Full Text for Malicious Desertion (Text)
ion Inquiry
MAIER, W. A .: Archeology - the N emesis . .
KBETZMANN, P. E.: Znr Ge chichte der 1 teinischen Bibel
KRETZMANN, P . E. ' W here and What Is Heaven?
KRETZMANN, P. E.: Propositions on the Sabbath-Sunday
Question
LAETSCH, THEO.: Malicious Desertion
KBETZMANN P E. : Die Hallpttchr:ften Luthers in chro-
nologischer Reihenfolge
Dispositionen u eber die altkirchliche Epistelreihe
Miscellan eu
Theological Observer. - Xirchlich-Zettgeschichtliches .
Book Review. - Ltteratur
Page
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18 4
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Ein r'recliger mw 01 t alleln 10 ,vIM!,
.lise) da er die Schafe unterwel;tO, wl~
de reebte Chrl ten !IOlIen seln, ondem
.ucb daneben den Woellen ICeMen. du
.Ie die Schafe nlcht angreifen und mit
faIRCher Lehre ,'erfuebren uud Imum ein·
fuebrrn. - LH hr,.
r ,t keln Ding, d' die J.eutl' mehr
bel der Klrcbe behaelt deon die flUte
l'redigt. - dpolo, ie, Art. ~
If the trumpet g1VI' an un~'ertahl loOund,
who sbalI prepare bllll8elf to the battle?
1 Cor 4 , 8.
Published for t he
Ev. Luth. Synod of Missouri, Ohio, and Other 4tates
CONCORDIA PUBLISHDlG HOUSE, St. Lo Mo.
[
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I
Malicious Desertion. 197
Malicious Desertion.
The seventh chapter of Paul's First Letter to the Corinthians
contains various instructions regarding marriage, all of which ap-
parently were given in answer to questions proposed to the apostle by
the congregation. After having discussed the question whether it
were better to marry or to remain unmarried, the apostle turns his
attention to such as have either before or after their conversion been
married. He distinguishes two classes: such marriages in which both
spouses are believers and such in which one spouse is a believer, the
other an unbeliever. His instructions to believing couples, V.12, we
have already considered, O. T. M., Vol. IV, p. 131 ff.
But in the congregation at Corinth there were numerous in-
stances of mixed marriages, one spouse being a believer, the other an
unbeliever. When Christ laid down His rule of the indissolubility
of marriage, Matt. 5, 32; 19,4 ff., there was no occasion to mention
mixed marriages, for marriages between Jews and Gentiles occurred
rarely, if ever, among the Jews, since Ezra and Nehemiah hv.d taken
such drastic measures in annulling marriages of this kind, Ezra 9
and 10; N eh. 13,23-29. N a Lurally, the question arose among the
Christians whether mixed marriages must be dissolved also in the
New Testament Church. Perhaps many Christians also argued that
such marriages conflicted with the clearly revealed will of God that
believers should not be unequally yoked together with unbelievers.
Be that as it may, the question as to the status of mixed marriages
had been proposed to the apostle, and he proceeds to answer it,
vv.12-16. He takes into account two possibilities. One is that the
unbelieving spouse "be pleased to dwell with" the believer. In this
case the advice of the apostle is, Let not the believing husband put
away his unbelieving wife, V.12, and let the believing wife not leave
her husband, V. 13; for this mixed marriage is not an unclean, sinful
union, displeasing to God and on that account to be severed, but the
unbelieving husband is sanctified by the wife, and the unbelieving
wife is sanctified by the husband, V. 14. The apostle regards the
continuance of such a marriage on the part of the Christian spouse
as so self-evident that he uses a word implying the willingness of the
Christian to keep the marriage bond intact, not merely .V~O~Et",
but the comp0und <1Vvav<3o~,rv, to be pleased together with some one,
to agree. The Christian spouse, without ever denying his Christian
convictions, must at all times be willing to keep the marriage tie
inviolate. The Christian wife must to the limit of her ability by
willing obedience and loving service seek to keep her husband, though
an unbeliever, attached to herself; and the believing husband will
by courteous treatment, loving respect, and kind consideration knit
ever closer that bond of love and affection whereby his wife, though an
198 Malicious Desertion.
unbeliever, is joined to him in a union that only death ought to sever.
