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 â—â—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 Hymenâ—â—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
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
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
Parliament or by the established Laws of the Land as they stood in the Year 1639 and if not Whether they be not made void by the Statute 13 Car. 2. 10. When he hath given his Answer which must be subscribed by his own hand it is usual for the Adverse Proctor to demand a time to prove his Articles for which the Judg at his pleasure granteth 2 3 4 or 6 Court-days usually but two Let him also at the same time move that he may have Liberty within that time also to produce any Witnesses for his Defence if it be denied let him appeal 11. Let him observe what time the Judge setteth his Adversary to produce his Witnesses in Court and whom he names for Witnesses for him Let him also desire a time to be set in Court for him to produce his Witnesses and be careful to bring them at the time for they must all be sworn in the Court then examined privately by the Register Unless the Adversary desireth a Commission to examine Witnesses which is not often done because it is much more chargeable in that Case there are no Witnesses in the Court produced and sworn but before those Commissioners 12. If the Party Defendant will he may deliver in to the Register Interrogatories upon which the Register shall cross-examine his Adversary's Witnesses But he must be very wary as to this for he shall not afterward except against any of his Adversary's Witnesses whom he hath cross-examined and made Witnesses for himself 13. Let him advise his own Witnesses to be very careful that the Register setteth down what they say in their own Words that under the pretence of putting them into a decent Phrase their whole sense be not altered 14. When the time Probatory set at first by the Judge is expired let him desire of the Judge Publication If the Judge will grant longer time to prove let him desire the Advantage of the same time also to bring more Witnesses for himself which he may or may not make use of as he pleases 15. If once the Term given for Proof be expired let him desire Publication and Liberty to take out a Copy of the Depositions 16. When he hath got a Copy let him diligently observe if he can prove any thing contrary to what the Witnesses or any of them have sworn if he can let him at the next Court-day offer a Paper of General and Particular Exceptions shewing the Particulars which he exepteth against in their Depositions severally as well as his General Exceptions against them all Let him desire a time to bring in Witnesses to prove his Exceptions If the Judge refuseth to admit his Exceptions or to give him due time to prove them he may again appeal 17. When once the Promoter hath allowed to have Publication he may again move for time to invalidate the Proof of the Exceptions but not to fortify his first Proof If any Liberty of that nature be desired the Defendant may appeal for unless in a Case for the King after Publication no new Witnesses can be produced 18. When the Party against whom the Promotion is peruseth the Depositions let him strictly observe whether the Particulars he is charged with be proved by two Witnesses for it is a Rule in their Law Vox unius est vox nullius and if the Judge will admit the thing proved by one Witness a Prohibition lyes For the King's Judges will not only see that those Courts shall keep to matters truly belonging to their Jurisdiction but also that in the Prosecution of them they shall keep to the received Rules of their own Law in those main Points of Proof c. 19. It is an usual thing upon Presentments by Church-wardens when the Party presented calls for Proof of the Presentment to tell him That the Church-wardens Presentment is a Conviction they being sworn Officers But this is contrary to the Law of England which alloweth no Presentment by Officers ex Officio to be a Conviction If Grand-Juries at Assizes and Sessions do present this is no Conviction but the Person must after this be indicted and Proof made by Witnesses If therefore the Ecclesiastical Court insists on this the Person may appeal or which it may be is better he may have a Prohibition from the King's Court at Westminster as some Great Lawyers think 20. When the time for Proof is expired and Publication made and Exceptions given in and proved and Publication of those Proofs also made Either Party may move for a time to be set to conclude and to give the Judge Informations of the whole State and Merit of the Case and also to give sentence in it 21. At the Day set the Party accused or promoted against may appear and show to the Judge the whole State of the Case and plead it himself or if he will by an Advocate if any be at hand or for ought I know if there be none by an Attorney or Counsellour at Common Law after which the Judge will appoint upon desire a day to give Sentence 22. At that day the Party must have a Form of an Absolutory Sentence ready to tender to the Judge 23. If the Judge gives Sentence against him he may appeal within 15 days by virtue of the Statute 24 Hen. 8.12 24. All along the Prosecution the Person against whom the Promotion is shall do well after every Court to get the Acts of the Count in his Case under the Register's Hand and to keep