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cause_n	according_a	justice_n	law_n	1,616	5	4.3920	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
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

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

this Appointment which is keeping the Church pure as the spouse of Christ Now how can the communion of any Church be corrupted but either by damnable Heresie Superstitious or Idolatrous worship or by the lewd conversation of its members from whence what was said before follows that none but damnable Hereticks Idolatrous and persons lewd in their lives and Pertinaciously resolved to continue so can by any right or authority from Christ be Excommunicated 3. Further it being an Institution of Christ it must be used as by those persons whom he hath appointed to it and towards those persons onely whom he hath willed should be so punished as a means in order to their Reformation So with those circumstances and in that order onely which he hath prescribed what is that let us look Matth. 18. 16 17. we shall find it must be after first second and third admonition St. Paul saith Titus 3. 10. After the first and second admonition Conformable to this hath been the practice of the Primitive Church and such was the Judgment of our first Reformers as may be seen in the book beforementioned cap. 4. pag. 160. I will translate the whole Chapter No Judge shall Excommunicate any person unless he hath admonished him once and again and a third time if occasion be that if it might be he might seasonably reform his life and there shall be a certain time allotted to the offender for him to think and conclude with himself whether he will obey the admonition But he that is rightly called that is for such crimes as Excommunication ought to proceed against if he appeareth not prejently runs the danger of Excommunication From the premises naturally followeth That it is impossible that the holy name of God our Saviour should be more profaned in the pretended use of any institution of his Then for them to meddle with it whom he never appointed thereunto and for it to be applyed to those whom he never directed the application of it unto and for it to be used in a method or manner contrary to what he hath directed And for this Ordinance it is an institution which he hath appointed for purging his Church from stubborn Hereticks and lewd livers which he hath ordained his Church and the officers of it should discreetly and with great gravity leisure and seriousness use in order to that end First calling before them persons accused of such guilt then gravely admonishing them a first second third time giving them due leisure to think upon their pious and grave counsel and to amend and if they do not then they are to declare them Separated from the Church in the Communion of all Ordinances but such as Heathens may communicate in and such with whom the members of the Church must have no intimate and unnecessary communion with them though they may buy and sell with them as they may with Heathens and they ought to admonish them occasionally as they meet them as those who have formerly been Brethren not counting them as Enemies 2 Thes 3. 14 15. Let us now Sir Examine how this grave and dreadful Sentence is made use of by Officials for what end upon what persons and in what manner 1. Excommunication among us is decreed by Officials who are most of them Doctors of Civil and Cannon Law some of them but very few ordained persons but seldom or never by the Bishop or Minister of the place to which the concerned person belongeth We indeed plead the necessity of Bishops for jurisdiction of which this is the main but in practice confess there is no such need for persons are cited admonished Excommunicated laid up in Gaols and the Bishop never knows of it For persons not in orders to Excommunicate is an abomination not allowed in the Popish Church and for any in orders to excommunicate persons to whom they stand neither in the Relation of Chief Pastors as Bishops are accounted nor curates or subordinate pastors is what is warranted by no Authority from Gods word nor any true primitive Authority nor the judgment or practice of any other Reformed Church nor the judgment of our own first Reformers So that plainly the institution is perverted profaned and abused as to the Administrators of it But let us enquire further 2. All Excommunications proceed upon contempt and ought not otherwise to proceed This contempt may be 1. When persons duly cited for such Crimes as by the rule of Christ men ought to be censured for do not appear 2. When appearing they yet refuse to obey the Ecclesiastical Judges admonition of them to amend such courses and practices as according to the word of God they are to avoid or if they persist in to be cast out of the Church For our Officials cause men ordinarily to be cited to their Courts not only for erroneous Doctrines or for their leud practices such as Drunkenness Fornication Adultery Incest Cursing profane Swearing c. but for any Crimes or Offences which they take their Courts to have jurisdiction of which as they make them are almost innumerable if they appear not as the day they are presently Excommunicated though it may be they were cited for not paying a Church-Wardens rates and it may be where they were unjustly taxed or a Proctors Bill which it may be is thrice what by Law it should be or for not coming to prove a Will and an Hundred such like trivial things If they do appear and the Judge admonisheth them to appear next day and they fail or to answer a Libel which is illegal and they are not in Law bound to answer Or an Hundred such like light things they are again if they obey not Decreed Excommunicate So the punishment which Christ hath appointed for the most vile and flagitious Crimes is dayly made use of to punish the most minute and trivial Offences expresly contrary both to Scripture and to the Judgment of all Reformed Churches and our own Primitive Reformers 3. According to the Rule of the Word of God the Judgment of all Reformed Churches and our own First Reformers Excommunication ought not to be agreed or decreed by any single persons nor before a first second and if need be a third admonition and those so given that the presumed guilty person have due leisure to consider with himself what to do and to digest his pious admonitions But the way of our Officials is to admonish thrice in a Breath saying I admonish you the first time I admonish you the second time I admonish you the third time I decree you Excommunicate all in the Tenth part of an hour Now Sir I offer it to your serious consideration and the Reflection of any person of Religion and Sense whether this be not as high a profanation of an Holy Institution of our Saviours as can reasonably be imagined Nor had it been so long endured in this Reformed Church had not King Hen. 8th first then Edw. 6th dyed before they had called together

