(!tnurnr~tu m~tnln!ltrul ilnut41y Continuing LEHaE UND WEHRE MAGAZIN FUER Ev.-LuTH. HOMILETlK THEOLOGICAL QUARTERLy-THEOLOGICAL MONTHLY VoL IV January, 1933 No.1 CONTENTS XRETZKAllN, P. E.: Foreword .......................... . FtlERBRDlGER, L.: Praesidialrede ... . ............ . .... . SIHLER, E. G.: Studies in E usebius ....... . .............. . XRETZMANN, P. E.: Luther und das Sub Utraque ...... . . XRETZMAliN, P. E.: Die Hauptschriften Luthers in chro- nolog~er Reihenfolge ................ . ...... . ....... . LAETSCH, THEO.: Divorce and Kalicious Desertion ..... . Dispositionen ueber die altkirchliche Epistelreibe ..... .. . l'Itiscellanea ........................ , ...... . .......... . ..... . Theological Observer. - Xirchlich-Zeitgeschichtliches .. ... . Book Review. - Llteratur . . . . . . . . . . . . . . . .. . ...... ...... . . . Page 1 11 15 26 33 35 38 46 50 73 Ein P redlger mWII nicht allein 1DeWen, also das1 er die Schafe unterweise, wie sis rechte CbriBten IOllen llein, IOIldero BUch daneben den WoeHen wehr ... , daas sie die Schafe nicht angreifen und mit falscher Lehre verfuehren und Irrtum ein- fuehren. - Luther. Es ist kein Ding, dll8 die Leute meh. bel der Klrche behaelt denn dt. rute Predlgt. - .4pow"u., Arl. ,... If the t rumpet give an uncertain aound, who shall prepare hlmseH to the hattle1 J 00r. 4. 8. Published for the Ev. Luth. Synod of lIIissonri, Ohio, and Other States CONCORDIA PUBLISHING HOUSE, St. Louis, Divorce and Malicious Desertion. 35 Divorce and Malicious Desertion . .---.. ---~---- II. No Divorce, Except It Be for Fornication. Fornication constitutes the one and only cause for obtaining a divorce, for severing the malTiage bond. However, before the Ohris- tian congregation may sanction a suit for divorce on the grounds of fornication, it must be manifest that the person accused has actually committed fornication. The offense must be proved de facto and de iure to be :n;OI!Vcla. It must be fornication de iU1'e. A raped woman has not committed fornication; she has been the victim of a crime perpetrated against her wil1. Whether rape has OCCUlTed before or after betrothal or marriage, it will not afford the husband a cause for divorcing his wife or severing the betrotha1. Unless the element of fraud enter, she is under no obligation even to reveal to her husband or betrothed the rape she has suffered before or after the marriage. Circumstances must decide whether it would be more advisable to l"eveal or conceal it . .L~gajn, the pe!'son t:harged lHith fo:!:rrication rrrust be Irtoved be guilty de facto. The congl"egation must h~we evidence that he actually committed the sin of which he is accused. The fact of fornication must either be self-evident or self-confessed or proved by at least two witnesses, :lYIatt. 18, 16. If, e. g., a husband has had ab- solutely no opportunity for sexual intercourse with his wife for two yeal"S, and if immediately after the expiration of these two years his wife give birth to a child, it would be self-evident that she had com- mitted adultery. The absence of her husband being established, it would not be necessary to furnish witnesses of the actual fornication. The confession of a woman that she has committed fornication will according to Matt. 12,37; Luke 19,22, establish her guilt before man, unless it can be proved that she lied. Yet her unsupported confession naming a man as the partner of hel" guilt will not establish the guilt of this man nor warrant the congregation to proceed against him as an adulterer nOl" permit his wife to divorce him, unless he himself pleads guilty to the charge. Wherever the guilt is neither sel£- evident nor self-confessed, the charge must be established by two witnesses, Ol" the congregation dare not institute disciplinary pro- ceedings against the party accused. We readily see that it may be very difficult to furnish or obtain proof in a case of alleged forni- cation; in many cases it may be impossible to substantiate the chal"ge. In these cases the innocent party who suspects or knows of the guilt of the other spouse must commit the matter to the judgment of God; for no person has the right to raise a public charge, even though he has witnessed the act, unless he can procure at least one more witness. And the pastor must guard