Meanwhile the news rapidly spread, partly owing to persons belonging to the Court. It reached King Ferdinand, and, by him, and still more by Morone, the Nuncio, it was carried to the Emperor.
Morone wrote on June 15, from the religious conference then proceeding at Hagenau, to Cardinal Farnese at Rome: “During the lifetime of his first wife, a daughter of Duke George of Saxony of good memory, the Landgrave of Hesse, has, as we hear, taken a second wife, a lady of distinction, von der Sale by name, a native of Saxony. It is said, his theologians teach that it is not forbidden to Christians to have several wives, except in the case of a Bishop, because there is no such prohibition in Holy Scripture. I can hardly credit it, but since God has ‘given them over to a reprobate mind’ [Rom. i. 28] and as the King has assured me that he has heard it from several quarters, I give you the report for what it is worth.”
Philip of Hesse, who was already in disgrace with the Emperor on account of his expedition into Würtemberg and his support of Duke Ulrich, knew the penalties which he might expect unless he found some means of escape. The “Carolina” (1532) decreed “capital punishment” against bigamists, no less than against adulterers. The Landgrave himself was even fully prepared to forfeit one-third of his possessions should it be impossible to arrive otherwise at a settlement. He now openly declared — as he had already hinted he would — that, in case of necessity, he would make humble submission to the Emperor; if the worst came to the worst, then he would also make public the memorandum he had received from Wittenberg in order to exculpate himself — a threat which filled the Elector with alarm on account of his University and of Luther.
Bucer, the first to be summoned to the aid of the Hessian Court, advised the Landgrave to escape from his unfortunate predicament by downright lying. He wrote: If concealment and equivocation should prove of no avail, he was to state in writing that false rumours concerning his person had come into circulation, and that no Christian was allowed to have two wives at the same time; he was also to replace the marriage-contract by another contract in which Margaret might be described as a concubine — such as God had allowed to His beloved friends — and not as a wife within the meaning of the calamitous Imperial Law; an effort was also to be made to induce the Court of Dresden to keep silence, or to deny any knowledge of the business, and, in the meantime, the “lady” might be kept even more carefully secluded than before.
The Landgrave’s reply was violent in the extreme. He indignantly rejected Bucer’s suggestion; the dissimulation alleged to have been practised by others, notably by the Patriarchs, Judges, Kings and Prophets, etc., in no wise proved the lawfulness of lying; Bucer had “been instigated to make such proposals by some worldly-wise persons and jurists whom we know well.” Philip wrote to the same effect to the Lutheran theologians, Schnepf, Osiander and Brenz, who urged him to deny that Margaret was his lawful wife: “That, when once the matter has become quite public, we should assert that it was invalid, this we cannot bring ourselves to do. We cannot tell a lie, for to lie does not become any man. And, moreover, God has forbidden lying. So long as it is possible we shall certainly reply ‘dubitative’ or ‘per amphibologiam,’ but to say that it is invalid, such advice you may give to another, but not to us.”
The “amphibologia” had been advised by the Hessian theologians, who had pointed out that Margaret could best be described to the Imperial Court of Justice as a “concubina,” since, in the language of the Old Testament, as also in that of the ancient Church, this word had sometimes been employed to describe a lawful wife. They also wrote to Luther and Melanchthon, fearing that they might desert the Landgrave, telling them that they were expected to stand by their memorandum. Although they were in favour of secrecy, yet they wished that, in case of necessity, the Wittenbergers should publicly admit their share. Good care would be taken to guard against the general introduction of polygamy.
Dispensation; Advice in Confession; a Confessor’s Secret?
Was the document signed by Luther, Melanchthon and Bucer a dispensation for bigamy?
It has been so described. But, even according to the very wording of the memorandum, the signatories had no intention of issuing a dispensation. On the contrary, according to the text, they, as learned theologians, declared that the Divine Law, as they understood it, gave a general sanction, according to which, in cases such as that of Philip of Hesse, polygamy was allowed. It is true that they and Philip himself repeatedly use the word “dispensation,” but by this they meant to describe the alleged general sanction in accordance with which the law admitted of exceptions in certain cases, hence their preference for the term “to use” the dispensation, instead of the more usual “to beg” or “to grant.” Philip is firmly resolved “to use” the dispensation brought to his knowledge by Luther’s writings, and the theologians, taking their cue from him, likewise speak of his “using” it in his own case.
It was the same with the “dispensation” which the Wittenbergers proposed to Henry VIII of England. (See above, f.) They had no wish to invest him with an authority which, according to their ideas, he did not possess, but they simply drew his attention to the freedom common to all, and declared by them to be bestowed by God, viz. in his case, of taking a second wife, telling him that he was free to have recourse to this dispensation. In other words, they gave him the power to dispense himself, regardless of ecclesiastical laws and authorities.
Another question: How far was the substance of the advice given in the Hessian case to be regarded as a secret? Can it really be spoken of as a “counsel given in confession,” or as a “secret of the confessional”?
