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an Extortioner with such a one no not to eat By which it appeareth that such Persons as are here specified were to be withdrawn from and to that degree that Men should rather have an Intimacy of Communion with Heathens than with them What further Direction we have in this Case is in the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
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
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
Man out of the Kingdom of God and are equally heinous and scandalous as these such as are reckoned up by the Apostle 1 Cor. 6.9 10. Idolaters Adulterers Effeminate Persons such as abuse themselves with Mankind Theeves Murderers Sorcerers profane Swearers and Cursers these are all scandalous Offenders and so within the Precept Matth. 18. 3. Yet neither are all these the Objects of this Censure unless they be Stubborn Contumacious and Incorrigible An Heretick is not to be avoided till after the first and second Admonition Tit. 3.10 Nor an Offender till after that he hath refused to hear the Church Mat. 18. Conformable to this was the general Judgment of the Churches of God for more than a thousand Years after Christ as might be made appear from infinite Quotations out of the Ancients and out of the Canon Law which steadily determineth That none but Hereticks and such as are guilty of Mortal Sins and Contumacious in them are to be Excommunicated It is a most unreasonable thing to think that it is the Will of God that any should be Excommunicated for what is no Sin Christ never willed the cutting off true Members from his Body And it is altogether as unreasonable to imagine that it is the will of Christ who hath Compassion on the Ignorant and those who are out of the Way and who hath declared his readiness to receive repenting Sinners should have willed the cutting off of those from the Communion of his Church who are not Contumacious But this is granted on all hands that none be they never so great Transgressors unless Contumacious should be the Objects of this Censure at least what they call the greater Excommunication for the Separation of some open notorious Transgressors from Communion in some Ordinances being under the Church's Admonition it cannot indeed properly be called Excommunication But when a Person is to be judged Contumacious is the great Question The Papists making the Laws and Decrees of their Church equal if not superiour to the Laws of God make all Disobedience to their Canons persisted in to be Contumacy And in abuse of that Text Matth. 18. If he will not hear the Church let him be unto thee as an Heathen and a Publican determine all Persons contumacious who will not hear those whom they call the Church 1. Either commanding them to appear at their Consistories 2. Or tho appearing if they will not within such a time as they set do what in those Courts they think fit to enjoyn them But indeed that Contumacy which renders any according to the Will of God the Objects of this Censure must be a Contumacy against the Commands of Christ If indeed any Person hath done any thing for which according to the Will of God he is censurable by the Church and they send for him and he will not appear to answer and justify himself Or if they command him to do what Christ hath in his Gosppel commanded them to do and he refuseth after several Admonitions to do it he may be judged Contumacious but other Contumacy the Scripture knoweth not nor can any Person by the Law of the Gospel be judged a Person fit to be Excommunicated but one who hath been a scandalous Sinner who being sent for by the Church of which he is a Member refuseth to come at them or coming to them being required to do what is the will of Christ peremptorily refuseth to yield Obedience but will still go on in his sinful Courses CHAP. IV. The Divine Order Method and Manner to be proceeded in with Reference to Excommunication There is yet one thing more to be considered and that is the Order and Manner of the Execution of this Sentence according to the Will of God Whoso considereth it as an Ordinance of God an Action done in the Name of our Lord Jesus Christ and with the Power of our Lord Jesus Christ as the Apostle expresseth it in 1 Corinth 5.4 will easily conclude it ought to be done with all the Seriousness and Gravity imaginable and as is usually said in our Officials Sentences how truly God knoweth Christi nomine prius invocato after a first calling upon the Name of Christ The Name and Power of Christ cannot be trifled with without Profanation and Blasphemy and an high degree of taking the Name of God in vain which is a Crime that whosoever presumeth to incur shall not be held guiltless as we are assured in the third Commandment Again whoso considereth it as an Action by which Mens Sins are retained and by which a Person is cast out of God's special Providence and put into the condition of an Heathen and a Publican and debarred of the greatest Priviledges of the Gospel viz. the Vse of the Sacrament and the Communion of Saints if he be a Person who hath any thing of the Fear of God before his Eyes or any thing of brotherly Love and Compassion toward Souls in his Heart will easily conclude it is a thing ought not to be done passionately rashly or suddenly but upon mature Deliberation after grave Admonitions and patient waiting for the due effect of them And as the very Nature of the thing thus far instructeth any Men of Common Sense and Moralities so that no other manner of performing this can be expected from any but such as in their ordinary Discourse are so used to throw out The Divel take you that they cannot forbear it in their most solemne Actions so God hath sufficiently instructed us in his Will as to this thing The secret Sinner must have a private and Fraternal Correption before the Church hear of his Crime Mat. 18. The Heretick must not be rejected till after a first and second Admonition Tit. 3.10 and certainly he that hath commanded us In meekness to instruct those that oppose themselves if God peradventure will give them Repentance to the acknowledging of the Truth And that they may recover themselves out of the Snare of the Divel who are taken captive by him at his will 2 Tim 2.26 And again If a Man be overtaken with a Fault restore such a one in the Spirit of Meekness considering our selves lest we also be tempted Gal. 6.1 never intended that Men should be delivered up to the Devil cast out of the Communion of the Saints in haste And indeed this is so evident a piece of the Will of God so consonant to Humane Reason that not only all Divines as well Ancient as Modern have agreed it but the very Canon Law it self in several places determines it and maketh it a grievous Sin for any Bishop or Priest to proceed to this Sentence without a leisurable and full hearing of the Cause And I remember the Instance of God himself is brought in resolving to go down and see if the Merits of the Men of Sodom were according to the cry come up and as to the deliberate proceeding of the Judge as in the hearing and proof of the Cause so in the denouncing the
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
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
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