of every Subject of England These Prohibitions are sometimes granted absolutely in some Causes with a Quâ—â—sque till the Ecclesiastical Judg amendeth his illegal Proceedings nor was this the only Writ in these Causes If Ecclesiastical Judges should adventure to disobey these Writs the Law in that Case provided a Writ of Attachment That in case the Ecclesiastical Judg would adventure to proceed notwithstanding such a Writ of Prohibition he might be forced to yield Obedience to it Of this are many Instances in the Register of Writs And in regard the Ecclesiastical Judges might have so far proceeded notwithstanding such Prohibition as the Party might be laid up in Prison upon the Writ de Excommanicato capiendo the Law in that case provided a Writ of Supersedeas to deliver the Person out of Prison to follow his Attachment of the Judg for his Contempt of the King 's Writ of Prohibition There is a notable Precedent of this Writ in the Registry of Writs which because it is not known to all I shall take the pains to translate for the benefit of such Persons as may fall under these illegal extravagant Oppressions and not know what to do The King to the Sheriff greeting c. A. B. hath shewed us that whereas C. D. hath sued him in the Court Christian before R. concerning Debts and Chattels which belong not to Testaments or Marriages and altho the same A. B. hath delivered R. our Letter of Prohibition forbidding him to proceed in the Cause aforesaid yet the said R. nevertheless hath proceeded in the said Court contrary to our said Prohibition for which we have according to the Custom commanded R. to be attatched by our Letters directed to him to appear before our Justices to shew cause why he proceeded in the Ecclesiastical Court contrary to our Prohibition and for as much as the aforesaid R. whiles the Plea of Attachment hath been depending before our said Justices aforesaid as is afore said hath maliciously procured the said A. B. to be taken that so he might hinder him from prosecuting the said Attachment before our Justices according to the Laws and Customs of our Kingdom We command you that if it be so that you by no means execute our Writ for the 〈◊〉 of him the said A. upon the Occasion aforesaid until the Plea of the said Attachment be determined in our Court before our said Justices according to the Laws and Customs of our Kingdom and if you have taken him upon the account aforesaid we command you to deliver him from the Prison in which upon that account he is detained in the mean time This Writ saith the Register issueth out of the Chancery if the Party be taken and imprisoned before the return of the Attachment if it be in the time of the Vacation otherwise it issueth out of the other Courts after the Attachment The like Writ issueth if the Ecclesiastical Judg proceeded after an Appeal provided the Appeal be made appear to the Court by some publick Instrument and the Party obtaining it proveth by Witnesses or by Oath that he is diligent in the Prosecution of his Appeal and it must be within the compass of a Year after his Appeal By which two Writs appear the illegal and extravagant Proceedings in those times by Judges in the Ecclesiastical Courts proceeding to excommunicate Persons and then to certify against them and imprison them both contrary to the Canon Law and in contempt of the King's Writs from thence and also contrary to the Rules of their own Law according to which after an Appeal the inferiour Court ought to proceed no further till the Cause was by the Judg ad quem remitted to them Nor was the Writ of Prohibition and the Writs of Attachment and Supersedcas relating to that Writ the only Writs that were invented in those most corrupt and Popish Times to relieve the Subjects oppressed in and by the Ecclesiastical Courts for there are many Causes in which Prohibitions will not lye where those Courts may proceed and excommunicate and after forty days signify and have a Writ out against the Person to imprison him now that they might not at their Pleasure keep Men in Prison to their Ruine the common Law hath provided of ancient Times a Writ de Cautione admittenda Because it is but little understood I will give my Reader some account of it The old Popish Canon Law had ordained that if a Person were excommunicated right or wrong he should not be absolved unless he gave a fitting Caution to obey the Commands of the Church in form of Law This appeareth from that part of the Canon Law which is called the sixth of the Decretals Pope Boniface in the Year 1294 set two Bishops to gather up the Decretals of some former Popes and to be added to five of Gregory the ninth and to some of his own and the Book to be called Sextus upon which Johannes Andreas a Bononian glossed Now in this part of the Canon Law we read it again and again enjoined that Persons excommunicated should 〈◊〉 be absolved unless they gave Caution see Sexti Decretal l. 5. Tit. 5. de usuris Sol. 2. Tit. 6. cap. 1. l. 5. c. 24. Tit. 11. The Glossator upon that part of the Law every where expoundeth that term of a fitting Caution That a fitting Caution may be fide-jussoria or Pignoratitia or Juratoria that is by Sureties by Pledg or by an Oath He also determineth the Caution by Oath only to be taken where the Party should not be able to give Security by Bond and Sureties nor by Pledg The Caution by Sureties was looked upon as the greatest Caution and therefore in our Law in a Writ to the Sheriff commanding him to take Caution of a Party thus imprisoned which we find in our Regist Brevium p. 67. commands him to take Cautionem saltem Pignoratitiam at least a Caution by Pledge But notwithstanding this that Men may see how natural a desire it is in some kind of Men to torment their Brethren the Church here in England having got a Priviledge of a Writ to imprison the Person that had stood Forty days Excommanicated they would keep Men in Prison as long as they pleased till they compelled them to do and pay what they listed tho they offered them Caution according to the Canon Law Let us hear what Doctor Cozens in his Apology for certain proceedings in Causes Ecclesiastical p. 1. c. 2. says of this Writ of Excommunicato capiendo It is saith he a Liberty peculiar to this Church of England above all the Realms in Christendom that I read of that if a Man stand wilfully forty days together Excommunicated and be accordingly certified by the Bishop into the Chancery that then he is to be committed to Prison by Virtue of a Writ directed to the Sheriff nothwithstanding that in one Precedent in the Register of this Writ it is said Quod hujusmodi Breve nostrum ex gratiâ nostrâ pracedat By
