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 entrusted 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 Forty 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 itself 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 clothed with Authority sufficient to free itself 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 though 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 lose 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 lose 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 Judgement concerning him, is declared, ver. 4. In the name of our Lord Jesus Christ, when ye are gathered together, and my Spirit, with the Power of our Lord Jesus Christ, to deliver such a ●●e unto Satan, for the Destruction of the Flesh, that the Spirit may be saved in the day of our Lord Jesus. That Phrase of delivering unto Satan, is again mentioned, 1 Tim. 1.20. of whom is Hymeneus, and Alexander, whom I have delivered unto Satan, that they may learn not to blaspheme. Most agree, that the Apostle in these Texts, by delivering to Satan, and understands Excommunication, why, he expresseth it by the notion of delivering up to Satan, is not so uniformly agreed: Some think that Excommunicated Persons were in these Times: corporally vexed by Satan. I could never see it well proved, at least that it was ordinarily done: though God might make some such remarkable Instances of his Vengeance. There is a sense in the Canon Law, which pleaseth me much better which is by the Apostle, called, The God of the World; as the Church is God's House, so Men out of the Church, are in Satan's Territories, and under his Government, and this certainly is the meaning of that Phrase. The Apostle delivered up Hymen●●s and Philetus, who had put away Faith and a good Conscience, to the World, that is, Shut them out of the Communion of God's House, which is the Church, and left them to the World, and this comporteth with our Saviour's Institution. Let him be to them as an Heathen, and as a Publican: From which also appeareth, that Persons under that Sentence might according to the Will of God, be admitted to such Ordinances as Heathens might be admitted to, who might be preached to, and prayed for: Yea the Excommunicated Person, was in something a better Condition than a mere 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 him, that he might be ashamed; yet ver. 15. Count him not as an Enemy, but admonish him as a Brother. Yet in some respects it appeareth to be the will of God, that an Excommunicated Person should be treated worse than an Heathen. 1 Cor. 5.9, 10. I wrote you an Epistle (saith the Apostle) not to company with Fornicators, Yet not altogether with the Fornicators of this World, or with the Covetous, or with Extortioners, or Idolaters, for than must you needs go out of the World. Ver. 11. But now I have written to you, not to keep Company, if any Man that is called a Brother, be a Fornicator, or Covetous, or an Idolater, or Railer, or a Drunkard, or an Extortioner, with such a one no not to eat. By which it appeareth, that such Persons as are here specified, were to be withdrawn from, and to that degree, that Men should rather have an Intimacy of Communion with Heathens, than with them. What further Direction we have in this Case, is in the Epistles to Titu● and Timothy, Tit. 3.10. A Man that is an Heretic, after the first and second Admonition, reject. 2 Tim. 3.2. Men shall be lovers of their own selves, Covetous, Boasters, Proud, Blasphemers, disobedient to Parents, unthankful, unholy, without natural Affection, Truce-breakers, incontinent, fierce, Despisers of that which is good, Traitors, Heady-minded, Lovers of Pleasures more that Lovers of God. Having a Form of Godliness, and denying the Power thereof: from such turn away. Rom. 16.17. Mark them which make Divisions amongst you contrary to the Doctrine which you have received, and avoid them. This is the most of what we find in Holy Writ concerning this Institution of Christ, both as to the Doctrine concerning it, and concerning the Practice of it, from whence may be easily gathered, that the Description which the Canonists anciently gave of it, is not much amiss; for Panormitan telleth us, That Excommunication is nothing else, but a Censure pronounced by the Canon, or the Judge Ecclesiastical, by which a Person is deprived of the Communion of the Sacraments, and sometimes with Men. The former of which, he calleth the lesser; the latter, the greater Excommunication. It is a more Theological Description of it, to say, It is an Institution of Christ for keeping the Purity of his Church, by which, such as he hath authorized thereunto, have Power in such order and manner, as he hath appointed, to separate from the more intimate Communion of a Church in such Ordinances, as may not be administered to Pagans, such Persons as Christ hath declared unfit for that Communion, until they have declared their bearty Repentance for such Miscarriages.   

CHAP. II.  
A further Inquiry concerning the Persons whom God entrusted with the Power of Excommunication, being one of the Keys of the Kingdom of Heaven; they are proved to be Apostles and Pastors of Churches, with the consent of the Body of the Church.  
