furthermore, at the time the couple first declared their intentions to the pastor he was to ask them several

Instead, he appealed immediately to the Imperial Chamber Court. For this, he was thrown into the Nurnberg City Prison. In a third example (RB 17, 61: July 2, 1535), a father appealed to the Council on the basis of the Decree of 1534 because his son had secretly betrothed himself. The father asked the Council to annul the clandestine union. The Council decided to refer the case to the City Court for final cic-o:: ’on, but suggested that the boy be expelled from the city as punishment for violating the Council's mandate. 45 NStadtA, A 6: Mandate, Ordnungen, und Druckschriften, I: 1486-1806, Decretum in Senatu (July 11, 1537) concerning secret marriages. 222 questions designed to make certain that this betrothal had been regularly concluded. First, the couple were asked whether they had vowed marriage "knowingly and openly" and

"with the consent of ftheir] father and mother, kin or guardian...." Secondly, they were asked whether their consciences were "free and pure" and whether they had previ­ ously been betrothed or married to anyone else. Finally, the pastor was to determine that the couple's marriage was 46 not forbidden because of some close blood relationship.

Thus, by means of the laws of June, 1534 and July,

1537, the Nurnberg authorities had taken positive steps to 47 eliminate clandestine marriages. It must be said, however, that this was less a result of the efforts of the reforming clergy than a product of a long-standing (since the thir­ teenth century) and continuing battle against irregularly

NStadtA, A 6: Mandate, Ordnungen und Druckschriften, I: 1487-1806, "Ettliche frag von denen zuerfaren so sich anzuzaigen zu verkunden zum eelichen stant, ee dan sie eingeleit werden." Attached to these questions is a sheet with the words: "Dies Jahr hat man zu Nurnberg erstlich angefangen, alle hochzeitleute 2 Sontage nacheinander in den kirchen von den kantzlei zu verkunden" (Mullner Annalen, Led. 5, 8. 215), 1537.

j| n Cf. developments in Ulm, Augsburg, Geneva, and Zurich. See Kohler, "Eherecht," pp. 296-97, 223 concluded marriages. It was a natural outcome, too, of the

Council's newly acquired responsibility for ordering marriage affairs in Nurnberg. CHAPTER SEVEN

IMPEDIMENTS TO MARRIAGE — A VICTORY

FOR THE STATUS QUO

We have seen in previous chapters how, in such matri­ monial concerns as divorce and remarriage, the Reformation made an impact upon law and society because reforming theologians sought to correct what they viewed as abuses in the traditional laws. The same effects were to be seen in the sphere of marriage impediments. To understand the motives of the reformers we must first briefly review where matters stood in the sixteenth century with respect to the canon law on impediments.

Impediments in Germanic, Canon, and

Protestant Marriage Law

In Germany, the civil laws regarding impediments were influenced by the Christian Church and were largely of late and limited development. In the German Middle Ages little mention was made of civil penalties for incest

224 225

(Blutschande).^ Only in the sixth century did the Church succeed in influencing the civil laws to the extent that violation of its prescripts resulted in exile or confisca­ tion of property, in some cases, and, in others, the death sentence. Under the influence of Italian jurists, the death penalty also found a place in such criminal codes as the Bamberg Halsgerichtsordnung of 1507 and the Constitutio 3 Criminalis Carolina of 1532.

In the canon law, as well as in the Mosaic, Roman, and Germanic codes, blood relationship or consanguinity in the ascending and descending lines formed a total marital impediment to infinity. In the collateral line, however, the delimitation of relationship was more complicated; it also became more susceptible to dispensation. By the eighth century, the Church had assimilated the principle that

^According to Rudolf His (Strafrecht, p. 147), this term first appeared in the sixteenth century. 2 Emil Friedberg, Lehrbuch des katholischen und evan- qelischen Kirchenrechts (unaltered reprint, Frankfurt a. M., 1965), p. 444. Hereafter cited as Friedberg, Kirchenrecht. 3 His, Strafrecht, p. 147. See also Bambergische Hals- qerichts und Rechtliche Ordnunq (Mainz, 1531), Article CXLII: "Straff der unkeusch mit nahen gesipten freunden"; and Halsgerichtsordnung Kaiser Karls V (Mainz, 1531), Article CXVII. 226 impediments of consanguinity extended to the seventh degree of relatedness in the collateral line. These degrees had been valid in Roman as well as Lombardic and Bavarian law.

The rule was valid in the Catholic Church until the diffi­ culties in practical administration of the law caused

Innocent III (in the Fourth Lateran Council, 1215) to 4 restrict the impediments to the fourth degree.

The second type of impediment in the canon law was that of affinity or relationship created by marriage. Whomever one spouse could not marry because of blood relationship, the other also could not marry because, according to eccle- 5 siastical law, the two spouses were "one flesh."

In some applications of the law, if a girl was

4 Friedberg, Kirchenrecht, pp. 444-45. The Roman and German methods of computing the degrees of relationship may be found in Appendix B.

5According to Mosaic law, marriage with stepdaughter, stepgranddaughter, stepmother, mother-in-law, daughter-in- law, widow of the dead brother, father's brother's widow, daughter of the stepson, or the sister of a living wife was forbidden. In early Roman law, only marriage with one's mother-in-law, daughter-in-law, stepmother, or stepdaughter was forbidden. In canon law, a universal principle was found in Augustine's "one flesh” rule as noted above. Thus, in canon law, affinity also extended to the seventh degree in the collateral line. See Friedberg, Kirchenrecht, p. 447. 227 affianced to a young man and he died, she was forbidden to marry the deceased fiance's brother. In Nurnberg, as late as 1535, a couple were forbidden to marry because the girl had previously been betrothed to her fiance's brother 6 although that first union had not been consummated.

The third form of impediment in Catholic doctrine was created by the so-called spiritual relationship (cogrvatio spiritualis). It arose in the sacraments of baptism and confirmation and was the result of the similarity between the parents' and the sponsor's (godparent) relationship to the child. Thus, quite early, marriage between a sponsor and the godchild was forbidden. In the canon law of the thirteenth century, this rule had been extended to include marriages between the person who baptized the child and the child or its parents, between the children of the sponsor and the godchild, and even between the surviving spouse of 7 the godparent and the godchild or its parents.

6Ratschl. b. 9, 61v-62 (November 22-27, 1535). In this judicial opinion, reference is also made to the case of Henry VIII and Catherine of Aragon. See also Jegel, "Hoch- zeitsbrauch und Eherecht," p. 263. 7 Later, during the Council of Trent, this spiritual relationship was limited so that it involved only the baptizer, the child, its parents, and the sponsor. Friedberg, Kirchenrecht, p. 451. 228

It is not necessary to wonder whether this extremely complex system of impediments was not prone to i;buse.

Unfortunately, the regulations governing the forbidden degrees led to the growth of a profit-making business among those who administered the ecclesiastical law in the Catholic

Church. Dispensations could be granted if those forbidden 8 to marry wished to pay for them.

The Protestant reformers, in their battle against such abuses, rejected the tangled complexities of the canon law.

Yet, they lacked a principle for the positive establishment of an evangelical law. Therefore, they returned to the

Mosaic law (for example, Luther, Brenz, Bugenhagen, Melanch- thon, and Osiander generally recognized only those degrees g forbidden in Leviticus 18), to the Roman law, and to 10 certain customs of the Catholic period. Thus, while the

Protestants accepted the impediment of consanguinity in the

0 Dieterich, Eherecht, p. 22. g Luther, Voro ehelichen Leben, 1522, WA 10, II, 265, 275-304 as cited in Dieterich, Eherecht, pp. 61-63. The views of Osiander, Brenz, Bugenhagen, and Melanchthon are summarized in Dieterich, Eherecht, pp. 97-100. See also Kohler, "Eherecht," pp. 288-89. 10 In conformity to earlier traditions, the reformers jrbade marriages between first cousins and sometimes second C-asins, See Friedberg, Kirchenrecht, p. 445. 229 ascending and descending line, they loosened the restric­ tions cn marriages in the collateral line, limiting the 11 impediments to those in Mosaic law.

