“So long as the sense of unity is not well rooted in the heart and mind” — he wrote in 1545, i.e. after the establishment of the consistories— “outward unity is not of much use, nor will it last long.... The existing observances [in matters of worship] must not become laws. On the contrary, just as the schoolmaster and father of the family rule without laws, and, in the school and in the home, correct faults, so to speak only by supervision, so, in the same way, in the Church, everything should be done by means of supervision, but not by rules for the future.... Everything depends on the minister of the Word being prudent and faithful. For this reason we prefer to insist on the erection of schools, but above all on that purity and uniformity of doctrine which unites minds in the Lord. But, alas, there are too few who devote themselves to study; many are just bellies and no more, intent on their daily bread.... Time, however, will mend much that it is impossible to settle beforehand by means of regulations.”
“If we make laws,” he continues, “they become snares for consciences and pure doctrine is obscured and set aside, particularly if those who come after are careless and unlearned.... Already during our lifetime we have seen sects and dissensions enough under our very noses, how each one follows his own way. In short, contempt for the Word on our side and blasphemy on the other [Catholic] side proclaim loudly enough the advent of the Last Day. Hence, above all, let us have pure and abundant preaching of the Word! The ministers of the Word must first of all become one heart and one soul. For if we make laws our successors will lay claim to the same authority, and, fallen human nature being what it is, the result will be a war of the flesh against the flesh.”
In other words Luther foresaw a war of all against all as likely sooner or later to be the result of any thoroughgoing attempt to regulate matters by means of laws as the Catholics did in their councils. He and his friends were persuaded that laws could only be made effectual by virtue of the power of the State.
Melanchthon declared: “Unless the Court supports our arrangements, what else will they become but Platonic laws, to use a Greek saying?”
The idea to which Luther had clung so long as there was any hope, viz. to make the congregations self-governing, was but a fanciful and impracticable one; when again, little by little, he came to seek support from the secular authority, he did so merely under compulsion; he felt it to involve a repudiation of his own principles, nor could he control his jealousy when the far-reaching interference of the State speedily became manifest.
In the Saxon electorate the consistories had been introduced in 1539, not so much at the instance of Luther as of the committee representing the Estates. They were to deal with ecclesiastical affairs and disputes, with complaints against, and grievances of, the clergy, but chiefly with the matrimonial cases. The earlier “Visitors” had lacked executive powers. The consistory established by the Elector at Wittenberg for the whole electorate was composed of two preachers (Jonas and Agricola), and two lawyers. Luther raised many objections, particularly to the consistory’s proposed use of excommunication; he feared that, unless they stuck to his theological views, the consistories would lead to “yet another scrimmage.” Later, however, he gave the new organisation his support. It was not till 1541 that the work of the consistories was more generally extended.
Luther consoled himself and Spalatin as follows for the loss of dignity which they apprehended: “The consistory will deal only with matrimonial cases, with which we no longer will or can have any more to do; also with the bringing back of the peasants to some sort of discipline and the payment of stipends to the preachers.”
For the Wittenberg consistory to relieve him of the matrimonial cases was in many respects just what he desired. He had himself frequently dealt with these cases according to the dictates of his own ever-changing views on marriage, so far as he was allowed by his frequent quarrels with the lawyers who questioned his right to interfere. He now declared: “I am glad that the consistoria have been established, especially on account of the matrimonial cases.” As early as 1536, he had written: “The peasants and rude populace who seek nothing but the freedom of the flesh, and likewise the lawyers, who, whenever possible, oppose our decisions, have wearied me so much that I have flung aside the matrimonial cases and written to some telling them that they may do just as they please in the name of all the devils; let the dead bury their dead; for though I give much advice, I cannot help the people when afterwards they are robbed and teased [by the lawyers]. If the world will have the Pope then let it have him if otherwise it cannot be.”
“So far I have not found one single lawyer,” he continues, speaking of a certain matrimonial question, “who would hold with me against the Pope in this or any similar case.... We theologians know nothing, and are not supposed to count.”
It was in part nausea and wounded vanity, in part also his abhorrence for the ecclesiastical and sacramental side of marriage which caused him repeatedly to declare: “I would we were rid of the matrimonial business”; “marriage and all its circumstances is a political affair” (both statements date from 1538); “leave the matrimonial cases to the secular authorities, for they concern, not the conscience, but the external law of the Princes and magistrates” (1532).
Of the ecclesiastical powers of the sovereign he declared however (1539), “We must make the best of him as bishop, since no other bishop will help us.”
“But if things come to such a pass that the Courts try to rule as they please,” so he wrote at a time when this principle had already begun to bear its bitter fruit, “then the last state will be worse than the first ... in that case let the Lords themselves be our pastors and preachers, let them baptise, visit the sick, give communion and perform all the other offices of the Church! Otherwise let them stop confusing the two callings, attend to their own Courts and leave the Churches to the clergy.... It is Satan who in our day is seeking to introduce into the Church the counsels and the authority of the government officials; we shall, however, resist him and keep the two callings separate.”