This question later became of importance in the negotiations which turned upon the memorandum. In order to answer it without prejudice it is essential in the first place to point out, that the subsequent interpretations and evasions must not here be taken into account. The actual wording of the document and its attendant historical circumstances have alone to be taken into consideration, abstraction being made of the fine distinctions and meanings afterwards read into it.
First, there is no doubt that both the Landgrave’s request for the Wittenberg testimony and its granting were intended to be confidential and not public. Philip naturally assumed that the most punctilious secrecy would be preserved so long as no decision had been arrived at, seeing that he had made confidential disclosures concerning his immorality in pleading for a second marriage. The Wittenbergers, as they explicitly state, gave their reply not merely unwillingly, with repugnance and with great apprehension of the scandal which might ensue, but also most urgently recommended Philip to keep the bigamy to himself. Both the request and the theological testimony accordingly came under the natural obligation of silence, i.e. under the so-called confidential seal of secrecy. This, however, was of course broken when the suppliant on his part allowed the matter to become public; in such a case no one could grudge the theologians the natural right of bringing forward everything that was required for their justification, even to the reasons which had determined them to give their consent, though of course they were in honour bound to show the utmost consideration; for this the petitioner himself was alone to blame.
As a matter of fact, however, strange though it may seem, Philip’s intention all along had been ultimately to make the marriage public. It cannot be proved that he ever made any written promise to observe the recommendation of absolute secrecy made by the theologians. Those who drew up the memorandum disregarded his wish for publicity, and, on the contrary, “advised” that the matter should be kept a dead secret. Yet ought they not to have foreseen that a Prince so notoriously unscrupulous would be likely to disregard their “advice”? The theologians were certainly no men of the world if they really believed that the Landgrave’s bigamy — and their memorandum by which it was justified — would or could remain concealed. They themselves had allowed a number of other parties to be initiated into the secret, nor was it difficult to foresee that Philip, and Margaret’s ambitious mother, would not all
ow the stigma of concubinage to rest permanently on the newly wedded bride. The mother had expressly stipulated that Margaret should be treated as a lawful wife and given this title, and not as a concubine, though of this the Wittenbergers were not aware.
Further, the theological grounds for the Wittenberg “advice” must not be lost sight of in considering the question of the obligation of silence or secrecy. The theologians based their decision on a doctrine which they had already openly proclaimed. Nor did Luther ever withdraw from the standpoint that polygamy was lawful; he even proclaimed it during the height of the controversy raised by the Hessian bigamy, though he was careful to restrict it to very rare and exceptional cases and to make its use dependent on the consent of the authorities. Thus the grounds for the step he had taken in Philip’s favour were universally and publicly known just as much as his other theological doctrines. If, however, his teaching on this matter was true, then, strictly speaking, people had as much right to it as to every other piece of truth; in fact, it was the more urgent that this Evangelical discovery should not be put under a bushel, seeing that it would have been a veritable godsend to many who groaned in the bonds of matrimony. Hence everything, both on Philip’s side and on that of the theologians, pointed to publicity. But may, perhaps, the Wittenberg “advice” have been esteemed a sort of “counsel given in Confession,” and did its contents accordingly fall under the “secret of Confession”?
The word “Confession,” in its sacramental meaning, was never used in connection with the affair dealt with at Wittenberg, either in Philip’s instructions to Bucer or in the theologians’ memorandum, nor does it occur in any of the few documents relating to the bigamy until about six months later. “Confession” is first alleged in the letter of excuse given below which Luther addressed to the Elector of Saxony. It is true that the expression “in the way of Confession” occurs once in the memorandum, but there it is used in an entirely different sense and in no way stamps the business as a matter of Confession. There it is stated (above, ), that those who were to be apprised of the bigamy were to learn it “in the way of Confession.” Here the word Confession is employed by metonymy and merely emphasises the need of discretion. Here there was naturally no idea of the sacramental seal, or of the making of a real Confession. In the Middle Ages the term Confession was not seldom used to denote the imparting of an ordinary confidential secret, just as the word to confess originally meant to admit, to acknowledge, or to communicate something secret. This, however, was not the meaning attached to it by those who sought to shelter themselves behind the term in the controversies which ensued after the bigamy had become generally known. To vindicate the keeping secret of his so-called “advice in Confession,” Luther falls back upon his Catholic recollections of the entire secrecy required of the Confessor, in other words, on the sacramental “seal.”
Undoubtedly the Seal of Confession is inexorable; according to the Catholic view it possesses a sacramental sanction and surrounds, like a protecting rampart, the sanctuary of the Sacrament of Penance, which otherwise would be shunned by all. But this absolute and sacramental obligation of silence attends only the administration of the Sacrament of Penance.