With respect to the impediments of affinity, the Protes­ tants again attempted to rely upon Mosaic and Roman law, but

(according to Friedberg) were initially unable to completely free themselves of the influence of canon regulations. In some circumstances, the Mosaic, Roman, and canon laws proved to be contradictory. To marry one's sister-in-law after the death of one’s wife was permitted by Mosaic law; to marry the childless widow of one's brother (levirate marriage) was even a duty. The Roman and canon law forbade both. For

Luther, Brenz, and Melanchthon the restriction on affinitive marriages (as in Mosaic law) extended no farther than the

See appendices B and C for methods of computation of the degrees and for the list of persons forbidden to marry under Mosaic law. Osiander, for example (conforming to Mosaic law) held that a marriage between persons related in the third degree of the unlike line (for example, uncle and niece) was valid, Brenz, on the other hand, permitted disso­ lution of marriages of the third and fourth degree where copula carnalis had not occurred. See Dieterich, Eherecht, p. 99. According to Kohler ("Eherecht," p. 288), marriage between relatives of the third degree were theoretically permitted in Zurich, Basel, Bern, St. Gall, and Constance. In other cities such as Ulm, Esslingen, Isny, and Ravensburg, only the fourth degree marriages (first cousins) were per­ mitted. Actually, however, such unions were not encouraged. 230

12 second degree of relationship. As will be later observed, however, in practical applications the reformers did not always maintain a consistent position. Osiander, in partic­ ular, changed his interpretation of the Mosaic restric- 13 tions. As for the canonical impediment of spiritual relationship, it was rejected by the reformers as being simply another facet of the lucrative dispensations practice. 1 4

The Question of Impediments in Nurnberg —

The Council vs. the Theologians

In the sphere of marriage impediments, the Reformation once more created a situation in Nurnberg in which the City

Council was at odds with its theologians. Here, again, it appears that Osiander was the most outspoken of the city’s clergy. As with divorce and remarriage and with nullifica­ tion of clandestine marriages, in the matter of impediments

1 2 it Kohler, "Eherecht,11 pp. 289-90 and Dieterich, Eherecht, p. 100. See also Friedberg, Kirchenrecht, p. 449.

^ S e e below, p. 250 for the discussions of the cases of Hans Hunerkopf as well as of Henry VIII and Catherine of Aragon. 14 . „ Dieterich, Eherecht, p. 63 and Kohler, "Eherecht," p. 288. 231 the City Council, although it had sanctioned the reforming efforts of its clergy and had welcomed its own independence from the bishop's ecclesiastical jurisdiction, hesitated to make a radical break with traditional legal concepts and procedures.

Unfortunately, we have little evidence as to the attitude of Osiander's evangelical colleagues with respect to impediments. Except for a very crucial instance in 1528, there were apparently no cases in which the Council felt that the advice of the clergy was required. It is probable, however, that the reform-oriented theologians of Nurnberg also held the strictly biblicist position of Luther, Melanch l 5 thon, and Osiander. In 1526, Osiander had presented his view in the essay "Advice on Ceremonies." He wrote:

No blood relationship or affinity except in those

Quite early, in a hearing before the Bishop of Bam­ berg (September, 1524), the Nurnberg clergy stated that they interpreted marriage impediments to include only those listed in Leviticus. This hearing was part of the Bishop's attempt to prevent the evangelical innovations being insti­ tuted in the Ndrnberg churches. See Georg Theodor Strobel, Miscellaneen Literarischen InhaIts, III (Nurnberg, 1780), 58: "Von dem Streit der Nurnbergischen Probste mit dem Bischof zu Bamberg, 1524." See also Pfeiffer, "Die Einfuhrung der Reformation," p. 120. 232

degrees which God has forbidden shall prevent a marriage. Neither shall sponsorship hinder marriage. For it is contrary to faith... as well as love when man puts asunder, without God's command, what God has joined together.1^

Equally as clear and unequivocal was his position in the 17 Visitations Articles of 1528,

The City Council could not accept a standpoint in which

the traditional (canon) degrees of relationship were almost entirely rejected. Given its relationship to a Catholic emperor and its obligation to uphold the imperial law — a

law closely bound to the canon doctrines — the Council

viewed the reformer's position as politically hazardous.

"A collision between the Council and Osiander could not fail

to take place.

Hans Hvinerkopf and the City Council

In February, 1528, the Council discovered that one Hans

^NKirchA, Fen. IV, 906, 2*: "Gutachten uber die Zeremonien,11 pp. 69-69v. 17 Seebass, Osiander, p. 191. See Sehling, Kirchenord- nungen, Vol. XI, Part I, Section III, 2: Die Nilrnberger 2 3 Lehrartikel, 1528, p. 132: Vom eelichen Stand, Nr. 8: "Das man kainer gesipschaft, schwagerschaft noch gevatterschaft die ee soil verpieten, dann so fern sie Gott verpoten hat." Later, however, we will see that Osiander (after 1530) changed his position in this matter. 18 Seebass, Osiander, pp. 191-92. 233

Hunerkopf (or Hohnerkopf) had married the sister of his deceased wife. He was ordered to appear for questioning.

The Council quickly decided that, because the sister of the wife belonged to the traditionally forbidden degrees of relationship, Hilnerkopf should be banished. Although the

Council repeated its order for his exile more than once,

the man did not immediately leave the city. Instead, he eventually petitioned the Council to reconsider its „ . . 19 decision.

With this development, the Council turned to its

jurists and theologians for advice on the matter of marriage

to one's sister-in-law and, specifically, on Hunerkopf's

"supplication." Significantly, the request specifically excluded the provost and preacher (Osiander) of St. Lorenz

from any part in the consultations. Seebass suggests that

the banishment of Hunerkopf had aroused the open anger of

Osiander and that the Council had excluded him from its

19 The Council's records of its dealings with Hiinerkopf during the spring and summer of 1528 extend from February 8 to August 21, 1528: Ratsverlasse 753, 14; 753, 23v; 753, 29v ; 754, 9v; 755, 16; 755, 17v; 759, 24v; 759, 26v; 759, 28; 760, 2v; 760, 13v; 760, 14v. Actually, the Council's part in the case dragged on until July, 1531. See below, p. 237, n.27. 234 20 request because it was already well aware of his views.

It is not surprising that the clergy and jurisconsults did not present a unanimous "opinion" about Hdnerkopf's case. The three clergy (Wenzeslas Linck, preacher at the

New Hospital Church; Dominicus Schleupner, preacher at

St. Sebald; and an unnamed Carthusian) all agreed that, according to Leviticus 18. Hunerkopf's marriage was not forbidden. They added a qualification, however, which — by intention or not — tended to support the Council's initial decision to exile him. "If," said the theologians,

"his marriage took place honestly and honorably, and if he has not acted against the Council or behaved in any trouble­ some manner..., then he is not punishable according to aivme- • law.i i,21

The jurisconsults agreed that Scripture did not forbid marriage to the sister of one's deceased wife. Dr. Scheurl even admitted that such a marriage "might be purchased from the pope for money," Nevertheless, the jurists stressed that a union between persons so related was forbidden by

20 RV 761, 4 (September 5, 1528) and Seebass, Osiander, p. 192. 21 Ratschl. b. 6, 120v (September 5, 1528). 235 civil and ecclesiastical law. Dr. Hepstein added that, although (like remarriage of innocent divorced persons) marriage to a deceased wife's sister might not be forbidden by Scripture, the Council must also bear in mind the scandal and disorder that it might cause. In light of these con­ siderations, the jurists unanimously concluded that

Htinerkopf's petition should be refused. The Council's decision to banish him should remain as previously deter- 22 mined. On September 25, 1528, the Council reissued its 23 order to exile Hunerkopf.

Intervention of Osiander and the

Margrave of Brandenburg

Not long after the Council's final decision regarding

Hdnerkopf, Osiander wrote to the Chancellor of the Margrave of Brandenburg, Georg Vogler, complaining that the Council was dragging its feet in matters of reform and asking that the Margrave accept Hunerkopf into his territories. In his letter, Osiander claimed that the Council followed God's word only to the extent that "not they but other people...

^Ratschl. b. 6, 120v-121v (September 5, 1528). 23 RV 761, 17v. See also Seebass, Osiander, p. 192. 236 have had to answer for it." Thus, in matters which required

it to openly adopt a position, the Council did not wish to undertake any reforms. He warned that it must either "lead

or follow and not try to carry on both shoulders." In its

Janus-like attitude, the Council permitted marriage within most degrees and yet, in others (although it did not declare

it to be wrong), refused to permit it. "Thus, the city

(Nurnberg) has been denied to ^Hunerkopf] simply because he 24 has married his dead wife's sister."

Margrave Georg was moved by Osiander's intercession to write to the Nurnberg Council on Hunerkopf's behalf. In his

letter, the Margrave stated that he and his legal counsel­

lors as well as several theologians had studied the matter and could not find that Hunerkopf's marriage was contrary to

God's word. In their opinion, he deserved no punishment at all and certainly not such as ignominious expulsion.

