of Punishment and not think it enough that a Judge of any Ecclesiastical Court tells them so let them take them and judge them according to their Law as Pilate told the Jews Doth the excellent Law of England unless that Part of it which rose up or was made not only in Popish times but from Popish Principles only relating to the Church condemn any to the loss of Life Limb Liberty or Estate before those who are to execute that Part of it have had the least Liberty to hear the Subject speak for himself Are Protestant Magistrates to believe Ecclesiastical Officers now by a strange Catachresis called the Church in high Acts of Righteousness or Vnrighteousness Will any say that their Law gives them no Power to imprison any except perhaps Clergy-men for Adultery or Fornication I remember the Jews told Pilate much the same thing concerning Christ but how easy is the Answer that neither doth the Law of God from whence they pretend to derive Excommunication appoint any such Punishment as Imprisonment to the ruine of Families upon Persons Excommunicated But be this as it will the Law of England at present is so and must be tho not approved yet submitted to until it pleaseth God to give our Parliaments Hearts and Leisure to enquire into the Reasonableness and Righteousness of it PART II. THE CASE and CURE OR The mischievous Consequents of Excommunication c. EXcommunications being so commonly thundered out to use the Law-Term for them by Persons who have no immediate Authority from Christ to trade in them and for such crivial Crimes as no Law of God hath ordered them against and in such a light and precipitant manner as no part of God's Word warranteths The wiser sort of Men look upon them rather as Excomonings much a kin to the Romanis Interdico tibi aquâ igni Civil Punishments than the Solemn Institutions of God and thereupon have no dread of any Spiritual Influence or Effect of them and therefore overmuch slight them not being well aware that as they are a piece of our Common Law so they have Legal Punishments heavy enough annexed to them which if duly considered were enough to make Men more wary how they incur them if they can by any means avoid them Nor if they be once catch'd in this Knot Innodati saith the Common Law Writ doth every one well understand how to slip or unty it That therefore every one may pay that just respect which he oweth unto the Law in this case or at least take heed to himself and avoid his own Danger I shall briefly shew the danger that Man runs who suffers himself to be Excommunicated and the proper way which the Law hath provided to avoid it together with the Remedy which the Law hath provided for them who are fallen under the misfortune of it 1. In the first place He that is Excommunicated is forthwith disabled to sue in his Majesties Civil Courts Not that the Excommunication takes away his Right to sue for his just Rights but that it may in time be pleaded in Abatement of his Action But concerning this note whosoever is instrumental in procuring solliciting decreeing or pronouncing the Excommunication shall never plead it nor shall it be pleaded unless the Excommunication be signified by the Bishop himself for the Court will receive no Certificate from any Person in this Case to whom if they see cause they cannot write to absolve the Person Nor shall it be pleaded after that Issue is joined and query whether it shall be pleaded unless the Cause be expresly mentioned in the Significavit for which and the time when the Person was Excommunicated nor if it be at length admitted by the Court shall it destroy the Action it shall only abate it until the Excommunication be taken off 2. Albeit an excommunicate Person may be appointed an Executor and is capable of a Legacy yet so long as he standeth Excommunicated he is not to be admitted by the Ordinary nor can commence any Suit for his Legacy in the Court Ecclesiastical See Swinborn of Wills p. 5. § 6. p. 228. 3. If a Person be excommunicated for Heresy or manifest Vsury or with an Anathema he cannot make a Will but in other cases he may saith the same Author Part 2. § 22. p. 62. 4. A Person Excommunicated cannot say some give his Suffrage in any Elections no not of Parliament-Men but this is an idle Dream so long as he hath a Freehold of 40 s. a Year Some will have it too that he cannot marry but Marriage being de Jure Naturali no learned Canonist would ever affirm it But I have known a Minister questioned in our Ecclesiastical Courts and if not suspended yet smartly threatned with Suspension for marrying a Person that was Excommunicated but this is but the Extravagancy of that Court's Proceedings 5. The great danger of all is If a Person be excommunicated whether it be legally or injuriously and stand so forty days upon the Certificate of it into the High Court of Chancery a Writ is to issue out of the High Court of Chancery to the Sheriff of the County in which the Person lives to imprison him till he hath given Satisfaction to the Bishop Being thus imprisoned he is not to be delivered by any of the ordinary Writs for the Liberty of the Subject's Person nor unless he submits to the Bishop and offers Caution for the time to come to stand to and obey the Commands of