them by him carefully 25. This last Appeal is called Appealing a Sentenceâ— definitiveâ— from the definitive Sentence All appealing before this is but a Gravamine from a Grievance or an Interlocutory Decree inferring a Grievance Because there have been so frequent mentions in this Discourse of Writs of Prohibition and of Appeals it may not be amiss further to inform the Reader of both these And first concerning Prohibitions The Judges of the King's Courts at Westminster are undoubtedly under the King the Keepers of the Liberties of England and by their Office and Oath are to preserve unto the Subjects their Rights and Liberties Two things are the Rights of Subjects 1. To be Impleaded for any supposed Offences in Proper Courts that is such as according to the Law of England have a Cognizance of the supposed Offences 2. To be prosecuted in a just and reasonable manner according to the Rules of Law and Reason And the Judges of his Majesty's Courts at Westminster are doubtless Judges paramount to whose Judgments all the Judgments given in other Courts shall be subjected so far as they shall determine upon complaint to them Whether they have proceeded upon Matters within their Jurisdiction and Secondly Whether they have proceeded according to the Rules of that Law the Executors of which they are Hence if the Subject think himself grieved by the Ecclesiastical Courts either because he is there called in question for Matters which they have no Jurisdiction in or because he is not
of every Subject of England These Prohibitions are sometimes granted absolutely in some Causes with a Quâ—â—sque till the Ecclesiastical Judg amendeth his illegal Proceedings nor was this the only Writ in these Causes If Ecclesiastical Judges should adventure to disobey these Writs the Law in that Case provided a Writ of Attachment That in case the Ecclesiastical Judg would adventure to proceed notwithstanding such a Writ of Prohibition he might be forced to yield Obedience to it Of this are many Instances in the Register of Writs And in regard the Ecclesiastical Judges might have so far proceeded notwithstanding such Prohibition as the Party might be laid up in Prison upon the Writ de Excommanicato capiendo the Law in that case provided a Writ of Supersedeas to deliver the Person out of Prison to follow his Attachment of the Judg for his Contempt of the King 's Writ of Prohibition There is a notable Precedent of this Writ in the Registry of Writs which because it is not known to all I shall take the pains to translate for the benefit of such Persons as may fall under these illegal extravagant Oppressions and not know what to do The King to the Sheriff greeting c. A. B. hath shewed us that whereas C. D. hath sued him in the Court Christian before R. concerning Debts and Chattels which belong not to Testaments or Marriages and altho the same A. B. hath delivered R. our Letter of Prohibition forbidding him to proceed in the Cause aforesaid yet the said R. nevertheless hath proceeded in the said Court contrary to our said Prohibition for which we have according to the Custom commanded R. to be attatched by our Letters directed to him to appear before our Justices to shew cause why he proceeded in the Ecclesiastical Court contrary to our Prohibition and for as much as the aforesaid R. whiles the Plea of Attachment hath been depending before our said Justices aforesaid as is afore said hath maliciously procured the said A. B. to be taken that so he might hinder him from prosecuting the said Attachment before our Justices according to the Laws and Customs of our Kingdom We command you that if it be so that you by no means execute our Writ for the 〈◊〉 of him the said A. upon the Occasion aforesaid until the Plea of the said Attachment be determined in our Court before our said Justices according to the Laws and Customs of our Kingdom and if you have taken him upon the account aforesaid we command you to deliver him from the Prison in which upon that account he is detained in the mean time This Writ saith the Register issueth out of the Chancery if the Party be taken and imprisoned before the return of the Attachment if it be in the time of the Vacation otherwise it issueth out of the other Courts after the Attachment The like Writ issueth if the Ecclesiastical Judg proceeded after an Appeal provided the Appeal be made appear to the Court by some publick Instrument and the Party obtaining it proveth by Witnesses or by Oath that he is diligent in the Prosecution of his Appeal and it must be within the compass of a Year after his Appeal By which two Writs appear the illegal and extravagant Proceedings in those times by Judges in the Ecclesiastical Courts proceeding to excommunicate Persons and then to certify against them and imprison them both contrary to the Canon Law and in contempt of the King's Writs from thence and also contrary to the Rules of their own Law according to which after an Appeal the inferiour Court ought to proceed no further till the Cause was by the Judg ad quem remitted to them Nor was the Writ of Prohibition and the Writs of Attachment and Supersedcas relating to that Writ the only Writs that were invented in those most corrupt and Popish Times to relieve the Subjects oppressed in and by the Ecclesiastical Courts for there are many Causes in which Prohibitions will not lye where those Courts may proceed and excommunicate and after forty