1. GeneralLegal action against Anabaptists developed in a natural way out of the juridical practice concerning heretics in general. In the 12th century when ecclesiastical defection or nonconformity led to the rise of Albigensian and Waldensian sectarianism, the Roman Church undertook stern measures of repression. Pope Gregory IX, 1227-1241, creator of the first compilation of Canonical Law, established the Inquisition, and Emperor Frederick II, 1220-1250, in his Sicilian Law Code put the temporal arm of imperial law at the disposal of the church in all cases against heretics. In the 15th century, when the old Roman Law was assimilated into the German Law, the Civil Code of the Holy Roman Empire renewed the old laws of the emperors Gratian, Valentinian II, and Theodosius I (all of A.D. 380) concerning the exclusive right and authority of the Catholic Church, and that of the emperors Honorius and Theodosius II (A.D. 413) concerning the capital crime of rebaptism, punishable with death (Corpus Juris Civilis I, 1 and VI, 2). In criminal law, trials by torture (to obtain confessions incriminating to the accused) had been in use for various crimes against general security ever since the 13th century. In the trials of Anabaptists in particular the questionnaire set up before cross-examination was easily manipulated in such a way that it would influence the outcome of the trial. The first Anabaptist to die thus as a "heretic" on Catholic soil was Eberli Bolt, executed in the canton of Schwyz on 29 May 1525, the first on Reformed soil was Felix Manz at Zürich on 5 January 1527, and the first on Lutheran soil were two men and four women at Reinhardsbrunn on 18 January 1530 (see also Gotha for names).
In the course of the persecution of the Anabaptists a double change is evident on the part of the government, due to a considerable extent to the Peasants' War; the charge shifted more and more from heresy to sedition; and on the part of the Reformers the sentencing of heresy grew more bitter to the extent that in heresy they were no longer attacking a hostile church, but defending their own. -- EC
2. Jurisdictional Practices of Ferdinand I in all of Austria, Bavaria, and the Territories of the Swabian League.Ferdinand I, Archduke of Austria, King of Bohemia and Hungary, and later also Emperor of the Holy Roman Empire, "the prince of darkness" as Jakob Hutter called him in his epistle of 1535, the "tyrant and enemy of divine truth who has had many of ours innocently and mercilessly murdered," was a staunch fighter for the undisturbed integrity of the Catholic Church, With the mandate of 20 August 1527, he ushered in a systematic persecution in his domain by publishing a list of heretical doctrines, adherence to which would lead to capital punishment (see Mandates). The Anabaptists were charged with only two obnoxious articles: rejection of infant baptism and abuse of the Sacrament of the Altar. In the Ordinance of 26 February 1528, to the Austrian Government he complained about laxity in the proceedings against Anabaptists (see Austria). But very soon he transformed these heresy-proceedings into extraordinary proceedings against "rebels."
South German influence on Ferdinand's mandates is very probable. Bavaria had already proclaimed martial law (Standrecht) against Anabaptists. "The ducal secretary Pernöder testified that no proper court session was held for the prisoners but that the sentence was simply read to them, whereupon they were led to execution" (Wiswedel, II, 55). The Swabian League with its practice of martial law shows again the governmental ideas regarding those who deviated from the old church. Many were sentenced to death without recourse to any juridical process, e.g., Eitelhans Langenmantel. On 7 March 1528, the Swabian League issued a mandate against the Anabaptists which expressly said that "it can easily be estimated even by a simple Christian with little understanding" to what an extent Anabaptism will lead to "new revolts and rebellions," unless torture is undertaken and earnest punishment (Klüpfel, II, 319).