the Church in form of Law this Caution may be by a Bond of 10 or 20 l. to the Bishop or by a Pledg or if the Party can do none of these by his Oath This Writ to imprison the Person excommunicated is in no Nation of the World but only in this But here it is Common-Law while it pleaseth our Parliament by a Statute to amend the Common Law in that point the Subject therefore had need understand both 1. How by Law to avoid Excommunication 2. How to get himself out of Prison in case he be imprisoned upon this Writ As to the first He must know that no Person can be excommunicated but upon Contempt or Contumacy which may be 1. If the Person being duly cited demeth or omitteth to appear If he be not personally â—â—â—â—oned he needs not appear the first time but then their way is to cite him by a Writ called Vâ—s Mods set up at the Door 's of his House or at the Church-doors citing him at a certain day to appear to answer c. If being personally cited he doth not appear the first time or whether he be or no if he doth not appear the second time he is excommunicated for Contempt If he be cited personally the Law is Clerk Praxis Cur. Eccles Tis. 11. Tit. 16. That he shall appear the third day after the service of the Citation The Law also is that If he will give the Apparitor 6 d. he must bring him the full
which it appears that no Nation under Heaven gives Church-men such a Power for the Person being imprisoned is to lye there without Bail No habeas corpus no Action or Indictment upon Magna Charta no Writ do Odio Atia no Writ de homine plegiande will help him no nor any Supersedeas unless the Imprisonment in contempt of the King 's Writ of Prohibition or an Attachment or Appeal Depending The Prelates their Chancellours and Commissaries in times of Popery never had any Inch of Power given into their hands to torment Christians but they used it and stretched it to an Ell so many are the Instances of this almost in every Leaf of the book of Martyrs that he that reads it will think all those Officials were descended from Canibals or those the Roman Historian tells us which he says were Homines ad stragem Humans generis nati Men born to the ruine of Mankind This inforced our Forefathers here in England in the highest Popish Times having given the Prelates a Power to command them to execute their Passions having Excommunicated Men right or wrong to take out a Writ after forty Days to Imprison them without remedy till they were satisfied to devise another Writ to retrench a little their Power in this matter This is called the Writ de Cautione admittenda I cannot find the Original of this Writ it was certainly before any Statutes in our ordinary Statute Books nor do I remember any notice they take of it it is in one Register of Writs and it is mentioned by Dr. Cozens in his Apology for some Ecclesiastical Proceedings p. 1. c. 2. where he doth give a large and full account and he who understands Latine and will look into the Register of Writs will find it to be a true one and may there read at large the form of the Writs altho in those times the whole Magistracy of the Nation were Papists and so by their Principles more inslav'd to those they call the Church then any Protestants are and yet it is very remarkable what care they took for the Liberty of the Subject in this one particular In our Register of Original Writs Fol. 65. are the Writs for taking and imprisoning the Party Excommunicated having stood so forty days Immediately follow the King's Writs for his Delivery upon his giving sufficient Caution But Fol. 66. saith the same Register If the Bishop refuseth to receive from such an Excommunicated Person Imprisoned a fitting Caution to obey the Commands of the Church in Form of Law having a mind to oppress the Person Imprisoned then he may send a Friend to the Court and he shall have a Writ 1. First to the Bishop the Copy of which there follows where the King tells him He wonders at his refusing the Caution offered then commanding him to take it and to deliver the Prisoner then telling him that in case he doth not do it he himself will do what is his part to do 2. If the Bishop doth not presently deliver it he shall have a second Writ to the High Sheriff commanding them to go to the Bishop and to require him to take the Caution and to deliver the Prisoner and also commanding him to do it himself if the Bishop shall refuse to do it in his presence 3. He may have Atias's Pluries in both these Causes But in case the Sheriff shall not obey he shall have another Writ to the Coroner commanding him to take Security of the Sheriff to appear such a Day in his Majesties's Court at Westminister to shew reason why he contemneth the King's Writs and also commanding the Coroeer himself to take the Caution and to deliver the Prisoner If the Bishop indeed suspects the Sheriff will deliver the Prisoner without Caution the Bishop may have a Writ to prevent that So careful were our Fore-fathers for the Liberty of the Subjects Persons Dr. Cozens a great Civilian gives the Reader a full account of all this in his before mentioned Apology and the learned Reader may himself find all this in the Register of Original Writs 66 67. from whence I infer 1. That by Law the