Furthermore, the man had not married simply according to his own inclinations, but with the "counsel, knowledge, and consent of your ordained pastor, teacher, and preacher

24 ii Moller, Osiander, p. 114. See also Johann Wilhelm von der Lith, Erlauterunq der Reformations-Historie vom Jahr 1524 bis zum 1528 (Schwabach, 1730), p. 296 (Book V, Part XXX). Hereafter cited as Lith, Reformations-Historie. See also Seebass, Osiander, p. 192. 237 25 (Osiander?)." Twice in 1528 (first in the above letter and again one month later), the Margrave urged the Council to permit Hunerkopf to return to Nurnberg. Both requests 26 were refused. Nevertheless, the echoes of the case 27 continued to reverberate for some time afterward.

Lazarus Spengler1s Defense of the Council

The matter of Hans Hunerkopf's marriage to his sister- in-law and the Council’s reaction to it may seem of little significance from a perspective of four centuries. However, at the time, it appears to have created a considerable furor in a city which was struggling to adapt to innovations in religion and changing judicial and political circumstances.

One finds confirmation of the uproar in the fact that

25 Lith Reformations-Historie, pp. 297-98. 26 RV, 17v (October 24, 1528); RV 763, lOv (November 11, 1528): "Auff furschafft Margraff Jorgen Hansen Hunerkopf betreffend seinem poten sagen man lass es pey vorgegebner antwort pleiben."

2 7 In 1531 Hunerkopf was again in Nurnberg. i* The Council threatened him with imprisonment if he failed to leave the city. The last we hear of the poor man — he was truly determined to "fight city hall" — is an entry in the Ratsbuch for July 28, 1531 which indicates that he planned to appeal his case to the Imperial Chamber Court. See RB 15, 175 (May 13, 1531); RB 15, 189v (July 26, 1531); and RB 15, 190 (July 28, 1531). Lazarus Spengler, the City Council's First Secretary, felt

compelled to write a defense of the Council's action.

Spengler was a learned and pious man who was openly sympa­

thetic to the cause of the Reformation in Nurnberg. His

apology indicates that the government's stand with respect

to Hunerkopf was a very pragmatic one, motivated chiefly by

political and civil reasons. The defense is invaluable in

illuminating the principles which guided the patrician governors of the city. These men, many of whom espoused

the cause of the evangelical movement, were interested above all in preserving the economic and political power

and prestige as well as the good reputation of their city.

A primary requisite in their minds was civil order and obedience to the laws of the city and Empire. This reason­

ing is precisely what is so conspicuous in Spengler's 28 "Written Defense in the Matter of Hans Hunerkopf."

The Council secretary explained that he had written this "Defense" because Hunerkopf, and others on his behalf,

28 NStadtA, F 1/II, Spengler Familien Archiv Nr. 27i "Verteidigungsschrift in Sachen des Hans Hunerkopf." See also Gottlieb Haussdorf, Lebens-Beschreibunq eines Christ- lichen Folitici, Lazari Spenglers (Niirnberg, 1741), p. 564, Nr. 10. My thanks, here, go to Dr, Gottfried Seebass who so kindly pointed out to me the existence of the above "Verteidigungsschrift" by Spengler. 239

had complained that, in expelling him, the Council had

exceeded its authority and had infringed upon his Christian

freedom. Spengler intended to justify the Council's deci- 29 sion as well as his own part in it.

In the first place, said Spengler, it was not a

question of whether Hunerkopf was permitted by God's law to

marry his sister-in-law. All agreed that this degree of

relationship was one "left free," neither commanded nor

forbidden in the Old or New Testament. The marriage was,

therefore, binding and could not be dissolved by any man

or government. On the contrary, Spengler explained, "the

present dispute is whether Hunerkopf, by his marriage, has

not acted wrongly against his government and if the Council, with just and weighty reasons, has the power to expel such

a citizen from their city."

Now it was obvious, said Spengler, that no government had the authority to force its subjects to act in a manner

contrary to God's law. Yet, in "indifferent and free things" which Gcd had neither commanded for forbidden, the govern­ ment certainly had the right to make laws for the mainte-

29 What role had Spengler played? We can only surmise that he must have spoken out in favor of punishing Hunerkopf. 240 nance of civil order and peace. All subjects were obliged to obey such laws, for in these '’indifferent” matters no person's conscience was affected.

In the second place the imperial law had forbidden marriage between persons related in this degree. Hunerkopf, being a citizen of Nurnberg and, hence, a subject of the

Empire, was obliged to live according to the emperor's law.

The Council, as a "state of the Holy Empire,” was "bound" to punish him for violating this law. In addition, the common customs and traditions throughout the whole realm were opposed to such marriages. With this penalty, said Spengler, the Council intended to shock its citizens and subjects so that "the common man will not be motivated to greater wantonness, obstinacy, and disorder through similar trans­ gressions of the common land-customs."

A fourth justification for the Council's decision was its desire to preserve Nurnberg's reputation as a moral city and to prove that being "evangelical" did not connote an abolition of all common decencies. Word had come to

Spengler and others that at the royal courts in Hungary and

Bohemia and in other princely courts, derogatory remarks were being made about the freedoms permitted to the Nurnberg populace: 241

It is openly said that the Council in Nilrnberg wishes to be Christian and evangelical and yet permits... its citizens to marry each other like dogs, without any discretion,judgment, and differentiation between the degrees of relation­ ship.

Still more, the government feared accusations of

disobedience or disloyalty to the emperor. The council was obliged to expel Hunerkopf, said Spengler, so that 11 it may

not be said that Nilrnberg has abdicated not only from faith, but also (under the appearance of the evangelical religion)

is opposed to and rebellious against the emperor, his laws, and all common, good ordinances."

Hilnerkopf had not been "sacrificed on the butcher's block," as some had claimed, but by his own "pure obstinacy and impertinence" had led himself into this situation. The

Council, claimed Spengler, had acted reasonably and justi­ fiably. if it had not punished Hunerkopf, the government would become more subordinate to its citizens and subjects

than the other way around. "Everyone must consider what the end result would be in the course of time."

In the second half of his defense, Spengler answered the question as to whether Hunerkopf was obliged to accept the penalty imposed upon him. Predictably, the answer was affirmative. citing Old and New Testament writers as well 242 as the pamphlets, sermons, and other works of such contempo­ rary theologians as Brenz, Melanchthon, Bugenhagen, and 30 Luther, Spengler argued that whoever opposed the govern­ ment, opposed God's commandment. God had instituted govern­ ments as his servants on earth and required our obedience to them.

Spengler next responded to those who had claimed that

Hxinerkopf should not be penalized because, prior to his marriage, he had sought advice from several of the city's clergy (one of whom must surely have been Osiander). This was no argument, said the author, because

these same [clergy], if they are Christians, have revealed to [Hunerkopf] not only...what God’s word and his Christian freedom permit him to do...but also have faithfully reminded him that he, out of the duty of love and for his conscience' sake, must give no offense or scandal to his government, its ordinancesthe common customs, civil peace, and his neighbor....

It is evident throughout Spengler's apologia that

Hunerkopf's chief offense was that he had behaved in a

In particular, Luther's pamphlet "written against the hordes of rebellious peasants," and Melanchthon's "book on the visitations in Saxony" and "his pamphlet against the Anabaptists." Arguing from these, Spengler declared that the true Christian (unlike Hunerkopf) did not use his free­ dom "for wantonness, scandal, or troublemaking, but for the love of his neighbor." 243

disobedient and disloyal manner. Worse still, he had com­

plained aloud of the Council's injustice to him, going so

far as to "accuse particular persons" in the government.

Even if Hunerkopf had had a completely valid and reasonable

case, said Spengler, he still would merit a far worse

penalty than expulsion because he had "injured his govern­

ment with untruthful accusations." There could be no doubt,

Spengler concluded, that the Council had acted justly and 31 in a Christian manner.

The Ordinance of 1534

In the period following the Hunerkopf case, not sur­

prisingly, the Council persisted in its rejection of the

strictly biblical interpretation of degrees of relationship.

In November, 1531, Hector Pomer, provost of St. Lorenz,

asked the Council whether one of his parishioners was per­ mitted to marry the daughter of his first wife's sister.

The Council — - perhaps thinking to avoid an uproar such as

attended the previous case — said that it wished "neither

to allow nor forbid" in this matter, but left the solution

31 NStadtA, E l/ll, Spengler Familien Archiv Nr. 27: Lazarus Spengler: "Verteidigungsschrift in Sachen des Hans Hunerkopf." 244

for Poinoi to determine: "He knows how to proceed as an 32 ordainod npiritual adviser and pastor in this case."