WE are, for the fuller understanding of the Will of God in this Institution, in the first place, to inquire to whom our Lord Jesus hath trusted this Power. He tells Peter, Mat. 16.19. And I will give unto thee the Keys of the Kingdom of Heaven: A Text the Papists make great use of. But is no more than he tells all his Disciples of, John 20.23. Whose soever Sins you remit, they are remitted to them, and whose sooner Sins you retain, are retained; and in the Rule he gives us, Mat. 18. concerning Offences not committed publicly (for such Cases there is no need of fraternal Correption, as appears, 1 Tim. 5.20. Those that sin, rebuke before all) he commands the third time they should tell the Church, and if the Offender would not hear the Church, he should be as an Heathen, or a Publican. The Church can be no single Person; nor doth he write to the Bishops or Pastors, but to the Church of Corinth, about the incestuous Person, 1 Cor. 5. and directs them that the Act should be done when they should be gathered together in the Name of Christ. There are in Excommunication two things: The Judgement of the Cause, and the Pronouncing of the Sentence. The pronouncing or publishing of the Sentence, is a mere Ministerial Work: yet we do not find, that it was ever done but by a Bishop or Minister. But the main business is to inquire whom Christ (the Lord of the Church) hath betrusted with, hearing these Causes, and judging concerning them; for of his Appointment they must be: who hath any thing to do to turn any out of his House, but either he himself, who is the Lord of the House, or such as he hath delegated thereunto? St. Paul saith, he had delivered up to Satan Hymeneus and Philetus. He ordereth Titus the Bishop (or Pastor at least) of Crete, to reject an Heretic after the first and second Admonition. He writes to the Church of Corinth, where they were gathered together, to deliver up the incestuous Person to Satan. From whence we may indeed conclude, That the Minister is concerned; but not that it was ever committed to him alone, without the consent of the Congregation; and it is a Rule of Reason, Quod omnes tangit ab omnibus tangi debet; the whole Body is concerned in the cutting off of any Member: and in vain shall any Officers cast one out of Communion with the Church, with whom, yet the Church will keep Communion. Nothing appears more clear to me, than that it belongeth to the Bishop or Pastor, with the whole Church, to hear such Causes, and the Pastor and Officers to judge of them; which being granted, I cannot see how any Person can be lawfully Excommunicated by any Council, or Synod; it must proceed from the Church gathered together; and that the Officers of many Churches gathered together, should make a Church, clothed with Authority from Christ, to Excommunicate, I cannot understand from any thing of Holy-Writ. And indeed, I take one of the first warpings from the Rule of Christ, as to this Ordinance, to have been then: For had the Cause been of much more weight, than the mis-timing of Easter, I cannot understand by what Authority (unless usurped) Victor could Exccommunicate the Churches of Asia. But (to pass this) for more than five hundred Years after Christ, the Churches never allowed it within the Power of any, but either of the Collective Church, or the Bishops and Pastors in their respective Churches, to hear the Causes of Persons with reference to the Solemn Sentence of Excommunication, and to determine any to it. In the third Century, the Power rested penes Seniores Ecclesiae, in the Elders of the Church, as appears from Tertullian's Apologetic; and the Denunciation of the Sentence was by a Bishop or Presbyter; this Origen hinteth to us again and again. Thus it was in Cyprian's Time in the Case of Fortunatus, Foelicissimus Maximus, and Jevinus: and thus, if we will believe Ecclesiastical History, Fabranus Excommunicated the Emperor Philip (though I give little Credit to Eusebius in that Story, believing the course of excommunicating Emperors of much latter Date.) In the fourth Century, we read of many Excommunicated, yet none but by Bishops, or Pastors. The Bishop of Laodicea Excommunicated Apollinarius: The Bishop of Alexandria Excommunicated Aris, etc. Still it was the Work of Bishops or Pastors, and none other. Thus it was in the 5th and 6th Centuries: Nay, in the 7th Century, the Centuriators tell us, That the Power was only in Bishops and Priests; but Pope Boniface had invested Monks with it, Anno 1518. When the Power of Excommunication came into the hands of Laics under the Notion of Officials, I know of no History will inform us; but it is easy to be concluded, that it must do so, from the time that Bishops claimed to themselves the sole Power in it, and charged themselves with so many Churches, as a thousand Eyes (though very watchful) could not possibly oversee; there was a necessity they should delegate their Power in this Cause to others, because it was not possible they should execute it themselves; nor could they delegate it to the Curates, because then a short time would have discovered to whom it did of right belong; nor could the Grandeur of Prelates have been upheld without a Court, nor the Officers of that Court have lived, with out having something to do. We still maintain that Bishops alone can Excommunicate. Ordination, Confirmation, and Jurisdiction, are all pretended Differences betwixt them and other Ministers of the Gospel. The Execution of this Sentence by Officials is pretended to be but by Delegation; only why they may not also delegate to such Officials, their Authority also, to preach, and baptise, and ordain Ministers, and administer the Eucharist, as to hear the Causes of Persons complained of, for Error, and Heresy, or Lewdness of Life, will deserve their own Thoughts, and every serious and thinking Man's Enquiry. These things considered, I cannot but be amazed, when I read what I find in Dr. Burnet's Collection of Records, pag. 239. added to his first Part of the History of our Reformation; how some of our great Bishops and Doctors in the time of King Hen. 8th, in the beginning of our Reformation, delivered themselves upon this Question. The Bishops of Canterbury, Hereford, St. david's, and Westminster, Dr. Day, Coren, Leighton, Cox, Simmons, declared their Judgements contrary to Scripture, and all Antiquity, That Lay Persons might Excommunicate, if they were appointed thereto by the Magistrate. So as they held, it seems, that Christ gave the Power of Excommunication to Magistrates, or that whether he did or no, they might take and delegate it. The Bishops of York, and Durham, and Dr. Edgeworth denied it. Three more held it was given to the Church, and such as they should depute unto it. But something must be allowed to that time, when we were beginning to reform, and our greatest Men had too great a Tincture of Popery, both as to Doctrine, Worship, and Discipline.  