The unbelieving spouse ought to have no reason whatever to leave
the Ohristian spouse. As far, therefore, as the Ohristian spouse
in a mixed mal'l'iage is concerned, the apostle takes for granted
willing compliance with the will of God that marriage is to be kept
inviolate by man. If, then, the unbeliever be satisfied, i£ he consent
to the good will of the Ohristian spouse, the marriage naturally con-
tinues. Unbelief on the part of one spouse is no reason for divorce.
There is, however, another possibility, and one which undoubtedly
quite frequently occurred in those days, when public feeling so often
ran high against the Ohristian religion. There may be.no UVYSVOOU"Y,
no agreeing, to continue with the marriage on the part of the un-
believer. He may be altogether averse to dwelling with his spouse.
In fact, he may have shown his aversion by departing, by deserting
the spouse, or by expelling her from the home, making cohabitation
no longer possible, severing the marital relations. Since the apostle
does not specify any motive for his departure, we have no right
to assume any specific cause and limit the permission granted by the
apostle in v. 15 to a departure for that one cause, be the underlying
cause of the unbelievers departure whatever it may (excepting of
course fornication and malicious desertion, of which a believer is
assumed not to be guilty). The unbeliever has departed. What, then,
is the believing husband 01' wife to do in this case? Must he still
regard himself bound to his spouse who has left him? Must he con-
tinue to make every effort to keep up the marital relations or force
his presence upon the unwilling unbeliever? Must he at least remain
unmarried, or is he free to marry another? The apostle removes all
doubt on this question. Writing by inspiration of the Holy Ghost,
he says, If the unbelieving depart, let him depart, xwed;su{)w.
By using the imperative, the apostle does not place the stamp of
approval on the unbeliever's departure, he does not sanction his act of
severing the marriage relation, just as little as the ayvOEl7:W, let him be
ignorant, 1001'.14,38 approves of ignorance or the o.Otu't}ucil-w, Rev.
22, 11, permits or sanctions injustice. The apostle simply means to
say, Let him depart. His guilt be upon him. That is a matter to be
settled between him and his Maker. As far as the believing brother
or sister is concerned from whom the unbeliever departed, he or she
is not under bondage in such cases. The word OEOov,lu,.,;at means to be
in a state of bondage, held by constraint of law or necessity. Hence
the believer is not held by constraint of law "in these matters." The
law for married people as laid down in the beginning, Gen. 2, 24,
restated by Ohrist, Matt. 19, 6, and acknowledged by the apostle,
1 001'. 7, 11, this law that the marriage bond remain unsevered during
the lifetime of the spouses, no longer obligates the deserted spouse.
The relation of a person to a law is that of a ooiilo., a slave, to his
Malicious Desertion. 199
master, so long as that law is in force. If, therefore, a person is
declared to be no longer under bondage in a matter pertaining to the
maintenance of the marriage relations, there can be no more law
tying him to his spouse. Though the marriage has been broken in
a manner utterly displeasing to God, though the departing unbeliever
will be called to account by the Lord, yet the Supreme Legislator in
these matters declares the deserted spouse to be no longer under
bondage.
We have no right to limit the scope of these words. It is a viola-
tion of sound hermeneutics that Rome restricts this permission to
a separation a mensa et thoro and that Bengel adds the remark: uSed
cum exceptione illa: Maneat extra coniugium, v.ll" ;1) for v.ll
applies to marriages in which both spouses are believers, while v. 15
speaks of mixed marriages. Therefore it is just as impermissible to
entertain, with the Expos. Gr. N. T., a doubt "whether the freedom
of the innocent divorced extends to remarriage," and to conclude, with
Heinrici (quoted in Expos. Gr. N. T.), that "in view of v.ll the in-
ference that the divorced should remain unmarried is the safer."