Common Law of England and the Ancient Canon Law every Bishop is bound to take such Caution especially fidejussory Caution by Bond and Sureties and to absolve the Prisoner Excommunicated tho he will not take an Oath to obey the Commands of the Church 2. That if he will not do it till the Person be in Prison he hath no remedy the Bishop is a Transgressor of the Law that is all 3. That if he be in Prison the Writ Originally was to be granted of Course paying the ordinary Fees to the Cursitor For the Rubrick doth not say he shall move the Judges or Petition any but he may send a Friend to the Court and have the Writ 4. That if the Bishop will not obey he shall have no Attachment against the Bishop in Popish times Bishops Persons were too facred for such things but he nay if he will have a second and third Writ to the Bishop 5. If he chuseth it rather he ought to have the second Writ to the High Sheriff and that in Course too according to the Register 6. If the Sheriff will not obey it he may if he will take out a second and a third or more Writs to the Sheriff but if he will not he may have an Attachment against the Sheriff sent to the Coroners with a Writ commanding them to take the Caution and to deliver the Prisoner 7. That all this is but the old Common Law of England and a just Enforcement of the Bishop to do what he ought to have done without any of this in Obedience to the Canon Law which the Canonical Men pretend to be their Rule and this is but an Enforcement of them to keep to their own Rules and therefore the most just thing imaginable Here a Question may be started What such a Person that is Excommunicated and Imprisoned must do over and above giving a cantionary Bond to be discharged 1. Whether he is by the Law obliged to desire Absolution 2. Whether he be bound to pay the Charges of the Prosecutor In the first Case we must distinguish betwixt the Case of one that is Legally Excommunicated and one that is Excommisnicated Illegally If a Person be Illegally Excommunicated I cannot see how he can avoid the desire of and obtaining Absolution because this is the Course of the Canon Law If he be Illegally Excommunicated and the King's Courts have so determined it and by their Writ of Prohibition have commanded the Ecclesiastical Courts to proceed no further and if they have Excommunicated him to absolve him He is not in this Case bound to beg it of them he hath begged the hearing of his Cause by the King's Courts of Justice they have determined him no Transgressor what hath he to ask them Pardon or Absolution for There is more reason for his absolving them for they are
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
much latter Date In the fourth Century we read of many Excommunicated yet none but by Bishops or Pastors The Bishop of Laodicea Excommunicated Apollinarius The Bishop of Alexandria Excommunicated Aris c. Still it was the Work of Bishops or Pastors and none other Thus it was in the 5th and 6th Centuries Nay in the 7th Century the Centuriators tell us That the Power was only in Bishops and Priests but Pope Boniface had invested Monks with it Anno 1518. When the Power of Excommunication came into the hands of Laicks under the Notion of Officials I know of no History will inform us but it is easie to be concluded that it must do so from the time that Bishops claimed to themselves the sole Power in it and charged themselves with so many Churches as a thousand Eyes tho very watchful could not possibly oversee there was a necessity they should delegate their Power in this Cause to others because it was not possible they should execute it themselves nor could they delegate it to the Curates because then a short time would have discovered to whom it did of right belong nor could the Grandeur of Prelates have been upheld without a Court nor the Officers of that Court have lived with out having something to do We still maintain that Bishops alone can Excommunicate Ordination Confirmation and Jurisdiction are all pretended Differences betwixt them and other Minsters of the Gospel The Execution of this Sentence by Officials is pretended to be but by Delegation only why they may not also delegate to such Officials their Authority also to preach and baptize and ordain Ministers and administer the Eucharist as to hear the Causes of Persons complained of for Error and Heresy or Leudness of Life will deserve their own Thoughts and every serious and thinking Man's Enquiry These things considered I cannot but be amazed when I read what I find in Dr. Burnet's Collection of Records pag. 239. added to his first Part of the History of our Reformation how some of our great Bishops and Doctors in the time of King Hen. 8th in the beginning of our Reformation delivered themselves upon this Question The Bishops of Canterbury Hereford St. Davids and Westminster Dr. Day Coren Leighton Cox Simmons declared their Judgments contrary to Scripture and all Antiquity That Lay Persons might Excommunicate if they were appointed thereto by the Magistrate So as they held it seems that Christ gave the Power of Excommunication to Magistrates or that whether he did or no they might take and delegate it The Bishops of York and Durham and Dr. Edgworth denied