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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A35587	The Case and cure of persons excommunicated according to the present law of England in two parts : I. the nature of excommunication, as founded in Holy Writ : the persons intrusted with that power, the objects of that censure and the method prescribed by God for it : the corruptions of it in times of popery, with the acts of the popish clergy, to fortify it with under these corruptions : the several writs of common law, and the statute laws made in those times, and still in force : to restrain the abuse of this censure, and to deliver the subjects from the oppression of it : II. the mischievous consequents of excommunication as the law now stands at present in England : with some friendly advice to persons pursued in inferior ecclesiatical courts by malicious promoters : both in order to their avoiding excommunication, or delivering themselves from prisons, if imprisoned because they have stood excommunicated fourty days.		1682 (1682)	Wing C848; ESTC R4831	39,295	48

THE CASE and CURE OF Persons Excommunicated According to The present Law of England In Two Parts I. The nature of Excommunication as founded in Holy Writ the Persons intrusted with that Power the Objects of that Censure and the Method prescribed by God for it The Corruptions of it in times of Popery with the Acts of the Popish Clergy to fortify it with under these Corruptions The several Writs of Common Law and the Statute Laws made in those times and still in force to restrain the abuse of this Censure and to deliver the Subjects from the Oppression of it II. The Mischievous Consequents of Excommunication as the Law now stands at present in England With some Friendly Advice to Persons pursued in Inferior Ecclesiastical Courts by Malicious Promoters both in order to their avoiding Excommunication or delivering themselves from Prisons if imprisoned because they have stood Excommunicated Fourty days LONDON Printed for J. R. Sold by Richard Janeway 1682. PART I. The Case and Cure of Persons Excommunicated according to the present Law of England CHAP. I. The Foundation of Excommunication both in Reason and from Scripture both of the Old and New Testament EXcommunication being the Separation of a Person from the Communion of the Church at least in some Ordinances seems to be founded in the Law of Reason as well as in Holy Writ for it is very irrational to imagine that any Political Body should be left without a Power to purge it self from such Members of it as are unfit for Communion with it And as the God of Order never left any Kingdom or Commonwealth without a Power to make and execute or at least to execute such Laws as were necessary for its Preservation So it is most of all unreasonable to imagine That that Body whereof Christ is the Head should not be cloathed with Authority sufficient to free it self from disorderly Members God who himself instituted all the Laws of the Jewish Church did not leave that Church without a Power to keep their Communion pure and holy Hence we shall find that Penalty He shall be cut off from his People so often annexed to those Laws which doubtless is not to be understood of Eternal Condemnation for it is unreasonable to imagine that the Child of eight days old should be eternally condemned for the Parents neglect to circumcise it Gen. 17.14 Nor of Corporal Punishments alone for tho God was about to have killed Moses for not circumcising his Child yet we read of no danger the Child was in but the Phrase is certainly to be understood of a penal judicial Separation of the Person from the visible Communion of the Church And that some such thing was in practice amongst the Jews appears in their most corrupt times both by their casting one out of the Synagogue in Christ's time whom he received and by his Prediction to his Disciples that the Jews would for their Confession of him turn them out of the Synagogues Upon the Reformation and the Settlement of the Christian Church Christ is supposed to have clothed his Church with such a Power Mat. 16.19 And I will give unto thee the Keys of the Kingdom of Heaven and whatsoever thou shalt bind on Earth shall be bound in Heaven and whatsoever thou shalt loose on Earth shall be loosed in Heaven The same Power he committed to more of his Disciples John 20.23 Whosoever Sins ye remit they are remitted and whosoever Sins ye retain they are retained Our Saviour seemeth more particularly to direct in the Case Mat. 18.15 Moreover if thy Brother shall trespass against thee go and tell him his Fault betwixt thee and him alone if he shall hear thee thou hast gained thy Brother But if he will not hear thee then take with thee one or two more that in the mouth of two or three Witnesses every Word may be established And if he neglect to hear them tell it the Church if he neglect to hear the Church let him be unto thee as an Heathen and a Publican Verily I say unto you whatsoever you shall bind on Earth shall be bound in Heaven and whatsoever you shall loose on Earth shall be loosed in Heaven More than this we find not in our Saviour's Directions given by himself But he ascending up on high gave Gifts unto Men Apostles Evangelists Prophets Pastors and Teachers Apostles to plant Churches and to put them in order revealing his Will unto them for their Order and Government Pastors and Teachers for the ordinary Government of them by putting the Laws in Execution which Christ personally gave or which the Apostles gave for the ordering and Government of them we find the Apostle Paul more fully instructing us as to this Ordinance of Excommunication we have an eminent Instance 1 Cor. 5. A Person that was a Member of the Church of Corinth had taken his Father's Wife the Apostles Judgment concerning him is declared ver 4. In the name of our Lord Jesus Christ when ye are gathered together and my Spirit with the Power of our Lord Jesus Christ to deliver such a ●●e unto Satan for the Destruction of the Flesh that the Spirit may be saved in the day of our Lord Jesus That Phrase of delivering unto Satan is again mentioned 1 Tim. 1.20 of whom is Hymeneus and Alexander whom I have delivered unto Satan that they may learn not to blaspheme Most agree that the Apostle in these Texts by delivering to Satan and understands Excommunication why he expresseth it by the notion of delivering up to Satan is not so uniformly agreed Some think that Excommunicated Persons were in these Times corporally vexed by Satan I could never see it well proved at least that it was ordinarily done tho God might make some such remarkable Instances of his Vengeance There is a sense in the Canon Law which pleaseth me much better which is by the Apostle called The God of the World as the Church is God's House so Men out of the Church are in Satan's Territories and under his Government and this certainly is the meaning of that Phrase The Apostle delivered up Hymen●●s and Philetus who had put away Faith and a good Conscience to the World that is Shut them out of the Communion of God's House which is the Church and left them to the World and this comporteth with our Saviour's Institution Let him be to them as an Heathen and as a Publican From which also appeareth that Persons under that Sentence might according to the Will of God be admitted to such Ordinances as Heathens might be admitted to who might be preached to and prayed for Yea the Excommunicated Person was in something a better Condition than a meer Pagan for the Church was under an Obligation to admonish him as one that had been a Brother 1 Thess 3.6 14. he had given command That if any Brother did walk disorderly they should withdraw themselves from him ver 14. they should note him and have no company with

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