It in beyond question, however, that the Council did not approve of a marriage between such persons. Its posi­

tion Wii;i in.-ide abundantly clear in August, 1534, when it

issued .1 decree which declared "to the provost of St. Lorenz and the administrators of both parishes" that henceforth they we i n to join together no persons who were more closely related limn had been previously permitted (that is, before 33 the Ref mmation). Furthermore, the clergy were to warn anyone mo related that if they married each other, the „ 34 CounciJ would banish them from its lands. Soon thereafter the Coilin'i 1 applied this law to one of its citizens. A woman w.m denied permission to marry the son of her husband's

32, l!\' H03, 11 (November 3, 1531); RB 16, 228 (November 3, 1531). :;i»e also Seebass, Osiander, p. 194. 33 PV M39, 19 (August 18, 1534) and Seebass, Osiander, P* 194. More specifically, the clergy were forbidden to marry anyone to his father's brother's child, to his mother's sister'd oliild, or to his deceased wife's sister. See RB 16, 173 (Athjiint 18, 1534). 34( i '!'*■ the City Court, the Council gave orders that when any caann involving close blood or affinitive relationships appeamd bn l ore it, the Court was to make no decision on its own, but to refer them to the Council. RB 16, 173 (August in, 1534). 245

sister. According to Hector Pomer and several jurisconsults

such a marriage, although it was permitted by imperial law, , 3 5 was forbidden in Leviticus 20 and the canon law.

Controversy over Henry VIII * s Divorce

from Catherine of Aragon

The issue of marriage impediments was one which

troubled not only common citizens, clergy, and governments.

It was also a matter which frequently, and for obvious

reasons, affected many of the royal families of Europe.

In one instance, the marital difficulties of a king aroused

the interest of a Nurnberg theologian.

In 1532, Andreas Osiander, the preacher at St. Lorenz,

became close friends with Thomas Cranmer who was in Germany

as a representative of Henry VIII of England. At this time,

Henry was attempting to obtain support among the theologians

and scholars of Europe for his divorce from Catherine of

Aragon, the aunt of Emperor Charles V. The queen had been

the widow of Henry's brother Arthur. Cranmer and Osiander

certainly must have discussed the question. Osiander's

response was especially interesting in light of his previous

35RV 849, 18v; RV 849, 20 (May 12, 13, 1535); RB 17, 44v (May 13, 1535). 246

energetic support for Hans Hunerkopf in 1528, At that time,

he had held that all marriages not expressly forbidden in

Mosaic law ought to be permitted. According to Leviticus

18: 18, Hunerkopf1s marriage to his deceased wife's sister

was not forbidden. The marriage of Henry VIII, however,

was another matter. In contrast to Luther and Melanchthon

(who, although they agreed that the marriage probably should

not have been concluded in the first place, held that

Henry's union with Catherine ought to remain binding), 36 Osiander claimed that (according to Leviticus 18: 16) this 37 marriage was expressly forbidden and should be dissolved.

Osiander's stand was based upon his study of certain Jewish

commentaries which indicated that the laws of Leviticus 18:

16 and 20: 21 were binding in all cases. Furthermore, the

levirate marriage (to the childless widow of one's brother) was permitted among the Jews only in rare and exceptional 38 cases and certainly did not apply to Christians.

36 Leviticus 18: 16: "You shall not have intercourse with your brother's wife: that is to bring shame upon him."

^7Moller, Osiander, pp. 154-55. 38 Seebass, Osiander, p. 193 and Moller, Osiander, p. 190. We may wonder why, when they also supported the strictly biblical view of impediments, that Luther and Melanchthon could not agree with Osiander regarding Henry's 247

Osiander's letter (February 6, 1536) to Luther in support of his own views failed to convince the latter that the Nurnberg theologian's interpretation of the Mosaic laws and the Hebrew scholars was correct. Luther persisted in

3 9 the view that Henry's marriage to Catherine was valid.

We have further evidence indicating the degree to which

Osiander's position on forbidden degrees had changed between

1526 and 1537. By the end of 1537, Osiander was so con­ vinced of the correctness of his interpretation that he had his views published.

“On Forbidden Marriages and Incest11

In February, 1537, the Council learned of a case in which a man apparently had married his first wife's brother's daughter. The couple were told to leave the N&rnberg terri­ tories within fourteen days.40 The next day, however, it

divorce. It is possible that they, unlike Osiander (who seems to have been possessed of a terrifying self assurance) had not yet fully determined how far the individual Mosaic regulations had validity for Christians. In addition, the existence of a consummated and long-standing marriage out­ weighed, in their minds, the biblical laws which may have forbade its original conclusion. See Moller, Osiander, p. 155. 39 Seebass, Osiander, p. 193. 40 RV 872, 39 (February 16, 1537). At the same time, 248 was brought to the Council's attention that the deceased wife and her brother had been related only through a common

father and not both parents.^ Because of the peculiar

circumstances of this case, it was decided to postpone a

final decision until the jurists and theologians could advise in the matter of impediments to marriage. Out of this, the Council hoped to issue an ordinance detailing precisely the degrees of relationship which were permissible 42 in marriage.

Because of the absence of Osiander and Veit Dietrich

(preacher at St. Sebald since 1536) from Nurnberg, it was not until the fall of 1537 that any progress could be made.

At that time, the theologians submitted their opinion. In reality, the report "on forbidden marriages" had been com­ posed by Osiander, but the other clergy apparently agreed

the Council reprimanded the clergyman who had advised on the marriage and warned that henceforth all pastors were to obtain the Council's consent before proceeding with such questionable marriages.

^ R V 872, 40 (February 17, 1537) . Although it seems highly unlikely, these Ratsverlasse (Notes 40 and 41) may have referred to two different couples. The names of the persons involved are different and the Council later made mention of "two cases." 42 RV 873, lv (February 22, 1537). 249 with it to the extent that it was submitted as a unanimous opinion.. . 43

In this work, Osiander still relied upon Mosaic law as his starting point, but, using the Jewish commentaries as his model, expanded the list of forbidden degrees. Leviti­ cus 18 was not a temporary, ceremonial law, said the theo­ logian, but true “divine-natural" law. Yet, the question remained whether only those persons expressly named in the text were forbidden to marry or whether from the examples given, other analogous degrees must be revealed and also forbidden.

Osiander admitted that previously (in the Hvinerkopf case in 1528) he had held the first view. After serious study of Scripture and the Hebrew scholars, however, he had now accepted the second and less rigid interpretation as the only valid one. If this were not the correct view, said the author, then the guiding principle in Leviticus 18: 6

("No man shall approach a blood-relative for intercourse") would be completely inoperative. Furthermore, "monstrous, inhuman abominations" would result since, because Moses had

43 Seebass, Os lander, p. 194. 250 not expressly forbidden it, a son, for example, could marry his father's mother. Yet, such a thing would be completely contrary to nature.

Osiander then proposed four rules by which one could determine which degrees of relationship were forbidden: whatever wife is forbidden to me, the same woman's brother or spouse is forbidden to my sister; female and male sex makes no difference in the degrees of blood relationship; whatever is forbidden in the ascending line is also forbid­ den in the descending line; whatever man my wife cannot marry after my death because she has been my wife, the same man's wife is forbidden to me after his death.

Employing these rules, Osiander drew up a list of fifty persons (including the nineteen persons originally forbidden by Moses) between whom marriage was not permitted. He discovered that it included precisely the same persons who 44 were listed in the old Roman law and in the imperial law,

44 Portions of this list are reproduced in Appendix C. Osiander also made specific reference to the two relation­ ships which had created difficulties for Hflnerkopf and for Henry VIII, Marriage to one's deceased wife's sister he now declared to be illegal because it had applied only to Jews. Christians, he believed, should not follow the example of the Old Testament patriarchal marriages without a clear command from God. In addition, he again rejected the use of levirate marriage among Christians, 251

Osiander concluded his advice to the Council by declaring that a "Christian" government was justified in punishing 45 those who married in violation of these prohibitions.

By September 12, 1537, then, the Council was in posses­ sion of the opinions of both its jurisconsults and the theo­ logians. Nevertheless, the matter of the ordinance on impediments was postponed further because the Council wished the jurists to produce a more exact list of the degrees for- 46 bidden in old Roman and imperial law.