it Three more held it was given to the Church and such as they should depute unto it But something must be allowed to that time when we were beginning to reform and our greatest Men had too great a Tincture of Popery both as to Doctrine Worship and Discipline In Edward the Sixth's time What the Opinion of Archbishop Cranmer and many others were appears by that Systeme of Ecclesiastical Canons which they composed by Commission from that excellent Prince and are to be found in the Book called Reformatio Legum Ecclesiasticarum where they determine That no one Person should execute this Power but that the Archbishop or Bishop or some other lawful Judge with a Justice of the Peace and the Proper Minister of the Place where the Party accused dwelleth or some other appointed by him and two or three other Religious Ministers should meet in whose Presence after a full Handling and weighing the Cause the Party should be Excommunicated They had said before p. 161. c. 6. That the consent of the whole Church was to be wished but because that is hard to be procured they orainded as aforesaid Now what difficulty was there in obtaining the consent of the whole Church but the extending the Notion of a Political Governing Church beyond the number of so many as in one place could be gathered together or could be under the Government of the same Officers out of the Cause of Appeals in which Causes it might possibly be so extended But I observe in the Determination of those Great and Reverend Persons if the consent of the Congregation be not necessary which yet I incline much to believe they had put in all who can pretend to any such just Power viz. The Bishop and the Minister of the place and if the other be only allowed as Witnesses to whom the Judicial Power belongs not possibly that Determination was not evil But I conclude with the Evidence of Holy Writ the consent of all valuable Antiquity and from the Evidence of Reason That Christ hath not betrusted this Church-Key with any but the Pastor and Officers and Members of the particular Church to which the Offender doth belong and any Excommunication decreed or executed by any other is no more than a Civil Punishment and the effect of an Humane Law and can pretend to no Institution of Christ nor Authority from Apostolical Writings and it were well the Name of Christ were left out of those Sentences which can pretend to no Authority from him CHAP. III. An Inquiry into those Crimes for which alone according to the Divine Rule Excommunication ought to proceed and be issued by the Church THe next thing we have to consider is the Objects of this Punishment admitting it a meer Civil Punishment The Objects of it must be determined by the Laws of Men and the Justice or Injustice of the Execution of it upon them must be determined by the Law of God another Day But by a Parity of Reason if it be an Institution of Christ's the Objects of this Censure must be determined by the Law of God and it is not in the Power of Man to make an Alteration in the Case nor hath the Scripture left us without a Determination in the Case Three things according to Scripture must concur to make an Object of this heavy Censure 1. The Party must be a Sinner whose Sins you retain are retained 2. Nor is every Sinner the object of it but he must be 1. Either an Heretick Titus 3.10 One that hath made Shipwrack of the Faith 1 Tim. 19. Or a scandalous flagitious Sinner such as hath made Shipwrack of a good Conscience an Incestuous Person one that is Proud Covetous a Boaster a Blasphemer one disobedient to Parents Vnthankful Vnholy without Natural Affection a Covenant-Breaker a false Accuser one that is fierce Incontinent a Despiser of such as are Good Traitors Heady High-minded one who is a Lover of Pleasures more than a Lover of God One that tho he may have a Form of Godliness yet denieth the Power of it 2 Tim. 3. One that obeyeth not the Word of God that walketh disorderly 2 Thess 3.6 14. One that is a Fornicator an Idolater a Drunkard a Railer an Extortioner 1 Cor. 5. One that causeth Divisions contrary to the Doctrine of Christ Rom. 16.17 And not only these but in reason such as shut a
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
those who have done the wrong Nor is it usual when an Appeal is against an unjust Excommunication by an Inferiour Officials Court for the Party appealing to beg Absolution of the Court that is presumed to have wronged him he is absolved of Course from the Superiour Court It is true The Courts at Westminster do not absolve Persons but they command them to be absolved nor is the Party further bound to beg it they are to yield Obedience to the King 's Writ and to do it For the second thing it is the most unreasonable thing that can be imagined and those who insist upon it must aliquid monstri alere 1. The same Judge Ecclesiastical that decrees Excommunication in any Case of Contumacy hath also a Power to condemn the Party so decreed in Costs of Suit which being done if the Costs taxed be legal he to whom they are decreed hath a legal way to recover them and no Bishop can justify an insisting upon the Payment of them before he deliver the Prisoner Admit that at the Suit of any Person one be Imprisoned