Luther, vol. 5 of 6

by Hartmann Grisar

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;[662] 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.”[663]

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.[664]

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.”[665] 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, p. 182).

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.”[666] 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.”[667]

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.”[668] 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.