The same spirit of bold defiance and determination not to compromise the divine truth in any way animated the Elector and practically all of the princes and theologians at Smalcald, with, perhaps, the sole exception of Melanchthon. Koestlin writes: "Meanwhile the allies at Smalcald displayed no lack of 'hatred against the Pope.' His letters, delivered by the legate, were returned unopened. They decidedly refused to take part in the council, and that in spite of the opinion of their theologians, whose reasons Melanchthon again ardently defended. For, as they declared in an explanation to all Christian rulers, they could not submit to a council which, according to the papal proclamation, was convoked to eradicate the Lutheran heresy, would consist only of bishops, who were bound to the Pope by an oath, have as its presiding officer the Pope, who himself was a party to the matter, and would not decide freely according to the Word of God, but according to human and papal decrees. And from the legal standpoint they could hardly act differently. Theologians like Luther could have appeared even before such a council in order to give bold testimony before it. Princes, however, the representatives of the law and protectors of the Church, dared not even create the appearance of acknowledging its legality." (2, 402.)
65. Opinion of Theologians
August 6 the Wittenberg professors assembled to deliberate on Brueck's articles and the views of the Elector. The opinion resolved upon was drawn up by Melanchthon. Its contents may be summarized as follows: The Lutherans must not reject the papal invitation before hearing whether the legate comes with a citation or an invitation. In case they were invited like the rest of the princes to take part in the deliberations, and not cited as a party, this would mean a concession on the part of the Pope, inasmuch as he thereby consented "that the opinion of our gracious Lord [the Elector] should be heard and have weight, like that of the other estates." Furthermore, by such invitation the Pope would indicate that he did not consider these princes to be heretics. If the legate were rebuffed the Romanists would proceed against the Lutherans as obstinate sinners (contumaces) and condemn them unheard, which, as is well known, would please the enemies best. The Lutherans would then also be slandered before the Emperor as despisers of His Majesty and of the council. Nor did the mere hearing of the legate involve an acknowledgment of the papal authority. "For with such invitation [to attend the council] the Pope does not issue a command, nor summon any one to appear before his tribunal, but before another judge, namely, the Council, the Pope being in this matter merely the commander of the other estates. By hearing the legate, therefore, one has not submitted to the Pope or to his judgments… For although the Pope has not the authority to summon others by divine law, nevertheless the ancient councils, as, for example, that of Nicaea, have given him this charge, which external church regulation we do not attack. And although in former years, when the empire was under one head some emperors convoked councils, it would be in vain at present for the Emperor to proclaim a council, as foreign nations would not heed such proclamation. But while the Pope at present, according to the form of the law has the charge to proclaim councils, he is thereby not made the judge in matters of faith, for even popes themselves have frequently been deposed by councils. Pope John proclaimed the Council of Constance, but was nevertheless deposed by it." Accordingly the opinion continues: "It is not for us to advise that the council be summarily declined, neither do we consider this profitable, for we have always appealed to a council. What manner of suspicion, therefore, would be aroused with His Imperial Majesty and all nations if at the outset we would summarily decline a council, before discussing the method of procedure!" And even if the Lutherans should be cited [instead of invited], one must await the wording of the citation, "whether we are cited to show the reason for our teaching, or to hear ourselves declared and condemned as public heretics." In the latter case it might be declined. In the former, however, the citation should be accepted, but under the protest "that they had appealed to a free Christian council," and did not acknowledge the Pope as judge. "And if (caeteris paribus, that is, provided the procedure is correct otherwise) the council is considered the highest tribunal, as it ought to be considered, one cannot despise the command of the person to whom the charge is given to proclaim councils, whoever he may be. But if afterwards the proceedings are not conducted properly, one can then justly lodge complaint on that account." "To proclaim a council is within the province of the Pope; but the judgment and decision belongs to the council… For all canonists hold that in matters of faith the council is superior to the Pope, and that in case of difference the council's verdict must be preferred to that of the Pope. For there must be a supreme court of the Church, i. e., the council." On account of the place, however they should not refuse to appear. (C. R. 3,119.)
In their subsequent judgments the theologians adhered to the view that the Protestants ought not to incur the reproach of having prevented the council by turning down the legate. Luther says, in an opinion written at Smalcald, February, 1537: "I have no doubt that the Pope and his adherents are afraid and would like to see the council prevented, but in such a manner as would enable them to boast with a semblance of truth that it was not their fault, since they had proclaimed it, sent messengers, called the estates, etc., as they, indeed, would brag and trump it up. Hence, in order that we might be frightened and back out, they have set before us a horrible devil's head by proclaiming a council, in which they mention nothing about church matters, nothing about a hearing, nothing about other matters, but solely speak of the extirpation and eradication of the poisonous Lutheran heresy, as they themselves indicate in the bull De Reformatione Curiae [of September 23, 1536, St. L. 16 1913ff.]. Here we have not only our sentence which is to be passed upon us in the council but the appeal also with hearing, answer, and discussion of all matters is denied us, and all pious, honorable men who might possibly have been chosen as mediators are also excluded. Moreover, these knaves of the devil are bent on doing their pleasure, not only in condemning (for according to the said bull launched against us they want to be certain of that) but also in speedily beginning and ordering execution and eradication, although we have not yet been heard (as all laws require) nor have they, the cardinals, ever read our writing or learned its doctrine, since our books are proscribed everywhere, but have heard only the false writers and the lying mouths, having not heard us make a reply, although in Germany both princes and bishops know, also those of their party, that they are lying books and rascals, whom the Pope, Italy, and other nations believe… Hence they would like to frighten us into refusing it [the Council] for then they could safely say that we had prevented it. Thus the shame would not only cleave to us, but we would have to hear that, by our refusal, we had helped to strengthen such abominations of the Pope, which otherwise might have been righted." Such and similar reasons prompted Luther to declare that, even though he knew "it would finally end in a scuffle," he was not afraid of "the lousy, contemptible council," and would neither give the legate a negative answer, nor "entangle himself," and therefore not be hasty in the matter. (St. L. 16, 1997.) Even after the princes at Smalcald had resolved not to attend the council, Luther expressed the opinion that it had been false wisdom to decline it; the Pope should have been left without excuse; in case it should convene, the council would now be conducted without the Protestants.
66. Elector's Strictures on Opinion of Theologians
Elector John Frederick was not at all satisfied with the Wittenberg opinion of August 6. Accordingly, he informed the theologians assembled August 30 at Luther's house, through Brueck, that they had permitted themselves to be unduly influenced by the jurists, had not framed their opinion with the diligence required by the importance of the matter, and had not weighed all the dangers lurking in an acceptance of the invitation to the council. If the Lutherans would be invited