In Edward the Sixth's time, What the Opinion of Archbishop Cranmer, and many others were, appears by that Systeme of Ecclesiastical Canons, which they composed by Commission from that excellent Prince, and are to be found in the Book called Reformatio Legum Ecclesiasticarum; where they determine,  That no one Person should execute this Power, but that the Archbishop or Bishop, or some other lawful Judge, with a Justice of the Peace, and the Proper Minister of the Place, where the Party accused dwelleth, or some other appointed by him, and two or three other Religious Ministers should meet, in whose Presence, after a full Handling, and weighing the Cause, the Party should be Excommunicated. 
They had said before, p. 161. c. 6. That the consent of the whole Church was to be wished; but because that is hard to be procured, they orainded as aforesaid. Now what difficulty was there in obtaining the consent of the whole Church, but the extending the Notion of a Political Governing Church, beyond the number of so many, as in one place could be gathered together, or could be under the Government of the same Officers, out of the Cause of Appeals, in which Causes it might possibly be so extended? But I observe in the Determination of those Great and Reverend Persons (if the consent of the Congregation be not necessary, which yet I incline much to believe) they had put in all who can pretend to any such just Power; viz. The Bishop, and the Minister of the place; and if the other be only allowed as Witnesses, to whom the Judicial Power belongs not, possibly that Determination was not evil. But I conclude, with the Evidence of Holy Writ, the consent of all valuable Antiquity, and from the Evidence of Reason, That Christ hath not betrusted this Church-Key with any but the Pastor, and Officers, and Members of the particular Church, to which the Offender doth belong, and any Excommunication decreed or executed by any other, is no more than a Civil Punishment, and the effect of an Humane Law, and can pretend to no Institution of Christ, nor Authority from Apostolical Writings; and it were well the Name of Christ were left out of those Sentences, which can pretend to no Authority from him.   

CHAP. III.  
An Inquiry into those Crimes for which alone according to the Divine Rule, Excommunication ought to proceed, and be issued by the Church.  
THe next thing we have to consider is, the Objects of this Punishment, admitting it a mere Civil Punishment. The Objects of it must be determined by the Laws of Men; and the Justice or Injustice of the Execution of it upon them, must be determined by the Law of God, another Day. But by a Parity of Reason, if it be an Institution of Christ's, the Objects of this Censure must be determined by the Law of God; and it is not in the Power of Man to make an Alteration in the Case; nor hath the Scripture left us without a Determination in the Case. Three things according to Scripture, must concur to make an Object of this heavy Censure. (1.) The Party must be a Sinner.— whose Sins you retain, are retained. (2.) Nor is every Sinner the object of it, but he must be, 1. Either an Heretic, Titus 3.10. One that hath made Shipwreck of the Faith. 1 Tim. 19 Or a scandalous, flagitious Sinner, such as hath made Shipwreck of a good Conscience; an Incestuous Person, one that is Proud, Covetous, a Boaster, a Blasphemer, one disobedient to Parents, Unthankful, Unholy, without Natural Affection, a Covenant-Breaker, a false Accuser, one that is fierce, Incontinent, a Despiser of such as are Good, Traitors, Heady, ; one who is a Lover of Pleasures, more than a Lover of God: One that though he may have a Form of Godliness, yet denieth the Power of it, 2 Tim. 3. One that obeyeth not the Word of God, that walketh disorderly, 2 Thess. 3.6, 14. One that is a Fornicator, an Idolater, a Drunkard, a Railer, an Extortioner, 1 Cor. 5. One that causeth Divisions contrary to the Doctrine of Christ, Rom. 16.17. And not only these, but in reason such as shut a Man out of the Kingdom of God, and are equally heinous and scandalous as these; such as are reckoned up by the Apostle, 1 Cor. 6.9, 10. Idolaters, Adulterers, Effeminate Persons, such as abuse themselves with Mankind, Thiefs, Murderers, Sorcerers, profane Swearers, and Cursers; these are all scandalous Offenders, and so within the Precept, Matth. 18. (3.) Yet neither are all these the Objects of this Censure, unless they be Stubborn, Contumacious, and Incorrigible. An Heretic is not to be avoided till after the first and second Admonition, Tit. 3.10. Nor an Offender, till after that he hath refused to hear the Church, Mat. 18.  
Conformable to this was the general Judgement of the Churches of God, for more than a thousand Years after Christ, as might be made appear from infinite Quotations, out of the Ancients, and out of the Canon Law, which steadily determineth, That none but Heretics, and such as are guilty of Mortal Sins, and Contumacious in them, are to be Excommunicated.  
It is a most unreasonable thing to think, that it is the Will of God that any should be Excommunicated for what is no Sin. Christ never willed the cutting off true Members from his Body. And it is altogether as unreasonable to imagine, that it is the will of Christ, who hath Compassion on the Ignorant, and those who are out of the Way, and who hath declared his readiness to receive repenting Sinners, should have willed the cutting off of those from the Communion of his Church, who are not Contumacious. But this is granted on all hands, that none (be they never so great Transgressor's) unless Contumacious, should be the Objects of this Censure, at lest what they call the greater Excommunication; for the Separation of some open notorious Transgressor's, from Communion in some Ordinances, being under the Church's Admonition, it cannot indeed properly be called Excommunication. But when a Person is to be judged Contumacious, is the great Question. The Papists making the Laws and Decrees of their Church, equal, if not superior, to the Laws of God, make all Disobedience to their Canons, persisted, in to be Contumacy. And in abuse of that Text, Matth. 18. If he will not hear the Church, let him be unto thee as an Heathen and a Publican, determine all Persons contumacious who will not hear those whom they call the Church. 1. Either commanding them to appear at their Consistories. 2. Or though appearing, if they will not within such a time as they set, do what in those Courts they think fit to enjoin them.  