The words mean exactly what they say: the brother or sister is not
under bondage. Luther in his brilliant exposition of 1 Oor. 7 says:
"If he is no longer under bondage, he is free and at liberty," and
Ohemnitz expresses the same truth in his Examen (Loc. XIV, De
Matr., canon 5, § 6): "Pronunciat Paulus: fidelem non esse serviliter
alligatam deseriori, sed esse liberam. Servitus enim et libertas op-
posita su·nt."2) Luther continues: "If he is at liberty and free, then
he may marry just as if his spouse had died." (St. L. VIII, 1062.)
Luther then answers in the affirmative the question whether he may
remarry repeatedly though three or more spouses desert him. "And
he does not say that it may be done only once, rather does he permit it
(laesst es stehen 1tnd gehen) as often as the need arises; for he will
have; none detained in the danger of unchastity for the sake of the)
trespass and wickedness of another."3) And again: "Ought not the
Ohristian spouse to wait until his unchristian spouse return or die,
as has hitherto been the custom and ecclesiastical law 1 Answer:
Whether he will wait for her depends on his good win; for since the
apostle here declares him to be free and at liberty, he is not under
obligation to wait for the spouse, but may marry in God's name."
(L. c., 1063.) And again: "But if thc deserter return and is willing
to reform (sich recht stellen), ought he to be again admitted and
accepted? Answer: If the deserted spouse has not yet remarried,
she may again accept him, and it is advisable that they again come
l) "But with the exception: Let her remain unmarried, v. n."
2) Paul states that the believer is not slavishly tied to the deserter,
but is free. For servitude and liberty are opposites."
3) Italics our own.
200 Malicious Desertion.
together." (1063.) Luther therefore places the resumption of marital
relations into the option of the spouse maliciously deserted. Though
a reunion may be advisable and may be urged on the part of the
pastor, yet it is not obligatory, and as we shall see, it may be in-
advisable under circumstances. The deserted spouse cannot be com-
pelled to accept the deserter after malicious desertion has been
established. Naturally, it must be evident that the unbeliever departed
not merely in a fit of anger, only to return after being calmed down.
If the unbeliever has departed, the believing spouse will bear in mind
that marriage according to God's intention is to be inseparable, and
will therefore make every effort to effect a change of mind on the
part of the unbeliever. Only if all his efforts in this direction are fruit-
less or if the deserter has made such efforts practically impossible,
e. g., by disappearing without leaving any clew as to his whereabouts,
and sufficient time (varying of course in the individual case) has
elapsed, may the believer regard the former spouse as a malicious
deserter and his marriage to him as broken by the desertion. Nor
will the believer rely solely on his own judgment. Knowing his own
heart, which is a deceitful thing and desperately wicked, Jer.17, 9;
endeavoring not to be wise in his own counsels, Rom. 12, 16; Provo
12, 15, he will consult with his pastor and other experienced Christian
friends, so that finally with a good conscience he may say that he has
done all in his power to prevent the breach from becoming a per-
manent one and that his is a manifest, proved case of being mali-
ciously deserted. Then with a good conscience before God and man
the believer may obtain a divorce from the deserter, which divorce is
not the severing of an existing marriage, but merely the public
declaration that the marriage has been severed by the departure of
the unbeliever. A divorce naturally must be obtained before the
deserted spouse may enter upon a second marriage; else this second
marriage would be regarded as bigamy by the State.
