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$Title{History Of Europe During The Middle Ages
Part XI}
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$Author{Hallam, Henry}
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Title:       History Of Europe During The Middle Ages
Book:        Book VII: History Of Ecclesiastical Power During The Middle Ages
Author:      Hallam, Henry

Part XI

     It is a natural subject of speculation, what would have been the effects
of these universal councils, which were so popular in the fifteenth century,
if the decree passed at Constance for their periodical assembly had been
regularly observed.  Many Catholic writers, of the moderate or cisalpine
school, have lamented their disuse, and ascribed to it that irreparable breach
which the Reformation has made in the fabric of their church.  But there is
almost an absurdity in conceiving their permanent existence.  What chemistry
could have kept united such heterogeneous masses, furnished with every
principle of mutual repulsion? Even in early times, when councils, though
nominally general, were composed of the subjects of the Roman empire, they had
been marked by violence and contradiction; what then could have been expected
from the delegates of independent kingdoms, whose ecclesiastical polity,
whatever may be said of the spiritual unity of the church, had long been far
too intimately blended with that of the state to admit of any general control
without its assent?  Nor, beyond the zeal, unquestionably sincere, which
animated their members, especially at Basle, for the abolition of papal
abuses, is there anything to praise in their conduct, or to regret in their
cessation.  The statesman who dreaded the encroachments of priests upon the
civil government, the Christian who panted to see his rights and faith
purified from the corruption of ages, found no hope of improvement in these
councils.  They took upon themselves the pretensions of the popes whom they
attempted to supersede.  By a decree of the fathers of Constance, all persons,
including princes, who should oppose any obstacle to a journey undertaken by
the Emperor Sigismund, in order to obtain the cession of Benedict, are
declared excommunicated, and deprived of their dignities, whether secular or
ecclesiastical. ^w Their condemnation of Huss and Jerome of Prague, and the
scandalous breach of faith which they induced Sigismund to commit on that
occasion, are notorious.  But perhaps it is not equally so that this
celebrated assembly recognized by a solemn decree the flagitious principle
which it had practised, declaring that Huss was unworthy, through his
obstinate adherence to heresy, of any privilege; nor ought any faith or
promise to be kept with him, by natural, divine, or human law, to the
prejudice of the Catholic religion. ^x It will be easy to estimate the claims
of this congress of theologians to our veneration, and to weigh the
retrenchment of a few abuses against the formal sanction of an atrocious
maxim.

[Footnote w: Lenfant, t. i. p. 439.]

[Footnote x: Nec aliqua sibi fides aut promissio, de jure naturali, divino, et
humano, fuerit in prejudicium Catholicae fidei observanda. Lenfant, t. i. p.
491.

     This proposition is the great disgrace of the council in the affair of
Huss.  But the violation of his safe-conduct being a famous event in
ecclesiastical history, and which has been very much disputed with some degree
of erroneous statement on both sides, it may be proper to give briefly an
impartial summary.  1.  Huss came to Constance with a safe-conduct of the
emperor very loosely worded, and not directed to any individuals.  Lenfant, t.
i. p. 59.  2.  This pass, however, was binding upon the emperor himself, and
was so considered by him, when he remonstrated against the arrest of Huss.
Id., pp. 73, 83.  3.  It was not binding on the council, who possessed no
temporal power, but had a right to decide upon the question of heresy.  4.  It
is not manifest by what civil authority Huss was arrested, nor can I determine
how far the imperial safe-conduct was a legal protection within the city of
Constance. 5.  Sigismund was persuaded to acquiesce in the capital punishment
of Huss, and even to make it his own act (Lenfant, p. 409); by which he
manifestly broke his engagement.  6.  It is evident that in this he acted by
the advice and sanction of the council, who thus became accessory to the guilt
of his treachery.

      The great moral to be drawn from the story of John Huss' condemnation is
that no breach of faith can be excused by our opinion of ill desert in the
party, or by a narrow interpretation of our own engagements.  Every
capitulation ought to be construed favorably for the weaker side.  In such
cases it is emphatically true that, if the letter killeth, the spirit should
give life.

     Gerson, the most eminent theologian of his age, and the coryphaeus of the
party that opposed the transalpine principles, was deeply concerned in this
atrocious business.  Crevier, p. 432.]