prosecuted according to Rutes of the Common Law of England in all Causes or the particular Rules of that Law which belongeth to such Courts upon the Subjects Motion and Suggestion to that purpose The Courts of the King's-Bench Common Pleas or Exchequer grant a Writ of Prohibition according to the Nature of the Complaint either absolutely forbidding them to proceed in such a Case or limitedly until they have amended such or such an Error in their Proceedings If the Ecclesiastical Judge thinks himself injured he may have an hearing and argue the Case If the Secular Judges be convinced of any mistake they will grant them a Writ of Consultation after the Receipt of which they may proceed notwithstanding any former Prohibition For Appeals the Reader must know that even in the vilest and most Popish times the Law of England never left the Subject to the Mercy of an Inferiour Arbitrary Judge in a Court Ecclesiastical but gave him a Liberty to appeal from an unjust definitive Sentence or an unjust Grievance upon an Interlocutory Decree to the next Superiour Court and from thence to the next and at last to the Pope and Court at Rome Upon the Reformation of England it was just to cut off Appeals to Rome being a Forreign Jurisdiction otherwise the old Law of England was kept to It was therefore Enacted and ordained by the Stat. 24 Hen. 8.12 That Appeals should be made from the Arch-deacon's Court to the Bishop's from the Bishop's or his Commissaries to the Archbishop's Court or Arches And by the Stat. 25. Hen. 8.19 from the Arches to the King's Majesty in the High Lourt of Chancery This is vulgarly called the Delegates because upon Petition the Cord Chancellour doth delegate some Common-Lawyers and some Civil or Canon Lawyers to hear and determine the Cause This saith the Stat. 24. Hen. 8.12 shall be done by any of the King's Subjects and Resiants without any Limitation except of time for which the Statute mentioneth 15 Days after the pronouncing the Sentence Assoon therefore as any definitive Sentence or any Interlocutory Decree is given or made it will be the Party's Wisdom to send to some Proctor in the Court to which his next Appeal lyeth to enter an Appeal for him and to send him an Inhibition and Monition and if Excommunication hath been denounced against him an Absolution The Inhibition forbids the Inferiour Judge to proceed till the Appeal be determined if he disobeyeth the Party sending to his Proctor shall have an Excommunication against him The Monition is to admonish the Register to send up to that Superiour Court by such a time all the Proceedings in the Case If he disobeyeth upon complaint an Excommunication shall be sent down against him There is a Practice of the Officers of Superiour Courts sometimes upon Caveats entered by Prosecutors sometimes without to deny the Subject the Liberty settled upon him by the Stat. 24. H. 8.12 refusing to admit his Appeal until he hath sworn and subscribed Conformity according to the 98 Canon made 1603. The Case stands thus By the Stat. 25. Hen. 8.19 which was after that for Appeals 24 Hâ—â— 8.12 it was enacted That the Clergy should not presume to make any new Canons or put the same in use unless they might have the Kings Assent first 1. It is not said The Royal Assent and Licence of the King his Heir and Successors 2. Nor is it said Whether there must be an Assent to the particular putting in Execution of each Canon or a whole lump of them in gross 3. Nor is it said his Assent in or out of Parliament which hath made Questions amongst Lawyers Whether any Canons made since that time be of force yea or no especially considering the Stat. made 13. Car. 2. for restoring the Ecclesiasticall Jurisdiction taken away by Stat. 17. Car. 1. Since that time we have had Canons made 1603 and Anno 1640 which last are in Terms left out as not confirmed by the Stat. 13. Car. 2. For the others there have been the former Doubts raised I shall leave them to Lawyers to determine but the Doubt riseth by the Phrase used in the King's Assent prefixed to those Canons 1603 as far as lawfully being Members of the Church it may concern them And again According to the Form of a certain Statute made on that behalf 25. Hen. 8. He who hath a mind to read something Lawyers have said upon this Point may read Mr. Maynard's Argument against the Canons made 1640. Some of the Heads of which he may find in Dr. Fuller's Church History relating to that Year But certain it is that Stat. 25. Hen. 8.19 saith Provided alwayes That no Canons Constitution or Ordinance shall be made or put in Execution within this Realm by Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the King's Prerogative Royal or the Customs Laws or Statutes of this Realm any thing contained in this Act to the contrary notwithstanding So that be the Validity of Canons made by the Convocation and confirmed by the King's Assent out of Parliament as it will by force of that Act yet no