the person judging himself falsly Imprisoned brings his Writ of habeas corpus or his Writ de Odio Atia or de Homine replegiando or any other Writ and so brings himself before a Superiour Judge he upon the hearing the Cause judgeth the Plaintiff wrong'd and dischargeth him from his Imprisonment Was it ever heard of or can any such a thing be imagined in a Court of Justice that the Judge should refuse to deliver the Prisoner till he hath agreed to pay the Charges his Adversary hath been at in doing him that Wrong 2. The Duty of the Judge Ecclesiastical in this Case is to be learned from the Writ which commandeth him no more than to take the Caution and deliver the Prisoner if indeed the Writ said first paying the Charges of the Suit it were another Case but it saith no such thing nor is there any reason it should for possibly the Prosecution hath been wholly Illegal Injurious and Malicious and it is too much to pay a Person for playing the Knave But it may be justly admired why when these Prosecutors having overthrown their Adversaries and so are in a Capacity to have Costs of Suit taxed by the Judge They are yet so cautious as to sollicit Ecclesiastical Judges not to discharge such Prisoners in Obedience to the King 's Writ till they have paid the Charges or ingaged to pay them May it not be presumed that the Charges they would have thus secured are illegal Extortions which they would have confirmed and come into by the Authority of the Judge Ecclesiastical 3. I would gladly see it tried Whether if the Ecclesiastical Judge should make a return upon the Writ de Cautione admittenda that he could not discharge the Person because he refused to pay the Prosecutor's Charges whether that would by the Lord Chancellor be judged a Legal and Justifiable return to a Writ which requireth no such thing I do humbly conceive that all the Legal Returns that can be made to such a Writ are either 1. There is no such Person in Prison upon my Denunciation Or 2. He refuseth to give me fitting Caution What may be reckoned a fitting and sufficient Caution saith Dr. Cozens in his before mentioned Apology p. 1. c. 2. I find not determined or colligible out of the Books of Common Law But I am sure the Doctor was not such a Stranger to the Sexti Decretalia as not to know it is expressed there three or four times over either Fidejussoria by Sureties or Pignoratitia by Pawn or Pledg or Juratoria by Oath And indeed the Doctor tells us of all these in the Civil Law If the Doctor means that the Common Law hath not determined the Quantum of the Bond or Pledge I am apt to believe it will be judged otherways viz. That no greater Quantum shall be insisted upon than hath before been usually given in the Case which I have not heard to have exceeded 10 or at most 20 l. Nor indeed is there any reason any great Sum should be insisted on For if the contempt be for not appearing at Court surely that is enough to secure that If it be not obeying an Order or Decree if the Decree be a just Decree for making some Satisfaction in case of Wrong the Canon Law allowes no Caution till that be done neither I believe will the Common Law for the Common Law in this Case is plainly in Affirmance of the Canon Law which in former times was the Law Paramount and is so still in Popish Countries Now the Canon Law allowing Caution the custom of the Nation which is the Common Law came in to inforce Eccesiastical Judges to keep to the Rule of their own Law and innovate nothing to the Prejudice of the Subjects Liberty of Person Thus far I have shewed what remedy the Law of England hath provided for the Oppressions of the Subjects in the Ecclesiastical Courts either by way of Prohibition Writs of Attachment and Supersedeas or the Writ de Cautions admittenda Several Statutes have also provided against the Extravagancies of their Power in other things The Stat. 25. Henry 8.19 provides against the Church-men's making or putting in Practice any Canons which have not first had the King's assent or any Canons contrariant or repugnant to the Laws and Statutes of the Land The Scari 5. Hen. 2. provides against their Proceeding refusing to give a true Copy of the Libel The Stat. 23. Hen. 8.9 provides against Citation of Persons out of the Diocess and taking above a 3d. for a Citation 21 Hen. 8.5 provides against Extortion by them in the Probates of Wills So in many other particulars but I shall keep to my Theme to declare what I have found in the Law of England with Reference to Excommunications There is one Statute more which relates to the Writ de Excommunicato capiendo It is that 5. Elizab. 23. which commands that those Writs shall not be issued but in Term time That they shall have at least twenty days betwixt the Test and the Return that they shall be entered upon Record in the King's Bench c. And that no Capias shall further issue out but in ten Cases there expressed with many other things When it will please our Parliament to consider whether the Writ de Excommunicato capiendo should be continued or run the same fate with that Cousin to it de Hereticis comburendis I cannot tell but certainly it is very unreasonable that the Civil Magistrate should be by it haled in to ruine Persons and Families whose Guilt was never proved before him and be but Servants to Ecclesiastical Judges to confirm their it may be passionate as well as unjustifiable Decrees Persons that are imployed to take away the Lives Liberties or Goods of any Persons had certainly need to be first satisfied that they have done something worthy of Death or Bonds or such Degrees