     It was not, however, necessary for any government of tolerable energy to
seek the reform of those abuses which affected the independence of national
churches, and the integrity of their regular discipline, at the hands of a
general council.  Whatever difficulty there might be in overturning the
principles founded on the decretals of Isidore, and sanctioned by the
prescription of many centuries, the more flagrant encroachments of papal
tyranny were fresh innovations, some within the actual generation, others
easily to be traced up, and continually disputed.  The principal European
nations determined, with different degrees indeed of energy, to make a stand
against the despotism of Rome. In this resistance England was not only the
first engaged, but the most consistent; her free parliament preventing, as far
as the times permitted, that wavering policy to which a court is liable.  We
have already seen that a foundation was laid in the statute of provisors under
Edward III. In the next reign many other measures tending to repress the
interference of Rome were adopted, especially the great statute of praemunire,
which subjects all persons bringing papal bulls for translation of bishops and
other enumerated purposes into the kingdom to the penalties of forfeiture and
perpetual imprisonment. ^y This act received, and probably was designed to
receive, a larger interpretation than its language appears to warrant.
Combined with the statute of provisors, it put a stop to the pope's usurpation
of patronage, which had impoverished the church and kingdom of England for
nearly two centuries.  Several attempts were made to overthrow these
enactments; the first parliament of Henry IV. gave a very large power to the
king over the statute of provisors, enabling him even to annul it at his
pleasure. ^z This, however, does not appear in the statute-book.  Henry
indeed, like his predecessors, exercised rather largely his prerogative of
dispensing with the law against papal provisions; a prerogative which, as to
this point, was itself taken away by an act of his own, and another of his son
Henry V. ^a But the statute always stood unrepealed; and it is a satisfactory
proof of the ecclesiastical supremacy of the legislature that in the concordat
made by Martin V. at the council of Constance with the English nation we find
no mention of reservation of benefices, of annates, and the other principal
grievances of that age; ^b our ancestors disdaining to accept by compromise
with the pope any modification or even confirmation of their statute law.
They had already restrained another flagrant abuse, the increase of first
fruits by Boniface IX.; an act of Henry IV. forbidding any greater sum to be
paid on that account than had been formerly accustomed. ^c

[Footnote y: 16 Ric. II. c. 5.]

[Footnote z: Rot. Parl., vol. iii. p. 428.]

[Footnote a: 7 H. IV. c. 8; 3 H. V. c. 4.  Martin V. published an angry bull
against the "execrable statute" of praemunire, enjoining Archbishop Chicheley
to procure its repeal.  Collier, p. 653.  Chicheley did all in his power; but
the commons were always inexorable on this head, p. 636; and the archbishop
even incurred Martin's resentment by it.  Wilkins, Concilia, t. iii. p. 483.]

[Footnote b: Lenfant, t. ii. p. 444.]

[Footnote c: 6 H. IV. c. 1.]

     It will appear evident to every person acquainted with the contemporary
historians, and the proceedings of parliament, that, besides partaking in the
general resentment of Europe against the papal court, England was under the
influence of a peculiar hostility to the clergy, arising from the
dissemination of the principles of Wicliff. ^d All ecclesiastical possessions
were marked for spoliation by the system of this reformer; and the house of
commons more than once endeavored to carry it into effect, pressing Henry IV.
to seize the temporalities of the church for public exigencies. ^e This
recommendation, besides its injustice, was not likely to move Henry, whose
policy had been to sustain the prelacy against their new adversaries.
Ecclesiastical jurisdiction was kept in better control than formerly by the
judges of common law, who, through rather a strained construction of the
statute of praemunire, extended its penalties to the spiritual courts when
they transgressed their limits. ^f The privilege of clergy in criminal cases
still remained; but it was acknowledged not to comprehend high treason. ^g

[Footnote d: See, among many other passages, the articles exhibited by the
Lollards to parliament against the clergy in 1394.  Collier gives the
substance of them, and they are noticed by Henry; but they are at full length
in Wilkins, t. iii. p. 221.]

