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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	according_a	bishop_n	church_n	2,848	5	4.3599	3	false

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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

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

of man can justify any Minister before God in any act of impiety or unrighteousness much less alter the nature of the action and make that pious and righteous which is predetermined by the Law of God impious or unrighteous to assert any such Atheological position is in plain terms to make the Creature paramount to God and a Controuler of his Creator but if it would still the guilt must lie somewhere 2. But Sir Doth it no deserve some further deliberation whether the Civil Magistrate hath any obligation from God upon him thus to corroborate Church-censures I do know that our Common Law Writt de excommunicato capiendo saith qu●a querelis Ecclesiae deesse non debemus But I want one Text of Scripture to prove any such thing The great ends of excommunication are 1. Purging the communion of the Church 2. The Reformation of the offender The first end is obtained by Excommunication if indeed an Excommunicated person will intrude into the Communion of the Church it is a breach of the peace and falleth under the Magistrates cognisance For the Second end A Gaol in ordinary cases proveth a very inadequate medium to the Reformation of any person and where it doth one good it is found upon experience to do hurt to an hundred Humane Nature is rarely tamed by such rough applications I never yet knew any cured of their Nonconformity by being laid up in Prison 'T is such an Anti-Evangelical way of Cure as hath not met with any success that can farther commend it When our Blessed Saviour instituted the purgation of his Church He spake not a word of a Gaol He ordained that his Church should send for an Erroneous and Scandalous person endeavour to convince the Gainsayer of his error instructing him with all meekness rebuking him with all gravity by the Mouths of their grave Pastors and Teachers That if doing this once would not produce the desired effect they should do it a second then a third time waiting to see if God at any time would give him a heart to repent If this would not do That the Church being in the Name of Christ gathered together should declare such a person cut off from the Communion of his People This now done by persons not guilty of the like or worser Crimes and clothed with the Authority of Christ is a probable means to reduce the offender however the Church is cleared from such a person and its Communion is kept pure though the Person be thus cut off from Communion yet the Church shall not count him as an Enemy but mourn over him pray for him admonish him as a Brother How came in the Writt de Excommunicato capiendo as if the Ordinance of God had not sufficient Authority for its ends For 300 years after Christ the Church could have no such assistance nor do we read that it complained for the want of it possibly here and there God might make some pertinacious Heretick or debauchee an extraordinary Example of his Vengeance He hath done so in our Age in the case of Mrs. Hutchinson in New England but that God ever did This ordinarily for the first 300 years can be proved by no Scripture no Authentick Authority But as the Popish Government crept up by degrees so pretended Church Officers began to enlarge their jurisdiction and to excommunicate for slight and trivial causes without any pretence of Authority from God but meerly to subjugate people to their Wills and get fees for Chancellors Officials Registers c. They had no reason to trust God any longer to vindicate their usurped Authority and to justifie their groundless and impious Excommunications and Anathemaes They must therefore now call in the Civil Magistrate to do that which they could not expect that God should ever do Now come Writts to be invented To imprison persons excommunicated To take Apostates To burn Hereticks c. The Ordinance of God was first turn'd into Ridicule by dealing it out as Solomon saith Prov. 26. 18. the mad man casteth firebrands arrows and death and most lewd and vitious persons imployed to dispense this grave sentence principally to be used against lewd persons so as every one that heard them cryed out Physician heal thy self and all sober persons thought they heard God speaking to them What hast thou to do to declare my Statutes and that thou shouldst take my name or my authority or my censures into thy mouth seeing thou hatest instruction and castest my words behind thee and then the civil Magistrate was called in to help the Church in her male-administrations whose work indeed was to have whipt these buyers and sellers out of the Lords Temple and then the glory of the Lord would again have appeared betwixt the Cherubims Excommunication would have appeared dreadful enough without the appendix of a Gaol There was never any need of Gaoles to punish excommunicated persons till persons came to be excommunicated for not paying Sextons wages Proctors fees Easter two-pences Tythe-piggs and Geese not coming to the Parish-Church not signing with the Cross not wearing Surplices not kneeling at the Sacrament crimes not mentioned in the word of God yea for preaching the Gospel meeting together to pray to God or to hear a good Sermon And it is not a Gaol will convince those offenders that they do evil Obj. But I hear some say These are all acts of disobedience to Authority and disobedience is as the sin of witchcraft Resp Disobedience to the Law of God of which Samuel speakes is indeed as the sin of witchcraft but yet every disobedience to the Law of God is not to be punished by Excommunication It will be hard to justifie it to be the will of God that persons should be excommunicated for every idle word of which they must give account or for an 100 things forbidden by the Law of God much less for all things forbidden by the Law of God Nor is a Gaol the punishment set for every disobedience to the Law of man 3. But Sir admit a person were duly Excommunicated according to the Law of God which not one of a hundred is not one of ten duly according to the laws of men witness the Judges relieving many by Writs of prohibition habeas corpus supersedeas c. and many more would be so relieved were they acquainted with the law or had they purses to take the advantage of it yet I very much doubt whether the Civil Magistrate with a safe Conscience can send him to prison and so be a means of his ruine My reason is because he hath had no knowledg of his crime further than that an Official hath told him he hath been excommunicated 40 dayes I take for granted and I appeal to your reasons whether any Magistrate ought not to do what he doth out of judgment and upon certain knowledge Our law suffereth not the Magistrate to grant an execution against any for forty shillings till he hath been arrested and he hath