The specter of the Peasants' War (1525) was constantly in Ferdinand's mind. Like other princes of the time he too saw in Anabaptism a real threat to governmental authority. To be sure, this was not the only reason for his ruthless persecution of the Anabaptists; another was the presumed Christological heresies. Blasphemous words against "the Mother of God," for instance, were to be punished "in body, life, and property according to the occasion and the degree of guilt." Anyone who administered Holy Communion without having been consecrated as a priest was to be punished with "fire, sword, or water according to the judgment of the judges" (Nicoladoni, 259). Ferdinand argued that since seditious acts would surely ensue from heretical teachings (considered even more serious than a criminal act), extraordinary procedures should be pursued in all such cases, disregarding general legal practices. Ferdinand's policy concerning Anabaptists had, no doubt, also a significant influence upon the ill-famed mandate against Anabaptism of the Diet of Speyer, passed 22 April 1529. On the basis of this mandate Anabaptists were to be condemned to death by fire and sword, "without previous inquisition by spiritual judges." As it is generally known, the Reformers (Luther, Melanchthon) gave their consent to this basic mandate. The motivating force behind Ferdinand was no doubt his confessor, the Court Preacher Johann Faber, who also played an important role at the Diet of Speyer. It was he who one year earlier cross-examined Balthasar Hubmaier and otherwise engaged in literary activities against the Anabaptists.
3. Luther and MelanchthonLuther's views on heretics and their punishment have been thoroughly investigated by Sohm, Köhler, Wappler, Paulus, and more recently by John Oyer (see Bibliography). Until about 1524, Luther definitely rejected the idea of governmental intervention in matters of faith. In his letter "To the Christian Nobility of the German Nation" (1520) he states that heretics should be conquered "with Scripture not with fire, as the forefathers did. If it were an art to overcome heretics with fire, then the executioners would be the most learned doctors on earth." He urged lenience toward the Zwickau Prophets, and did not even want them to be imprisoned (Luther's Correspondence, ed. De Wette, Letter of 17 January 1522, II, 135). In his book Von weltlicher Obrigkeit (1522) he sharply opposed government interference in spiritual matters. Also in a letter to his Prince of Saxony he admonished that the office of the Word should not be resisted. "Just let them preach confidently and vigorously what they can and against whom they will, for... there must be sects" (Luther's letters, ibid., 21 August 1524 (?), II, 547).
In 1525, however, a change took place in Luther's opinion. In a letter dated 4 March 1525, to Spengler, the city clerk of Nürnberg, concerning the "three ungodly painters" (against whom the city council was conducting a trial) the concept of "blasphemy" occurs for the first time. For this particular offense it was necessary for the temporal powers to step in automatically. As to punishment, Luther does not express himself yet. In the years 1526-1528, the concept of "sedition" takes the more prominent place. This idea had been drilled into the national consciousness during the Peasants' War, mainly by the weight of Lutheran publicity. Now, on 9 February 1526 Luther declared to the Prince Elector that in order to prevent sedition and a mob spirit, "there shall be one kind of preaching only at one place" (Luther's Letters, ibid., Ill, 88 ff.). The word "sedition" was also utilized in connection with the newly established Lutheran church inspections (the Electoral Instructions for the inspectors of 16 June 1527, use this term expressly. Sehling, I, 142 ff.). Hence, anyone who did not agree with the Lutheran Church on a point of doctrine, was subject to the temporal authorities also on the suspicion of sedition. It should be emphasized, however, that with the by far greatest number of Anabaptists there was no evidence of seditious tendencies whatever to justify the intervention of the government, even though great divergencies existed in points of doctrine. The task of church organization, however, made it imperative now to find a justification for proceedings against all those who showed any anti-Lutheran mind. Since, as was generally assumed, the suspicion of sedition was not a sufficient ground for proceeding against deviators, it became necessary to find a new weapon. That was the concept of "blasphemy," used by Luther for the first time in the above-mentioned letter to Spengler of 1525.
Apparently Melanchthon was the first to draw the logical conclusions from this situation and demanded of the government that it punish false teachings. The occasion for this was given first by the exceedingly embarrassing results of the church inspections in Saxony which seemed to indicate a threat to the very existence of the new church (Corp. Reform.; Opera Melanchthoni, I, col. 941). It was also Melanchthon who became instrumental in the formulation of the official "Opinion" of the theological faculty of the University of Wittenberg concerning the legal aspects of the punishment of deviations in all matters of church discipline. Here the idea of blasphemy is clearly stated as the main argument for the death penalty. According to the study by Meissner, the Wittenberg theologians seemed to have arrived at this idea of blasphemy as the most serious criminal fault by all opponents by pointing to the concept of "ingratitude to the Gospel" (Luther's letter of 22 November 1526, loc. cit. Ill, 135) as well as by reference to the Electoral Instructions of 16 June 1527 (Richter, I, 78). In a letter of 15 February 1530, Melanchthon promoted the idea that blasphemous articles of faith, even if they have nothing to do with sedition, must be punished with the sword. By this procedure an extraordinarily effective legal device was now found for the persecution of all "heretics" and at the same time for the defense of the new church.