But indeed, that Contumacy which renders any, according to the Will of God, the Objects of this Censure, must be a Contumacy against the Commands of Christ. If indeed any Person hath done any thing, for which according to the Will of God he is censurable by the Church, and they send for him, and he will not appear to answer and justify himself: Or, if they command him to do, what Christ hath in his Gosppel commanded them to do, and he refuseth after several Admonitions to do it, he may be judged Contumacious; but other Contumacy the Scripture knoweth not; nor can any Person by the Law of the Gospel be judged a Person fit to be Excommunicated, but one who hath been a scandalous Sinner, who being sent for by the Church, of which he is a Member, refuseth to come at them: or coming to them, being required to do what is the will of Christ, peremptorily refuseth to yield Obedience, but will still go on in his sinful Courses.   

CHAP. IU.  
The Divine Order, Method and Manner, to be proceeded in, with Reference to Excommunication.  
There is yet one thing more to be considered, and that is the Order and Manner of the Execution of this Sentence, according to the Will of God. Whoso considereth it as an Ordinance of God, an Action done in the Name of our Lord Jesus Christ, and with the Power of our Lord Jesus Christ (as the Apostle expresseth it in 1 Corinth. 5.4.) will easily conclude, it ought to be done with all the Seriousness and Gravity imaginable, and as is usually said in our Officials Sentences, (how truly God knoweth) Christi nomine prius invocato, after a first calling upon the Name of Christ. The Name and Power of Christ cannot be trifled with, without Profanation and Blasphemy, and an high degree of taking the Name of God in vain, which is a Crime that whosoever presumeth to incur, shall not be held guiltless, as we are assured in the third Commandment. Again, whoso considereth it as an Action, by which men's Sins are retained, and by which a Person is cast out of God's special Providence, and put into the condition of an Heathen and a Publican, and debarred of the greatest Privileges of the Gospel, viz. the Use of the Sacrament, and the Communion of Saints; if he be a Person who hath any thing of the Fear of God before his Eyes, or any thing of brotherly Love, and Compassion toward Souls in his Heart, will easily conclude, it is a thing ought not to be done passionately, rashly, or suddenly, but upon mature Deliberation, after grave Admonitions, and patiented waiting for the due effect of them. And as the very Nature of the thing thus far instructeth any Men of Common Sense and Moralities, so that no other manner of performing this can be expected from any, but such as in their ordinary Discourse are so used to throw out, The Devil take you, that they cannot forbear it in their most solemn Actions; so God hath sufficiently instructed us in his Will as to this thing. The secret Sinner must have a private and Fraternal Correption, before the Church hear of his Crime, Mat. 18. The Heretic must not be rejected till after a first and second Admonition, Tit. 3.10. and certainly he that hath commanded us, In meekness to instruct those that oppose themselves, if God peradventure will give them Repentance to the acknowledging of the Truth: And that they may recover themselves out of the Snare of the Devil, who are taken captive by him at his will, 2 Tim 2.26. And again, If a Man be overtaken with a Fault, restore such a one in the Spirit of Meekness, considering ourselves, lest we also be tempted, Gal. 6.1. never intended that Men should be delivered up to the Devil, cast out of the Communion of the Saints, in haste. And indeed this is so evident a piece of the Will of God, so consonant to Humane Reason, that not only all Divines, as well Ancient as Modern, have agreed it; but the very Canon Law itself in several places determines it, and maketh it a grievous Sin for any Bishop or Priest to proceed to this Sentence, without a leisurable and full hearing of the Cause. And I remember the Instance of God himself is brought in, resolving to go down and see if the Merits of the Men of Sodom were according to the cry come up; and as to the deliberate proceeding of the Judge, as in the hearing, and proof of the Cause, so in the denouncing the 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, etc. 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 myself to that particular Ordinance which is the Subject of my Discourse. The Canon Law of old determined, That Laymen being licenced 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 Knowledge, or the Administration of Sacraments. Supposing them to have a Power to delegate, they must either delegate it to Ministers, or Laymen. 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 Chancellor 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 Chancellors, Commissaries, Officials, etc. 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 Judge in any Court ever substituted a Deputy. The Bishop is a Judge; 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 Counsellors 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 Counsellors and Judges under them. That learned Author speaks a great deal more in this Cause. Nor hath any conscientious, 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 height of Power the Advocates for the Church of Rome had cried 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 Gild, 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 Judgement, and also came to be thundered 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 from 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 administered, 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 though a great while they studied by their Canon Laws to uphold its Authority, denying the Excommunicated Persons Burial in Churchyards, a Power to make a Will, and such other things as were within their Power, which things by the Pope's 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 Judge 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 Proceed. 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 reform 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 Heretic; 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 itself 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 Pledge, 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, accrueing to the Nation, by this extravagant Power formerly either indulged to, or usurped by Churchmen, 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 Circumspect 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 Churchyard 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 lie, where the matter is not cognoscible in the Spiritual Court, but properly belongs to the Court Ecclesiastical. But Dr. Cousins in his Apology for Ecclesiastical Proceed, 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 lie 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 employeth 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 Judge refuseth these things, Query, Whether a Prohibition will not lie?  
