[143] It had been enacted, 3 Edw. 6, c. 11, that thirty-two commissioners, half clergy, half lay, should be appointed to draw up a collection of new canons. But these, according to Strype, ii. 303 (though I do not find it in the act), might be reduced to eight, without preserving the equality of orders; and of those nominated in November 1551, five were ecclesiastics, three laymen. The influence of the former shows itself in the collection, published with the title of Reformatio Legum Ecclesiasticûm, and intended as a complete code of protestant canon law. This was referred for revisal to a new commission; but the king's death ensued, and the business was never again taken up. Burnet, ii. 197; Collier, 326. The Latin style is highly praised; Cheke and Haddon, the most elegant scholars of that age, having been concerned in it. This however is of small importance. The canons are founded on a principle current among the clergy, that a rigorous discipline, enforced by church censures and the aid of the civil power, is the best safeguard of a christian commonwealth against vice. But it is easy to perceive that its severity would never have been endured in this country, and that this was the true reason why it was laid aside; not, according to the improbable refinement with which Warburton has furnished Hurd, because the old canon law was thought more favourable to the prerogative of the Crown. Compare Warburton's Letters to Hurd, p. 192, with the latter's Moral and Political Dialogues, p. 308, 4th edit.
The canons trench in several places on the known province of the common law, by assigning specific penalties and forfeitures to offences, as in the case of adultery; and though it is true that this was all subject to the confirmation of parliament, yet the lawyers would look with their usual jealousy on such provisions in ecclesiastical canons. But the great sin of this protestant legislation is its extension of the name and penalties of heresy to the wilful denial of any part of the authorised articles of faith. This is clear from the first and second titles. But it has been doubted whether capital punishments for this offence were intended to be preserved. Burnet, always favourable to the reformers, asserts that they were laid aside. Collier and Lingard, whose bias is the other way, maintain the contrary. There is, it appears to me, some difficulty in determining this. That all persons denying any one of the articles might be turned over to the secular power is evident. Yet it rather seems by one passage in the title, de judiciis contra hæreses, c. 10, that infamy and civil disability were the only punishments intended to be kept up, except in case of the denial of the christian religion. For if a heretic were, as a matter of course, to be burned, it seems needless to provide, as in this chapter, that he should be incapable of being a witness, or of making a will. Dr. Lingard, on the other hand, says, "It regulates the delivery of the obstinate heretic to the civil magistrate, that he may suffer death according to law." The words to which he refers are these: Cum sic penitus insederit error, et tam alte radices egerit, ut nec sententiâ quidem excommunicationis ad veritatem reus inflecti possit, tum consumptis omnibus aliis remediis, ad extremum ad civiles magistratus ablegetur puniendus. Id. tit. c. 4.
It is generally best, where the words are at all ambiguous, to give the reader the power of judging for himself. But I by no means pretend that Dr. Lingard is mistaken. On the contrary, the language of this passage leads to a strong suspicion that the rigour of popish persecution was intended to remain, especially as the writ de hæretico comburendo was in force by law, and there is no hint of taking it away. Yet it seems monstrous to conceive that the denial of predestination (which by the way is asserted in this collection, tit. de hæresibus, c. 22, with a shade more of Calvinism than in the articles) was to subject any one to be burned alive. And on the other hand, there is this difficulty, that Arianism, Pelagianism, popery, anabaptism, are all put on the same footing; so that, if we deny that the papist or free-willer was to be burned, we must deny the same of the anti-trinitarian, which contradicts the principle and practice of that age. Upon the whole, I cannot form a decided opinion as to this matter. Dr. Lingard does not hesitate to say, "Cranmer and his associates perished in the flames which they had prepared to kindle for the destruction of their opponents."
Upon further consideration, I incline to suspect that the temporal punishment of heresy was intended to be fixed by act of parliament; and probably with various degrees, which will account for the indefinite word "puniendus."
Before I quit these canons, one mistake of Dr. Lingard's may be corrected. He says that divorces were allowed by them not only for adultery, but cruelty, desertion, and incompatibility of temper. But the contrary may be clearly shown, from tit. de matrimonio, c. 11, and tit. de divortiis, c. 12. Divorce was allowed for something more than incompatibility of temper; namely, capitales inimicitiæ, meaning, as I conceive, attempts by one party on the other's life. In this respect, their scheme of a very important branch of social law seems far better than our own. Nothing can be more absurd than our modern privilegia, our acts of parliament to break the bond between an adulteress and her husband. Nor do I see how we can justify the denial of redress to women in every case of adultery and desertion. It does not follow that the marriage tie ought to be dissolved as easily as it is, at least by the rich, in the Lutheran states of Germany.
[144] Strype, passim. Burnet, ii. 154; iii. Append. 200; Collier, 294, 303.
[145] Strype, Burnet. The former is more accurate.
[146] Burnet, 237, 246; 3 Strype, 10, 341. No part of England suffered so much in the persecution.
[147] Ambassades de Noailles, v. ii. passim. 3 Strype, 100.
[148] Strype, iii. 107. He reckons the emigrants at 800. Life of Cranmer, 314. Of these the most illustrious was the Duchess of Suffolk, first cousin of the queen. In the parliament of 1555, a bill sequestering the property of "the Duchess of Suffolk and others, contemptuously gone over the seas," was rejected by the Commons on the third reading. Journals, 6th December.