Canon can be of force contrariant or repugnant to the Laws or Statutes of the Realm Now the Stat. 24. Hen. 8.12 was at that time a Statute of the Realm and had given any of his Majesties Subjects and Resiants a Liberty of Appeal without any Restriction or Limitation except as to time or Qualification whatsoever Four score Years after this the Convocation 1. Jacobi makes a body of Canons the 98 of which is in these words Forasmuch as they who break the Laws cannot claim any Benefit or Protection by the same By the way then all the King's Subjects are Out-Laws We decree and appoint That after any Judge Ecclesiastical hath proceeded judicially against obstinate and factious persons and Contemners of Ceremonies for not observing the Rites and Ceremonies of the Church of England no Judge ad quem shall admit or allow any his or their Appeals unless he having first seen the Original Appeal the Party Appealant do first promise and avow That he will faithfully keep and observe all the Rites and Ceremonies of the Church of England and also the prescript Form of Common Prayer and do also subscribe to the three Articles formerly by us specified and declared Now the Question is Whether this Canon be not made void and not to be put in Execution by the Proviso before mentioned in the Stat. 25. Hen. 8.19 The Statute makes Appealing the Liberty of any of the King's Subjects and Resiants without any Restriction or Qualification The Canon restrains this and decrees The Appeals of none but such or such shall be admitted Nor can the Validity of the Canon with the King's Assent be pleaded for the Proviso saith any thing in this Act to the contrary notwithstanding nor doth the King confirm the Canon but according to this Statute and so far as lawful may concern his Subjects
Man out of the Kingdom of God and are equally heinous and scandalous as these such as are reckoned up by the Apostle 1 Cor. 6.9 10. Idolaters Adulterers Effeminate Persons such as abuse themselves with Mankind Theeves Murderers Sorcerers profane Swearers and Cursers these are all scandalous Offenders and so within the Precept Matth. 18. 3. Yet neither are all these the Objects of this Censure unless they be Stubborn Contumacious and Incorrigible An Heretick is not to be avoided till after the first and second Admonition Tit. 3.10 Nor an Offender till after that he hath refused to hear the Church Mat. 18. Conformable to this was the general Judgment of the Churches of God for more than a thousand Years after Christ as might be made appear from infinite Quotations out of the Ancients and out of the Canon Law which steadily determineth That none but Hereticks and such as are guilty of Mortal Sins and Contumacious in them are to be Excommunicated It is a most unreasonable thing to think that it is the Will of God that any should be Excommunicated for what is no Sin Christ never willed the cutting off true Members from his Body And it is altogether as unreasonable to imagine that it is the will of Christ who hath Compassion on the Ignorant and those who are out of the Way and who hath declared his readiness to receive repenting Sinners should have willed the cutting off of those from the Communion of his Church who are not Contumacious But this is granted on all hands that none be they never so great Transgressors unless Contumacious should be the Objects of this Censure at least what they call the greater Excommunication for the Separation of some open notorious Transgressors from Communion in some Ordinances being under the Church's Admonition it cannot indeed properly be called Excommunication But when a Person is to be judged Contumacious is the great Question The Papists making the Laws and Decrees of their Church equal if not superiour to the Laws of God make all Disobedience to their Canons persisted in to be Contumacy And in abuse of that Text Matth. 18. If he will not hear the Church let him be unto thee as an Heathen and a Publican determine all Persons contumacious who will not hear those whom they call the Church 1. Either commanding them to appear at their Consistories 2. Or tho appearing if they will not within such a time as they set do what in those Courts they think fit to enjoyn them But indeed that Contumacy which renders any according to the Will of God the Objects of this Censure must be a Contumacy against the Commands of Christ If indeed any Person hath done any thing for which according to the Will of God he is censurable by the Church and they send for him and he will not appear to answer and justify himself Or if they command him to do what Christ hath in his Gosppel commanded them to do and he refuseth after several Admonitions to do it he may be judged Contumacious but other Contumacy the Scripture knoweth not nor can any Person by the Law of the Gospel be judged a Person fit to be Excommunicated but one who hath been a scandalous Sinner who being sent for by the Church of which he is a Member refuseth to come at them or coming to them being required to do what is the will of Christ peremptorily refuseth to yield Obedience but will still go on in his sinful Courses CHAP. IV. The Divine Order Method and Manner to be proceeded in with Reference to Excommunication There is yet one thing more to be considered and that is the Order and Manner of the Execution of this Sentence according to the Will of God Whoso considereth it as an Ordinance of God an Action done in the Name of our Lord Jesus Christ and with the Power of our Lord Jesus Christ as the Apostle expresseth it in 1 Corinth 5.4 will easily conclude it ought to be done with all the Seriousness and Gravity imaginable and as is usually said in our Officials Sentences how truly God knoweth Christi nomine prius invocato after a first calling upon the Name of Christ The