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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A36083	A discourse concerning excommunication, as executed by officials, and concerning the common law writts, de excommunicato capiendo and de cautione admittenda, for the punishment of persons excommunicated and their deliverance from the punishment vvherin is examined whether the execution of the former as executed by many, be not a profanation of a great ordinance of God, whether by the second the subjects is many cases be not unwarrantably oppressed : as also by the difficult granting of the other, which is a common law writt, and the right of every subject to be obtained without difficulty : discoursed in a letter to an honourable friend / by one who is a friend to English liberty.	One who is a friend to English liberty.	1680 (1680)	Wing D1579; ESTC R6708	18,986	26

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

from the enjoyment of the means of Salvation but Christ who is the Lord of the Church Which being granted the true notion of excommunication is this It is a power granted by Christ to his Church to remove lewd Persons or such as are Heretical and are pertinacious in their lewd opinions and practices from the Communion of the Church in the holy Sacraments and the fellowship of Christians till they reform Which exactly agreeth with the notion of it given us in these words by Arch-Bishop Cranmer and other of our first Reformers in their Book called Reformatio Legum Ecclesiasticarum De Excommun cap. 1. Excommunicatio potestas est authoritas ad Ecclesiam a Deo profecta quae facinorosas personas vel de religione nostra corrupte sentientes ad suam improbitatem adhaerescentes a perceptione Sacramentorum Reform Leg. Eccles Ed. 1641. p. 159. etiam Chhristianorum fratrum usu tantisper summovet donec sensus sanos recollegerint salutarium cogitationum apta signa dederint poenas etiam ecclesiasticas subierint quibus ferocia carnis comprimitur ut spiritus salvus fiat Excommunication being thus universally agreed to be a Divine Institution it must as to the use of it be regulated by the Divine Rule None can Excommunicate but those who are by Christ thereunto appointed None ought to be Excommunicated but by warrant from the word of God and Excommunication must proceed with that gravity and leisure which the same word hath directed And every one seeth that where any thing of this nature is done otherwise It is an horrible profanation of the Ordinance of God and a woful abuse of a power which none but God could give unto any That this power is given to the Church from Christ is agreed on all hands Whether it resteth in the whole Church or in the Governours of the Church is the onely question here That this power according to the institution of Christ belongs to the whole particular Church to whom the offender relateth is to me as clear as the light According to the Primitive direction Matth. 18. If he would not hear the Church he was to be us an heathen and a publican The Apostle speaks to the whole Church at Corinth 1 Cor. 5. 4. That in the name of the Lord Jesus when they were gathered together and his spirit with the power of the Lord Jesus Christ they should deliver such a one to Satan and Excommunication being not only a seclusion of the party from the enjoyment of Ordinances but from the intimate Communion of the Members of the Church It is very absurd for Officers in a Church to think of secluding any from the communion of those who will yet have fellowship and communion with them and consonant to this was the Judgment of the Ancient Church t●at none ought to be excommunicated dissentiente plebe without the consent of the people from whose communion he was to be secluded And without doubt as to the Major Excommunication it is the most rational thing imaginable and our first Reformers in the aforementioned Book called Reformatio legum Eccles pag. 161. cap. 6. on this subject saith Totius Ecclesiae consonsus quanquam optabilis esset That the consent of the whole Church is desireable but because it can very hardly be procured they ordain as there followeth That no one person should exercise this power c. 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 due and full handling and weighing the cause the party should be Excommunicated Some will have Excommunic●tion the Act of the whole Church onely denounced by the Minister Others will have it the Act of the Presbytery or Governours of the Church Others who fix the Government in Bishops will have it the Act of the Bishop but our Primitive Reformers would not have him doe it but with a Justice of the Peace the Minister of the place and two or three other grave Ministers who all together should hear examine and ponder the cause and agree the person deserving such a punishment which they might then Decree and the Minister of the place might Publish It being an institution of Christs it ought also to be denounced against none but such onely as he hath in his word appointed it for which is not onely determinable from the letter of Scripture but from reason concluding from the End of the Institution In the letter of Scripture there is no pretence for Excommunication of any but for such crimes as shut a man without Repentance out of the kingdom of God those are either damnable Heresies according to St. Pauls direction to Titus Chap. 3. v. 10. An Heretick after the first and second admonition reject and the example of St. Paul 1 Tim. 1. 20. who delivered up to Satan Hymeneus and Philetus having made shipwrack of Faith Or lewd and vile practices for which we have a president in the incestuous person mentioned 1 Cor. 5. and conform to this hath been the constant judgment of the Church and our aforementioned Reformers in the book and place aforementioned determine that they must be personae facinorosae de Religione nostra corrupte sentientes ad suam improbitatem adhaerescentes Leud persons corrupt in their sentiments of Religion pertinaciously adhering to them and yet more plainly in their third Chapter which I shall Translate Excommunication ought not say they to be used in minute offences but upon atrocious horrible crimes when the Church is grievously scandalized either because Religion is overthrown or good manners perverted by them of this sort are those of which St. Paul saith that those who do such things shall not enter into the Kingdom of God or shall not inherit the Kingdom of God or because of those things the wrath of God cometh upon the children of disobedience These horrible wickednesses ought to be punished by Excommunication so as they who are guilty of them shall be thus punished unless they in time reform and when they are admonished withdraw themselves from these courses and be willing to satisfie the Church for the dammage it hath sustained from their offences for Excommunication is not to be used but when men have hardned themselves in their wickednesses which happeneth two wayes either when being call'd to answer for such offences they will not appear or if they do appear they will not obey the admonitions of Judges This was the opinion of holy Cranmer and Taylor two of our blessed Martyrs and those other good and learned men that lived in King Edwards dayes in the very beginning of the Reformation and were known to be none that could be justly called Presbyterians by any who understand what Presbyterians are Besides this is evident from the end of