4. By the Canon Law also, Vox unius, est nox millius, No one Witness makes a Proof. If a Judge in those Courts will give Sentence upon the Proof of a single Witness, a Prohibition will lie.  
5. If the Judge of an Ecclesiastical Court, will allow a Person to be charged generally, or incertainly, it is against the Common Law of England, the Judge in that case will prohibit the Ecclesiastical Judg.  
So in many other Cases, where the manner of the Proceed 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 Judge 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 judge; or against the Common, or Statute Laws of this Realm, of which, and the true sense of which his Majesty's Judges in the Courts at Westminster, are the Judges, and the Benefit of which is the Liberty of every Subject of England.  
These Prohibitions are sometimes granted absolutely in some Causes, with a Qu●●sque till the Ecclesiastical Judge amendeth his illegal Proceed; 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 Judge 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 Judge, 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, etc. A. B. hath showed 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 although 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 show 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 Judge proceeded after an Appeal, provided the Appeal be made appear to the Court by some public 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 Proceed 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 inferior Court ought to proceed no further, till the Cause was by the Judge 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 lie, 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 Ruin, 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 fidejussoria, or, Pignoratitia, or, Juratoria; that is, by Sureties, by Pledge, 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 Pledge. 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 Privilege 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, though they offered them Caution, according to the Canon Law. Let us hear what Doctor Cousins, in his Apology for certain proceed 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; notwithstanding that in one Precedent (in the Register) of this Writ, it is said, Quod hujusmodi Breve nostrum ex gratiâ nostrâ pracedat.  
By which it appears, that no Nation under Heaven gives Churchmen such a Power; for the Person being imprisoned, is to lie 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 Chancellors, 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 Cannibals, or those the Roman Historian tells us, which he says, were Homines ad stragem Humans generis nati; Men born to the ruin of Mankind. This enforced 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. Cousins in his Apology for some Ecclesiastical Proceed, p. 1. c. 2. where he doth give a large and full account; and he who understands Latin, 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; although in those times the whole Magistracy of the Nation were Papists, and so by their Principles more enslaved to those they call the Church, than 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, than 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' & 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' Court, at Westminister, to show 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 Forefathers for the Liberty of the Subject's Persons. Dr. Cousins, 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, though 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 Rubric 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 chooseth 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 those who have done the wrong: Nor is it usual, when an Appeal is against an unjust Excommunication by an Inferior 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 Superior 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 falsely 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 Superior Judge; he upon the hearing the Cause, judgeth the Plaintiff wronged, 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 solicit Ecclesiastical Judges, not to discharge such Prisoners in Obedience to the King's Writ, till they have paid the Charges, or engaged 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. Cousins, 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 Pledge, 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 allows 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 enforce 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 showed 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 Canon's 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 Diocese; 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, etc. 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 ruin Persons and Families, whose Gild 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 employed 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 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 risen 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 unrighteousness?  
Will any say, that their Law gives them no Power to imprison any? (except perhaps Clergymen, 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 ruin of Families, upon Persons Excommunicated? But be this as it will, the Law of England at present is so, and must be, though not approved, yet submitted to, until it pleaseth God to give our Parliaments Hearts and Leisure to inquire into the Reasonableness, and Righteousness of it.    

PART II. THE CASE and CURE; OR The mischievous Consequents of Excommunication, etc.  
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 Romans, 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 ware, 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 catched in this Knot (Innodati saith the Common Law Writ) doth every one well understand how to slip, or untie 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 show 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 Majesty's 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, soliciting, 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 expressly 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 Usury, 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 threatened with Suspension, for marrying a Person that was Excommunicated; but this is but the Extravagancy of that Court's Proceed.  
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 Pledge, 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-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, deemeth, or omitteth to appear. If he be not personally ●●●●oned, he needs not appear the first time; but then their way is to cite him by a Writ called V●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, etc. 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 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 Superior Court, an Inhibition to stop their Proceed 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 though 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 delayed, 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 Judge will not dismiss him; or he may, if he will, bring his Prohibition for want of Articles, and stop their further Proceed.  
5. If the Proceed be upon a Promotion, and the Promoter hath employed 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 entered 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, though the Party accused be Conqueror 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 Judge, he may appeal to the superior 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 Judge 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 ●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 Judge 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 Say't; 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 Judge 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 Churchwardens 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 Judge 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 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 Judge 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, showing 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 lies: 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, etc.  
19 It is an usual thing upon Presentments by Churchwardens, when the Party presented calls for Proof of the Presentment, to tell him, That the Churchwardens 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 aught I know, if there be none by, an Attorney, or Counsellor 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 Sentence● definitive●, 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 Judgements, all the Judgements 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 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 Proceed.  
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 Inferior 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 Superior 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 Foreign 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 Chancellor 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 lieth, 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 Inferior 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 Superior Court, by such a time, all the Proceed in the Case. If he disobeyeth, upon complaint, an Excommunication shall be sent down against him.  
There is a Practice of the Officers of Superior 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 H●●. 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 King's 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 Ecclesiastical 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 Lawyer's 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 always, 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 Majesty's 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 Outlaws.) 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 Appellant 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.  