In the meantime, Osiander committed an offense which thoroughly angered the Council. He took the liberty of having his report on forbidden marriages (a duplicate of the one submitted to the Council) published in Augsburg without the Council's knowledge or consent. This was a gross viola­ tion of what the government considered its privilege to

45 "Von verpotenen heyratenn" (Ratschlag submitted by the theologians on September 12, 1537), StAN, D-Akten, Nr. 1064, p. 2ff. Cf. Andreas Osiander, Von den verpoten heyratten und blutschanden underricht (Augsburg, 1537). Except for an introduction added by Osiander, this is the same as the original Ratschlag submitted to the Council. See also Moller, Osiander, pp. 191-96, for a synopsis of the latter work. See also / nuel flirsch, Die Theoloqie des Andreas Osiander und ihre qeschicht1ichen Vnraussetzungen (Gottingen, 1919), pp. 284-85. 46 RV 880, 22 (September 5, 1537). 252 debate matters in secret until a final decision could be reached. The Council ordered that Osiander's pamphlet was not to be printed, bought, or sold in Nurnberg. For his actions, Osiander was severely censured and warned to hence­ forth consult the Council before undertaking such a

. . 47 project.

As for the proposed ordinance on forbidden marriages, little progress was made. Up to February, 1538, the Council deliberated with its jurists, but could not reach any con­ clusions on how such an ordinance should be composed.

Finally, in March it decided that, for the time being at least, it must decide each case on its own merits with the 48 advice of its jurisconsults.

To what extent had the reforming clergy of Nurnberg succeeded in replacing the intricate and extensive marriage

The theologian responded that he did not wish to have his hands so bound. Yet, he would conform to the Council’s wishes if necessary. With this answer, the government appeared to be satisfied, but decided to have Osiander watched to see if he criticized the Council in his sermons. RV 882, 32v ; 882, 35v; 882, 37 (November 11-14, 1537). See also Moller, Osiander, p. 195. 48 RV 883, 23 (December 4, 1537); RV 886, 18v (February 23, 1538); RV 887, 23 (March, 1538). See also Seebass, Osiander, p. 195. impediments of the traditional law with the simpler Mosaic

law? It appears that, at least initially, they failed.

The Council, during the 1520's and 1530's, for its own

reasons, refused to abolish those restrictions customarily

held in common, imperial, and canon law. In addition, it

seems that Osiander, himself, decided that the laws of

Moses ought to be extended beyond those examples expressly

cited in Leviticus 18 and 20. In a sense, he had moved

closer to the Council's position. Nevertheless, by 1564,

progress had been made. The Revised Civil Code of Niirnberg had eliminated many of the traditional restrictions and was

thus in closer conformity to evangelical principles. CONCLUSION

Without question, it may be said that the Reformation had an impact upon marriage concerns in Nurnberg, An

immediate result was the creation of a civil marriage court

in the city. As we have seen Osiander's suggestions for a bench jointly occupied by clergy and councillors was rejected. The City Council, long fearful of clerical encroachments in civil affairs, preferred to establish a purely secular court which was responsible to it alone.

That is not to say that the government considered "secular"

institutions such as marriage removed from the realm of

religion. In the sixteenth century, the spheres of church

and state were not considered separable entities. The

Council as a "Christian government" believed that it was

serving the interests of both the ecclesiastical and secular

aspects of society. Nevertheless, the eventual effect of

the decision (in Niirnberg and elsewhere) to remove marriage cases from the jurisdiction of the ecclesiastical courts was the much greater secularization of marriage law.

254 255

In the practical creation and application of marriage laws, the immediate impact of the Reformation is more difficult to assess. Certainly there was an influence.

The reform-minded theologians were quick to make their views known to the Council. The very fact that the government asked them for advice is significant. If it had wished, the

Council might have relied upon its jurisconsults. Many of them were versed in the canon as well as Roman laws. Yet, in many instances the government sought the opinions of the clergy. It is also true, however, that the Council frequently took a course contrary to the advice of the theologians.

In analyzing the influence of the reformers, one finds that they were not always successful in their attempts to obtain marriage legislation which conformed to Protestant doctrines. There was, for example, no new or more stringent approach to the punishment of adulterers, although the theo­ logians repeatedly urged that the Council employ the death penalty as had been the practice in Mosaic law. In the matters of divorce and remarriage, too, it appears that the clergy initially failed to have the canonical restrictions replaced with the more liberal doctrines based upon their 256 interpretation of Matthew 19: 9. The Council followed a policy of refusing in almost all instances to grant full divorces and flatly prohibiting the remarriage of divorced persons, innocent or otherwise.

The influence of the reformers on the Council’s attempts to eliminate the problem of clandestine marriages was weakened because they were unable to offer the govern­ ment a simple positive solution. They could not say defi­ nitely that children should have the right to marry without parental consent and yet they were unwilling to permit the dissolution of all clandestine marriages. They concluded that the marriage court must decide each case according to its own merits. In addition, as we have seen, the jurist

Pr. Scheurl failed to persuade the Council to adopt his proposals: to nullify all secret marriages no matter what the circumstances under which they were concluded. Such a law would have been directly contrary to the canon principle of the sacramentality and indissolubility of marriage.

Instead, the Council chose to allow the court to decide in each case whether or not the marriage was binding. Here, again, the Nxirnberg government preferred taking an indetermi­ nate stand rather than risk innovations which might have 257

solved the problem, but which might also have elicited a

negative reaction from the Imperial Chamber Court. f In the controversy over marriage impediments, the

evangelical clergy once more failed initially to produce a

reform of the traditional laws. Osiander, in particular,

tried valiantly to convince the Council that it should prohibit only those marriages which God had forbidden in

Leviticus 18. Despite his efforts (and although the govern­ ment admitted that Scripture forbade few marriages), its decree of 1534 upheld the prohibitions of the imperial and canon laws. The Council held that it was acting in the

interest of community peace and out of regard for its rela­

tionship to the emperor.

This analysis of the Nurnberg marriage laws of 1520 to

1530 forces one to conclude that, on balance, the modifica­

tion of traditional principles along the lines which the

reformers advocated did not at first take place. Yet, during these crucial years, the Nilrnberg clergy certainly quite energetically brought to the Council's attention the reforms in marriage law which they believed were its obligation to undertake. Although their immediate successes were few, it would be incorrect to assume that their efforts were fruit­ 258

less. One has only to examine the civil code of 1564 and

the additional decrees which followed it during the six­

teenth and seventeenth centuries to see that the Reformation was not without influence on the laws governing marriage concerns. The character of those later laws must surely have been the product of the determined endeavors of that resolute vanguard of Protestant theologians in the early

Reformation years in Nurnberg. APPENDIX A

Selected Entries from Nurnberg Legal Records Indicating

the Punishment of Adulterers between 1470 and 1535

I. Exile:

1471 — Hanns Scholl, for gross immorality committed in another man's house (Extrahirte Fj_lle, NStadtB, Amb, 497, 2*, A3, p. 30v).

1476 — Christina Mederin, for her lengthy love affair with a married man (Extrahirte F^lle, Amb, 497, 2* , A3, p. 27v) .

1493 -- Fritz Teufel, for adultery: five years exile (Extrahirte Fiille, Amb, 497, 2*, 6c, p, 12).

1498 — Christina Rottin, for adultery: twice banished and forced to carry the Lasterstein (Extrahirte Falle, Amb, 497, 2* , 6c, p. 5).

1517 — Bergitta Hummerin, for adultery with Hans Vogel\ banished for three years and five miles from the city (Straffbuch, StAN, Rep, No. 4, Differentia1- akten 33c, p. 213v, fol. 19).

1519 — Margaretha Lindtnerin, for sinful relations with her cousin: life-long exile (Straffbuch, p, 222, fol. 65).

1527 — Jorg Fritz, for leaving his wife and cohabiting with another woman for several years: life-long exile (Straffbuch, p. 245, fol, 224).

259 260

1527 — Hansen from Aurach, for adultery: life-long exile (RV 742, 14: April 13, 1527).

1528 — Cordula Kerlin, for her unchaste relations with four different men: recommended* penalty: exile (Ratschl, b. 6, 154v).

1529 — Heintz Stuler, for adultery-incest with his wife’s sister: recommended* penalty: whipping and exile (Ratschl. b. 6, 154v),

1530 — Conntz Zutsmann, for having violated his oath by renewing his sinful relationship with Ursula Schmidin: placed in the pillory, whipped, and exiled ten miles from the city for life (Straffbuch, p. 263, fol. 61).

1530 — Erhard Schmirer, for adultery and bigamy: recommended* penalty: whipping and exile (Ratschl. b. 7, 8v).

II. Imprisonment:

1486 — Hansen Weyler, for adultery: four weeks in a tower on bread and water (Extrahirte F^lle, Amb. 497, 2*, A3, p. 25v).

1507 — Jacob Sengel, for adultery: several weeks in a tower on bread and water (Extrahirte Falle, Amb. 497, 2*, 6c, p. 10).