tendring him a Caution for their future obedience to that command of the Ecclesiastical Court which they had disobeyed they should be discharged three legal Cautions were prescribed 1. By Pledge 2. By Bond 3. By Oath The Subject tendring any of these might be discharged by the old Law of England under the greatest Popish Tyrrany and Usurpation The Law further provided a Writ if the Bishop refused the Caution to command him to take it I will transcribe it as I find it in the Register of Writs immediatly following the Writ de Excommunicato capiendo as they say the God of Nature hath in some Countreys planted Antidotes in view of poysonous plants v. Reg. Bren. Orig. Judicialium Londini 1634. It hath this Rubrick Si Episcopus idoneam cautionem de parendo mandatis Ecclesiae ab hujusmodi excommunicato imprisonato admittere recusaverit volens ipsum per prisonam gravare Tunc mittat amicum ad Curiam fiat ei Breve sic That is If the Bishop having a mind to oppress the party shall refuse to accept a fit Caution then let him send any friend to the Court and let a Writ be made to him thus Whence I observe 1. That even in those times Officials were for keeping Persons in Prison contrary to all Law and Justice 2. That to remedy that Evil this Common Law Writt was invented 3. That it is of the same Authority and as much Law as the Writt de Excommunicato capiendo 4. That it is not a Writt of Discretion which may be g●anted or refused as Officers please and therefore to be obtained by Petitions or Motions but a Writt of Common Justice which ought not to be denied by Cursitors to any Friend of the Imprisoned Person coming to the Cursitor and demanding it 5. One thing I might further add that it is upon the point the only remedy provided in Law for persons thus imprisoned The party is not remediable by action or indictment upon Magna Charta because though he be not imprisoned by the Verdict of his Peers yet he is imprisoned per Legem terrae by the Custom of England nor by the Writt de Homine replegiando because that runs Vnless the party be imprisoned for something for which according to the custom of England he is not repleviable which is the case here nor by the Witt de Odio Atia for it is hard to make out that such a Person is imprisoned out of malice though he indeed be so Nor by any VVritt of Supersedeas Indeed by the VVritt of Habeas Corpus a person thus imprisoned may bring himself before the Judges at Westminster but they shall only judge whether he be justly Excommunicated from the Significavit which is before them If the significavit saith it is for contempt of the Court being legally cited to answer for such Crimes as are Cognoscible in that Court whether he were ever legally cited or no The Judges cannot relieve him the parties Remedy lies against the Official by Action of the case and if he tryeth that way if the Apparitor hath sworn in the Court that he did duly cite him whether he did or no No action will lye but against the Apparitor which is a lamentable remedy If indeed it be contained in the significavit that he hath been accused for Crimes which have been legally proved and he admonished and not obeyed but suffered himself to be Excommunicated and stood so forty dayes And the party can make it appear That the pretended Crimes were no Crimes or not cognoscible in that Court or that they were not legally proved by two VVitnesses or that they have been pardoned or that he offered the Bishop caution and he hath refused or that he did not stand Excommunicated 40 dayes or that the VVritt of Excommunicato capiendo was not legally taken out as is limited by the Stat. 5. Eliz. 23. Or that he hath appealed according to Law in these cases he may be relieved by Habeas Corpus or it may be a less chargeable way by Supersedeas of which yet I am not certain if the VVritt be Executed but the true legal relief of the Subject if the Bishop refuseth Caution I take to be by this VVrit de cautione admittenda Though it be advisable for every Excommunicated person as soon as his Excommunication is published to send one or two to the Bishop and to offer a Cautionary bond which by Law he ought to take if he refuseth it may be advisable for him as soon as he heareth the VVritt is out against him to move for a supersedeas upon that suggestion or a Prohibition if it will bear it if not without more adoe to yield himself a Prisoner and then bring this VVritt de Cautione admittenda you shall find the VVritt in the Register of Writt Printed in Lat. 1634. p. 66. in English thus The King to the Venerable c. On the behalf of A. whom upon your denunciation we have commanded by our High Sheriff to be Imprisoned as a person excommunicate and contemning the Keys of the Church until he shall give Satisfaction to Holy Church as well for his contempt as for the injury done unto it It hath been shewed us that although A. aforesaid hath often offered you a fitting Caution for his obeying the Legal Commands of the Church that so he might have the benefit of absolution yet you to our admiration have hitherto refused to accept such Caution And because we will not have the said A. detained in Prison against Justice VVe Command you to accept the aforesaid Caution and deliver A. from the Prison in which he is detained upon the aforesaid Account Otherwise we will do what is our part to perform Our wise Ancestors foresaw some Bishops might refuse Obedience to the Kings VVritt and in that case they provided that the Prisoner should have a second VVritt directed to the High Sheriff of the County The tenor of which in English is thus as it stands upon Record in the Register of VVritts in the place aforementioned The King to the High Sheriff of the County of L. Greeting On the part of A. whom we Commanded you to Imprison according to the custom of England as being Excommunicated and contemning the Authority of the Church until he should satisfie c. And it was shewed us that although the aforesaid A. often offered the Bishop a fitting Caution c. yet the said Bishop which we wonder at refused to accept the said Caution c. Because we will not that the said A. should longer be kept in Prison contrary to Justice we Command you to go in person to the Bishop aforesaid and in our Name admonish him and effectually declare Our Will unto him that taking the Caution of the aforesaid A. he command the aforesaid A. to be delivered from the prison aforesaid And if the said Bishop refuse in your presence to do it do you Command A. to be delivered from the Prison aforesaid

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