heard what he or his Council can say in his own defence but in these cases the Magistrate commands a person to be imprisoned and ruined and neither doth nor may hear any thing of his cause It is true at our Assizes and Sessions Malefactors are condemned to be whipt branded imprisoned hanged but the Sheriff who is to be the Executioner of these sentences hath his place there and a liberty to hear the persons case tryed and he doth hear the case argued so as that he is or may be convinced the person deserveth such a punishment which done as a Minister of God and of Justice he may proceed with a conscience not rebuking him But in these cases the Civil Magistrate hath no such liberty but proceeding upon the credit of the Official and his supposed justice and honesty 4. I cannot discern a figleaf to cover the nakedness of this but what is usually objected That this is according to Law The meaning of which is no more then this That this hath been a custom in England and there is a Common law writ in this case formed by Judges in Popish-times and not since corrected by Act of Parliament If this plea be good we have reason to bless God that we were not burnt at stakes before the writ de combu●endis Haereticis was by the last Parliament annulled there was then as much law for that as for this But is it to be wondered that while the Nation was enslaved to the Pope such things should be A Magistrate under Popery is but the Popes slave and Executioner If a Magistrate would not do what the Church as they call'd it commanded he was Excommunicated his Nation interdicted no Priests durst perform any divine Offices in that unholy ground and no sooner is a Prince Excommunicated by them but every subject is by them made a Traitor authorised to poyson stabb shoot him or to rise up in Rebellion against him and all his neighbour Princes are armed with what authority the Pope can give them to invade him and despoil him of his Dominions Now that magistrates under these circumstances should have temptations to burn and hang and imprison men never knowing why or whether they were any way guilty of any thing worthy of any such death or bonds is no way to be admired But that in a Protestant Countrey where Magistrates are under no such temptations to fear such things should be done is matter of just admiration and no Magistrate ought to punish persons under pretence of an usage and custome so to do before they be satisfied that they have deserved such a punishment 5. But further Sir Admit That the practice hath been Law as they call it that is a custom in England time out of mind and that it is law that is that there is such a Writ still may be had from Cursitors This custom had never been continued after the Reformation had not King Hen. 8. and K. Edw. 6. both dyed before they had perfected what by Act of Parliament they were to doe and had began to doe as appears by the Epistle of Hen. 8. and the Letters Pattents of Edw. 6. prefixed to the book Entituled Reformatio legum Ecclesiasticarum It is true as it may appear from the 13 chap. of that Book persons that stood Excomunicated 40 dayes should have been imprisoned But therefore none was to be Excommunicated but a Civil Magistrate as well as the Bishop c. was to hear his cause and if any Judge Excomunicated any unless for such notorious crimes as are mentioned chap. 3. and with such deliberation as is mentioned chap. 4. himself as appears chap. 8. was not for a months space to enter into Church unless to receive the Commuinion The Superiour was to relieve the person so injured to annul the Excommunication and the Judge that so Excommunicated was to pay all the charges and further punished at the pleasure of the Superiour Judge That say they Judges may be afraid of bringing persons into so great calamity without a most weighty cause And may not such a custom be rescinded by a Statute law have not many old Popish Customes been so abolished Is there not reason sufficient are not the cryes of people in all corners of the Nation against it Is there not in the skirts of it great quantities of the blood of Innocents Have there not within these late years been more presidents then ever before of most unrighteous Excommunications were there ever before 100 in one place 5 or 600 in another decreed Excommunicated whose greatest crime whatever is pretended was their giving free Suffrages for Members to serve in Parliament Let Sir I beseech you the cry of the oppressed come before you for your God doth not despise it Let the honour of Magistracy be valued by you let them no longer be mere blind Executioners of the lusts and malice of men and vindicators of the illegal and impious actions of others There is no Sober man in these Nations but dreadeth Excommunication duly administred and applyed because of the authority of God in it But they must then see it used onely against the enemies of God Drunkards Vnclean persons Cursers Swearers Hereticks Idolaters Perjured persons Blaspemers c. and applyed to them by grave and holy Bishops and Ministers before it once and again labouring to convince them of their sin from the word of God and advising them to reform and waiting for their Reformation and at last with grief and tenderness with gravity and seriousness proceeding to so dreadful a sentence How forcible are such right words but what or whom have our arguings of that nature reproved who will who can believe that is bound in heaven which by these hands and for these causes and in this slighty and praecipitant manner is bound on Earth But Sir there is yet one thing more in this case which I must crave leave to offer to your Deliberation 3 Qu. Whether the Writ de Cautione admittenda being almost the onely Writ for the relief of persons imprisoned upon the Writ de Excommunicato capiendo hath its free course yea or no The tenderness of our forefathers for the liberty of the Subjects person is obvious to every one who hath the least knowledge of the Law of England If a man be unduly imprisoned he may relieve himself 1. By Action upon Magna Charta which provideth that none shall be imprisoned but upon the judgment of his Peers or by the Law of the Land 2. By the Writ de Odio Atia 3. By the Writ de Homine Replegiando 4. By a Writ of Habeas Corpus Supersedeas Prohibition c. in diverse causes But because by an old custom persons imprisoned at the Churchs desire were not Bailable There was a particular Writ devised for their relief For our forefathers never intended the Subjects should lye at the Officials mercy The old Law therefore provided that persons so imprisoned sending to the Bishop and