Now a very pertinent question arises. Does this word of the
apostle apply also to those cases of desertion in which both deserting
and deserted spouses are members of a Christian congregation ~ It is
true that, as fornication ought not to occur among ChriStians, so
members of a Christian congregation ought never to be guilty of
desertion. So it ought to be; yet so it is not. As the Lord in
Matt. 19 takes into consideration the possibility of fornication among
the members of Christian congregations and grants in this case to
the innocent spouse permission to divorce even his repentant and
hence believing spouse, so the Christian may become guilty of the
sin of departing from his Christian spouse, of committing not for-
nication, but adultery, the sin of breaking the marriage bond and
severing it in a manner forbidden by God, Matt. 19, 9. May in this
instance the innocent spouse at once obtain a divorce ~ There are
Malicious Desertion. 201
such as answer in the affirmative. Referring to Matt. 19, they con-
clude that, since the spouse has committed adultery, the innocent
spouse has the right to divorce him; or they apply 1 Oar. 7,15 to
this case. The fact is that neither of these passages applies im-
mediately. Matt. 19 speaks not of adultery, but of fornication. De-
parting from one's spouse is not fornication, the only reason for
severing a marriage permitted in Matt. 19. Hence Matt. 19 does not
apply. Nor does 1001'.7,15 at once apply, so that the innocent spouse
were at liberty at once to obtain a divorce from the deserter. For
1 Oar. 7,15 speaks of unbelievers, while the case in question is one
in which a member of the congregation has departed. Of course,
that fact only increases his guilt, Luke 12, 47. Yet since he is
a member of a Ohristian congregation, his case is not identical with
the case described in 1 Oar. 7, 15 until the course of events will compel
the congregation to. regard him as an unbeliever, in other words, until
all the requirements of Matt. 18, 15~18 have been complied with
and have proved ineffectual in gaining him. This disciplinary pro-
ceeding, which of course should be begun at once, may require a long
time. In its efforts to bring about a recoilciliation of the deserter
with the deserted spouse the congregation will exercise due patienCA
and not at once proceed to excommunication. During all this time
the deserted spouse must make every effort to win back the deserter
and must accept him if he returns since, and so long as, he has not
committed the only sin which justifies repudiation on her part,
fornication. If during these disciplinary proceedings the deserted
spouse, A, would sue for divorce on the ground of malicious desertion
or would refuse to take B back, then A would become equally guilty
of malicious desertion and would become subject to church discipline.
If, however, A has made every effort to effect a reconciliation, if in
spite of the combined efforts of A and the congregation B persists
in his refusal to retul'll, then B is to be declared, according to Matt. 18,
a heathen man and a publican. He is then before God and man an
unbeliever, Matt. 18, 18, and consequently 1001'.7,15 applies. A is
no longer under bondage. A has the perfect right to declare that she
no longer regards the deserter as her spouse. She is justified to have
the State declare her marriage severed because of the desertion of the
guilty spouse. She is at liberty to marry any other person not denied
to her by some divine or civil law.
On the other hand, we must not construe the words of the apostle
as obligating the deserted spouse to relinquish his claims on the de-
serter. The apostle tells us that the believer is not under obligation,
that he is a free agent in these matters. If he so chooses, he certainly
has the right to regard and claim the deserter as his God-given spouse,
with whom he is willing to resume marriage relations as soon as he
returns.
202 Malicious Desertion.
This liberty granted to the deserted spouse does not extend to
the deserter. Says Dr. A. L. Graebner: "When the breach has become
complete by the malicious and persistent withdrawal of the marriage
consent of one party against the will of the other party, the parties
are no longer husband and wife in the state of betrothal,4) but single
and separate. The discarded woman, having been permanently robbed
of her betrothed husband, is no longer a wife. She is free and in-
nocent. And as there can be no husband without a wife, the former
husband, having broken and thrown away the marriage bond, is no
longer a husband. He is free, but guilty, guilty of the breach of
marriage, until he restore what he has robbed> if restoration is pos-
s'ible.."5) (Theol. Quar·t., Vol. 4, p.475.) The deserter is guilty of
adultery. As long as he remains without the Ohristian Ohurch, the
congregation cannot deal with him, 1 Oor. 5, 12. As soon, however,
as he seeks admission or readmission into the congregation, his breach
of marriage is one of the sins for which he must repent and make
amends. Such amends are made by means of a confession, public to
the extent that his sin is known, thus seeking to remove, as far as
that i:s possible, the offense given by his desertion. Such amends
must furthermore be madc by a sincere effort on his part to reestablish
his marriage with the deserted spouse, if that is at all possible. If that
is made impossible because the deserted spouse has remarried or re-
fuses to resume marital relations with the deserted (and she has the
right to do so, 1 Oor. 7, 15), then of course the congregation cannot
insist on the return of the deserter to his former spouse, but must be
satisfied with the confession of, and apology for, his desertion. But
if the deserted spouse has never relinquished his rights, if he is still
willing to continue marriage relations with the deserter, then the
deserter is obliged to return to the deserted party, and the congrega-
tion must insist on his return befOTe admitting him into membership.
