him that he might be ashamed yet ver 15. Count him not as an Enemy but admonish him as a Brother Yet in some respects it appeareth to be the will of God that an Excommunicated Person should be treated worse than an Heathen 1 Cor. 5.9 10. I wrote you an Epistle saith the Apostle not to company with Fornicators Yet not altogether with the Fornicators of this World or with the Covetous or with Extortioners or Idolaters for then must you needs go out of the World Ver. 11. But now I have written to you not to keep Company if any Man that is called a Brother be a Fornicator or Covetous or an Idolater or Railer or a Drunkard or an Extortioner with such a one no not to eat By which it appeareth that such Persons as are here specified were to be withdrawn from and to that degree that Men should rather have an Intimacy of Communion with Heathens than with them What further Direction we have in this Case is in the Epistles to Tituâ— and Timothy Tit. 3.10 A Man that is an Heretick after the first and second Admonition reject 2 Tim. 3.2 Men shall be lovers of their own selves Covetous Boasters Proud Blasphemers disobedient to Parents unthankful unholy without natural Affection Truce-breakers incontinent fierce Despisers of that which is good Traitors Heady-minded Lovers of Pleasures more that Lovers of God Having a Form of Godliness and denying the Power thereof from such turn away Rom. 16.17 Mark them which make Divisions amongst you contrary to the Doctrine which you have received and avoid them This is the most of what we find in Holy Writ concerning this Institution of Christ both as to the Doctrine concerning it and concerning the Practice of it from whence may be easily gathered that the Description which the Canonists anciently gave of it is not much amiss for Panormitan telleth us That Excommunication is nothing else but a Censure pronounced by the Canon or the Judg Ecclesiastical by which a Person is deprived of the Communion of the Sacraments and sometimes with Men. The former of which he calleth the lesser the latter the greater Excommunication It is a more Theological Description of it to say It is an Institution of Christ for keeping the Purity of his Church by which such as he hath authorized thereunto have Power in such order and manner as he hath appointed to separate from the more intimate Communion of a Church in such Ordinances as may not be administred to Pagans such Persons as Christ hath declared unfit for that Communion untill they have declared their bearty Repentance for such Miscarriages CHAP. II. A further Inquiry concerning the Persons whom God intrusted with the Power of Excommunication being one of the Keys of the Kingdom of Heaven they are proved to be Apostles and Pastors of Churches with the consent of the Body of the Church WE are for the fuller understanding of the Will of God in this Institution in the first place to inquire to whom our Lord Jesus hath trusted this Power He tells Peter Mat. 16.19 And I will give unto thee the Keys of the Kingdom of Heaven A Text the Papists make great use of But is no more than he tells all his Disciples of John 20.23 Whose soever Sins you remit they are remitted to them and whose sover Sins you retain are retained and in the Rule he gives us Mat. 18. concerning Offences not committed publickly for such Cases there is no need of fraternal Correption as appears 1 Tim. 5.20 Those that sin rebuke before all he commands the third time they should tell the Church and if the Offender would not hear the Church he should be as an Heathen or a Publican The Church can be no single Person nor doth he write to the Bishops or Pastors but to the Church of Corinth about the incestuous Person 1 Cor. 5. and directs them that the Act should be done when they should be gathered together in the Name of Christ There are in Excommunication two things The Judgment of the Cause and the Pronouncing of the Sentence The pronouncing or publishing of the Sentence is a meer Ministerial Work yet we do not find that it was ever done but by a Bishop or Minister But the main business is to inquire whom Christ the Lord of the Church hath betrusted with hearing these Causes and judging concerning them for of his Appointment they must be who hath any thing to do to turn any out of his House but either he himself who is the Lord of the House or such as he hath delegated thereunto St. Paul saith he had delivered up to Satan Hymeneus and Philetus He ordereth Titus the Bishop or Pastor at least of Crete to reject an Heretick after the first and second Admonition He writes to the Church of Corinth where they were gathered together to deliver up the incestuous Person to Satan From whence we may indeed conclude That the Minister is concerned but not that it was ever committed to him alone without the consent of the Congregation and it is a Rule of Reason Quod omnes tangit ab omnibus tangi debet the whole Body is concerned in the cutting off of any Member and in vain shall any Officers cast one out of Communion with the Church with whom yet the Church will keep Communion Nothing appears more clear to me than that it belongeth to the Bishop or Pastor with the whole Church to hear such Causes and the Pastor and Officers to judg of them which being granted I cannot see how any Person can be lawfully Excommunicated by any Council or Synod it must proceed from the Church gathered together and that the Officers of many Churches gathered together should make a Church clothed with Authority from Christ to Excommunicate I cannot understand from any thing of Holy-Writ And indeed I take one of the first warpings from the Rule of Christ as to this Ordinance to have been then For had the Cause been of much more weight than the mis-timing of Easter I cannot understand by what Authority unless usurped Victor could Exccommunicate the Churches of Asia But to pass this for more than five hundred Years after Christ the Churches never allowed it within the Power of any but either of the Collective Church or the Bishops and Pastors in their respective Churches to hear the Causes of Persons with reference to the Solemn Sentence of Excommunication and to determin any to it In the third Century the Power rested penes Seniores Ecclesiae in the Elders of the Church as appears from Tertullian's Apologetick and the Denunciation of the Sentence was by a Bishop or Presbyter this Origen hinteth to us again and again Thus it was in Cyprian's Time in the Case of Fortunatus Foelicissimus Maximus and Jevinus and thus if we will believe Ecclesiastical History Fabranus Excommunicated the Emperor Philip tho I give little Credit to Eusebius in that Story believing the course of excommunicating Emperors of