against harboring any suspicions against any person charged with fornication unless the proof has been fur- 86 Divorce and Malicious Desertion. nished. Else he would sin against the word of the Lord that none of us shall imagine evil in our heart against our neighbor, Zech. 8,17. :By no means should he permit himself to voice these suspicions, for that would be slandering and might involve him in a suit for mali- cious slander before the church or the civil courts. Even if he has been the witness of the act or the confession, but can prove neither the one nor the other, he has no right to raise the charge of fornica- tion publicly; for that would be a manifest transgression of the rule laid down by Ohrist Matt. 18, 16, and again might easily involve him in serious consequences. Olshausen feels that this commandment cannot possibly be car- ried out in the Ohurch, and hence the Ohurch of the New Testament, while endeavoring to educate its members to the high ideal pointed out by Ohrist, yet because of the hardness of the heart of many church- members would have to permit divorce on other grounds besides the one here specified. Olshausen, of course, had the State Ohurch in mind when he wrote these words. In the Ohurch of Ohrist the Word and will of Ohrist decide. Hard-hearted people do not belong to the Church, but must be excommunicated. If any congregation permits one of its members because of the hardness of his heart to divorce his spouse for any other reason than fornication, it commits a double sin. It fails to excommunicate a manifestly impenitent sinner, and it permits a divorce which Ohrist has clearly forbidden. "Whosoever divorces his wife, except it be for fornication, commits adultery." The State will divorce for other reasons, as we have seen, and other states may recognize this divorce and hold such a person blameless, yet before God he is an adulterer. And since the Church knows of no other norm than the Word of God, it will plead with every member contemplating a divorce for any other cause to desist from his course, and if he persists in it, the congregation will discipline and eventually excommunicate him. Before recognizing him again as a brother, it will insist that he return to his former wife wherever that is possible, even if it may mean the dissolution of a second marriage into which he has entered. This second marriage was not a marriage before God, but from its very beginning it was adultery, and adultery in its every act and manifestation. Fornication, if established de facto and de iure, is, according to the words of the Savior, the one and only cause for obtaining a divorce, for severing what God has joined together. The innocent party ap- plying for a divorce does not transgress the rule laid down by the Lord Matt. 19, 6. In this caRe it is not man severing what God has joined together, but the Lord Himself, having granted the permission, actually sanctions the severing of the bond if the innocent party makes use of the permission granted. We must bear in mind that the mar- riage bond is not severed by the act of fornication. It is not true Divorce and Malicious Desertion. 37 that this sin, abominable as it is, is "in its very nature the rupture of marriage," as the Expositor's Bible asserts in its remarks on Matt. 19,9, or as Olshausen puts it: "Fornication is not a cause, a motive, for divorce, it is the actual separation itself, the annulment of the aael; fl{a. As every noeveta is forbidden already from the legal view- point by the Decalog, so naturally every marriage is actually annulled in which a nO(lvda occurs." COlshausen on Matt. 19,9.) This view, wide-spread as it may be, is utterly false. The essence of marriage is not carnal intercourse, the becoming one flesh. That is one of the purposes of marriage, which consists in mutual consent to be husband and wife. Fornication is the grossest possible and most detestable violation of marital faithfulness, yet it does not necessarily rupture the bond of wedlock. "They twain" are still married, still husband and wife. 1£ adultery could actually annul marriage, then a marriage continued after a case of adultery would no longer be a marriage, but adultery, since the two parties uniting' would no longer be Imsband and wife. Ohrist, however, does not command