1521 — Hans Wurmer, for adultery: four weeks in a tower with water to drink (Straffbuch, p. 226v, fol. 104).

1522 — the peasant Mathes from Anwenden, for adultery with the maidservant: four weeks in the city prison (Haderbuch, StAN, Rep. No. 4, Differen-

* These penalties were recommended by the jurists, but it is not known whether or not they were actually imposed. 261

tial-akten 33d, p. 267, fol. 37),

1526 - Heinz Proschel, for adultery: four weeks in the city prison (Haderbuch, p. 284, fol. 214).

1527 - Jorg Polchinger, for sinful relations with a prostitute: eight days in the city prison and sworn to cease his relationship with her (Straffbuch, p, 245, fol. 225).

1528 -- Jacob Lesch, for adultery: eight days in the city prison (Haderbuch, p. 297, fol. 57).

1529 -- Hans Gail, for adultery: recommended* penalty: several days imprisonment on bread and water and then several years exile (Ratschl. b. 6, 211) .

1530 - - Michel Wagner, for adultery and procreation of a child: four weeks in the city prison on water and bread (Straffbuch, p. 262v, fol. 61).

1530 -- Anna Kfinigin, for adultery and prostitution with twenty-four Nurnberg citizens: recommended* penalty: imprisonment on bread and water, exile, and ears and nose cut off; penalty known to have been imposed: forced to carry the Lasterstein (Ratschl. b. 7, 37v-40v and Knapp, Kriminalrecht, p. 226).

1530 -- Twenty-four men with whom Anna Konigin had relations: imprisonment in the city towers (RV 792, 8, 9-11* December 7-11, 1530).

1531 -- A man from Engelthal, for adultery: fourteen days in a tower (RV 792, 5: January 4, 1521).

1532 -- Hans Guldenirund, for adultery: recommended* penalty: imprisonment in a tower for four weeks (Ratschl. b. 7, 219-220v).

1534 -- Hans German and his stepson's wife, for adultery committed while German's wife was in the 262

hospital: recommended* penalty: a period in the pillory and then imprisonment (Ratschl. b. 8, 75v).

1536 — Heinrich Felck, a married man who was found in the Frauenhaus (house of prostitution): four weeks in a tower (RV 859, 7v: February 9, 1536).

III. Penalties other than Exile and Imprisonment:

1498 — Christina Rottin, for adultery: ordered to carry the Lasterstein (Extrahirte Falle, Amb. 497, 2*, 6c, p. 5).

1508 — Christina, the wife of a map-maker, for "gross harlotry"; buried alive beneath the gallows (Ubelthaters Buch, NStadtB, Will I, 530, 2# , p. 20).

1517 — Hans Vogel, for adultery and procreation of a child: ten gulden fine and child-support costs (Straffbuch, p. 213v, fol. 19).

1518 — Hans Kelermann, for adultery: warned to avoid all association with Thomas Schnerder's wife ( Straffbuch, p. 220, fol. 59) .

1525 — Affra Leuchtputnerin, for adultery: recom­ mended* penalty: to be branded on the face or exiled (Ratschl. b. 5, 86v).

1528 — Conntz Mullner,. for a lengthy relationship with a married woman named Schmidin: sworn to avoid all further association with the woman (Straffbuch, p, 253v, fol. 10) .

1530 — Anna KSnigin, for adultery and prostitution: forced to carry the Lasterstein (Knapp, Kriminalrecht. p. J:26),

1530 — Hanns Puhler, for thievery and adultery: recommended* penalty: decapitation by sword (Ratschl. b. 7, 6). APPENDIX B

The Roman and German Methods of Computing

Degrees of Consanguinity*

Roman Computation German Computation t I t A to BC = 1st degree A to BC - 1st degree A to DE * 2nd degree A to DE - 2nd degree A to FG - 3rd degree A to FG - 3rd degree B to C = 2nd degree B to C = 1st degree B to E = 3rd degree B to E - 2nd degree B to G = 4 th degree B to G * 3rd degree D to E = 4th degree D to E » 2nd degree F to G = 6th degree F to G * 3rd degree F to E - 5 th degree F to E ■ 3rd degree

The Germans counted the number of generations which were necessary for the creation of the relationship. If the persons were related in unlike line (for example, B to E), the German method computed only the number of generations in the longer line. The Roman law, if the persons were related

in unlike line, counted the generations in both the longer

*This chart is taken from Friedberg, Kirchenrecht, p. 445. 264

and shorter line up to the common ancestor. If the persons were related in like line, the Roman method added together

the number of generations in both lines. The canon law computed degrees of relationship according to the German method; the Protestants appear to have followed the Roman method.*

it See Friedberg, Kirchenrecht. pp. 444-45. Cf. Kohler "Eherecht," p. 288. APPENDIX C

h. List of Prohibited Marriages as Compiled

by Andreas Osiander in 1537*

I. Nineteen Persons Between Whom Marriage was Expressly

Forbidden in Leviticus 18 and 20:

1. his mother 2. his stepmother 3. his sister byfather and mother 4. his sister byfather alone or by mother alone 5. his son's daughter 6. his daughter's daughter 7. his father's sister 8. his mother's sister No man 9. his father's brother's wife shall marry 10. his son's wife 11. his brother's wife 12. his wife's mother's mother 13. his wife's father's mother 14. his wife's mother 15. his daughter 16. his stepdaughter 17. his stepson's daughter 18. his stepdaughter's daughter 19. his wife's sister

* Andreas Osiander, Von den verpoten heyratten und blutschanden underricht {Augsburg, 1537).

265 266

II. Persons Related in Degrees Analogous to Those

Expressly Forbidden in Leviticus 18 and 20:

1. his father's or mother's mother 2. his brother's or sister's daughter 3. his mother's brother's wife 4. his nephew's wife 5. his wife's niece No man 6. his father-in-law’s or mother- shall marry in-law's sister 7. his grandson's wife 8. his father's or mother's stepmother 9. his grandfather's or grand­ mother's sister 10. his great-niece 11. his great-uncle's wife 12. his great-nephew's wife APPENDIX D

Glossary

Beilager: Nuptials; symbolic consummation of the marriage; in the sixteenth century, the initiation of marital cohabitation,

Braut; Bride; a young woman who was betrothed,

Brautiqam: A young man who was betrothed.

Consensus per verba de futuro; Marriage or betrothal vows directed toward a future time; without copula carnalis it did not establish a valid marriage.

Consensus per verba de praesenti; Marriage or betrothal vows directed toward the present; immediately estab­ lished a valid marriage in the eyes of the Church.

Ehe; Marriage*

Ehebrecher; Adulterer.

Ehebruch* Adultery.

Ehebucher or Traureg ister; Register kept in the parish churches in Nurnberg; used to record the names of those who were properly married in the eyes of the law and church,

Eheqelubde: Marriage vows.

Ehehindernis: An ecclesiastical or legal impediment to marriage,

Eherecht: Marriage law,

267 268

Eheacheidung: Divorce.

Eheschliessung; Entry into the married state.

Ehetrennung: Separation.

Ehrbare: Nongoverning, wealthy citizens in sixteenth- century Niirnberg; "honorable,"

Ehrbar Rat: "Honorable Council" or smaller, governing Council; City Council of Nurnberg.

Heimfuhrunq: Festive procession of the bride from her family home or the church to her husband's home,

Heirat: A marriage ceremony; betrothal in the sense that the latter initiated the marriage.

Hochzeit: A marriage or wedding celebration.

Hureryi Adultery, fornication, or other sexual immorality.

Konsensgesprcich: The giving of consent in the betrothal process; it took place within the family circle.

Lasterstein: The burden-stone; to be carried by the immoral woman as a public humiliation for her misdeeds.

Matrimonium clandestinum: A secretly or irregularly con­ cluded marriage; a marriage concluded without parental consent and/or without the presence of proper witnesses.

Munt: The authority or dominion held by one person over another; it also connoted a protective quality,

Muntehe; A marriage in which the husband received the Munt or dominion over the wife.

Muntubertraqung; The transfer of the dominion over the bride from the father or guardian to the husband.

Nudus consensus facit nuptias: The canon-law principle which held that the marriage was established purely through the mutual giving of consent by the couple. 269

Ratsbucher; Minutes from the meetings of the Nurnberg City Council.

Ratskonsulenten: Jurists or jurisconsults; trained lawyers who advised the City Council.

Ratschlagbucher: Collections of memoranda (including the legal briefs of the jurisconsults and the written advice of the theologians) submitted to the Nurnberg Council.

Ratsverlasse: Protocol from the Niirnberg City Council meetings.