the next Term. 4. If there be due Additions in it 5. If before it was delivered to the Sheriff it were entred upon Record in the King's Bench and made returnable into that Court. All these things are required by the Statute 5 Eliz. 23. If any of these Errors be found he shall upon motion in the King's Bench be discharged and the Writ will be declared Illegal 6. Lastly If he can be delivered by none of these ways he may at any sealing in the Chancery whether it be in Term or out of Term upon a Petition to or Motion before the Lord Chancellour have the Writ De Cautione admittenda granted him in case he hath before offered the Bishop a Bond of 10 or 20 l. with Sureties stare parere mandatis Ecclesiae in forma Juris When he hath it let him by some Attorny or Attorny's Clerk send it and tender a Bond and sufficient Sureties with it to the Bishop and demand the discharge of the Prisoner If it be not presently done let him certify so much and at the next Seal move for a second Writ to the Bishop Or which it may be is more advisable let him move for a second Writ to the Sheriff the Form of it is in the Register In that the King commandeth the Sheriff to admonish the Bishop to accept the Caution and to deliver the Prisoner and further commands him that in case he doth it not in his Presence the Sheriff should do it himself If the Sheriff yields not Obedience upon another Motion he ought to have a Writ to the Coroners commanding them to take Security of the Sheriff to appear at Westminster such a day to shew Reason why he hath contemned the King's Writ and further it commandeth the Coroners to take the Caution of the Prisoner and to deliver him The Reader may find all this in the Register where are the Forms of all these Writs and also in Dr. Cozens his Apology p. 1. c. 2. who being himself a Judg in the Ecclesiastical Courts cannot be presumed to have told us any thing but what is Law contrary to their own Interest It is true the Bishop upon taking such cautionary Bonds doth ordinarily insist upon the Persons paying the Prosecutors Charges but it is unreasonable 1. First because he hath nothing to to do but to execute the Command of the Writ which speaks not a word of Charges 2. Secondly Because if the Charges be legally due the Promoter must have also a legal way to recover them if not it is Extortion for the Ecclesiastical Judg to exact them 3. Because it is no sufficient return to the King 's Writ which mentioneth no such thing to say He could not discharge the Prisoner because he would not pay the Promoters Charge But because the Legal Charges are small usually the Prisoner for his Liberty will pay the Charges Which are as follow  l. s. d. For the Adversary's Proctor every Court-day untill he was excommunicated and that day when the Significavit was decreed For every day 00 01 00 For the Proctor's Procuratory Letter Seal and Wax 00 01 08 For certifying the Service of the Citation 00 00 06 For the Articles if there were any 00 05 00 For an Act of Court for every day 00 00 02 For the Significavit 00 05 00 For the Significavit to deliver the Prisoner 00 05 00 For the Excommunication and the Schedule 00 02 04 For the Writ de Excommunicato capiendo and the Charge of entring it upon Record in the King's Bench about 01 01 00  02 01 08 If the business hath proceeded no further then a Libel and Articles this is all the legal Charges but if it hath proceeded further there may be for the Copy of the Answer 00 00 09 For every Witness examined 1 s. and for the first 00 01 06 For a Fee to the Proctor at Inform. 00 03 04 For a definitive Sentence 00 11 06 For the Advocate at the Sentence 00 10 00 But for this the Table of Fees must be searched for the Charges are more or less as the Cause went further or lesser way before the Excommunication This is the best Advice I can give to Persons thus molested Only in the general I should advise any such Persons these two or three things 1. To be careful to appear every Court-day in some hour when the Court sitteth and to take Witnesses of his being there 2. To see as much as he can with his own Eyes and hear with his own Ears and act by himself as much as he can For 1. He cannot expect any other should attend his Cause so well as himself 2. If any thing be to be done for his Relief in the Civil Courts he cannot expect any Proctor in the Ecclesiastical Courts who is sworn to do nothing to the prejudice of their own Jurisdiction should be hearty in the mention or profecution of it 3. He cannot expect another should be so faithful to him to keep his Secrets as himself will be to himself 4. He saveth by it all his own Charges 3. To be very careful after every Court to take out from the Register a Copy of the Act or Acts of Court done in his Cause the Register is bound to give him them and to observe if the Register hath faithfully entred both his Appearance that day and