that the innocent sever the marital relation with the arlulterer. He simply states that every divorce except for fornication is adultery Hence a divorce because of this sin is not adultery. Ohrist therefore merely g'l'ants permission for divorce. While it is the duty of the wronged spouse to forgive the offense committed, there is, according to Ohrist's clear words, no obligation to continue the marital relation; for Ohrist distinctly gives to the innocent party the privilege of severing the marriage bond. Quite a different question is whether one will or should always avail himself of his right. The principle laid down by Paul in another matter applies here also: "All things are lawful unto me, but all things are not expedient," 1 001'. 6,12. The innocent party may waive his rights and continue the marriage which was not severed by the adultery of the other spouse. Before advising in these cases, the pastor should carefully weigh all circumstance8, the family con- ditions, the nature of the offense, the character and temperament of both spouses, etc. If the innocent party is inclined to waive his right, he should, as a rule, be encouraged to do so. If, however, he voices strong objections, he should not be unduly urged, lest more harm than good be done by the advice of the pastor. A. L. Graebner very correctly observes in the Theological Quarterly, IV, pp. 473 f.: "It is not the guilty party who obtains this right, and if the innocent party is willing to condone the offense and continue the state, the guilty party is morally bound to accept such condonation and continuation. The offer of the offended party to condone and to remain the espoused of the offender is not a new offer of marriage. If it were, the other party must be free to accept or reject such offer. ~What accrues to the innocent party, and to that party only, is the right of anoAvEw, of severing the bond of marriage, 38 SDiSvojltionen tiber bie aHfitd)1id).e ~Vifteltei~e. of rescinding the state by putting an end to that whereby the state was established and sustained, the marriage consent. To use or to waive the exercise of this right rests with the party to whom the right itself has been granted by the Lawgiver. In the decision whether the state should continue, the guilty party is entirely at the mercy of the innocent party until the decision has been rendered, and this decision is final. If the injured party decide to condone and uphold the existing relation, both parties are and remain bound as they were before the offense. If the innocent party decide not to condone, but to rescind and thus to terminate the existing relation, both parties are free as they were before the relation was entered into and estab- lished. This final decision must be the free act of the party entitled to this remedy, and condonation brought about by duress 01' fraud is not condonation and leaves the case open for final decision. Of course, the innocent party cannot condone, or refuse to condone, before having obtained knowledge of the offense, and the burden of proof, when the charge is denied, rests with the offended party." Neither does the fact that A. has condoned one case of fornication while being ignorant of other cases committed either before or after the case condoned prohibit him from obtaining a divorce if these cases become known to him later and can be proved by him. Self-evidently the convicted adulterer must be subjected to dis- cipline, unless he is repentant and willing to ask the forgiveness of the wronged spouse and make public amends if, and to the extent that, the offense is publicly known. TI-l. LAETSOH. \)1cujafjx. ® a r. 3, 23-29. §Jeute miinfdjen mir einanber ein friifjIidje§ unb gefcgnete§ neue§ ~aljr. fIDerbcn bicf e ®egen§miinf dje in ®rfiiIIung gefjen? [Sic filnncn wil' Dieie!§ neue ~aljl' 5U einem fl'illjfidjcn unb gefegneten mar~en? 1. ~abutdj, ban mit un£; ±iiglidj burdj ba§ @lefet? ilU (f~rif±o fii~ten raffen; 2. babutdj, ban mit ar§ ®ot±e§ S1:inbet manbefn; 3. babutdj, ban mit Da§ bCtljeincne emige ®rbe ft e t§ i m W u g e be fj a It e n. 1 . .A.. ~idj± af§ f oldje, Die untet bem @Ie, c\? berlllafjtt unb berf djloffen finb, mie ba§ moff @lotie§ im WHen lEunDe, m. 23-25. fIDir finb nidj± meljr im ~edet, nidjt meljt un±er bem 2udj±meif±er, fonbem frei, unb