IT nwillingness to return to his spouse would clearly prove his deter-
mination to continue in the sin of adultery, a sin which excludes
from the kingdom of God, Gal. 5, 19. 21; 2 Oor. 6, 9. 10. Even though
the deserter had married and become one :flesh with his second spouse,
he would be under obligation to return to his first wife if she still
insisted upon her right of claiming him as her husband, - though
she should be earnestly dissuaded from this course, - for in this case
the second marriage of the deserter is in fact an adulterous one,
according to Matt. 19, 9. Only by the declaration of the deserted
spouse that she no longer regards the deserter as her husband or by
her tacit acquiescence in the second marriage of the deserter, is the
deserter set free to cohabit with a second wife; and should the
4) Dr. Graebner very properly regards valid betrothal and marriage
as synonymous terms as far as the marital obligation is concerned.
5) Italics our own.
Malicious Desertion. 203
deserter and his wife thereafter repent, they may remain in wedlock
with a free conscience, whether the deserted spouse contract a new
marriage or not. See Theol. Quart., VoL 4, p. 476; L. u. TV., XVI,
321-334.
Malicious desertion therefore, according to the word of the
apostle, frees the deserted spouse from marital obligations to the
deserter. Not every separation nor every cessation of carnal inter-
course is eo ipso malicious desertion. The apostle 1001'.7,5 speaks
of temporarily abstaining from carnal intercourse by mutual agree-
ment "that ye may give yourselves to fasting and prayer." This is
certainly not that depal'ting which he had in mind in v.15.-Dr. Fritz
cOl'l'ectly observes: "While the 'rendering of due benevolence' does
not constitute the essence of mal'l'iage, yet it is included in the mar-
riage vow and constitutes one of the pm'poses of mal'l'iage. There-
fore its persistent refusal despite instruction and admonition mnst be
considered to be equal to malicious desertion, 1 001'. 7,1-5. This, of
course, does not hold good when other causes, such as illness or an
accident and not mere stubborn resistance, prevent conjugal cohabita-
tion." (Fritz, Pa,,[oral The'ology, p. 183.) - Imprisonment, deporta-
tion, confinemcnt to an asylum or sanitarium for some physical or
mental ailment, even though such confinement be lifelong, does not
constitute malicious desertion.-Non-support, so often erroneously re-
garded as a species of malicious desertion, is not desertion, nor does
it justify divorce. If the non-supporting husband is a member of
a congregation, let the congregation admonish him and, if necessary,
excommunicate him on the basis of Eph. 5, 28. 29 and 1 Tim. 5, 8, and
then let the wife appeal to the civil courts. Only if the non-supporting
husband persistently refuses to return to the wife or expels the wife
fnnn the home, does he become a malicious deserter. - If persistent
qual'l'els, petty jealousies, etc., threaten to disrupt the mal'l'iage, the
pastor must make every effort to effect a reconciliation and admonish
the spouses to keep peace and harmony. Such admonition is best given
to each spouse privately, showing to each one his particular failings
and special duties. Then ask them to come to your home and there
pray with them; show them the duties and privileges of married
people, the blessings of a truly Ohristian union, the harm wrought by
their quarreling to themselves, their home, their environment, the
offense to the world, etc. In some instances of long-continued quar-
rels a separation from bed and board may be advisable, although this
advise ought to be the last resort, and the separation must always be
only a temporary one, implying the willingness to resume cohabitation
after the lapse of the time agreed upon, if not before. Such a separa-
tion from bed and board may become necessary if the one party is
guilty of coarse brutality, of threats against, and attacks upon, the
life of the spouse; but even in these cases the separation should be
204 Malicious Desertion.
temporary, contingent on the promise of better behavior. Continued
threats and attacks in spite of all admonition, making cohabitation
impossible, will eventually constitute malicious desertion; for
Quenstedt correctly notes that, while certainly a person departing
from his spouse is guilty of malicious desertion, yet one who causes
his spouse to leave him by his brutality and tyranny is just as much
guilty of desertion. (Quoted in Lehre u. Wehre, V 01. 17, p. 206.) -
In a divorce by collusion, both parties agreeing to separate because of
incompatibility, etc., neither party can claim to be maliciously de-
serted, since both agreed to the separation. However, either party, or
both, will become guilty of malicious desertion by persistently refus-
ing to resume marital relations despite all admonitions on the part
of pastor and congregation, who are in duty bound to deal with such
spouses at once according to Matt. 18.