Yet the “two callings,” the secular and the ecclesiastical, were to become more and more closely intermingled. As was inevitable, the weak spiritual authority set up by Luther was soon absorbed by a strong secular authority well aware of its own aims; the secular power treated the former as its sacristan charged with carrying out the services of the Church, and gradually assumed exclusive control, even in matters of doctrine. A moral servitude such as had never been seen at any period in the history of the German Church was the consequence of the State government of the Church, brought about by the consistories.
In order to understand Luther’s attitude towards the consistories and to gauge rightly his responsibility, some further particulars of their rise and earliest form are called for.
In 1537 the “Great Committee of the Torgau district” demanded, that the Elector should establish four consistories in his lands. On these would devolve the looking after of “all ecclesiasticæ causæ, the preaching office, the churches and ministers, their vindication contra injurias, all that concerned their conduct and life, and particularly the matrimonial suits.” Some such court was essential in the case of these suits, because, since the dissolution of the bishops’ courts, the utmost disorders had prevailed and nobody even knew by which code the questions pending were to be judged, whether by the old canon law with which the lawyers were familiar, or according to the doctrine and statutes of Luther which were quite a different thing. The disciplinary system too had become so lax that some revision of the Church judiciary appeared inevitable.
As for the principles which were to direct the new organisation: Luther was inclined at times to be forgetful of his theory, that his Churches should have no canon law of their own; even at this grave crisis he does not seem to have been distinctly conscious of it; at the same time his jealousy made him unwilling to see all the authority for governing the new Churches conferred directly by the State, though, with his usual frankness, he admitted it was impossible for
things to continue as they were. The most influential men of his circle were, however, determined to have so-called ecclesiastical courts introduced by the sovereign, which should then govern in his name; hitherto, they urged, it was the purely secular courts which had intervened, which was a mistake, as had been shown in practice by their failure. Thus, as R. Sohm put it, “did Melanchthon’s ideas, from about 1537, gradually oust those of Luther in the government of the Lutheran Church.”
It was from this standpoint that, in his Memorandum of 1538 addressed to the Elector, Jonas, the lawyer and theologian, supported the above-mentioned proposal of the Torgau assembly.
He points out that “the common people become daily more savage and uncouth,” and that “no Christian Church can hope to stand where such rudeness and lawlessness prevail.” According to him the authority of the consistories was to embrace the whole domain of Church government. They were, however, to derive their authority direct from the sovereign, “through, and by order of, the prince of the land.” Hence “their iudices were to have the right to enforce their decisions”; they were to be in a position to wield the Greater Excommunication with its temporal consequences, also to inflict bodily punishment, fines and “suitable terms of imprisonment,” and therefore to have “men-at-arms” and “a prison” at their disposal.
Jonas and those who agreed with him fancied that what they were setting up with the help of the secular power was a spiritual court; in reality, however, they were advocating a purely secular, coercive institution.
Luther’s views differed from those of his friends in so far as he wished to see the new courts — which he frowned at and distrusted — merely invested with full powers for dealing with matrimonial suits; even here, however, he made a reservation, insisting on the abrogation of canon law. The Elector’s edict of 1539 appointing the consistories, out of consideration for Luther, was worded rather vaguely. The consistories were, “until further notice,” to see to the “ecclesiastical affairs” which “have occurred so far or shall yet occur and be brought to your cognisance.” According to this their authority was received only “until further notice” from the ruler, to whom it fell to bring cases to their “cognisance,” and, who, naturally kept the execution of the sentence in his own hands.
Luther, it is true, accepted the new arrangement, because, as he said, it represented a “Church court” which could take over the matrimonial cases. But forthwith he found himself in conflict with the lawyers attached to the courts because they insisted on taking their stand on canon law. To his very death, even in his public utterances, he lashed the men of the law for thus submitting themselves to the Pope and to the code against which his life’s struggle had been directed. Yet the lawyers were driven to make use of the old statutes, since they alone afforded a legal basis, and because Luther’s propositions to the contrary — on secret marriages, for instance — lacked any general recognition. The result of Luther’s opposition to the consistories was, that, so long as he lived, they remained without any definite instructions, devoid of the authority which had been promised them, and without the coercive powers they so much needed; for the nonce they were spiritual courts without any outward powers of compulsion, the latter being retained by the sovereign to use at his discretion.
After Luther’s death things were changed. The consistories both in the Saxon Electorate and in most other places where they had been copied became exclusively organs of Church government by the State, though still composed of theologians and lawyers. In 1579 and 1580 the end which Luther had foreseen arrived. “The last things became, as a matter of fact, worse than the first,” as he himself had predicted, nay, as the result of his own action; Satan has introduced “into the Church the counsels and the authority of government officials” (above, ).
