Fudge on Hus at Constance

"He had once argued that the function of canon law was to restrain whatever conflicted with the church and revealed truth.  During his own legal process, Hus was unable to see how that applied to him."

     Thomas A. Fudge, Jan Hus:  religious reform and social revolution in Bohemia (London:  I. B. Tauris, 2010), 143, citing "De decimis, in Historia et monumenta, vol. 1, p. 159."  This would be Historia et Monumenta Joannis Hus, 2 v. (Nuremberg 1558).  Assuming that the pagination is the same, that would be here in the 1715 printing in Google Books (though I have not read and translated anything more than the most obvious paragraph in the Latin):

Jus Canonicum vocatur Jus a Prælato vel Prælatis institutum & promulgatum, ad rebelles sacris regulis coercendum.  Et potest etiam intelligi, ut communicans juri Evangelico, ut sunt articuli fidei, in sanctis Synodis sive consiliis explanati.  Sicut enim idem est homo in vestibus aut accidentibus notitiam inducentibus varians, sic eadem est lex vel veritas Evangelica in Evangelio implicita vel detecta, & per Ecclesiam postmodum aliter, sed non contrarie explanata, ut patet de fide, quam credimus. 

Canon law is [(vocatur)] law instituted and promulgated by a prelate or prelates for coercing rebels by holy rules.  And it can even be understood as participating in the Evangelical law [(communicans juri Evangelico)], as do [(sunt)] the articles of faith articulated clearly by [(in . . . explanati)] holy synods or councils.  For just as a man [who] varies in the garments or [other] incidentals [he has] put on [(vestibus aut accidentibus . . . inducentibus)] is known to be the same, so the law or Evangelical truth implicit or uncovered in the Evangelium, and by the Church afterwards otherwise but in no contradictory manner explained, is [known to be] the same, so that it is revealed to be 'of the faith' we believe [(de fide, quam credimus)].

Neander had translated this somewhat more loosely as follows:

Das kanonische Recht wird das von den Prälaten bestimmte Recht genannt, welches dazu dienen sollte, die den heiligen Gesetzen der Kirche Widerstreitenden in Schranken zu halten.  Und es kann verglichen werden mit dem evangelischen Recht, wie die Glaubensartikel, die von den heiligen Synoden sind bestimmt worden.  So wie der Mensch derselbe ist, wenn er auch in verschiednen Kleidern und under anderen, wechselnden, zufälligen Merkmalen erscheint, so ist es dasselbe Gesetz oder dieselbe evangelische Wahrheit, wenn sie in dem Evangelium implicite enthalten ist oder entfaltet, und nachher durch die Kirche auf andre, aber keine widersprechende Weise erklärt worden.

This Torrey rendered in the following manner:

Law, as determined by the prelates, is styled canonical law; and its purpose is to restrain, within due limits, whatever stands in conflict with the holy laws of the church.  It may be compared with the evangelical law, the latter being the articles of faith which have been determined by the holy synods.  As the man remains the same, though he may appear in a different dress, and under different, changeable and accidental characters, so it is the same law or the same evangelical truth which is contained implicitly, or unfolded in the gospel, and is afterwards expounded by the church in another but not contradictory manner.

The Latin of Hus is closely related to that of Wyclif.

     "whatever conflicted with the church and revealed truth", whether "outright doctrinal deviance" or "contumacy":  One was as good as the other; either was more than sufficient for a heresy conviction under prevailing canonical legislation and custom" (Fudge, Jan Hus, 144, in summary of the discussion on 140-141).

     By "the church and revealed truth" Hus would undoubtedly have meant only something like the church insofar as conformed to revealed truth as impressed (somehow) upon the conscience ("since men like Hus already held the a priori assumption that secular and religious authority might be invalid if these powers existed in conflict with what Hus considered principles of the law of God" (131)).  Fudge's response:  this was precisely the problem.  "After all, few heretics ever imagined they were truly heretical" (137).

     Still, the claim of conscience returns with the rest of the sentence:  "and it is nearly impossible to impute error to oneself when one is convinced, as Hus clearly was, their focus is truth" (137, italics mine).

     Yet if Fudge (who follows Kybal) is to be believed, there remains the curious stand (or "psychological dependence") on St. Augustine.  For "In the final rejection of the submission formula Hus declared that he feared accepting it on the grounds that it would be to go against Augustine" (133, citing "De Vooght, p. 445", italics mine).

     As for "the function of canon law," "Hus did accept force in matters of faith, at least theoretically, but certainly not to the extent of death" (144 and 286n4, where the Contra octo doctores, in Opera omnia, vol. 2, pp. 464-465 is cited; cf. the introduction to Jan Hus at the Council of Constance, ed. and trans. Matthew Spinka (New York:  Columbia University Press, 1965), p. 63):

I concede therefore that manifest heretics should be subjected to force by the church, that they may truly confess Christ and his law, for while no one may believe apart from his own free will, one may be forced to physical acts which then may induce one to believe.

That as quoted in Thomas A. Fudge, "'Infoelix Hus: the rehabilitation of a medieval heretic," Fides et historia 30:1 (Winter-Spring 1998): 72 (57-73).

     Fudge should not, however, be taken as sympathetic to the Council of Constance:

In this major study of the trial of Jan Hus, Thomas Fudge argues that Hus was properly convicted of heresy, in a legal process that was on the whole procedurally sound.  His conclusions will come as no surprise to anyone familiar with Fudge's 2010 biography of the Bohemian reformer, which advanced exactly these claims.  In the present study, however [(The trial of Jan Hus:  medieval heresy and criminal procedure (Oxford:  Oxford University Press, 2013))], he founds his case upon a remarkable breadth and depth of scholarship in canon law and in the history of the medieval Church's legal mechanisms for action against heresy. . . . .  What ultimately condemned Hus was less doctrinal unorthodoxy than his persistent refusal to subject his conscience to ecclesiastical authority, as manifested through (papal and conciliar) frameworks of law.  This is a richly detailed study, particularly in its scrutiny of the key texts for the Hus case, and it is sure to become an indispensable resource for anyone concerned with the beliefs and fate of the Bohemian reformer.  It should be added, however, that it is also a more committed account of its subject than its rather sober format suggests.  Those readers of Fudge's previous study of Hus who, he assures us (p. xxi), mistook its author for 'a right-wing Roman Catholic' cannot have been paying attention.  For Fudge's real point in arguing so forcefully that the fathers of Constance were, on their own terms, quite right to condemn a man to death for his sincerely-held beliefs is, of course, that we should judge those terms as fundamentally reprehensible. . . .  Fudge's valedictory anecdote, of Luther promising to hang his infant son with his own hands should the latter ever become a lawyer (p. 343), is offered to the reader as a key to the institution that condemned Hus.  If Fudge's ostensible subject matter is the trial of the reformer, his deeper business is with trying and condemning the late medieval Church itself" [(Len Scales, review of The trial of Jan Hus, Journal of ecclesiastical history 66, no. 4 (October 2015):  870-871)].