Melanchthon.
Concerns about a marital case. - By way of explanation, Burkhardt notes: Blesing Hupman, whose wife had given birth before the time, had gone to Zeitz as a result and separated from her. He insisted on divorce, since he could not have married her as a virgin, whereas the defendant claimed that she had already performed the marriage ceremony before the marriage. The consistory and the theologians were of different opinions; the former judged the matter according to the old ecclesiastical law, the theologians based it on Deuteron. The verdict was that the plaintiff had to acknowledge his wife, submit to the punishment of fornication and pay the court costs.
The original, signed by Luther, Cruciger and Melanchthon and sealed by Luther, is in the Weimar Archives, Reg. O, pag. 509, H 18. Printed by Burkhardt, p. 416.
God's grace through His only begotten Son Jesus Christ, our Savior, beforehand. Most Serene, Highborn, Most Gracious Prince and Lord! After E. C. F. G. has sent us a letter from the highly respected gentlemen appointed to the Consistory, concerning a case in Zeitz, we first ask that E. C. F. G. graciously hear our counter-report, for the gentlemen of the Consistory have answered without our prior knowledge, - which nevertheless surprises us in such an important matter, - and in addition have reported something further than was necessary. For that they say about a disagreement in such a case, how it is to be held, if one takes a pregnant woman for a virgin 2c., nothing has ever gone out by us about this case in writings, but if we are asked for advice, before and after appointment of the Consistorii, we have kept ourselves in it: Firstly, we have admonished and worked that the man keep such a person, who has not broken with him, even now offered to keep himself chaste and honest.
Letters from the year 1542. No. 2954. 2955.
And in this he wanted to consider: first, that she had not broken with him; then also what misery would follow the woman from such abandonment. For if she were to be abandoned, greater evil would ensue from poverty and misery. Therefore, in this case, the husband should show mercy for God's sake, and that customary rights do not separate them; thus, such persons are often kept together.
However, it also happened with a butcher here at one time that he did not want to keep such a wife and did not accept any admonition. In addition, it has been reported that the man who slept with her also promised to marry her and offered to take her, which we have therefore allowed to happen. As also recently, with our considerable misgivings in the Consistory, such a man was granted a mead, which had otherwise been promised to another, but which had not yet slept with her.
That the gentlemen in the Consistory also report: we do not suffer them to speak against our doctrine (lahr),-there is no doctrine or article of this matter written by us, as far as we know to remember, and let it remain with this rule that the persons are spoken together, but so that the judge nevertheless considers the circumstances of the cases, and seeks after the same opportunity measure, which may serve the persons for improvement, unity and salvation. For if the divine law Deut. 22 has separated these persons with death, and punished the woman, such women shall not now be left without punishment. For God wants fornication to be punished by the authorities. Also, after such an example, the judge may consider where to make a divorce.
But we have written clearly and distinctly of other cases, namely, of divorce on account of adultery, item, of abandonment, and that in such cases the innocent person, after interrogation, is again allowed to be free in a Christian way, according to the clear text in Matthew and Paul; item, of other more questions of secret betrothal without the will of the parents. What we have now written about these matters, we consider Christian and necessary and stick to it;
[It] made 1) also inaccuracy in the churches, if the gentlemen in the Consistorio would speak against it, therefore it would not be sorry for us. This report of ours will be graciously heard by E. C. F. G., from which we also expect that the Reverend Nicolaus, Bishop of Naumburg, will easily conclude with himself what in this case, of which he has written, is to be concluded. God keep E. C. F. G. always. Date Witteberg, 28 Octobris Anno 1542.
E. C. F. G. subservient
Martinas Luther, Dr. Caspar Creutziger, D. Philippus Melanthon.
No. 2955.