what he â—â—â—â—ded 4. To pay the Register and all other Officers and strictly according to the Table of Fees It is Extortion for them to take more and by the 135 and 136 Canons the Register and Proctors are to be suspended six Months if they take any thing more The only Objection against Persons doing this is That they are ignorant of their Forms and therefore must have a Proctor To this I answer That I never liked the Justice I have seen distributed in those Courts so well as to instruct any in the Offensive but only in the Defensive part As to that a little of Form is enough The Person is cited and Articles delivered to him when he comes to give his Answer he only saith The personal Answer of R. B. to the Articles exbibited and admitted in this Court against him at the Promotion of S. T. To the first he saith c. and so as to the rest and concludes with a desire of the Justice of the Court to dismiss him After the Answer and the adverse party hath desired a time to be set to prove the Articles he hath nothing to do but to desire that he might make use of the same time to produce his Witnesses If he hath a mind to put in Interrogatories either to cross examine his Adversaries Witnesses or to examine his own by he hath nothing to do but to put into the Court such Interrogatories as he shall desire to have propounded which the Register is bound to take and to examine the Witnesses according to them Indeed if he puts in Exceptions to the Court there is a
little Form to be observed and so also in the drawing up the absolutory Sentence to tender to the Judg when he comes to give Sentence As to both which I shall subjoyn Forms because it may be such Clerks or Attornies at Law as the Person may make use of may not be so well acquainted with them The Form for Exceptions Exceptiones exhibitae die in Anno in quodam Negotia inter partem promoventem partem Ream in Curiâ c. Quo die A. B. pars rea animo excipiendi in Scriptis magni specifice contra Testes omnes singulos ex parte productos juratos examinatos ac contra corum respectiva dicta depositiones alias in genere in hoc Negotio apud acta cum Protestatione libertatis sibi reservatae reservandae exhibendi Exceptiones alias meliores Efficaciores viâ mado juris formâ debitâ quibus melius aut efficacius de jure poterit vel potest debuerit vel etiam debet probare quae proposuit necnon adâ—mâ—â—m qualemcunque Jâ—â—is effectuâ— exindâ— quevis modo secuturum posthac allegandi dicet allegat ut in his Scriptis tam generaliter quam specialiter proponit prout sequitur Imprimis Quod nulla fide saltem de jure sufficiens aut valida fuit aut est adhibenda pretensis dictis aut depositionibus testium praedictorum pretensiâ—num ex parte A. B. super aelis suis perusis hac in parte redditis habitis aut factis pro co ac ex co quod predicti pretensi testes corum quilibet alter fuerunt sunt in quam plurimis partibus dictorum ac depositionum fuarum predictarum Falsi vani loqui varii vacillantes singulares inter se discrepartes fibi ipsis contrarii repugnantes ac in quamplurimis partibus aliis depositionum suarum praedictarum instructi informati concordes suum quasi cundem Sermonem premeditatum uniformiter invicem preferentes dicentes testificantes cum causas scientiarum suarum pretensarum praedictarum nullo modo legitimè ac sufficienter reddant de auditis vero solùm credulitate testificantes etiam quam plurima testificantes de scientiâ suâ ut pretendunt propriâ de rebus non in Articulos deductis prout ex serie depositionum praedictarum pretensarum in hac parte utcunque redditarum habitarum factarum minifeste liquet apparet ponit excipit tam in genere quam in specie contra testes praedictos pretensos conjunctim ac divisim de quolibet particulari Imprimis Quod nulla fides saltem de jure sufficiens ac valida fuit aut est adhibenda dictis depositionibus perusis praedictorum Testium pretensarum ex parte A. B. in hoc negotio productorum Juratorùm Examinatorum pro eo ex co quod quidam R. S. testis pretensus in hoc negotio utcunque ex parte A. B. productus juratus examinatus false injustè corrupte contra rei verizatem deposuit prout in dictis sive depositionibus fuis pretensis hubitâ ad cus relatione constat liquet apparet Then repeat his Deposition in English and what you have to object and can by two Witnesses prove against it Keep the same form as to all other Witnesses against which you can make any Exceptions and prove them by two Witnesses It is good to deliver into the Court your Exceptions thus drawn first generally then particularly For tho you must prove particularly yet you may forget some Particulars which notwithstanding you may examine and have proved by virtue of your general Exception if it cometh within the compass of what you assert in that If it be refused you may appeal Make a special Observation if your Adversaries Witnesses have in their Depositions swore what was not laid in the Articles for all that cometh to nothing it being a Rule in their Law Quicquid deponitur extra Articulum deponitur extra Legem that is Whatsoever is deposed that is not laid in the Articles is deposed contrary to the Law And it is a good ground of Appeal for any Judg Ecclesiastical to take notice of any such thing There are