Luther bestowed his sanction upon this device in his Exposition of the 82d Psalm. The background of it is as follows: Around 1530, a new party had arisen in Nürnberg which advocated toleration and liberty of conscience in matters of religion. Thereupon, on 17 March 1530, Spengler wrote to Veit Dietrich at Wittenberg asking him to persuade Luther—then just working on an Exposition of Psalm Deus Sedet in Synagoga—to put into this new booklet a condemnation of the new party and its philosophy, all the more as this party defended its stand by reference to the "booklet by Doctor Luther addressed to the Elector of Saxony, against the fanatical Thomas Müntzer." Veit Dietrich then looked Luther up and expounded to him the principles of the prevailing criminal law of the time. Luther then developed these ideas further in his Exposition of the 82d Psalm (Hausdorff). In this Exposition Luther stressed first of all the high dignity of all authorities (or magistrates), which at one place he calls outright "gods." Seditious heretics are to be "punished straightway and without compunction." But likewise also those who teach only contrary to a published article of faith should be punished as open blasphemers who "are not to be tolerated." Against them he recommended quick justice, on the basis of Leviticus 24:16 and also the Church Fathers, who had no more patience with false doctrines than Moses.
That Luther's Exposition of the 82d Psalm was actually considered as a declaration of principles to guide legal practices can be proved by numerous references (see Meissner). The courts of Saxony only too willingly concurred with the suggestions and opinions of the Wittenberg theologians. "They followed the opposite course from Ferdinand's juridical practice, namely, turning from the persecution of sedition to a secular trial of heretics" (Meissner). One might also mention the Imperial Cities of Germany, which followed in general also the direction of the Wittenberg theologians in their administration of justice in all cases of Anabaptism.
4. BrenzJohann Brenz of Württemberg for many years had defended toleration as a matter of principle. In his booklet, Ob eine weltliche Obrigkeit mit göttlichem und billigem Recht möge die Wiedertäufer durch Feuer und Schwert vom heben zum Tode richten lassen (1528), he taught that mere heresy not associated with revolt should be fought only with the spiritual sword, the Word of God, inasmuch as it does not belong to the concern of the temporal powers. Furthermore this booklet proved that the accusation against the Anabaptists was definitely unjustified. Through this booklet Brenz' influence on the juridical practice in Württemberg and elsewhere was quite beneficent: there were at least no death sentences in Württemberg. But later on, unfortunately, Brenz drifted into the current of Luther and Melanchthon. In 1557, he became a signatory of the declaration of several theologians entitled Prozess wie es soil gehalten werden mit den Wiedertäufern, durch etliche Gelehrt so zu Worms versammelt gewesen, gestellt (see Bedenken). This gloomy document deals in patricular with juridical questions concerning the proper course of trials of "heretics." The heads and seducers were to be put to death as blasphemers, for God had clearly commanded secular authorities to punish blasphemy. For that reason it had been right to punish Servetus [the Anti-Trinitarian, 1553]. The concept of blasphemy, as developed by Luther and Melanchthon, is interpreted as formal only (as Meissner has shown), i.e., it does not define particular non-orthodox teachings but in general means simply opposition as such; i.e., rebellion against the new church. It should, however, be mentioned that in the Stuttgart copy of this document (here called "Bendenken, etc.") the passage about Servetus' execution as well as another passage advocating death penalty for heresy is crossed out. Gustav Bossert, Jr., assumes that either the Duke of Württemberg or Brenz deleted these passages, and concludes accordingly that both the duke and the Württemberg theologians agreed basically with Brenz' earlier stand opposing the shedding of blood (Blätter, 25).