We have seen that, while according to God's institution marriage
is inseparable so long as both spouses live, Matt. 19,5 fl., that same
God has permitted the party whose spouse has committed fornication
to sever the marriage bond, and the spouse who has been maliciously
desertbQ to consider himself as under no obligation to the deserter.
There are such as assert that practising according to this policy will
open wide the door to divorce and eventually undermine the sanctity
of wedlock. Let us in conclusion briefly show that this charge is an
unfounded one.
1. It is God Himself who grants the right of divorce in the two
instances named. Surely, God would not establish a policy that would
undermine holy wedlock, His own institution. If divorce becomes
prevalent in our Lutheran Church, if the divine institution of mar-
riage is undermined by our practise, then this is due, not to an
observance of the principles outlined above, but to a perversion,
a deliberate setting aside, of these principles.
2. A proper application of these principles will reduce divorces to
the minimum, as the history of the Lutheran Ohurch shows, whenever
these principles have not been neglected.
A. Divorces because of provable fornication will by the very
nature of the case be exceedingly rare.
B. Even where fornication is proved, the marriage must not, but
may be dissolved; and in many instances pastor and congregation
will advise a continuation of the marriage and be successful in avert-
ing a divorce.
C. Malicious desertion must not only be positively proved to the
satisfaction of the Ohristian congregation, but, if the deserting spouse
is a member of the congregation, disciplinary proceedings will at once
be instituted against him, and many a deserter will, if dealt with in
a spirit of brotherly love, repent and return to his spouse.
:nie &:laul'tfd)riften 2ut1)erg in d)ronologifd)et lRei1)enfolge. 205
D. All cases of divorce except for fornication and malicious deser-
tion are subject to church discipline and will eventually lead to the
excommunication of the guilty party.
3. Faithful pastors will properly indoctrinate their congregations
on all questions pertaining to marriage and divorce. This may be
done in the public sermon, in the congregational meetings, in the
societies, in the homes of the members by private conversation. Above
all, faithful pastors by preaching the pure Gospel, the doctrine of
justification by grace, for Ohrist's sake, will make the members of
their congregations willing and able to submit in all these questions
to the Word of God, to regard marriage as a divine institution to be
held sacred by all, to look upon divorce as an infraction of God's
will, to enter into this estate and live therein in the fear of God and
according to His Word, to bear with their spouse's infirmities, to share
not only the joys, but also the burdens of this estate, to make it, by the
help of their Savior, an antitype of that blessed and happy union of
Ohrist and His bride, the Ohurch. THEO. LAETSOH.
'!)ie ~aulJtf~riften £ut~er~ in .!J~l.ln.,,;ilgi;~tr ~~tilj"U(l.lr9(:.
WHt ~nmetfultgen.
(B'ottfetuulJ.)
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ber 1)ebritifc1)en Stubien. (St. ~ouifer Illusgabe XIV, 1416-1507.)
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fogenannte Syngramma Suevioum erfc1)ien am 21. OUoner 1525 in fateinifd)er
SjJrad)e. Seine merfaffer waren angefe~ene fef)roitbifd)e %1)eologen, unter i1)nen
:;So1)cmn mrena. C\:il ~anbelte fief) um cine griinblid)e, faef)lid)e .RritU ber SteUung
ocofaml'abs, bet fid) jett ilefinitiil 3U 8roingH gefdjfagen 1)atte. 3u biefer Sd)rift
lieferte .l3ut~et 1m Sommer bes :;Sa~res 1526 eine beutf d)e morrelle. Sie umfaf3t
nut bieqe!)n ~aragtajJ~en, aber fie \JiM genau an, roorum eil fid) in bem ~benb"
ma~filftreit ~anbefte. (,l;f)araftetiftifd) iit ~ut~ets tutOe ~ngabe ber Sd)roierigfeit:
f/~ufs erfte ift biefe SeUe fo fruc1)tbat, !laf3 fie inroenbig einem :;Sa~t ftinf ober