[1172] The most famous case of enforcement of a betrothal, against an unwilling bride, is that of Dr. Stiel, 1553. The plaintiff's petition (Gesuch) in fifty-eight articles or specifications, setting forth in a most realistic way the whole courtship and the betrothal proceedings, is communicated by Friedberg, "Beiträge zur Geschichte des brand.-preuss. Eherechts," ZKR., VI, 72 ff. Actual force to compel the fulfilment of a betrothal was used only when it was followed by copula: ibid., 81. Friedberg traces the history of the subject to the reign of Frederick the Great, citing various cases. As a result he declares that in the sixteenth century betrothed persons could be forced to keep their engagement even when both were willing to dissolve it; while in the eighteenth century action depended upon the will of the interested parties: ibid., 87, 88. Compare Bidembach, De causis mat. tr., 35 ff.
[1173] See the argument of Sohm, Eheschliessung, 202 ff.; Trauung und Verlobung, 110 ff.; against Friedberg, Eheschliessung, 206, 210; Geschichte der Civilehe, 8, who holds that Luther doubled the evils of secret marriage.
[1174] Sohm, Eheschliessung, chap. vii; Trauung und Verlobung, chap. iv, has demonstrated this against the view of Friedberg.
Nevertheless by the middle of the seventeenth century was established a dualism in effect similar to that which had existed under the later canon law. More and more stress was placed upon the nuptials as compared with the betrothal, although in theory the latter still constituted the marriage. J. H. Boehmer, Jus ecclesiasticum protestantium (Halle, 1714), whose teaching has mainly determined the modern law, attacked Luther as being responsible for this dualism, holding that a true betrothal, like the Roman sponsalia, is only a promise of future wedlock, and may therefore be dissolved; while the nuptial contract, publicly and formally made, is the true marriage. On Boehmer's doctrines see Dieckhoff, Die kirch. Trauung, 270-95; Schubert, Die evang. Trauung, 62-76; Scheurl, Kirch. Eheschliessungsrecht, 140 ff.; Phillips, "Das Ehehinderniss der beigefügten Bedingung," ZKR., VI, 154.
[1175] Sohm, Eheschliessung, 198.
[1176] The church ordinances require sometimes only parental consent; sometimes only witnesses; or again the solemnization of the betrothal in church is prescribed, with the sanction of nullity or else a mere penalty for non-observance: Sohm, op. cit., 206, 207; Friedberg, Eheschliessung, 212 ff., 224, 225. Richter's Evangelische Kirchenordnungen are analyzed by Meier, Jus, quod de forma mat. valet, 49 ff.; and Goeschen, Doctrina de mat., 42 ff.
[1177] Friedberg, op. cit., 225 ff.
[1178] Luther would have entirely rejected the canon law, but even in his immediate environment he gained no following. Theologians and jurists alike accepted it as generally valid, giving it precedence over the Roman law. Only the Scriptures were a higher authority. Compare Mejer, Zum Kirchenrechte, 170, 156 (Kling); idem, in ZKR., XVI, 44-48, 73.
[1179] Sohm, op. cit., 207; Friedberg, op. cit., 209, 225-27, 261, 277 ff. The famous case of Caspar Beyer came before the consistorial court of Wittenberg in the latter part of 1543; and its decision in 1544 led to the notorious controversy between Luther and the jurists. Beyer wanted to marry Sibylla, a ward of Melanchthon, but he had made a clandestine contract with another woman without consent or knowledge of her parents; although it was alleged that her brother had given post facto assent, the parents being perhaps dead. Luther declared that such secret betrothals "sollen schlecht keine Ehe stiften;" and in 1539 or 1540 a law of Saxony had forbidden them. A decision of the consistory, following the doctrine of the canon law, sustained the validity of Beyer's marriage; but after a "starke Predigt" and long insistence by Luther it was overruled by the Elector: Mejer, "Anfänge des Witt. Consistoriums," ZKR., XIII, 28-123; idem, Zum Kirchenrechte, 65 ff.
[1180] Sohm, op. cit., 198; Friedberg, op. cit., 208, 209, 225-27, 261, 277 ff., 299, 300.