Name and Power of Christ cannot be trifled with without Profanation and Blasphemy and an high degree of taking the Name of God in vain which is a Crime that whosoever presumeth to incur shall not be held guiltless as we are assured in the third Commandment Again whoso considereth it as an Action by which Mens Sins are retained and by which a Person is cast out of God's special Providence and put into the condition of an Heathen and a Publican and debarred of the greatest Priviledges of the Gospel viz. the Vse of the Sacrament and the Communion of Saints if he be a Person who hath any thing of the Fear of God before his Eyes or any thing of brotherly Love and Compassion toward Souls in his Heart will easily conclude it is a thing ought not to be done passionately rashly or suddenly but upon mature Deliberation after grave Admonitions and patient waiting for the due effect of them And as the very Nature of the thing thus far instructeth any Men of Common Sense and Moralities so that no other manner of performing this can be expected from any but such as in their ordinary Discourse are so used to throw out The Divel take you that they cannot forbear it in their most solemne Actions so God hath sufficiently instructed us in his Will as to this thing The secret Sinner must have a private and Fraternal Correption before the Church hear of his Crime Mat. 18. The Heretick must not be rejected till after a first and second Admonition Tit. 3.10 and certainly he that hath commanded us In meekness to instruct those that oppose themselves if God peradventure will give them Repentance to the acknowledging of the Truth And that they may recover themselves out of the Snare of the Divel who are taken captive by him at his will 2 Tim 2.26 And again If a Man be overtaken with a Fault restore such a one in the Spirit of Meekness considering our selves lest we also be tempted Gal. 6.1 never intended that Men should be delivered up to the Devil cast out of the Communion of the Saints in haste And indeed this is so evident a piece of the Will of God so consonant to Humane Reason that not only all Divines as well Ancient as Modern have agreed it but the very Canon Law it self in several places determines it and maketh it a grievous Sin for any Bishop or Priest to proceed to this Sentence without a leisurable and full hearing of the Cause And I remember the Instance of God himself is brought in resolving to go down and see if the Merits of the Men of Sodom were according to the cry come up and as to the deliberate proceeding of the Judge as in the hearing and proof of the Cause so in the denouncing the
great while they studied by their Canon Laws to uphold its Authority denying the Excommunicated Persons Burial in Church-yards a Power to make a Will and such other things as were within their Power which things by the Popes long Usurpations became a kind of Common Law in Nations subjugated to that Religion yet they found all this too little to uphold the Authority of an Ordinance of God whose Virtue themselves had extinguished by their horrible Profanation of it And at the last were forced to fly to the Secular Magistrate from whom in times of Popery when almost all Civil Magistrates were made their Slaves to execute their Lusts they obtained several other things which were civil Punishments of the Person that durst adventure to stand their Sentence of Excommunication He might not be either Judg or Witness in any Court. If he had occasion to sue any for his just Right in any Court his Excommunication might be pleaded in bar to his Proceedings If he stood excommunicated forty days the Bishop might signify it to the Civil Magistrate and have from him a Writ to imprison the Person to be kept without Bail or Mainprize until he had given Satisfaction to the Church and obtained its leave to come out The Writ with us here in England made in Popish Times ran thus The King to the Sheriff of L. greeting The Venerable Father H. Bishop of London hath signified to us by his Letters Patents that B. a Member of his Diocese hath been Excommunicated by his ordinary Authority for his manifest Contumacy and will not be reformed by the Ecclesiastical Censures whereas the Royal Power ought not to be wanting to Holy Church in its Complaints we command you to imprison the Body of the said B. according to the Custom of England until he shall have satisfied Holy Church as well for his Contempt as the Injury which he hath done unto it They not satisfied with this obtained also another writ from the Civil Magistrate commanding the burning of the Person whom they had once determined to be an Heretick by virtue of which many good Christians were burned as in former times so in the time of King Hen. 8th and Queen Mary of which our Martyrology speaks sufficiently but this is by a late Act destroyed Being furnished with this Power they were busy enough in the Execution of it and themselves found Inconveniences arising from the extravagant use of it so as even the Canon Law it self regulated divers things Among others it ordained a threefold Caution for such as were Excommunicated upon the giving of any of which they were to be discharged even by the Canon Law A Caution by Pledg a Caution by Sureties and a Caution by Oath that is the Party was either to lay in some Cledg to the Bishop or enter into a Bond with Sureties or take an Oath that he would afterwards be obedient to the Commands of the Church in form of Law and upon this he was to be absolved The Caution by Oath was only admitted in case the Party was able to give no other as appears from the Canon Law Sexti decretat l. 5. tit 9. But the Civil Power even in the times of Popery quickly found the unreasonable Inconveniences accruing to the Nation by this extravagant Power formerly either