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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	bishop_n	king_n	letter_n	3,612	5	6.5570	4	false

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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

great while they studied by their Canon Laws to uphold its Authority denying the Excommunicated Persons Burial in Church-yards a Power to make a Will and such other things as were within their Power which things by the Popes long Usurpations became a kind of Common Law in Nations subjugated to that Religion yet they found all this too little to uphold the Authority of an Ordinance of God whose Virtue themselves had extinguished by their horrible Profanation of it And at the last were forced to fly to the Secular Magistrate from whom in times of Popery when almost all Civil Magistrates were made their Slaves to execute their Lusts they obtained several other things which were civil Punishments of the Person that durst adventure to stand their Sentence of Excommunication He might not be either Judg or Witness in any Court. If he had occasion to sue any for his just Right in any Court his Excommunication might be pleaded in bar to his Proceedings If he stood excommunicated forty days the Bishop might signify it to the Civil Magistrate and have from him a Writ to imprison the Person to be kept without Bail or Mainprize until he had given Satisfaction to the Church and obtained its leave to come out The Writ with us here in England made in Popish Times ran thus The King to the Sheriff of L. greeting The Venerable Father H. Bishop of London hath signified to us by his Letters Patents that B. a Member of his Diocese hath been Excommunicated by his ordinary Authority for his manifest Contumacy and will not be reformed by the Ecclesiastical Censures whereas the Royal Power ought not to be wanting to Holy Church in its Complaints we command you to imprison the Body of the said B. according to the Custom of England until he shall have satisfied Holy Church as well for his Contempt as the Injury which he hath done unto it They not satisfied with this obtained also another writ from the Civil Magistrate commanding the burning of the Person whom they had once determined to be an Heretick by virtue of which many good Christians were burned as in former times so in the time of King Hen. 8th and Queen Mary of which our Martyrology speaks sufficiently but this is by a late Act destroyed Being furnished with this Power they were busy enough in the Execution of it and themselves found Inconveniences arising from the extravagant use of it so as even the Canon Law it self regulated divers things Among others it ordained a threefold Caution for such as were Excommunicated upon the giving of any of which they were to be discharged even by the Canon Law A Caution by Pledg a Caution by Sureties and a Caution by Oath that is the Party was either to lay in some Cledg to the Bishop or enter into a Bond with Sureties or take an Oath that he would afterwards be obedient to the Commands of the Church in form of Law and upon this he was to be absolved The Caution by Oath was only admitted in case the Party was able to give no other as appears from the Canon Law Sexti decretat l. 5. tit 9. But the Civil Power even in the times of Popery quickly found the unreasonable Inconveniences accruing to the Nation by this extravagant Power formerly either indulged to or usurped by Church-men which it took care to restrain by several Statutes and Writs To this purpose was the Writ of Prohibition invented I cannot tell the just Original of it but it appears by the Statute of Circumspecte agatis made 13 Edw. 1. that was 1285 that is now near 400 Years since that it was before that time in use for that Statute restraineth the issuing of it in Cases of Fornication and Adultery leaving the Church-yard unclosed or the Church uncovered in case of Oblations and accustomed Tithes and in case of Mortuaries and Pensions Defamation and laying violent Hands on Clerks By which it is plain it was in use before that time and that before that time Prohabitions were wont to issue when any was questioned for these things in the Courts Ecclesiastical It is the Error of some that Writs of Prohibition do not lye where the matter is not cognoscible in the Spiritual Court but properly belongs to the Court Ecclesiastical But Dr. Cozens in his Apology for Ecclesiastical Proceedings pag. 1. c. 17. gives us a much truer Notion of that Writ telling us The Prohibition is a Charge by the King 's Writ to forbear to hold Plea either in some matter or manner which it is supposed a Man dealeth in beyond his Jurisdiction or otherwise than the Law will warrant A Writ of Prohibition commanding the Ecclesiastical Court to proceed no further may be had not only where the thing doth properly belong to the Ecclesiastical Court but also where they proceed in a manner which the Laws of England do forbid As 1. If an Ecclesiastical Court will proceed before they have given the Party accused a true Copy of Articles a Prohibition lies upon the Statute 2 Hen. 5. 2. Also whether in case of a Prosecution by Informers if the Court will proceed before the Informer hath done what is required by the Statute 18 Eliz. 15. and other Statutes made to regulate Informers a Prohibition will not lye in those Cases 3. According to the Canon Law also every Prostor ought to have a Letter Procuratory under the Hand and Seal of him who imployeth him And an Act of Court ought to be made to admit him as a Proctor for such Persons and if this be not the Party prosecuted can recover no Charge because there is no Legal Adversary to recover it from By that Law also voluntary Promoters which may be Vagrants ought first to give Security to pay Charges if over thrown If the Ecclesiastical Judg refuseth these things Query Whether a Prohibition will not lye 4. By the Canon Law also Vox unius est nox millius No one Witness makes a Proof If a Judg in those Courts will give Sentence upon the Proof of a single Witness a Prohibition will lye 5. If the Judg of an Ecclesiastical Court will allow a Person to be charged generally or incertainly it is against the Common Law of England the Judg in that case will prohibit the Ecclesiastical Judg. So in many other Cases where the manner of the Proceedings in the Court Ecclesiastical is either plainly against the Civil and Canon Law Rules or against the known Rules of Common Law so that I conceive a Prohibition is A Common law-writ forbidding the Ecclesiastical Judg to proceed either in a Case which doth belong to his Jurisdiction or in such a manner as is manifestly against the Rules of the Civil and Canon Law according to which he ought to judg or against the Common or Statute Laws of this Realm of which and the true sense of which his Majesties Judges in the Courts at Westminster are the Judges and the Benefit of which is the Liberty

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