days signify and have a Writ out against the Person to imprison him now that they might not at their Pleasure keep Men in Prison to their Ruine the common Law hath provided of ancient Times a Writ de Cautione admittenda Because it is but little understood I will give my Reader some account of it The old Popish Canon Law had ordained that if a Person were excommunicated right or wrong he should not be absolved unless he gave a fitting Caution to obey the Commands of the Church in form of Law This appeareth from that part of the Canon Law which is called the sixth of the Decretals Pope Boniface in the Year 1294 set two Bishops to gather up the Decretals of some former Popes and to be added to five of Gregory the ninth and to some of his own and the Book to be called Sextus upon which Johannes Andreas a Bononian glossed Now in this part of the Canon Law we read it again and again enjoined that Persons excommunicated should 〈◊〉 be absolved unless they gave Caution see Sexti Decretal l. 5. Tit. 5. de usuris Sol. 2. Tit. 6. cap. 1. l. 5. c. 24. Tit. 11. The Glossator upon that part of the Law every where expoundeth that term of a fitting Caution That a fitting Caution may be fide-jussoria or Pignoratitia or Juratoria that is by Sureties by Pledg or by an Oath He also determineth the Caution by Oath only to be taken where the Party should not be able to give Security by Bond and Sureties nor by Pledg The Caution by Sureties was looked upon as the greatest Caution and therefore in our Law in a Writ to the Sheriff commanding him to take Caution of a Party thus imprisoned which we find in our Regist Brevium p. 67. commands him to take Cautionem saltem Pignoratitiam at least a Caution by Pledge But notwithstanding this that Men may see how natural a desire it is in some kind of Men to torment their Brethren the Church here in England having got a Priviledge of a Writ to imprison the Person that had stood Forty days Excommanicated they would keep Men in Prison as long as they pleased till they compelled them to do and pay what they listed tho they offered them Caution according to the Canon Law Let us hear what Doctor Cozens in his Apology for certain proceedings in Causes Ecclesiastical p. 1. c. 2. says of this Writ of Excommunicato capiendo It is saith he a Liberty peculiar to this Church of England above all the Realms in Christendom that I read of that if a Man stand wilfully forty days together Excommunicated and be accordingly certified by the Bishop into the Chancery that then he is to be committed to Prison by Virtue of a Writ directed to the Sheriff nothwithstanding that in one Precedent in the Register of this Writ it is said Quod hujusmodi Breve nostrum ex gratiâ nostrâ pracedat By
of Punishment and not think it enough that a Judge of any Ecclesiastical Court tells them so let them take them and judge them according to their Law as Pilate told the Jews Doth the excellent Law of England unless that Part of it which rose up or was made not only in Popish times but from Popish Principles only relating to the Church condemn any to the loss of Life Limb Liberty or Estate before those who are to execute that Part of it have had the least Liberty to hear the Subject speak for himself Are Protestant Magistrates to believe Ecclesiastical Officers now by a strange Catachresis called the Church in high Acts of Righteousness or Vnrighteousness Will any say that their Law gives them no Power to imprison any except perhaps Clergy-men for Adultery or Fornication I remember the Jews told Pilate much the same thing concerning Christ but how easy is the Answer that neither doth the Law of God from whence they pretend to derive Excommunication appoint any such Punishment as Imprisonment to the ruine of Families upon Persons Excommunicated But be this as it will the Law of England at present is so and must be tho not approved yet submitted to until it pleaseth God to give our Parliaments Hearts and Leisure to enquire into the Reasonableness and Righteousness of it PART II. THE CASE and CURE OR The mischievous Consequents of Excommunication c. EXcommunications being so commonly thundered out to use the Law-Term for them by Persons who have no immediate Authority from Christ to trade in them and for such crivial Crimes as no Law of God hath ordered them against and in such a light and precipitant manner as no part of God's Word warranteths The wiser sort of Men look upon them rather as Excomonings much a kin to the Romanis Interdico tibi aquâ igni Civil Punishments than the Solemn Institutions of God and thereupon have no dread of any Spiritual Influence or Effect of them and therefore overmuch slight them not being well aware that as they are a piece of our Common Law so they have Legal Punishments heavy enough annexed to them which if duly considered were enough to make Men more wary how they incur them if they can by any means avoid them Nor if they be once catch'd in this Knot Innodati saith the Common Law Writ doth every one well understand how to slip or unty it That therefore every one may pay that just respect which he oweth unto the Law in this case or at least take heed to himself and avoid his own Danger I shall briefly shew the danger that Man runs who suffers himself to be Excommunicated and the proper way which the Law hath provided to avoid it together with the Remedy which the Law hath provided for them who are fallen under