Sentence it speaketh so much as one would think more were needless to be said So as the hasty thundering out of Excommunications which we see in our Days is so far from deriving any Repute or Authority from Holy Writ that it cannot so much as derive from the Popish Canon Law CHAP. V. The Original of those Corruptions which have been or are found in the Church as to Excommunications SInce the Pope claimed to himself the Title of the Head of the Visible Church all Ecclesiastical Power hath been pretended to derive from him who grants it or such part of it as he pleaseth to Archbishops Bishops Arch-deacons c. with a Power also to them to delegate it unto others Those who are broken off from the Church of Rome and yet will have National and Diocesan Churches must make Bishops the Spiritual Heads of them clothed with immediate Power from Christ to influence their several Churches and to deal out God's Ordinances unto them To keep my self to that particular Ordinance which is the Subject of my Discourse The Canon Law of old determined That Laymen being licensed from the Pope the Vicar of Christ might excommunicate and even Bishops might not in some particular Causes reserved to his Holiness Since Bishops extended their Dioceses beyond the reach of their own Eye and the possibility of their own Personal Care there was a necessity also of their delegating their Power as to Jurisdiction Whether this necessity did not arise from their own Error in taking Charges which according to the Divine Rule they could not discharge I leave to others to inquire as also by what Authority any Ecclesiastical Officer can depute another to use the key of Discipline committed to him more than the Key of Knowledg or the Administration of Sacraments Supposing them to have a Power to delegate they must either delegate it to Ministers or Lay-men To have deputed only Ministers of particular Congregations had been both very unreasonable and dangerous unreasonable that a Minister of a particular Congregation should have a Power to excommunicate the Members of another for the Bishop could not make him Pastor of the whole Diocese And dangerous too to the Episcopal Function lest People should have been nursed up in an Opinion that the Minister did it by his own Power immediately derived from Christ and so there had been no need of a Bishop for Jurisdiction Thus when one absurdity is granted an hundred follow Upon this point I will only add the Testimony of Sir Francis Bacon sometimes Lord Chancellour of England not so much for the Authority as for the Reason of it Two things there are saith he in our Episcopal Government in which I was never satisfied 1. The single Exercise of their Authority 2. Their Deputation of it After he had spoken fully to the first he comes to the latter Our Bishops saith he exercise their Jurisdiction by Chancellours Commissaries Officials c. We see that according to the Laws of all Nations throughout the World Offices which require Skill and Trust are not executed by Deputation unless it be so expressed in the Original Commission and in that case it is lawful No Judg in any Court ever substituted a Deputy The Bishop is a Judg and that in Matters of an higher Nature how cometh he to substitute another when as all Trust is personal and inherent in the Person trusted and cannot be transferred to another Certainly as to this from the beginning it was not so It is saith he probable that when Bishops gave themselves too much to the Pomp of this World and in Kingdoms became Peers and Councellours to Princes they delegated their Jurisdiction which was proper to them as a thing beneath their Greatness and like Kings and Count-Palatines would have Councellours and Judges under them That learned Author speaks a great deal more in this Cause Nor hath any consciencious learned Man that I know defended this Power of hearing and judging Causes in order to Excommunication in the hands of any save only such as have been Ministers of the Gospel or the whole Church or the Lawfulness of Deputations in the Case It was first practised in the Church of Rome and that in latest and most corrupt Ages From the same Authors are derived Excommunications for light and trivial things a thing condemned by all Ancient Councils and up and down in the Canon-Law which forbiddeth all Excommunications unless for Heresy or for some Mortal Sin But we must know to what an heighth of Power the Advocates for the Church of Rome had cryed up that Church That it was impossible any could be guilty of a more Mortal Sin than not coming when any Officers of that Church said Come or not going when they said Go or not doing this or that when they said Do it Hence it came to pass that when as originally the Church had nothing to do to send for any as a Criminal but he that was accused as such for some Crime for which according to the Law of God he was if found guilty to be excommunicated in which Case indeed his non-appearance might be interpreted a Confession of the Guilt and a Contumacy in it The Church of Rome having from the Favour of Princes got for their Bishops the Cognisance of a Multitude of temporal Causes and consequently Authority to summon People to answer and to decree in the Cause their not appearing to such Summons or not obeying such Decrees was also judged a Contumacy to the Church and the Crime deserving Excommunication than which a greater Abuse cannot easily be imagined And it is no wonder that after that Excommunication came to be the Work of those who had no place in the Church of Christ as to matters of Judgment and also came to be thundred out upon every light occasion and so had lost all the repute of a Divine Institution thence it came as slightly to be managed or denounced all the Gravity and Seriousness of the Administration was lost The leisurable Admonitions given with the Interposition of many Days and Months were turned to the slighty saying thrice in a breath I admonish you the first time I admonish you the second time I admonish you the third time CHAP. VI. The Reason of the contempt of Excommunications frome hence The Arts of the Papists to strengthen it with other Penalties from Canon and Common and Statute Laws The Magistrates discerning their Errors even in Popish Times restraining them again by several Writs of Prohibition and Supersedeas and Attachments and the Writ de Cautione admittenda BY this time Excommunication which rightly administred was the most formidable Sentence that could be pronounced in any Court under Heaven at once depriving the Person of that special Providence of God peculiar to his Church and of the Communion of Saints and of the hope of the Pardon of Sins without a Repentance testified became a contemptible thing in the Eyes of the People and tho 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
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
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
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