Sponsalia: Marriage or betrothal vows.

Sponsalia de futurp: A promise or vow of future marriage.

Sponsalia de praesent-i: A marriage vow which was imme­ diately effective; a valid marriage.

Stadtqericht: The City Court; it handled civil cases.

Straff: Punishment.

Trauung: The delivery of the bride to the groom; in the sixteenth century, entrusting of the bride and groom into each other's care; eventually it occurred at or in the church and took the form of a wedding.

Treubruchi A breach of the betrothal or marriage contract.

Verlobung or Verlobnis; Betrothal; initiation of a marriage.

Willensubereinstimmung: A declaration of the mutual intent to marry as given in the betrothal.

Jinkelehe: A secretly or irregularly concluded marriage; a marriage concluded without parental consent or with­ out the presence of proper witnesses.

Zusammensprechen: The giving of mutual vows of fidelity in the Trauung.

Zwanqstrauung: A forced completion of a marriage. BIBLIOGRAPHY

I. Primary Sources

A. Manuscripts

Landeskirchliches Archiv, Andreas Osiander. "Gut- Nurnberg achten uber die Zeremonien" (February 5, 1526). Fen. IV, 906, 2“ .

Landeskirchliches Archiv Dominicus Schleupner. "Von Niirnberg den Abgethanen misbreuchen und auffgerichten gots- diensten und kirchengebenden zu Nurmberg..." (1526). Fen. IV, 906, 2*.

Landeskirchliches Archiv Dominicus Schleupner, Nurnberg Andreas Osiander, and Thomas Venatorius. "Bin Ratschlag aus der heyligen Schrifft" (1524). Fen. IV 906, 2°.

Staatsarchiv, Nurnberg Rep. 4 Differentialakten, No. 33cj Straffbdcher No. 33d: Haderbiicher

Staatsarchiv, Nurnberg Rep. 15a A~Laden, Akten S I. L. 10, No. 23 S I. L. 10, No. 24

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270 271

Staatsarchiv, Nurnberg Rep. 51 Ratschlagbucher Nos. 3-8 No. 26

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Stadtarchiv, Nurnberg Rep. A 6 , X: "Etliche frag von denen zu- erfaren so sich anzuzaigen zu verkunden zum eelichen stant, ee dan sie eingeleit werden" (July, 1537).

Stadtarchiv, Nurnberg Nurnberg Chronik 1/lV, Rep. C25/I: Johannis Mullneri, Annales Norim- bergensis

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Stadtarchiv, Nurnberg Amb. 160: Frayschbuch zu Niirnberg, 1499-1534

Stadtarchiv, Nurnberg Will I, 530, 2*: tibelthSters Buch, 913- 1788

Stadtarchiv, Nurnberg Amb. 491. - 495. 2* and Amb. 497. - 499. 2®: Extrahirte und transsumirte F&ll auss uralten Pergamen Nurn­ berg ischen Acht- und Straff- buchern. Intituliert: Replicae cum annexis actibus Superadditis Nurnberg contra Brandenburg 272

Stadtarchiv, Nilrnberg Kirchenamt, Rep. B5, #22: Edict in Ehesachen (April 8, 1527)

B. Printed Materials

Baader, Joseph. “Nurnbergisches Rechtsgutachten uber die Ermordung zweier Ehebrecher zu Ulm im Jahr 1528," Anzeiger fur Kunde der deutschen Vorzeit (Neue Folge. Organ des Germanischen Museums), II (1864), 134-36.

Bambergische Halsqerichts und Rechtliche Ordnung. Mainz, 1531 (GNM R. fol. 60 - Post. Inc.).

Beyerle, Franz, ed. Quellen zur neueren Privatsrechts- qeschichte Deutschlands, Weimar, 1936.

Brenz, Johannes. Wie yn Ehesachen und ynn den fellen so sich derhalben zutraqen, nach Gotlichen billichen Rechten Christlich zu handeln sey. Wittenberg, 1531 (GNM R 1. 2829 ® - Post. Inc.).

Halsqerichtsordnunq Kaiser Karls V. Mainz, 1531 (GNM R. fol. 60).

Lahner, Leonhard Christoph. Einleitung in die burgerlichen Rechte, besonders die Nurnbergische. Frankfurt and Leipzig, 1785.

. Der des heil. Romischen Reichs Freyen Stadt Nurnberg verneuerte Reformation de Anno 1564 samt... Additional Decreten und verordnungen in einen tabel- larischen Entwurf. Nurnberg, 1770.

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Verpot der Winckelee die on bewilligung der Eltern und Vormunder beschehen.... Nurnberg, 1534 (NStadtA, A6: Mandate, Ordnungen und Druckschriften. I: 1487- 1806).

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II. Secondary Accounts

Bebb, Phillip Norton. "Christoph Scheurl's Role as Legal Adviser to the Nurnberg City Council, 1512 to 1525." Unpublished Ph.D. dissertation, The Ohio State University, 1971.

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Buck, Lawrence P. and Zophy, Jonathon W., eds. The Social History of the Reformation: Essays in Honor of Harold J. Grimm. Columbus, Ohio, 1972. 274

Burger, Helene, ed. pas £lteste Ehebuch der Pfarrei St. Lorenz in Nurnberg, 1524-1542. Nurnberg, 1951.

Conrad, Hermann, Deutsche Rechtsqeschichte. Vol. I: Fruhzeit und Mittelalter. Karlsruhe, 1962.

Dieterich, Hartwig, Das protestantische Eherecht in Deutsch­ land bis zur Mitte des 17. Jahrhunderts. Vol. X of Beitrage zum evangelischen Kirchenrecht und zum Staats- kirchenrecht. Edited by Axel Frhr. v. Campenhausen, Martin Heckel, Klaus Obermayer, Gustav-Adolf Vischer, and Rudolf Weeber. Munich, 1970.

Dietrich, Hans Christian. Evangelisches Ehescheidunqsrecht nach den Bestimmungen der deutschen Kirchenrechts des 16. Jahrhunderts. Erlangen, 1892.

Dollinger, Johann Joseph. Die Reformation, ihre innere Entwicklunq und ihre Wirkungen im Umfange des Lutherischen Bekenntnisses. 3 VoIs. Regensburg, 1846-1848.

Elert, Werner. "Eine Richtigstellung zur Geschichte des evangelischen Ehescheidungsrechtes." Neue kirchliche Zeitschrift, XXXVIII (1927), 522-548.

Engelhardt, Adolf. "Die Niirnberger Kirchenbucher. " Blatter fflr fr&nkische Familienkunde, II (1929-31), 381-96.

______. "Die Reformation in Nilrnberg." Mitteilungen des Vereins ftir Geschichte der Stadt Nurnberg, XXXIII (1936), 3-258.

Franz, Eugen. NiHrnberg, Kaiser und Reich» Studien zur Reichsstfldtischen Aussenpolitik. Munich, 1930.

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Germania Sacra: Abt. II: Die Bistumer der Kirchenprovinz Mainz. Vol. I: Das Bistum Bamberg. Part I. Edited by Erich Freiherr von Guttenberg. Berlin, 1966. 275

Greenfield, Kent Roberts. "Sumptuary Laws in Nilrnberg: A Study in Paternal Government." Johns Hopkins University Studies in Historical and Political Science, XXXVI (1918), 151-289.

Haussdorf, Gottlieb. Lebens-Beschreibung Eines Christlichen Politici, nehmlich Lazari Spenqlers. Nurnberg, 1741.

Hirsch, Emanuel. Die Theologie des Andreas Osiander und ihre geschichtlichen Voraussetzunqen. Gottingen, 1919.

His, Rudolf. Geschichte des deutschen Strafrechts bis zur Karolina. Abt. Ill of the Handbuch der Mittelalter- lichen und Neueren Geschichte. Edited by G. von Below, F. Meinecke, and A. Brackman. Munich and Berlin, 1928.

Hollesch, Margarete. Die Strafbarkeit des Ehebruches in geschichtlicher und rechtsverqleichender Parstellung. Kaldenkirchen, 1932.

Jegel, August. "Altmlrnberger Hochzeitsbrauch und Eherecht, besonders bis zum Ausgang des 16. Jahrhunderts." Mitteilungen des Vereins ftir Geschichte der Stadt Nflrnberg, XLIV (1953), 238-274.

Kawerau, Gustav. De Digamia Episcoporum. Ein Beitrag zur Lutherforschung. Kiel, 1889.

______. "Der Nurnberger Streit uber die zweite Ehe der Geistlichen." BeitrMge zur bayerischen Kirchen- qeschichte, X (1904), 115-129.