indulged to or usurped by Church-men which it took care to restrain by several Statutes and Writs To this purpose was the Writ of Prohibition invented I cannot tell the just Original of it but it appears by the Statute of Circumspecte agatis made 13 Edw. 1. that was 1285 that is now near 400 Years since that it was before that time in use for that Statute restraineth the issuing of it in Cases of Fornication and Adultery leaving the Church-yard unclosed or the Church uncovered in case of Oblations and accustomed Tithes and in case of Mortuaries and Pensions Defamation and laying violent Hands on Clerks By which it is plain it was in use before that time and that before that time Prohabitions were wont to issue when any was questioned for these things in the Courts Ecclesiastical It is the Error of some that Writs of Prohibition do not lye where the matter is not cognoscible in the Spiritual Court but properly belongs to the Court Ecclesiastical But Dr. Cozens in his Apology for Ecclesiastical Proceedings pag. 1. c. 17. gives us a much truer Notion of that Writ telling us The Prohibition is a Charge by the King 's Writ to forbear to hold Plea either in some matter or manner which it is supposed a Man dealeth in beyond his Jurisdiction or otherwise than the Law will warrant A Writ of Prohibition commanding the Ecclesiastical Court to proceed no further may be had not only where the thing doth properly belong to the Ecclesiastical Court but also where they proceed in a manner which the Laws of England do forbid As 1. If an Ecclesiastical Court will proceed before they have given the Party accused a true Copy of Articles a Prohibition lies upon the Statute 2 Hen. 5. 2. Also whether in case of a Prosecution by Informers if the Court will proceed before the Informer hath done what is required by the Statute 18 Eliz. 15. and other Statutes made to regulate Informers a Prohibition will not lye in those Cases 3. According to the Canon Law also every Prostor ought to have a Letter Procuratory under the Hand and Seal of him who imployeth him And an Act of Court ought to be made to admit him as a Proctor for such Persons and if this be not the Party prosecuted can recover no Charge because there is no Legal Adversary to recover it from By that Law also voluntary Promoters which may be Vagrants ought first to give Security to pay Charges if over thrown If the Ecclesiastical Judg refuseth these things Query Whether a Prohibition will not lye 4. By the Canon Law also Vox unius est nox millius No one Witness makes a Proof If a Judg in those Courts will give Sentence upon the Proof of a single Witness a Prohibition will lye 5. If the Judg of an Ecclesiastical Court will allow a Person to be charged generally or incertainly it is against the Common Law of England the Judg in that case will prohibit the Ecclesiastical Judg. So in many other Cases where the manner of the Proceedings in the Court Ecclesiastical is either plainly against the Civil and Canon Law Rules or against the known Rules of Common Law so that I conceive a Prohibition is A Common law-writ forbidding the Ecclesiastical Judg to proceed either in a Case which doth belong to his Jurisdiction or in such a manner as is manifestly against the Rules of the Civil and Canon Law according to which he ought to judg or against the Common or Statute Laws of this Realm of which and the true sense of which his Majesties Judges in the Courts at Westminster are the Judges and the Benefit of which is the Liberty
Parliament or by the established Laws of the Land as they stood in the Year 1639 and if not Whether they be not made void by the Statute 13 Car. 2. 10. When he hath given his Answer which must be subscribed by his own hand it is usual for the Adverse Proctor to demand a time to prove his Articles for which the Judg at his pleasure granteth 2 3 4 or 6 Court-days usually but two Let him also at the same time move that he may have Liberty within that time also to produce any Witnesses for his Defence if it be denied let him appeal 11. Let him observe what time the Judge setteth his Adversary to produce his Witnesses in Court and whom he names for Witnesses for him Let him also desire a time to be set in Court for him to produce his Witnesses and be careful to bring them at the time for they must all be sworn in the Court then examined privately by the Register Unless the Adversary desireth a Commission to examine Witnesses which is not often done because it is much more chargeable in that Case there are no Witnesses in the Court produced and sworn but before those Commissioners 12. If the Party Defendant will he may deliver in to the Register Interrogatories upon which the Register shall cross-examine his Adversary's Witnesses But he must be very wary as to this for he shall not afterward except against any of his Adversary's Witnesses whom he hath cross-examined and made Witnesses for himself 13. Let him advise his own Witnesses to be very careful that the Register setteth down what they say in their own Words that under the pretence of putting them into a decent Phrase their whole sense be not altered 14. When the time Probatory set at first by the Judge is expired let him desire of the Judge Publication If the Judge will grant longer time to prove let him desire the Advantage of the same time also to bring more Witnesses for himself which he may or may not make use of as he pleases 15. If once the Term given for Proof be expired let him desire Publication and Liberty to take out a Copy of the Depositions 16. When he hath got a Copy let him diligently observe if he can prove any thing contrary to what the Witnesses or any of them have sworn if he can let him at the next Court-day offer a Paper of General and Particular Exceptions shewing the Particulars