heard what he or his Council can say in his own defence but in these cases the Magistrate commands a person to be imprisoned and ruined and neither doth nor may hear any thing of his cause It is true at our Assizes and Sessions Malefactors are condemned to be whipt branded imprisoned hanged but the Sheriff who is to be the Executioner of these sentences hath his place there and a liberty to hear the persons case tryed and he doth hear the case argued so as that he is or may be convinced the person deserveth such a punishment which done as a Minister of God and of Justice he may proceed with a conscience not rebuking him But in these cases the Civil Magistrate hath no such liberty but proceeding upon the credit of the Official and his supposed justice and honesty 4. I cannot discern a figleaf to cover the nakedness of this but what is usually objected That this is according to Law The meaning of which is no more then this That this hath been a custom in England and there is a Common law writ in this case formed by Judges in Popish-times and not since corrected by Act of Parliament If this plea be good we have reason to bless God that we were not burnt at stakes before the writ de combu●endis Haereticis was by the last Parliament annulled there was then as much law for that as for this But is it to be wondered that while the Nation was enslaved to the Pope such things should be A Magistrate under Popery is but the Popes slave and Executioner If a Magistrate would not do what the Church as they call'd it commanded he was Excommunicated his Nation interdicted no Priests durst perform any divine Offices in that unholy ground and no sooner is a Prince Excommunicated by them but every subject is by them made a Traitor authorised to poyson stabb shoot him or to rise up in Rebellion against him and all his neighbour Princes are armed with what authority the Pope can give them to invade him and despoil him of his Dominions Now that magistrates under these circumstances should have temptations to burn and hang and imprison men never knowing why or whether they were any way guilty of any thing worthy of any such death or bonds is no way to be admired But that in a Protestant Countrey where Magistrates are under no such temptations to fear such things should be done is matter of just admiration and no Magistrate ought to punish persons under pretence of an usage and custome so to do before they be satisfied that they have deserved such a punishment 5. But further Sir Admit That the practice hath been Law as they call it that is a custom in England time out of mind and that it is law that is that there is such a Writ still may be had from Cursitors This custom had never been continued after the Reformation had not King Hen. 8. and K. Edw. 6. both dyed before they had perfected what by Act of Parliament they were to doe and had began to doe as appears by the Epistle of Hen. 8. and the Letters Pattents of Edw. 6. prefixed to the book Entituled Reformatio legum Ecclesiasticarum It is true as it may appear from the 13 chap. of that Book persons that stood Excomunicated 40 dayes should have been imprisoned But therefore none was to be Excommunicated but a Civil Magistrate as well as the Bishop c. was to hear his cause and if any Judge Excomunicated any unless for such notorious crimes as are mentioned chap. 3. and with such deliberation as is mentioned chap. 4. himself as appears chap. 8. was not for a months space to enter into Church unless to receive the Commuinion The Superiour was to relieve the person so injured to annul the Excommunication and the Judge that so Excommunicated was to pay all the charges and further punished at the pleasure of the Superiour Judge That say they Judges may be afraid of bringing persons into so great calamity without a most weighty cause And may not such a custom be rescinded by a Statute law have not many old Popish Customes been so abolished Is there not reason sufficient are not the cryes of people in all corners of the Nation against it Is there not in the skirts of it great quantities of the blood of Innocents Have there not within these late years been more presidents then ever before of most unrighteous Excommunications were there ever before 100 in one place 5 or 600 in another decreed Excommunicated whose greatest crime whatever is pretended was their giving free Suffrages for Members to serve in Parliament Let Sir I beseech you the cry of the oppressed come before you for your God doth not despise it Let the honour of Magistracy be valued by you let them no longer be mere blind Executioners of the lusts and malice of men and vindicators of the illegal and impious actions of others There is no Sober man in these Nations but dreadeth Excommunication duly administred and applyed because of the authority of God in it But they must then see it used onely against the enemies of God Drunkards Vnclean persons Cursers Swearers Hereticks Idolaters Perjured persons Blaspemers c. and applyed to them by grave and holy Bishops and Ministers before it once and again labouring to convince them of their sin from the word of God and advising them to reform and waiting for their Reformation and at last with grief and tenderness with gravity and seriousness proceeding to so dreadful a sentence How forcible are such right words but what or whom have our arguings of that nature reproved who will who can believe that is bound in heaven which by these hands and for these causes and in this slighty and praecipitant manner is bound on Earth But Sir there is yet one thing more in this case which I must crave leave to offer to your Deliberation 3 Qu. Whether the Writ de Cautione admittenda being almost the onely Writ for the relief of persons imprisoned upon the Writ de Excommunicato capiendo hath its free course yea or no The tenderness of our forefathers for the liberty of the Subjects person is obvious to every one who hath the least knowledge of the Law of England If a man be unduly imprisoned he may relieve himself 1. By Action upon Magna Charta which provideth that none shall be imprisoned but upon the judgment of his Peers or by the Law of the Land 2. By the Writ de Odio Atia 3. By the Writ de Homine Replegiando 4. By a Writ of Habeas Corpus Supersedeas Prohibition c. in diverse causes But because by an old custom persons imprisoned at the Churchs desire were not Bailable There was a particular Writ devised for their relief For our forefathers never intended the Subjects should lye at the Officials mercy The old Law therefore provided that persons so imprisoned sending to the Bishop and