Kinder, Ernst. "Luthers Auffassung von der Ehe." Bekenntnis zur Kirche. Festgabe fflr Ernst Sommerlath zum 70. Geburtstaq. Berlin, 1960.

Kipfmdller, Bertha. Die Frau im Rechte der Freien Reichs- stadt Nurnberg. Dillingen a. Donau, 1929.

Kirstein, Roland. Die Entwicklung der Sponsalienlehre und Lehre vom Eheschluss in der deutschen protestantischen Eherechtslehre bis zu J. H. Bohmer. Vol. LXXVII of the Bonner rechtswissenschaftliche Abhandlungen. Bonn, 1966. 276

Kist, Johannes. Das Bamberger Domkapitel von 1399 bis 1556. Vol. VII of the Historisch-Diplomatische Forschungen. Edited by Leo Santifaller, Weimar, 1943.

Knapp, Hermann. Das alte Nurnberger Kriminalrecht. Berlin, 1896.

K&hler, Walther. "Brentiana und andere Reformatoria IV." Archiv fur Reformationsgeschichte, XI (1914), 241-289.

. "Die AnfSnge des protestantischen Eherechts." Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte, Vol. LXI (Vol. LXXIV of the Zeitschrift fur Rechts- qeschichte), Kan. Abt. XXX (1941), 271-310.

Kolde, Theodor von. "Ober das Kirchenwesen in Nurnberg im Jahre 1525." Beitrage zur bayerischen Kirchen- qeschichte, XIX (1913), 57-74.

Kraus, Josef. "Die Stadt Nurnberg in ihren Beziehungen zur Romischen Kurie wShrend des Mittelalters." Mitteilungen des Vereins fur Geschichte der Stadt N(lrnberq, XLI (1950), 1-154.

Kunstmann, Hartmut H. Zauberwahn und Hexenprozess in der Reichsstadt Nurnberg. Vol. I of the Nflrnberger WerJc- stucke zur Stadt- und Landesgeschichte. Edited by Gerhard Hirschmann, Hanns Hubert Hofmann, and Gerhard Pfeiffer. Ndrnberg, 1970.

Liermann, Hans. "Evangelisches Kirchenrecht und Staatliches Eherecht in Deutschland. Rechtsgeschichtliches und Gegenwartsprobleme." Existenz und Ordnung. Fest­ schrift fur Erik Wolf zum 60. Geburtstag. Frankfurt a. M . , 1962.

. "Rechtsgeschichte in der frankischen Landschaft." Jahrbuch fur frankische Landesforschung, XXIII (1963), 197-224.

Lith, Johann Wilhelm von der. Erlauterung der Reformations- Historie vom 1524 bis zum 1528. Schwabach, 1730. 277

Looshorn, Johann. Die Geschichte des Bisthum Bamberg. Vol. IV: Das Bisthum Bamberg von 1400-1556. Bamberg, 1900.

Meyer, Julie. "Die Entstehung des Patriziats in Nurnberg." Mitteilungen des Vereins fflr Geschichte der Stadt Nflrnberg. XXVII (1928), 1-96.

Michel, Andreas. Die historische Entwicklung der Auflosung der Ehe nach Nttrnberger Recht. Niirnberg, 1893.

Moller, Wilhelm. Andreas Osiander, Leben und ausqew^hlte Schriften. Elberfeld, 1870.

Oellrich, Ludwig. "Der Strafprozess in Nurnberg wShrend der letzten 3 Jahrhunderts der Selbstandigkeit der freien Reichsstadt." Unpublished Inaugural-Dissertation, Friedrich-Alexander University at Erlangen, 1947.

Petsch, Gunther. Das Nurnberger protestantische Kirchen- recht der reichsstadtischen Zeit. Eine kirchenrechts- qeschichtliche Studie. Dtiren-Rhld., 1933.

Pfeiffer, Gerhard. "Die Einfiihrung der Reformation in Ntirnberg als kirchenrechtliches und bekenntniskund- liches Problem." Blatter fur deutsche Landes- qeschichte, LXXXIX (1952), 112-133.

. ed, Nurnberg — Geschichte einer europSischen Stadt. Munich, 1971.

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. "Der Liebes- und Ehehandel der Barbara Loffelholz, der Mutter Willibald Pirckheimers, mit Sigmund Stromer zur goldenen Rose." Mitteilungen des Vereins fur Geschichte der Stadt Nurnberg. XVIII (1908), 134-196.

______. Willibald Pirckheimer, Leben, Familie und Pers£n- lichkeit. Jena, 1930. 278

Reicke, Siegfried. "Geschichtliche Grundlagen des Deutschen Eheschliessungsrechts, Weltliche Eheschliessung und kirchliche Eheschliessung." Beitrage zur Frage des Eheschliessungsrechtes. Edited by Hans Adolf Dombois and Friedrich Karl Schumann. Gladbeck, 1953.

Richter, Ludwig. Beitrage zur Geschichte des Ehescheidungs- rechts in der evangelischen Kirche. Berlin, 1858.

Roetzer, Karl. "Die Delikte der Abtreibung, Kindstotung sowie Kindsaussetzung und ihre Bestrafung in der Reichsstadt Nurnberg." Unpublished Inaugural- Dissertation, Friedrich-Alexander University at Erlangen, 1957.

Roth, Friedrich. Die Einftihrunq der Reformation in Niirnberg, 1517-1528. Wurzburg, 1885.

Schafer, Rudolf. "Die Geltung des kanonischen Rechts in der evangelischen Kirche Deutschlands von Luther bis Gegenwart. Ein Beitrag zur Geschichte der Quellen der Literature und Rechtssprechung des evangelischen Kirchenrechts." Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte, Vol. LXIII (Vol. XLIL of the Zeit­ schrift fur Rechtsgeschichte), Kan. Abt. V (1915), 165-211.

Scheurl, Adolf von. "Beitrflge zur Geschichte des Eheschlies­ sungsrechts aus einem Nurnberger Familienarchiv." Zeitschrift fiir Kirchenrecht, VII (1889), 308-21.

Schornbaum, Karl. Das Slteste Ehebuch der Pfarrei St. Sebald in Nurnberg, 1524-1543. Nurnberg, 1949.

Seebass, Gottfried. "Die Reformation in Nurnberg." Mitteilungen des Vereins fur Geschichte der Stadt NurnberqT LV (1967-68), 252-269.

______. Das reformatorische Werk des Andreas Osiander ("Einzelarbeiten aus der Kirchengeschichte Bayerns," Vol. XLIV). Nurnberg, 1967.

Simon, Matthias. "Zur Entstehung der Kirchenbucher." Zeit­ schrift fur bayerische Kirchengeschichte, XXVIII (1959), 129-142. 279

Smith, William. "A Description of the Cittie of Noremberg." Mitteilungen des Vereins fur Geschichte der Stadt Nttrnberg, XLVII (1958), 194-245.

Soden, Franz von. BeitrSge zur Geschichte der Reformation und der Sitten jener Zeit mit besonderem Hinblick auf Christoph Scheurl X I . Ntirnberg, 1855.

Sohm, Rudolf. Das Recht der Eheschliessung aus dem deutschen und canonischen Recht qeschich11ich entwickelt. Weimar, 1875.

Stobbe, Otto. Geschichte der deutschen Rechtsquellen. 2 Vols. Leipzig, 1860-64.

Straub, Heinrich. Die Geistliche Gerichtsbarkeit des Dom- dekans im alten Bistum Bamberg von den Anfanqen bis zum Ende des 16. Jahrhunderts. Vol. IX (Kan. Abt. Ill) of Mtinchener Theologische Studien im Auftraq der Theolog is chen Fakultat Munchen. Edited by Joseph Pascher, Klaus MiSrsdorf and Hermann Tiichle. Munich, 1957.

Strauss, Gerald. Nuremberg in the Sixteenth Century. New York, 1966.

Waldmann, Daniel. "Die Entstehung der Nurnberger Reformation von 1479 (1484) und die Quellen ihrer prozessrecht- lichen Vorschriften." Mitteilungen des Vereins fur Geschichte der Stadt Nflrnberg, XVIII (1908), 1-98.

Woywod, Stanislaus and Smith, Callistus, eds. A Practical Commentary on the Code of Canon Law. 2 Vols. New York, 1952.

Troeltsch, Ernst. The Social Teaching of the Christian Churches. Trans, by Olive Wyon. New York and London, 1931.

Will, Georg Andreas. Historisch-Diplomatisches Maqazin fflr das Vaterland und angrenzende Gegenden. Vol. II, Part II: Ntirnberqische Criminal Parallele. Nurnberg, 1782.