[Footnote e: Walsingham, pp. 371, 370; Rot. Parl., 11. H. IV. vol. iii. p.
645.  The remarkable circumstances detailed by Walsingham in the former
passage are not corroborated by anything in the records.  But as it is
unlikely that so particular a narrative should have no foundation, Hume has
plausibly conjectured that the roll has been wilfully mutilated.  As this
suspicion occurs in other instances, it would be desirable to ascertain, by
examination of the original rolls, whether they bear any external marks of
injury.  The mutilators, however, if such there were, have left a great deal.
The rolls of Henry IV. and V.'s parliaments are quite full of petitions
against the clergy.]

[Footnote f: 3 Inst., p. 121; Collier, vol. i. p. 668.]

[Footnote g: 2 Inst., p. 634; where several instances of priests executed for
coining and other treasons are adduced.  And this may also be inferred from 25
E. III. stat. 3, c. 4; and from 4 H. IV. c. 3.  Indeed the benefit of clergy
has never been taken away by statute from high treason.  This renders it
improbable that Chief Justice Gascoyne should, as Carte tells us, vol. ii. p.
664, have refused to try Archbishop Scrope for treason, on the ground that no
one could lawfully sit in judgment on a bishop for his life.  Whether he might
have declined to try him as a peer is another question.  The pope
excommunicated all who were concerned in Scrope's death, and it cost Henry a
large sum to obtain absolution.  But Boniface IX. was no arbiter of the
English law.  Edward IV. granted a strange charter to the clergy, not only
dispensing with the statutes of praemunire, but absolutely exempting them form
temporal jurisdiction in cases of treason as well as felony.  Wilkins,
Concilia, t. iii. p. 583; Collier, p. 678.  This, however, being an illegal
grant, took no effect, at least after his death.]

     Germany, as well as England, was disappointed of her hopes of general
reformation by the Italian party at Constance; but she did not supply the want
of the council's decrees with sufficient decision.  A concordat with Martin V.
left the pope in possession of too great a part of his recent usurpations. ^h
This, however, was repugnant to the spirit of Germany, which called for a more
thorough reform with all the national roughness and honesty.  The diet of
Mentz, during the continuance of the council of Basle, adopted all those
regulations hostile to the papal interests which occasioned the deadly quarrel
between that assembly and the court of Rome. ^i But the German empire was
betrayed by Frederic III., and deceived by an accomplished but profligate
statesman, his secretary Aeneas Sylvius. Fresh concordats, settled at
Aschaffenburg in 1448, nearly upon a footing of those concluded with Martin
V., surrendered great part of the independence for which Germany had
contended.  The pope retained his annates, or at least a sort of tax in their
place; and instead of reserving benefices arbitrarily, he obtained the
positive right of collation during six alternate months of every year.
Episcopal elections were freely restored to the chapters, except in case of
translation, when the pope still continued to nominate; as he did also if any
person, canonically unfit, were presented to him for confirmation. ^j Such is
the concordat of Aschaffenburg, by which the Catholic principalities of the
empire have always been governed, though reluctantly acquiescing in its
disadvantageous provisions.  Rome, for the remainder of the fifteenth century,
not satisfied with the terms she had imposed, is said to have continually
encroached upon the right of election. ^k But she purchased too dearly her
triumph over the weakness of Frederic III., and the Hundred Grievances of
Germany, presented to Adrian VI. by the diet of Nuremberg in 1522, manifested
the working of a long-treasured resentment, that had made straight the path
before the Saxon reformer.

[Footnote h: Lenfant, t. ii. p. 428; Schmidt, t. v. p. 131.]

[Footnote i: Ibid., t. v. p. 221; Lenfant.]

[Footnote j: Schmidt, t. v. p. 250; t. vi. p. 94, &c.  He observes that there
is three times as much money at present as in the fifteenth century; if
therefore the annates are now felt as a burden, what must they have been?  P.
113.  To this Rome would answer, if the annates were but sufficient for the
pope's maintenance at that time, what must they be now?]

[Footnote k: Schmidt, p. 98; Aeneas Sylvius, Epist. 369 and 371; and De
Moribus Germanorum, pp. 1041, 1061.  Several little disputes with the pope
indicate the spirit that was fermenting in Germany throughout the fifteenth
century.  But this is the proper subject of a more detailed ecclesiastical
history, and should form an introduction to that of the Reformation.]