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' 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 mere Artifice to ●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 Thunderbolt; 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 lie 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 control the King's Writ. No Writs of Habeas Corpus, or de Homine replegiando, will help him, nor any Indictment upon Magna Charta; because though 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. Cousins (who I think was in Queen Elizabeth's time Dean of the Archers) in his Apology for some Proceed 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 Pledge, 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 Superior 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 Proceed: 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 Judge 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 Judge, 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 Proceed are contrary to a Prohibition served upon the Judge, though no such Attachment be taken out.  
2. If the Party imprisoned, or against whom the Writ is to take him, though he be not taken, hath appealed according to the Statute 24. Hen. 8.12. if he bringeth into the Court of Chancery an authentic 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 Inferior Ecclestastical Courts to invade the Right, Power, and Authority of Superior 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 Proceed, and order the imprisoned Person to be discharged.  
4. If the imprisoned Person, or he against whom the Writ is out, though 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. Cousin's 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. Cousins 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 lie in Prison for a Crime which the Ecclesiastical Court hath no Judgement 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 lie there.  
5. Let him procure the Copy of the Writ de Excommunicate capiendo, and observe, 1. If it be issued in Termtime. 2. If there were full twenty days betwixt the Test and the Return. 3. If it be made returnable the next Term. 4. If there be due Additions in it. 5. If before it was delivered to the Sheriff it were entered upon Record in the King's Bench and made returnable into that Court. All these things are required by the Statute 5 Eliz. 23. If any of these Errors be found, he shall upon motion in the King's Bench be discharged, and the Writ will be declared Illegal.  
6. Lastly, If he can be delivered by none of these ways, he may at any sealing in the Chancery, whether it be in Term or out of Term, upon a Petition to, or Motion before the Lord Chancellor, have the Writ, De Cautione admittenda granted him (in case he hath before offered the Bishop a Bond of 10 or 20 l. with Sureties stare & parere mandatis Ecclesiae in forma Juris.) When he hath it, let him by some Attorney, or Attorny's Clerk send it, and tender a Bond and sufficient Sureties with it to the Bishop, and demand the discharge of the Prisoner: If it be not presently done, let him certify so much, and at the next Seal move for a second Writ to the Bishop: Or (which it may be is more advisable) let him move for a second Writ to the Sheriff (the Form of it is in the Register.) In that the King commandeth the Sheriff to admonish the Bishop, to accept the Caution, and to deliver the Prisoner, and further commands him, that in case he doth it not in his Presence, the Sheriff should do it himself. If the Sheriff yields not Obedience upon another Motion, he ought to have a Writ to the Coroners, commanding them to take Security of the Sheriff to appear at Westminster, such a day, to show Reason why he hath contemned the King's Writ, and further it commandeth the Coroners to take the Caution of the Prisoner, and to deliver him. The Reader may find all this in the Register where are the Forms of all these Writs, and also in Dr. Cousins his Apology, p. 1. c. 2. who being himself a Judge in the Ecclesiastical Courts, cannot be presumed to have told us any thing but what is Law, contrary to their own Interest.  
It is true, the Bishop upon taking such cautionary Bonds, doth ordinarily insist upon the Persons paying the Prosecutors Charges, but it is unreasonable,  
1. First, because he hath nothing to to do but to execute the Command of the Writ, which speaks not a word of Charges.  
2. Secondly, Because if the Charges be legally due, the Promoter must have also a legal way to recover them; if not, it is Extortion for the Ecclesiastical Judge to exact them.  
3. Because it is no sufficient return to the King's Writ, which mentioneth no such thing, to say, He could not discharge the Prisoner, because he would not pay the Promoters Charge.  
But because the Legal Charges are small, usually the Prisoner for his Liberty will pay the Charges: Which are as follow.  
 l. s. d. For the Adversary's Proctor, every Court-day until he was excommunicated, and that day when the Significavit was decreed: For every day. 00 01 00 For the Proctor's Procuratory Letter, Seal and Wax. 00 01 08 For certifying the Service of the Citation. 00 00 06 For the Articles, if there were any. 00 05 00 For an Act of Court, for every day. 00 00 02 For the Significavit. 00 05 00 For the Significavit to deliver the Prisoner. 00 05 00 For the Excommunication and the Schedule. 00 02 04 For the Writ de Excommunicato capiendo, and the Charge of entering it upon Record in the King's Bench, about 01 01 00  02 01 08 If the business hath proceeded no further than a Libel and Articles, this is all the legal Charges; but if it hath proceeded further, there may be for the Copy of the Answer 00 00 09 For every Witness examined 1 s. and for the first 00 01 06 For a Fee to the Proctor at Inform. 00 03 04 For a definitive Sentence 00 11 06 For the Advocate at the Sentence 00 10 00  
But for this the Table of Fees must be searched; for the Charges are more or less, as the Cause went further or lesser way before the Excommunication.  
This is the best Advice I can give to Persons thus molested. Only in the general, I should advise any such Persons these two or three things.  
1. To be careful to appear every Court-day in some hour when the Court sitteth, and to take Witnesses of his being there.  
2. To see as much as he can with his own Eyes, and hear with his own Ears, and act by himself as much as he can: For, 1. He cannot expect any other should attend his Cause so well as himself. 2. If any thing be to be done for his Relief in the Civil Courts, he cannot expect any Proctor in the Ecclesiastical Courts, who is sworn to do nothing to the prejudice of their own Jurisdiction, should be hearty in the mention or profecution of it. 3. He cannot expect another should be so faithful to him to keep his Secrets, as himself will be to himself. 4. He saveth by it all his own Charges.  
