and true Copy of the Citation If the day of Appearance be not at least the third day from the Citation or if he hath before Witness given the Apparitor 6 d. to bring him a full and true Copy of the Citation I conceive he needs not appear but listen what they do and if they decree him Excommunicated he may appeal within fifteen days and bring from the Superiour Court an Inhibition to stop their Proceedings against him And further the Rule in that Law is Totus dies debetur delinquenti It is enough for a Person to appear any hour of the day provided it be a Court-hour wherein he is cited to appear so as tho he be called before he comes yet if he appeareth that day he shall be discharged or he may appeal 2. When he appeareth he shall demand his Charge which is either by a Presentment from Churchwardens or by a Libel or Articles which are exhibited by a Promoter Be it which it will he shall demand a Copy if it be denied or delaied he shall bring if he will a Prohibition from the King's Court at Westminster forbidding them to proceed in that Cause till they have given him a full and true Copy of his Charge according to the Statute 5 Hen. 2. 3. If he appeareth in Person he ought to have his Charge the first Court-day If he appeareth by a Proctor they will usually to get the Proctors more Fees give to the second Court-day to bring in the Libel or Articles 4. If they deliver him not his Charge the second Court-day he may appeal if upon his Demand the Judg will not dismiss him or he may if he will bring his Prohibition for want of Articles and stop their further Proceedings 5. If the Proceedings be upon a Promotion and the Promoter hath imployed a Proctor in the Case the Party accused must know that no Proctor can be admitted without a Proxy that is Letters Procuratory under the Promoter's Hand and Seal authorising him to act for him in the Case and when he hath that there must be an Act entred in Court to admit such a Person Proctor in the Case The Party charged may go or send to the Register and demand a sight of both those The Reason in Law is this Because any Proctor is liable to the Party's Action if he molesteth any Person in the name of another without Authority from him And secondly If there be no Act of Court admitting him as a Proctor tho the Party accused be Conquerer in the Case yet he cannot recover Costs because there is no legal Adversary against whom they can be recovered 6. According to the Statute-Law every Informer if overthrown shall pay Charges According to the Civil and Canon Law none ought to be admitted as a Voluntary Promoter till he hath given Security to pay the Charges if he be overthrown The Party accused therefore shall before he answereth the Articles demand this if it be denied by the Judg he may appeal to the superiour Court 7. It is also worth the Persons inquiry who is accused to be well advised by Lawyers whether the Promoter in the Ecclesiastical Courts be not obliged to all those things that an Informer in the Secular Courts is tied to by the Statutes 31 Eliz. 5.18 Eliz. 5.21 Jac. 4. The Reason is because those Statutes say Informers upon any Penal Statutes and commonly Promoters in the Ecclesiastical Courts say such and such things are done contrary to the Statutes of this Realm as well as contrary to the Canons Now what things the Statutes which also name Promoters require of such Informers and Promoters the Statutes do declare 8. When the Party accused hath a Copy of his Libel let him demand time to answer if the Judg denies him time at least till the next Court-day let him appeal 9. Having due time granted in the mean time let him duly consider the matter and form of his Libel As to which let him amongst other things observe these that follow 1. Whether the Matters he be charged with belong to the Cognisance of the Ecclesiastical Court If Lawyers tell him no let that be his Answer and let him hasten to bring his Prohibition which â—es in all such Causes 2. Whether they have put into the Libel the Promoters Petition for Right 〈…〉 to be done him I have seen it several times left out It is a Rule in their Law Libellus est ipso jure nullus ubi nihil petitur If he finds that this is wanting Let his Answer only be That the Libel is in Law utterly void and insufficient and desire to be dismissed If the Judg refuseth to dismiss him let him appeal 3. Let him also observe Whether he be in the Articles laid to be one of the Diocese or a Parishioner of such a Parish for if it be not laid it can never be proved and so the Promoter must fail in his Sa it for what is not laid cannot be proved Quicquid deponitur extra Articulum deponitur extra Legem is a Rule in their Law If he be laid to be a Parishioner of such a place within such a Diocese let him not in his Answer confess it but say He cannot determine the Bounds of Dioceses and Parishes but for that he referreth himself to the Law 4. Let him also observe If the things he be charged to have done or omitted be within the compass of a Year and whether there hath since been no Act of Grace or Oblivion which hath pardoned them and whether they be not such things as he hath been punished for or such things as the Statute Law hath limited the Prosecution of to a less time than a Year For if any of these things be they may be given in answer to avoid either the whole or any part of the Charge If the Judg will not accept the Answer the Party may sue out a Prohibition and stop them 5. Let him also observe Whether he be charged certainly or particularly as to time and place or only generally and incertainly if he be charged only generally as for the most part he is in Church-wardens Presentments not mentioning Time and Place or incertainly with or 's that he did not come to his Parish Church such and such Months and Days or was absent in some one or more or most of them Let his Answer be that this Charge is void in Law for the generality or incertainty of it If the Judg will not receive his Answer let him appeal for the Law of England alloweth no such Charges from which can be no discharge or where the Crime is not fixed to a certain time But it may be in this Case a Prohibition will be his best remedy 6. Let him observe Whether he be charged only upon Statute Law or upon Canons if upon Canons let him in his Answer modestly refer himself to Persons learned in the Statute Laws Whether any such Canons were ever enacted ratified allowed or confirmed by
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
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
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
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
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
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