The idea that Luther and his comrades when signing the “advice” were dispensing the Sacrament of Penance cannot but raise a smile. In connection with this matter non-Catholic theologians and historians would never have spoken as they have done of Luther as a Confessor, had they been better acquainted with the usages of the older Church. In the case of such writers all that is known of the system of Confession is often a few distorted quotations from casuists. Even under its altered form, as then in use among the Protestants, Confession could only mean an admission of one’s sins, made to obtain absolution. In Lutheranism, confession, so far as it was retained at all, meant the awakening and animating of faith by means of some sort of self-accusation completed by the assurance given by the preacher of the Divine promise and forgiveness, a process which bears no analogy to the “testimony” given by the theologians to Philip of Hesse. In the Catholic Church, moreover, in whose practice Luther seems anxious to take refuge, Confession involves an accusation of all grievous sins, contrition, a firm resolve to amend, satisfaction and absolution. What was there of all this in the Landgrave’s so-called Confession? Where was the authority to absolve, even had this been what the Landgrave sought? How then could there come into play the Seal of Confession, i.e. any sacramental obligation apart from the purely natural obligation of keeping silence concerning a communication made in confidence? Again, Confession, even according to Lutheran ideas, is not made at a distance, or to several persons simultaneously, or with the object of securing a signed document.
Apart from all this one may even question whether the Landgrave’s disclosures were really honestly meant. Not everyone would have taken them from the outset as intended seriously, or have regarded them as above suspicion. Melanchthon, for instance, soon began to have doubts. (See below.) The readiness, nay, eagerness, shown by Philip later to repeat his Confession to others, to reinforce it by even more appalling admissions of wickedness, and to give it the fullest publicity, is really not favourable to the “Confession” idea; on the contrary, it reminds us of the morbid pleasure which persons habituated to vice and who have lost all respect whether for themselves or for the virtue of others, take in speaking openly of their moral lapses. The most important point to bear in mind is, however, the fact, that with Philip of Hesse it was a question of a marriage which he intended should be kept secret only for a time, and further that the Wittenbergers were aware of Philip’s readiness to lay his case before the Emperor, nay, even the Pope should necessity arise. Owing to this they could not be blind to the possibility of the marriage, and, incidentally, of the Landgrave’s admission of moral necessity, and further of their own “advice” being all disclosed. Thus the “Seal of Confession” was threatened from the very first. Philip himself never recognised a binding obligation of secrecy on the part of the Wittenbergers; on the contrary, his invitation to them was: Speak out freely, now that the step has been taken with your sanction! What was Luther’s answer? He appealed to the Secret of the Confessional and refused to defend the act before the world and the Empire, but merely “before God”; all he was willing to do was to vindicate it “before God, by examples such as that of Abraham, etc., and to conceal it as much as possible.” And yet, to forestall what will be related below, full publicity would surely have been the best thing for himself, as then the world would at least have learnt that he was not desirous of introducing polygamy generally, and that the whole business had only been made common property through Philip’s disregard of the recommendation of secrecy. Instead of this, however, he preferred to profess his readiness (it was probably no more than a threat) to admit publicly that he had been in the wrong all along and had acted foolishly; here again, had he been true to his word, the “Secret of the Confessional” would assuredly have fared badly.
Even in his letter of excuse to the Elector Johann Frederick concerning his sanction of the bigamy, Luther explained so much of the incident, that the “Seal of Confession” was practically violated; quite unmindful of the inviolability of the Seal he here declared, that he would have preferred to say nothing of the “counsel given in Confession had not necessity” forced him to do so. But what kind of Seal of Confession was this, we may ask, which could thus be set aside in case of necessity?
Melanchthon acted differently. He, without any necessity, at once recounted everything that had happened to a friend in a letter eloquent with grief. He, the author of the “Counsel of Confession,” felt under no obligation to regard the Seal. He considers himself liberated, by Philip’s behaviour, from the obligation even of confidential secrecy. Bucer expressed himself on Aug. 8, 1540, in a similar fashion concerning the counsel given to the Landgrave “in Confession”: Luther would certainly publish and defend it, should the “marriage have to be admitted” through no fault of the Landgrave’s. No one, in fact,
displayed the slightest scruple regarding the secrecy of the Confession — except Luther and those who re-echo his sentiments.
According to the above we are justified in saying that the term “Counsel given in Confession” is in no wise descriptive of the Wittenberg document. The word “testimony,” or “certificate,” used both in Philip’s instructions and in an important passage of the document signed by Luther, Melanchthon and Bucer, is historically more correct; the terms “opinion” or “memorandum” are equally applicable.
The Wittenbergers gave their testimony or opinion — such is the upshot of the matter — but no Dispensation or Counsel in Confession in the sense just determined. They gave a testimony, which was asked for that it might be made public, but which was given in confidence, which was moreover based on their openly expressed teaching, though it actually dealt only with Philip’s own case, a testimony which no longer involved them in any obligation of secrecy once the marriage had been made public by Philip, and once the latter had declared his intention of making the testimony public should circumstances demand it.
Collected Works of Martin Luther Page 716