which he exepteth against in their Depositions severally as well as his General Exceptions against them all Let him desire a time to bring in Witnesses to prove his Exceptions If the Judge refuseth to admit his Exceptions or to give him due time to prove them he may again appeal 17. When once the Promoter hath allowed to have Publication he may again move for time to invalidate the Proof of the Exceptions but not to fortify his first Proof If any Liberty of that nature be desired the Defendant may appeal for unless in a Case for the King after Publication no new Witnesses can be produced 18. When the Party against whom the Promotion is peruseth the Depositions let him strictly observe whether the Particulars he is charged with be proved by two Witnesses for it is a Rule in their Law Vox unius est vox nullius and if the Judge will admit the thing proved by one Witness a Prohibition lyes For the King's Judges will not only see that those Courts shall keep to matters truly belonging to their Jurisdiction but also that in the Prosecution of them they shall keep to the received Rules of their own Law in those main Points of Proof c. 19. It is an usual thing upon Presentments by Church-wardens when the Party presented calls for Proof of the Presentment to tell him That the Church-wardens Presentment is a Conviction they being sworn Officers But this is contrary to the Law of England which alloweth no Presentment by Officers ex Officio to be a Conviction If Grand-Juries at Assizes and Sessions do present this is no Conviction but the Person must after this be indicted and Proof made by Witnesses If therefore the Ecclesiastical Court insists on this the Person may appeal or which it may be is better he may have a Prohibition from the King's Court at Westminster as some Great Lawyers think 20. When the time for Proof is expired and Publication made and Exceptions given in and proved and Publication of those Proofs also made Either Party may move for a time to be set to conclude and to give the Judge Informations of the whole State and Merit of the Case and also to give sentence in it 21. At the Day set the Party accused or promoted against may appear and show to the Judge the whole State of the Case and plead it himself or if he will by an Advocate if any be at hand or for ought I know if there be none by an Attorney or Counsellour at Common Law after which the Judge will appoint upon desire a day to give Sentence 22. At that day the Party must have a Form of an Absolutory Sentence ready to tender to the Judge 23. If the Judge gives Sentence against him he may appeal within 15 days by virtue of the Statute 24 Hen. 8.12 24. All along the Prosecution the Person against whom the Promotion is shall do well after every Court to get the Acts of the Count in his Case under the Register's Hand and to keep them by him carefully 25. This last Appeal is called Appealing a Sentenceâ— definitiveâ— from the definitive Sentence All appealing before this is but a Gravamine from a Grievance or an Interlocutory Decree inferring a Grievance Because there have been so frequent mentions in this Discourse of Writs of Prohibition and of Appeals it may not be amiss further to inform the Reader of both these And first concerning Prohibitions The Judges of the King's Courts at Westminster are undoubtedly under the King the Keepers of the Liberties of England and by their Office and Oath are to preserve unto the Subjects their Rights and Liberties Two things are the Rights of Subjects 1. To be Impleaded for any supposed Offences in Proper Courts that is such as according to the Law of England have a Cognizance of the supposed Offences 2. To be prosecuted in a just and reasonable manner according to the Rules of Law and Reason And the Judges of his Majesty's Courts at Westminster are doubtless Judges paramount to whose Judgments all the Judgments given in other Courts shall be subjected so far as they shall determine upon complaint to them Whether they have proceeded upon Matters within their Jurisdiction and Secondly Whether they have proceeded according to the Rules of that Law the Executors of which they are Hence if the Subject think himself grieved by the Ecclesiastical Courts either because he is there called in question for Matters which they have no Jurisdiction in or because he is not
and true Copy of the Citation If the day of Appearance be not at least the third day from the Citation or if he hath before Witness given the Apparitor 6 d. to bring him a full and true Copy of the Citation I conceive he needs not appear but listen what they do and if they decree him Excommunicated he may appeal within fifteen days and bring from the Superiour Court an Inhibition to stop their Proceedings against him And further the Rule in that Law is Totus dies debetur delinquenti It is enough for a Person to appear any hour of the day provided it be a Court-hour wherein he is cited to appear so as tho he be called before he comes yet if he appeareth that day he shall be discharged or he may appeal 2. When he appeareth he shall demand his Charge which is either by a Presentment from Churchwardens or by a Libel or Articles which are exhibited by a Promoter Be it which it will he shall demand a Copy if it be denied or delaied he shall bring if he will a Prohibition from the King's Court at Westminster forbidding them to proceed in that Cause till they have given him a full and true Copy of his Charge according to the Statute 5 Hen. 2. 