the misfortune of it 1. In the first place He that is Excommunicated is forthwith disabled to sue in his Majesties Civil Courts Not that the Excommunication takes away his Right to sue for his just Rights but that it may in time be pleaded in Abatement of his Action But concerning this note whosoever is instrumental in procuring solliciting decreeing or pronouncing the Excommunication shall never plead it nor shall it be pleaded unless the Excommunication be signified by the Bishop himself for the Court will receive no Certificate from any Person in this Case to whom if they see cause they cannot write to absolve the Person Nor shall it be pleaded after that Issue is joined and query whether it shall be pleaded unless the Cause be expresly mentioned in the Significavit for which and the time when the Person was Excommunicated nor if it be at length admitted by the Court shall it destroy the Action it shall only abate it until the Excommunication be taken off 2. Albeit an excommunicate Person may be appointed an Executor and is capable of a Legacy yet so long as he standeth Excommunicated he is not to be admitted by the Ordinary nor can commence any Suit for his Legacy in the Court Ecclesiastical See Swinborn of Wills p. 5. § 6. p. 228. 3. If a Person be excommunicated for Heresy or manifest Vsury or with an Anathema he cannot make a Will but in other cases he may saith the same Author Part 2. § 22. p. 62. 4. A Person Excommunicated cannot say some give his Suffrage in any Elections no not of Parliament-Men but this is an idle Dream so long as he hath a Freehold of 40 s. a Year Some will have it too that he cannot marry but Marriage being de Jure Naturali no learned Canonist would ever affirm it But I have known a Minister questioned in our Ecclesiastical Courts and if not suspended yet smartly threatned with Suspension for marrying a Person that was Excommunicated but this is but the Extravagancy of that Court's Proceedings 5. The great danger of all is If a Person be excommunicated whether it be legally or injuriously and stand so forty days upon the Certificate of it into the High Court of Chancery a Writ is to issue out of the High Court of Chancery to the Sheriff of the County in which the Person lives to imprison him till he hath given Satisfaction to the Bishop Being thus imprisoned he is not to be delivered by any of the ordinary Writs for the Liberty of the Subject's Person nor unless he submits to the Bishop and offers Caution for the time to come to stand to and obey the Commands of the Church in form of Law this Caution may be by a Bond of 10 or 20 l. to the Bishop or by a Pledg or if the Party can do none of these by his Oath This Writ to imprison the Person excommunicated is in no Nation of the World but only in this But here it is common-Common-Law while it pleaseth our Parliament by a Statute to amend the Common Law in that point the Subject therefore had need understand both 1. How by Law to avoid Excommunication 2. How to get himself out of Prison in case he be imprisoned upon this Writ As to the first He must know that no Person can be excommunicated but upon Contempt or Contumacy which may be 1. If the Person being duly cited demeth or omitteth to appear If he be not personally â—â—â—â—oned he needs not appear the first time but then their way is to cite him by a Writ called Vâ—s Mods set up at the Door 's of his House or at the Church-doors citing him at a certain day to appear to answer c. If being personally cited he doth not appear the first time or whether he be or no if he doth not appear the second time he is excommunicated for Contempt If he be cited personally the Law is Clerk Praxis Cur. Eccles Tis. 11. Tit. 16. That he shall appear the third day after the service of the Citation The Law also is that If he will give the Apparitor 6 d. he must bring him the full
prosecuted according to Rutes of the Common Law of England in all Causes or the particular Rules of that Law which belongeth to such Courts upon the Subjects Motion and Suggestion to that purpose The Courts of the King's-Bench Common Pleas or Exchequer grant a Writ of Prohibition according to the Nature of the Complaint either absolutely forbidding them to proceed in such a Case or limitedly until they have amended such or such an Error in their Proceedings If the Ecclesiastical Judge thinks himself injured he may have an hearing and argue the Case If the Secular Judges be convinced of any mistake they will grant them a Writ of Consultation after the Receipt of which they may proceed notwithstanding any former Prohibition For Appeals the Reader must know that even in the vilest and most Popish times the Law of England never left the Subject to the Mercy of an Inferiour Arbitrary Judge in a Court Ecclesiastical but gave him a Liberty to appeal from an unjust definitive Sentence or an unjust Grievance upon an Interlocutory Decree to the next Superiour Court and from thence to the next and at last to the Pope and Court at Rome Upon the Reformation of England it was just to cut off Appeals to Rome being a Forreign Jurisdiction otherwise the old Law of England was kept to It was therefore Enacted and ordained by the Stat. 24 Hen. 8.12 That Appeals should be made from the Arch-deacon's Court to the Bishop's from the Bishop's or his Commissaries to the Archbishop's Court or Arches And by the Stat. 25. Hen. 8.19 from the Arches to the