5. Bucer and CapitoThese two reformers of Strasbourg were entirely dependent on Wittenberg. In a document called Reformationsprogramm (Program for the Reformation) of 1535 sent in the name of the Strasbourg clergy to the Count Palatine Rupprecht, the establishment of a formal inquisition, ruthless intervention of the government in family life with respect to the baptism of children, and the sharpest measures against all foes or deprecators of the Gospel are demanded (original copy of this document in the State Library in Munich). Bucer believed that the government had the right to introduce Christianity among its subjects and to eradicate any false worship. "Unorthodox teachers are to be punished by body and life." ... "The power of the government over the conscience of its subjects is most harshly represented by Bucer" (Hagen).
6. Zwingli and CalvinLike Luther also Zwingli went dirough a certain change in his ideas concerning the punishment of heretics. In the earlier period of his reformatory activities he was possessed by the same optimism as Luther that the pure Gospel would renew everything and turn it to the good. But when in 1525 Anabaptism appeared in Zürich and tried to establish congregations on a New Testament pattern, he lost more and more the feeling that the norm of the Gospel and the new "Christian State" do not absolutely coincide. He began teaching the identity of Christianity and civil order, and committed to the "Christian" government of Zürich not only the supervision of general morality but also the care for the particular discipline of the new reformed church. He is said to have recommended the beheading of Anabaptists "on the strength of imperial law," as Balthasar Hubmaier claimed (Ein Gespräch Balthasar Hubmörs von dem Kindertauff, 1526). The Swiss authorities only too willingly acted upon his advice and opinion in all Anabaptist trials.
Calvin at first intended to have the spiritual office exclusively take charge of church discipline without any participation by the state. But soon developments in Geneva likewise went far beyond this initial program; the state police now also began to become involved in matters of church discipline. "We have sharpened the sword that they may accomplish their blood work" (Corp. Ref., Opera Calvini, VIII, 477). He expected from the state unconditional subjugation of all heretics and deviators. The execution of Michel Servetus in 1553 is a clear illustration of Calvin's enormous inluence upon the temporal authorities of Geneva.
See also Punishment of Anabaptists
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Corpus Reformatorum, Opera Calvini
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de Wette, Wilhelm Martin Leberecht, ed. Martin Luther, Briefe, Sendschreiben und Bedenken. Berlin, 1826-1827: II-III.
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Meissner, Erich. "Die Rechtsprechung über die Wiedertäufer und die antitäuferische Publizistik." Ph.D. dissertation, Göttingen, 1921. This dissertation forms the basis for the material in the present article.
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Paulus, Nikolaus. Protestantismus und Tolerant im sechzehnten Jahrhundert. Freiburg i.Br., 1911.
Richter, A. L. Die evangelischen Kirchenordnungen des 16. Jahrhunderts, 1, 2. Weimar, 1846.
Schraepler, Horst. "Die rechtliche Behandlung der Täufer in Württemberg, Hessen, Baden, Kurpfalz und der deutschen Schweiz in den Jahren 1525-1618." Tübingen doctoral dissertation, 1956.
Sehling, Emil, ed. Die Evangelischen Kirchenordnungen des 16. Jahrhunderts I, Part I. Leipzig, 1902.
Wappler, Paul. Inquisition und Ketzerprozesse in Zwickau zur Reformationszeit. Leipzig, 1908.
Wiswedel, Wilhelm. Bilder and Führergestalten aus dem Täufertum. 3 v. Kassel: J.G. Oncken Verlag, 1928-1952.
 Cite This Article
Crous, Ernst and Wilhelm Wiswedel. "Juridical Procedures Relating to the Anabaptists." Global Anabaptist Mennonite Encyclopedia Online. 1957. Web. 9 Dec 2013. http://gameo.org/index.php?title=Juridical_Procedures_Relating_to_the_Anabaptists&oldid=103607.
Crous, Ernst and Wilhelm Wiswedel. (1957). Juridical Procedures Relating to the Anabaptists. Global Anabaptist Mennonite Encyclopedia Online. Retrieved 9 December 2013, from http://gameo.org/index.php?title=Juridical_Procedures_Relating_to_the_Anabaptists&oldid=103607.
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