3. If he appeareth in Person he ought to have his Charge the first Court-day If he appeareth by a Proctor they will usually to get the Proctors more Fees give to the second Court-day to bring in the Libel or Articles 4. If they deliver him not his Charge the second Court-day he may appeal if upon his Demand the Judg will not dismiss him or he may if he will bring his Prohibition for want of Articles and stop their further Proceedings 5. If the Proceedings be upon a Promotion and the Promoter hath imployed a Proctor in the Case the Party accused must know that no Proctor can be admitted without a Proxy that is Letters Procuratory under the Promoter's Hand and Seal authorising him to act for him in the Case and when he hath that there must be an Act entred in Court to admit such a Person Proctor in the Case The Party charged may go or send to the Register and demand a sight of both those The Reason in Law is this Because any Proctor is liable to the Party's Action if he molesteth any Person in the name of another without Authority from him And secondly If there be no Act of Court admitting him as a Proctor tho the Party accused be Conquerer in the Case yet he cannot recover Costs because there is no legal Adversary against whom they can be recovered 6. According to the Statute-Law every Informer if overthrown shall pay Charges According to the Civil and Canon Law none ought to be admitted as a Voluntary Promoter till he hath given Security to pay the Charges if he be overthrown The Party accused therefore shall before he answereth the Articles demand this if it be denied by the Judg he may appeal to the superiour Court 7. It is also worth the Persons inquiry who is accused to be well advised by Lawyers whether the Promoter in the Ecclesiastical Courts be not obliged to all those things that an Informer in the Secular Courts is tied to by the Statutes 31 Eliz. 5.18 Eliz. 5.21 Jac. 4. The Reason is because those Statutes say Informers upon any Penal Statutes and commonly Promoters in the Ecclesiastical Courts say such and such things are done contrary to the Statutes of this Realm as well as contrary to the Canons Now what things the Statutes which also name Promoters require of such Informers and Promoters the Statutes do declare 8. When the Party accused hath a Copy of his Libel let him demand time to answer if the Judg denies him time at least till the next Court-day let him appeal 9. Having due time granted in the mean time let him duly consider the matter and form of his Libel As to which let him amongst other things observe these that follow 1. Whether the Matters he be charged with belong to the Cognisance of the Ecclesiastical Court If Lawyers tell him no let that be his Answer and let him hasten to bring his Prohibition which â—es in all such Causes 2. Whether they have put into the Libel the Promoters Petition for Right 〈…〉 to be done him I have seen it several times left out It is a Rule in their Law Libellus est ipso jure nullus ubi nihil petitur If he finds that this is wanting Let his Answer only be That the Libel is in Law utterly void and insufficient and desire to be dismissed If the Judg refuseth to dismiss him let him appeal 3. Let him also observe Whether he be in the Articles laid to be one of the Diocese or a Parishioner of such a Parish for if it be not laid it can never be proved and so the Promoter must fail in his Sa it for what is not laid cannot be proved Quicquid deponitur extra Articulum deponitur extra Legem is a Rule in their Law If he be laid to be a Parishioner of such a place within such a Diocese let him not in his Answer confess it but say He cannot determine the Bounds of Dioceses and Parishes but for that he referreth himself to the Law 4. Let him also observe If the things he be charged to have done or omitted be within the compass of a Year and whether there hath since been no Act of Grace or Oblivion which hath pardoned them and whether they be not such things as he hath been punished for or such things as the Statute Law hath limited the Prosecution of to a less time than a Year For if any of these things be they may be given in answer to avoid either the whole or any part of the Charge If the Judg will not accept the Answer the Party may sue out a Prohibition and stop them 5. Let him also observe Whether he be charged certainly or particularly as to time and place or only generally and incertainly if he be charged only generally as for the most part he is in Church-wardens Presentments not mentioning Time and Place or incertainly with or 's that he did not come to his Parish Church such and such Months and Days or was absent in some one or more or most of them Let his Answer be that this Charge is void in Law for the generality or incertainty of it If the Judg will not receive his Answer let him appeal for the Law of England alloweth no such Charges from which can be no discharge or where the Crime is not fixed to a certain time But it may be in this Case a Prohibition will be his best remedy 6. Let him observe Whether he be charged only upon Statute Law or upon Canons if upon Canons let him in his Answer modestly refer himself to Persons learned in the Statute Laws Whether any such Canons were ever enacted ratified allowed or confirmed by