3. To be very careful after every Court, to take out from the Register a Copy of the Act or Acts of Court done in his Cause (the Register is bound to give him them) and to observe if the Register hath faithfully entered both his Appearance that day, and what he ●●●●ded.  
4. To pay the Register, and all other Officers, and strictly according to the Table of Fees. It is Extortion for them to take more, and by the 135 and 136 Canons, the Register and Proctors are to be suspended six Months if they take any thing more.  
The only Objection against Persons doing this, is, That they are ignorant of their Forms, and therefore must have a Proctor.  
To this I answer, That I never liked the Justice I have seen distributed in those Courts, so well, as to instruct any in the Offensive, but only in the Defensive part: As to that a little of Form is enough. The Person is cited, and Articles delivered to him; when he comes to give his Answer, he only saith, The personal Answer of R. B. to the Articles exbibited and admitted in this Court against him, at the Promotion of S. T.  
To the first he saith, etc. and so as to the rest, and concludes with a desire of the Justice of the Court to dismiss him.  
After the Answer, and the adverse party hath desired a time to be set to prove the Articles, he hath nothing to do, but to desire that he might make use of the same time to produce his Witnesses.  
If he hath a mind to put in Interrogatories, either to cross examine his Adversaries Witnesses, or to examine his own by; he hath nothing to do but to put into the Court, such Interrogatories as he shall desire to have propounded, which the Register is bound to take, and to examine the Witnesses according to them.  
Indeed if he puts in Exceptions to the Court, there is a little Form to be observed, and so also in the drawing up the absolutory Sentence to tender to the Judge when he comes to give Sentence. As to both which I shall subjoin Forms, because it may be such Clerks or Attorneys at Law as the Person may make use of, may not be so well acquainted with them.  
The Form for Exceptions.  
Exceptiones exhibitae die in Anno in quodam Negotia inter partem promoventem, & partem Ream in Curiâ, etc.  
Quo die A. B. pars rea animo excipiendi in Scriptis, & magni specifice contra Testes omnes, & singulos, ex parte productos, juratos, & examinatos, ac contra corum respectiva dicta & depositiones alias in genere in hoc Negotio, apud acta cum Protestatione libertatis sibi reservatae, & reservandae exhibendi Exceptiones alias meliores, & Efficaciores viâ, mado, & juris formâ debitâ quibus melius aut efficacius, de jure poterit, vel potest, debuerit, vel etiam debet probare quae proposuit necnon ad●m●●m qualemcunque J●●is effectu● exind● quevis modo secuturum posthac allegandi dicet, allegat ut in his Scriptis, tam generaliter quam specialiter proponit prout sequitur.  
Imprimis, Quod nulla fide saltem de jure sufficiens, aut valida fuit aut est adhibenda pretensis dictis, aut depositionibus testium praedictorum pretensi●num ex parte A. B. super aelis suis perusis hac in parte redditis, habitis, aut factis pro co, ac ex co quod predicti pretensi testes, & corum quilibet & alter fuerunt, & sunt in quam plurimis partibus, dictorum ac depositionum fuarum predictarum. Falsi vani loqui, varii, vacillantes, singulares, inter se discrepartes, sibi ipsis contrarii & repugnantes, ac in quamplurimis partibus aliis depositionum suarum praedictarum instructi, informati, & concords, suum quasi & cundem Sermonem premeditatum, uniformiter invicem preferentes, dicentes & testificantes, cum causas scientiarum suarum pretensarum, & praedictarum nullo modo legitimè, ac sufficienter reddant, de auditis vero solùm & credulitate testificantes, & etiam quam plurima testificantes, de scientiâ suâ ut pretendunt propriâ de rebus non in Articulos deductis, prout ex serie depositionum praedictarum pretensarum in hac parte utcunque redditarum habitarum, & factarum minifeste liquet, & apparet; & ponit, & excipit tam in genere quam in specie, contra testes praedictos & pretensos conjunctim, ac divisim & de quolibet particulari.  
Imprimis, Quod nulla fides saltem de jure sufficiens ac valida fuit aut est adhibenda dictis & depositionibus perusis praedictorum Testium pretensarum, ex parte A. B. in hoc negotio productorum Juratorùm & Examinatorum, pro eo & ex co, quod quidam R. S. testis pretensus in hoc negotio utcunque ex parte A. B. productus, juratus, & examinatus false, injustè corrupt & contra rei verizatem deposuit, prout in dictis sive depositionibus fuis pretensis (hubitâ ad cus relatione) constat, liquet & apparet.— Then repeat his Deposition in English, and what you have to object, and can by two Witnesses prove against it.  
Keep the same form as to all other Witnesses, against which you can make any Exceptions, and prove them by two Witnesses.  
It is good to deliver into the Court your Exceptions thus drawn, first generally, then particularly. For though you must prove particularly, yet you may forget some Particulars, which notwithstanding you may examine and have proved by virtue of your general Exception, if it cometh within the compass of what you assert in that: If it be refused, you may appeal.  
Make a special Observation, if your Adversaries Witnesses have in their Depositions swore what was not laid in the Articles; for all that cometh to nothing, it being a Rule in their Law, Quicquid deponitur extra Articulum, deponitur extra Legem; that is, Whatsoever is deposed that is not laid in the Articles, is deposed contrary to the Law. And it is a good ground of Appeal for any Judge Ecclesiastical to take notice of any such thing.  
