Luther, vol. 4 of 6

by Hartmann Grisar

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.[91]

It was the same with the “dispensation” which the Wittenbergers proposed to Henry VIII of England. (See above, p. 4 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 allow 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, p. 21), 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.