I do not remember that this Case hath been tried but were it my own concern I do think that I should upon a Refusal to admit my Appeal either presently appeal to the King in his High Court of Chancery that is to the Delegates or else complain in some of his Majesties's Courts at Westminster that my Appeal was refused contrary to the Stature 24. Hen. 8.12 and hear the Opinions of the Judges about it for this Practice is a meer Artifice to â—y up the Subject to the pleasure of a single Arbitrary Judge This is all I know can be done to avoid an Excommunication and I dare not promise my Reader but that notwithstanding this he may be excommunicated for besides that this is the great Prize they wait for and so take all Advantages they think they have to wound one with this Thunder-bolt there is nothing more ordinary then for Judges and Surrogates in those Courts to go on notwithstanding Prohibitions and Appeals The last thing therefore which I have to do is to inform my Reader what Course he may take if he be imprisoned upon the Writ de Excommunicato capiendo to get out of Prison He must know no Prohibition nor Inhibition will serve him in that Case not the first because no Prohibition will lye against the King's Writ Besides the Prohibition is to the Bishop who hath done his utmost and hath no more to do in the Case till be come to signify for the Delivery of the Person and for the same Reason an Appeal and an Inhibition will do him no good for no Ecclesiastical Court shall controul the King 's Writ No Writs of Habeas Corpus or de Homine replegiando will help him nor any Indictment upon Magna Charta because tho the Person be not imprisoned per judicium parium upon the Verdict of a Jury yet he is imprisoned per Legem Terrae according to the Common Law of England They are therefore ill advised who seek Deliverance any of these ways and they only augment their own Charge Dr. Cozens who I think was in Queen Elizabeth's time Dean of the Archers in his Apology for some Proceedings in Causes Ecclesiastical tells us He could never learn more than two ways by which a Person so imprisoned could deliver himself The first is by Submission to the Bishop and giving him Caution by Bond by Pledg or by Oath that for the time to come he will be obedient to the Commands of the Church in Form of Law The second is In case the Party appealeth to a Superiour Court Ecclesiastical He might have reckoned many more of the same nature with the second which supposeth the Court from whence the Excommunication proceeded to have proceeded wrongfully In which case there are several Remedies according to the various Errors committed in the Proceedings I will mention some of them 1. If the Party imprisoned hath brought a Prohibition by which the Ecclesiastical Court hath been commanded to proceed no further and to absolve the Person if excommunicated and the Judg hath disobeyed the Writ and signified and procured the Party to be imprisoned the Person that is imprisoned at any time in Term upon a motion shall have first an Attachment against the Judg and then a Writ of Supersedeas to the Sheriff to deliver the Prisoner to follow the Attachment without any Submission to the Bishop at all or any Caution Such a Writ may be found in the Register of Original Writs p. 66. Nay if the Attachment be granted and the Person be imprisoned or a Writ out commanding him to be taken and the Term be done before the Attachment can be served the Register tells us that he shall have the same Writ during the Vacation out of Chancery Nay it is the Opinion of Men skilled in the Law that he shall have such a Supersedeas upon Affidavit made that the Proceedings are contrary to a Prohibition served upon the Judg tho no such Attachment be taken out 2. If the Party imprisoned or against whom the Writ is to take him tho he be not taken hath appealed according to the Statute 24. Hen. 8.12 if he bringeth into the Court of Chancery an authentick Copy of his Appeal he shall have a Writ of Supersedeas to stop the Sheriff from apprehending him or to deliver him if he be apprehended only this must be within a Year after his Appeal that it may appear to the Court he hath not deserted his Appeal you may find Forms of such a Supersedeas also in the Register of Original Writs both these are founded upon excellent Reason The Law of England will not suffer Ecclesiastical Judges either to invade their Right or to exalt themselves against their Authority nor yet suffer Inferiour Ecclestastical Courts to invade the Right Power and Authority of Superiour Courts in their own order 3. If a Person be sued in the Ecclesiastical Courts for a matter not within their Jurisdiction and they have caught him upon Contempt in not appearing or not obeying their Sentence Upon a Suggestion to the King's Courts if it appear to them that the Original Matter was not cognoscible in the Ecclesiastical Courts they will supersede the Proceedings and order the imprisoned Person to be discharged 4. If the imprisoned Person or he against whom the Writ is out tho he be not taken bring a Copy of the Bishops Significavit into the Courts at Westminster and make it appear to the Judges there that the cause of Excommunication is not therein expressed together with the day when it was pronounced if he be not said to be excommunicated majori Excommunicatione if it be not signed by the Bishop or said to be done Authoritate nostra ordinarta If the Party excommunicated be not expressed by Name the Court will deliver the Person Dr. Cozens mentions three of these Cases and the Reader also may find them in the Register of Writs The first he saith he cannot find in the Register viz. That the Articles or matter of the Libel must be expressed nor indeed do I find it there but it is in several Reports The Reasons are 1. Because the Law will not suffer Men to be imprisoned for every light Offence this Dr. Cozens gives 2. The second is because the King's Courts can receive Significavits from none but the Person to whom if need be they may write to discharge the Prisoner Nor will the Court suffer a Person to be excommunicated and lye in Prison for a Crime which the Ecclesiastical Court hath no Judgment in nor yet unless it appeareth to the Court he hath stood forty days excommunicated Again heretofore whole Cities and Communities have been excommunicated therefore the Person must be expressed by Name or he shall not lye there 5. Let him procure the Copy of the Writ de Excommunicate capiendo and observe 1. If it be issued in Term-time 2. If there were full twenty days betwixt the Test and the Return 3. If it be made returnable