if he be kept there on no other account Our forefathers ordained that both these Writts might be had with sicut alias pluries and not resting here ordered an Attachment against the Sheriff in case he refused to yield obedience to the VVritt which Attachment is in the Register thus The King to His Coroners in the County of K. Greeting If W. of W. Clerk c. Causeth you c. Then put c. W. the High Sheriff of our County aforesaid to give security that he shall be before us such a day to shew Cause why whereas we lately commanded the body of the aforesaid William to be Imprisoned according to the custom of England upon the Bishop of Ely his denunciation of him as Excommunicate and contemning the Authority of the Church until he should satisfie the Holy Church c. and we hearing that although the aforesaid W. often offered the Bishop fitting Caution c. yet he hath refused to accept it by reason of which we often commanded him our High Sheriff aforesaid in person to go to the said Bishop c. and that he should command the said A. to be delivered or signifie the cause to us why he disobeyed our commands c. or to appear before us c. and there to have our VVritt directed unto him yet the High Sheriff aforesaid despising our Command to do the premises or at least give us a reason why he would not or could not Execute the same or appear before us the day aforesaid and regarded not to make return of our VVritt as we hear to the manifest contempt both of us and our Commands aforesaid and the no small dammage and oppression of the said W. And we command you that you taking a fitting caution of the said W. for his obeying the Commands of the Church according to Law and deliver him from the Prison aforesaid if he be there detained upon that and no other account This Sir is the known Law of England in the case of persons so imprisoned nor is it possible any English Liberty should be more fortified But Sir My Lord Chancellor Hide to whom we are beholden for more of this nature then this by what Authority I cannot tell turned this VVritt of Common Justice to be granted readily and of course into a Writt of Discretion making an Order That it should not be granted but upon a Petition first offered for as to him or the Successive Lord Chancellors or Lord Keepers which Petition he took a liberty to grant or not to grant as he pleased VVe were beholden to him that he did not put the like restraint upon all other VVritts of Common Justice for he might have done it by the like Authority Hence this Writt is not gained but with great charge and difficulty I mean the first VVritt to the Bishop With what Justice this is done Sir I leave to you to determine When it is granted some Bishops have taken themselves to be at liberty whether to Obey it or no. Some have utterly refused it with the expression of great anger and threatning Persons that they should seek to come out of Prison that way that is by an established Common Law Writt Yet all that these men have to say against the Non-conformists is their not obeying the Law and what Law can be plainer then this or more strong and just When the Bishop hath thus refused which hath been often I beseech you Sir inquire what success they have had who have moved for the Second Writt to the High Sheriff It hath been often moved for I beseech you Sir inquire what the reason is that all His Majesties Subjects cannot obtain these Writts of Common Justice from Cursitors Why the VVritt de Excom capiendo flies about so freely and the VVritt de Cautione admittendâ is got so difficultly when the latter is as good Law and as much the demanders right as the former and the latter is for the Liberty of the Subjects person which all the Law of England highly favours and the former is for the restraint of it If Sir till a Statute can be obtained to procure good mens Liberty from an old Popish VVritt the Law must have its course on that hand I pray let it have its course on the other hand also and let us not have the Liberty of our persons at the mercy of every Register that wants Money Sir I would not be mistaken I very well know that in such Chancellours Court in the Court of the Arches and Delegates c. many great and weighty causes of great and momentous natures are heard and they at present have no engine no method of Law but by way of Excomunication prescribed to force the appearance of persons to answer charges or to force an obedience to their decrees I have nothing to doe to direct my Soveraign or a Parliament by what Courts or Judges such or such causes shall be tryed be they by whom his Majesty and his Parliament please nor is it reasonable that they should be without a Coercive power both for appearance at their commands and obedience to their Decrees Your Honourable Assembly knows how to reach them out a sword fit for their use though they take not this which God hath laid up as Sacred in his Sanctuary In our Common-Law there is Judgment by default in our little Courts there are Amerciaments In the High Court of Chauncery there is an Attachment and then a Writ of Rebellion May it please you Sir to put any of these swords into their hands But oh forbear this edged toole which wounds both soul and body and is not to be used but by them to whom and against them whom and in the manner wherein our Common Lord hath said smite and what you bind on Earth shall be bound in Heaven I beg your pardon for so long a letter I should truly judge it tedious were it not upon an unusual subject and where the matter led me to it and did I not know your great zeal for the Glory of God the Subjects just Liberty and your compassion for many persons and families already undone and every day undoing if your Honourable Assembly cometh not seasonably in to their rescue Humbly committing them Sir together with your Honourable Assembly to the God of all Order and Government and the fountain of all wisdom I take my leave and rest Sir c. FINIS