There are but two cases more, in which he who is upon the defensative part, will stand in need of any of their Forms: That is, 1. In case he hath an occasion during the process of the Business to put in an Allegation: Or, 2. He may need a Form of an Absolutory Sentence, when the Judge comes to give Sentence, because it is the fashion in those Courts, when the Judge is about to give Sentence, for each Party by himself or by his Proctor, to tender to the Judge an Absolutory Sentence for himself.  
An Allegation may be offered the Judge any time, before the Cause be closed, but best before Publication be made of the Depositions.  
The matter of it may be any thing that may help him in his Cause. As now, Suppose one prosecuted in those Courts for not receiving the Sacrament at Easter: if he can by two Witnesses prove, that at that time he was many Miles from home, or sick and unable to go out; or that he hath already been punished for it in another Court, he may put any of these things in an Allegation; the Form of which follows.  
Die anno Domini  
Quo die A. R. omnibus melioribus viâ & modo & juris forma, ac ad omnem quemcunque juris effectum, exinde quovis modo sequi valentem, etc. dicit, allegat, & in his scriptis in jure proponit articulatim prout sequitur.  

Imprimis, That the said R. B. at Easter last, viz. upon the day of April, etc. and for several days both before and after the said day, was in the City of London, at forty Miles distance from his Habitation, then and there attending his lawful occasions, and so could not receive the Sacrament in his Parish-Church of A. aforesaid.  
2. That this is a just and legal Excuse, which ought to be allowed in this Court for his not being that day at his Parish-Church, and hearing divine Service, and receiving the Sacrament.   
Quae omnia predict. R. paratus est probare in formâ juris, sicut huic Curiae visum fuerit decernere.  
The like may be as to any other special matter which he hath to allege, setting his hand to the Allegation, and delivering it into the Judge of the Court, or his Surrogate. He may give his Allegation by word of mouth, but it is better to do it in Writing before Witness.  
The Form of an Absolutory Sentence.  
In Dei nomine Amen. Auditis, visis ac intellectis, plenary, & mature discussis per nos N. D. legum. Doctorem, Curiae officialem, principaliter, ritè & legitimè constitutum meritis, & circumstantiis cujusdam negotii correctionis sive officii promotionis, quod corum nobis in judicio extitit inter R. N. partem pretensam hujusmodi negotium promoventem, ex unâ, & S. R. nostrâque jurisdictionis, partem contra quam hujusmodi negotium promovetur, ex alterâ quod vertitur, & pendet indecisum, rite & legitime procedentibus praedictis partibus praedictis per corum respective procuratores [if they use no Proctors, it must be propriis personis] in judicio legit. comparentes, parteque praefati S. T. Sententiam ferri, & justitiam fieri pro parte suâ parte vero praefati R. N. fieri, pro parte suâ instanter, respectiuè postulante, & petente rimatoque penitus per nos, ac diligenter recensito toto, & integro processu in hujusmodi negotio, habitis, & factis, servatisque per nos de jure hac in parte servandis ad nostrae sententiae absolutorum sive finalis Decreti prolationem in eodem pretenso negotio ferendo sic duximus procedendum fore, ac procedimus in hunc qui sequitur modum.  
Quia peracta inactitata, deducta, exhibita, proposita, allegata, probata pariter & confessata comperimus luculenter & invenimus partem prefatam promoventem, R. N. intentionem suam in quibusdam Articulis ex parte suâ exhibitis quorum dictorum Articulorum Tenor sequitur, & sunt. In Nomine Dei Amen. Nos, etc. Then followeth the recitation of the Articles, quos aelos pro hic lectos, & insertos habemus & haberi volumus, nullo modo saltem sufficienter aut legitimè fundâsse aut prob●sse, sed in probatione corundem Articulorum, omnino defecisse, & deficere.  
Idcirco nos, N. D. judex antedictus Christi Nomine primitus in vocato, ac ipsum solum Deum praeponentes, atque de & cum Concilio Jurisperitorum cum quibus hâc in parte communicavimus praefatum S. T. ab instantiâ & impetitione, praefati R. N. quoad praedicta in Articulis pretensa praedicta, absolvendum & dimittendum fore debere pronunciamus, decernimus, & declaramus, prout ipsum S. T. sic dimittimus, & absolvimus per presents; praefatumque R. N. in expensis legitimis in hâc parte factis & fiendis eidem S. T. solvendis insuper condemnamus per hanc sententiam nostram absolutoriam, sive finale nostrum decretum quam sive quod ferimus & promulgamus in his scriptis Taxationem vero, sive moderationem expensarum hujusmodi, nobis aut alii judici hâc in parte competenti cuicunque reservandi & reservamus.  
If the Judge give Sentence against you, you will be admonished; in that Case take the first opportunity of entering an Appeal in the next Superior Ecclesiastical Court, unless Common Lawyers tell you, your Cause is such as a Prohibition will lie in, then move for that as soon as you can.  
If you have removed your Cause into the Arches, there are divers Proctors that are learned Men, and faithful to their Clients, by whom you must there (as also in the Court of Delegates, if you see cause to appeal from the Arches thither) prosecute your Cause. To whose care I leave you.  
FINIS.   

The Reader is desired to pass by, or amend what Errors have happened in the Press, by reason of the Author's absence.