King's Majesty in the High Lourt of Chancery This is vulgarly called the Delegates because upon Petition the Cord Chancellour doth delegate some Common-Lawyers and some Civil or Canon Lawyers to hear and determine the Cause This saith the Stat. 24. Hen. 8.12 shall be done by any of the King's Subjects and Resiants without any Limitation except of time for which the Statute mentioneth 15 Days after the pronouncing the Sentence Assoon therefore as any definitive Sentence or any Interlocutory Decree is given or made it will be the Party's Wisdom to send to some Proctor in the Court to which his next Appeal lyeth to enter an Appeal for him and to send him an Inhibition and Monition and if Excommunication hath been denounced against him an Absolution The Inhibition forbids the Inferiour Judge to proceed till the Appeal be determined if he disobeyeth the Party sending to his Proctor shall have an Excommunication against him The Monition is to admonish the Register to send up to that Superiour Court by such a time all the Proceedings in the Case If he disobeyeth upon complaint an Excommunication shall be sent down against him There is a Practice of the Officers of Superiour Courts sometimes upon Caveats entered by Prosecutors sometimes without to deny the Subject the Liberty settled upon him by the Stat. 24. H. 8.12 refusing to admit his Appeal until he hath sworn and subscribed Conformity according to the 98 Canon made 1603. The Case stands thus By the Stat. 25. Hen. 8.19 which was after that for Appeals 24 Hâ—â— 8.12 it was enacted That the Clergy should not presume to make any new Canons or put the same in use unless they might have the Kings Assent first 1. It is not said The Royal Assent and Licence of the King his Heir and Successors 2. Nor is it said Whether there must be an Assent to the particular putting in Execution of each Canon or a whole lump of them in gross 3. Nor is it said his Assent in or out of Parliament which hath made Questions amongst Lawyers Whether any Canons made since that time be of force yea or no especially considering the Stat. made 13. Car. 2. for restoring the Ecclesiasticall Jurisdiction taken away by Stat. 17. Car. 1. Since that time we have had Canons made 1603 and Anno 1640 which last are in Terms left out as not confirmed by the Stat. 13. Car. 2. For the others there have been the former Doubts raised I shall leave them to Lawyers to determine but the Doubt riseth by the Phrase used in the King's Assent prefixed to those Canons 1603 as far as lawfully being Members of the Church it may concern them And again According to the Form of a certain Statute made on that behalf 25. Hen. 8. He who hath a mind to read something Lawyers have said upon this Point may read Mr. Maynard's Argument against the Canons made 1640. Some of the Heads of which he may find in Dr. Fuller's Church History relating to that Year But certain it is that Stat. 25. Hen. 8.19 saith Provided alwayes That no Canons Constitution or Ordinance shall be made or put in Execution within this Realm by Authority of the Convocation of the Clergy which shall be contrariant or repugnant to the King's Prerogative Royal or the Customs Laws or Statutes of this Realm any thing contained in this Act to the contrary notwithstanding So that be the Validity of Canons made by the Convocation and confirmed by the King's Assent out of Parliament as it will by force of that Act yet no Canon can be of force contrariant or repugnant to the Laws or Statutes of the Realm Now the Stat. 24. Hen. 8.12 was at that time a Statute of the Realm and had given any of his Majesties Subjects and Resiants a Liberty of Appeal without any Restriction or Limitation except as to time or Qualification whatsoever Four score Years after this the Convocation 1. Jacobi makes a body of Canons the 98 of which is in these words Forasmuch as they who break the Laws cannot claim any Benefit or Protection by the same By the way then all the King's Subjects are Out-Laws We decree and appoint That after any Judge Ecclesiastical hath proceeded judicially against obstinate and factious persons and Contemners of Ceremonies for not observing the Rites and Ceremonies of the Church of England no Judge ad quem shall admit or allow any his or their Appeals unless he having first seen the Original Appeal the Party Appealant do first promise and avow That he will faithfully keep and observe all the Rites and Ceremonies of the Church of England and also the prescript Form of Common Prayer and do also subscribe to the three Articles formerly by us specified and declared Now the Question is Whether this Canon be not made void and not to be put in Execution by the Proviso before mentioned in the Stat. 25. Hen. 8.19 The Statute makes Appealing the Liberty of any of the King's Subjects and Resiants without any Restriction or Qualification The Canon restrains this and decrees The Appeals of none but such or such shall be admitted Nor can the Validity of the Canon with the King's Assent be pleaded for the Proviso saith any thing in this Act to the contrary notwithstanding nor doth the King confirm the Canon but according to this Statute and so far as lawful may concern his Subjects
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
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
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
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