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A36083 A discourse concerning excommunication, as executed by officials, and concerning the common law writts, de excommunicato capiendo and de cautione admittenda, for the punishment of persons excommunicated and their deliverance from the punishment vvherin is examined whether the execution of the former as executed by many, be not a profanation of a great ordinance of God, whether by the second the subjects is many cases be not unwarrantably oppressed : as also by the difficult granting of the other, which is a common law writt, and the right of every subject to be obtained without difficulty : discoursed in a letter to an honourable friend / by one who is a friend to English liberty. One who is a friend to English liberty. 1680 (1680) Wing D1579; ESTC R6708 18,986 26

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the 32 Persons which each of them was by Authority of Parliament designed to call together to revise the Canons and compile one body out of them as may be seen by the Act 25 Hen. 8th 19. and another Act in Hen. 5th time and another in the 3. Edward 6th There being but Eight of them called and those by Edw. 6th in the Fifth year of his Reign as appears by his Commission dat 11. day of Nov. that year and preferred to the book before mentioned called Reformatio Legum Ecclesiasticarum But that Excellent Prince dyed before that he had added his Royal Sanction to that new formed systeme of Canons So as though we have had considerable Reformation in Doctrine and Worship yet we have had none in Discipline but 25. Hen. 8. 19. 14. Car. 2. proceed according to all old Popish Canons and Methods where they are not contrariant or repugnant to the Kings prerogative or the Laws of the Land which the Stat. restrains I beseech you Sir seriously consider whether this practice be not apparently a profanation of a Divine Institution and taking the Holy Name of God in vain who hath said He will not hold him guiltless that takes his Name in vain If it be whether it be fit any longer to be indured in a Nation that professeth to Christ especially considering that by the common Execution of this sentence in stead of purging out the rotten and putrid members of the Church the soundest members are cut off I mean persons of soberest Principles as to Faith and the severest Lives and mens Lusts are served instead of Christ Our Excommunications being grown ordinary revenges of particular spight and malice when they have a mind to get a person out of a City or County they know not why or to be even with those that would not be awed to give their Suffrages for such Members to serve in Parliament as the Officials Registers and Proctors would have had To all which is considerable the eminent oppression and ruine of many Persons and Families consequent to this practice which brings me to the second question propounded 2. Whether the Imprisonment of persons upon the Writt de Excommunicato capiendo be not as practised a great oppression of the Subject and a grievance worthy of a Parlimentary consideration for Relief Our Common Law is That when a person hath stood Excommunicated 40 dayes the Bishop may send into the Chancery a Writing signifying so much which Writing is usually made and the Bishops Hand and Seal set to it of course without his knowledge upon which the party suing for it shall have a Writt which is called the Writt de excommunicato capiendo directed to the Sheriff commanding him to seize and imprison the person concerned where he must lie without Bail or Mainprize This may be done as to any person who hath stood Excommunicated so long but is seldom done but where any Official or Promoter or Church-Wardens have a particular revenge to execute or where the Registers want Money But these Writts within these few years have flown abroad at a very strange rate If the Register can take any persons they will serue out 5 8 10 pound and set them at Liberty Others shall lie in Prison during their pleasure till their Families be impoverished and ruined for want of their Labour and care and themselves have contracted some fatal disease that either they dye there or soon after they come out or live a valetudinarious Life ever after My self have known One a reverend Minister kept thus 7 years another 4 years others a long time One poor man I knew dragged out of his death-bed so it was then like to prove and in few days did prove by Bayliffs and his Friends enforced to redeem him for five pounds paid to the Register which proved but the dear purchase of a few hours life abundance of such instances might be produced These punishments are all inflicted by the civil Magistrate he issueth the Writ to the Sheriff whose Bailiffs by his precept seise the person and whose Jaylour keeps them Sir I have oftenstood amazed to think how any intelligent civil Magistrate could answer this dealing with people before God Admitting a person unduly Excommunicated and it is not one of ten but is so either for a cause which the Law of God will not justifie and that alone can justifie the lawfulness of an Excommunication or for causes or in manner and methods which the Law of men will not justifie onely the ignorance of honest simple souls or their want of money keeps them prisoners I would gladly know of him that can answer me upon whom the blood and ruine of these persons or their wives and children must lye and who shall account to God for it another day For an account must be made and the cry of the innocent shall be heard and adjudged In the case admitted here is plainly an Act of high unrighteousness oppression and cruelty and what before God amounts to no less then Murther or Robbery The question is who is guilty of it It is true the Kings Name for form sake is used in those Writts but he is not concerned in the guilt nor knoweth any thing of it It shall not lye upon me saith the Cursitor I did issue out the Writt indeed but that is the duty of my place to issue out any Common-Law Writt Not upon me saith the Sheriff I did but Execute the Writt Nor upon me saith the Bayliff I did but Execute the Sheriffs precept upon the Writt Nor upon me saith the Gaoler I did but keep him according to the Sheriffs Warrant I do not think any one can be excused who knowingly hath had an hand in the action Neither the Official who decreed the Excommunication Nor the Minister that published it nor the Officials or Register that signifyed in the cause nor the Cursitor that issued out the Writt nor the Sheriff that Executed it nor the Bayliff or Gaoler I am sure in other causes at our Law the Justices or other Officers illegal warrant will not justify the Constable or Gaoler for false imprisonmen We had another Writt much of the same batch taken away by the last Parliament upon which the Sheriff burned honest men judged Hereticks by the Church-men I would gladly understand who were guilty of those worst of murthers The Sheriff there did but Execute the Common Law Writt in the cause would that excuse him think we It seemeth my Lord Cook did not so judge for before he would take the Sheriffs Oath he got the clause abated by which he should have been obliged to persecute the Lollards but admit Sir that all these inferiour Ministers of Magistracy were excused because they do but Execute an unrighteous Law The guilt must then lie upon those that made the Law and that suffer it still to continue in force having power in their hands to annul it I take it to be true in Divinity that no command