but two cases more in which he who is upon the defensative part will stand in need of any of their Forms That is 1. In case he hath an occasion during the process of the Business to put in an Allegation Or 2. He may need a Form of an Absolutory Sentence when the Judg comes to give Sentence because it is the fashion in those Courts when the Judg is about to give Sentence for each Party by himself or by his Proctor to tender to the Judg an Absolutory Sentence for himself An Allegation may be offered the Judg any time before the Cause be closed but best before Publication be made of the Depositions The matter of it may be any thing that may help him in his Cause As now Suppose one prosecuted in those Courts for not receiving the Sacrament at Easter if he can by two Witnesses prove that at that time he was many Miles from home or sick and unable to go out or that he hath already been punished for it in another Court he may put any of these things in an Allegation the Form of which follows Die anno Domini Quo die A. R. omnibus melioribus viâ modo juris forma ac ad omnem quemcunque juris effectum exinde quovis modo sequi valentem c. dicit allegat in his scriptis in jure proponit articulatim prout sequitur Imprimis That the said R. B. at Easter last viz. upon the day of April c. and for several days both before and after the said day was in the City of London at forty Miles distance from his Habitation then and there attending his lawful occasions and so could not receive the Sacrament in his Parish-Church of A. aforesaid 2. That this is a just and legal Excuse which ought to be allowed in this Court for his not being that day at his Parish-Church and hearing divine Service and receiving the Sacrament Quae omnia praedict R. paratus est probare in formâ juris sicut huic Curiae visum fuerit decernere The like may be as to any other special matter which he hath to alledg setting his hand to the Allegation and delivering it into the Judg of the Court or his Surrogate He may give his Allegation by word of mouth but it is better to do it in Writing before Witness The Form of an Absolutory Sentence In Dei nomine Amen Auditis visis ac intellectis plenarie mature discussis per nos N. D. legum Doctorem Curiae officialem principaliter ritè legitimè constitutum meritis circumstantiis cujusdam negotii correctionis sive officii promotionis quod corum nobis in judicio extitit inter R. N. partem pretensam hujusmodi negotium promoventem ex unâ S. R. nostrâque jurisdictionis partem contra quam hujusmodi negotium promovetur ex alterâ quod vertitur pendet indecisum rite legitime procedentibus praedictis partibus praedictis per corum respective procuratores if they use no Proctors it must be propriis personis in judicio legit comparentes parteque praefati S. T. Sententiam ferri justitiam fieri pro parte suâ parte vero praefati R. N. fieri pro parte suâ instanter respectivè postulante petente rimatoque penitus per nos ac diligenter recensito toto integro processu in hujusmodi negotio habitis factis servatisque per nos de jure hac in parte servandis ad nostrae sententiae absolutorum sive finalis Decreti prolationem in eodem pretenso negotio ferendo sic duximus procedendum fore ac procedimus in hunc qui sequitur modum Quia peracta inactitata deducta exhibita proposita allegata probata pariter confessata comperimus luculenter invenimus partem prefatam promoventem R. N. intentionem suam in quibusdam Articulis ex parte suâ exhibitis quorum dictorum Articulorum Tenor sequitur sunt In Nomine Dei Amen Nos c. Then followeth the recitation of the Articles quos aelos pro hic lectos insertos habemus haberi volumus nullo modo saltem sufficienter aut legitimè fundâsse aut probâ—sse sed in probatione corundem Articulorum omnino defecisse deficere Idcirco nos N. D. judex antedictus Christi Nomine primitus in vocato ac ipsum solum Deum praeponentes atque de cum Concilio Jurisperitorum cum quibus hâc in parte communicavimus praefatum S. T. ab instantiâ impetitione praefati R. N. quoad praedicta in Articulis pretensa praedicta absolvendum dimittendum fore debere pronunciamus decernimus declaramus prout ipsum S. T. sic dimittimus absolvimus per presentes praefatumque R. N. in expensis legitimis in hâc parte factis fiendis eidem S. T. solvendis insuper condemnamus per hanc sententiam nostram absolutoriam sive finale nostrum decretum quam sive quod ferimus promulgamus in his scriptis Taxationem vero sive moderationem expensarum hujusmodi nobis aut alii judici hâc in parte competenti cuicunque reservandi reservamus If the Judg give Sentence against you you will be admonished in that Case take the first opportunity of entring an Appeal in the next Superiour Ecclesiastical Court unless Common Lawyers tell you your Cause is such as a Prohibition will lye in then move for that as soon as you can If you have removed your Cause into the Arches there are divers Proctors that are learned Men and faithful to their Clients by whom you must there as also in the Court of Delegates if you see cause to appeal from the Arches thither prosecute your Cause To whose care I leave you FINIS The Reader is desired to pass by or amend what Errors have hapened in the Press by reason of the Authors absence