This change, which in reality was the realisation of the ideas of Jonas, Melanchthon and Chancellor Brück, leads Rud. Sohm, after having portrayed in detail the circumstances, to exclaim: “The sovereign as head of the Church! How can such a thing be even imagined? The Church of Christ, governed solely by the word of Christ ... and by command of the ruler of the land.” Speaking of the disorder in Luther’s Church, which recognised no canon law, the Protestant canonist says: “Canon law was needed to assist the Word; well, it came, but only to establish the lord of the land as lord also of the Church.” “The State government of the Church is in contradiction with the Lutheran profession of faith.” “If, however, the Church is determined to be ruled by force, then the ruler must be the secular authority.”
The secular authorities to which Protestantism looked for support had been well organised throughout the Empire by the League of Schmalkalden. Subsequent to 1535 the warlike alliance had been extended for a further ten years. In 1539 the state of things became so threatening, that Luther feared lest the Catholic princes should attack the Protestants. In a sermon he referred to the “fury of Satan amongst the blinded Papists who incite the Emperor and other kings against the Evangel”; he, however, also added, that “we, by our boundless malice and ingratitude, have called down the wrath of God.” They ought to pray, “that the Emperor might not turn his arms against us who have the pure Word of Christ.” As a matter of fact, however, the Emperor and the Empire were not in a position even to protect themselves against the wanton behaviour of the innovators.
Amongst the outward provisions made for the future benefit of the new Church, the League of Schmalkalden deserves the first place. In the very year before his death Luther took steps to ensure the prolongation of this armed alliance.
Among the efforts made at home to improve matters a place belongs to Luther’s attempts to introduce a more frequent use of excommunication.
Luther seeks to introduce the so-called Lesser Excommunication
The introduction of the ban engrossed Luther’s attention more particularly after 1539, but without any special results. In 1541 we find the question raised under rather peculiar circumstances in one of the numerous letters in which Luther complains of the secular authorities. At Nuremberg, Wenceslaus Link had threatened certain persons of standing with excommunication, whereupon one of the town-councillors hurled at him the opprobrious epithet of “priestling.” Full of indignation, Luther wrote: “It is true the civil authorities ever have been and always will be enemies of the Church.... God has rejected the world and, of the ten lepers, scarcely one takes His side, the rest go over to the prince of this world.” “Excommunication is part of the Word of God.” If they look upon our preaching as the Word of God then it is a disgrace that they should refuse to hear of excommunication, despise the ministers of the Word and hate the God Whom they have confessed; they wickedly blaspheme in thus hurling the term ‘priestling’ at His ministers.
Here we get a glimpse of the difficulty which attended the introduction of the ban: “They refuse to hear of excommunication.”
With the Greater Excommunication which involved civil disabilities, and in particular exclusion to some extent from social intercourse, Luther had no sympathy; he was interested in the reintroduction merely of the Lesser Excommunication prohibiting the excommunicate to take part in public worship, or at least to receive the Supper or to stand as godparent. In his view the Greater Excommunication was a matter for the sovereign and did not in the least concern the ministers of the Church; this he points out in his Schmalkalden Articles. He even was inclined to look upon any such action of the ruler with a jealous eye; from anything of the sort it were better for the sovereign to abstain for fear of any awkward confusion of the spiritual with the secular power.
The “Unterricht der Visitatorn,” printed in 1528, had already suggested to the ministers the use of a kind of Lesser Excommunication, but, in the absence of anything definite, the proposal remained practically a dead letter. We learn, however, that Luther pronounced his first ban of this sort against some alleged witches. Subsequently he had strongly urged at the Court of the Elector that the authorities should at least threaten gross contemners of religion w
ith “exile and punishment” as in the case of blasphemers, and that then the pastors, after instruction and admonition had proved of no avail, should proceed to exclude such men from church membership as “heathen to be shunned.” When mentioning this he fails to state whether or to what extent his proposal was carried out. On the other hand, he often declares that the actual state of the masses rendered quite impossible any ordering of ecclesiastical life according to the Gospel; he is also fond of speaking of the danger there would be of falling back into the Popish regulations abolished by the freedom of the Gospel, were disciplinary measures reintroduced.
What moved Luther in 1538 to advocate the use of the ban was, first, the action of the Elector’s haughty Captain and Governor, Hans Metzsch at Wittenberg, who, in addition to Luther’s excommunication, was threatened with dismissal from his office, or, as Luther expresses it, with the Greater Excommunication of the ruler (1538), and, secondly, the doings of a Wittenberg burgher who (Feb., 1539) dared to go to the Supper in spite of having committed homicide. In the case of Metzsch a form of minor excommunication was resorted to, Luther declaring invalid the absolution and permission to communicate granted by the Deacon Fröschel; whether or not, after this, he pronounced a further excommunication, this much is certain, viz. that, not long after the pair were reconciled.
Many of the well-disposed on Luther’s side were in favour of the ban as a disciplinary measure; others were intensely hostile to it. Of his latest intention, Luther speaks at some length in a sermon of Feb. 23, 1539. He there explains how the whole congregation must be behind the clergy in enforcing the ban; they were to be notified publicly of any man who proved obstinate and were to pray against him; then was to follow the formal expulsion from the congregation; re-admission to public worship was also to take place publicly.
Collected Works of Martin Luther Page 794
