A DISCOURSE Concerning EXCOMMUNICATION, As Executed by Officials. And concerning the Common Law Writts', De Excommunicato capiendo, and De Cautione admittenda; For the punishment of persons Excommunicated, and their Deliverance from the punishment.  
Wherein is Examined, Whether the Execution of the former as Executed by many, be not a profanation of a great Ordinance of God; Whether by the second the Subjects in many Cases be not unwarrantably oppressed; As also by the difficult granting of the other, which is a Common Law Writ, and the right of every Subject to be obtained without difficulty?  
Discoursed in a Letter to an Honourable Friend, by one who is a Friend to the English Liberty.  
Wrote before the Parliament which Sat from March, 1678, to the end of May, 1679, and now published.  Acts. 19 15. 
Jesus I know, and Paul I know, but who are you?  Job. 6. 25. 
How forcible are right words? But what doth your arguing reprove?  
Hujus [Scilicet Papae] potestatem, huic cum divino munere sublatam esse manifestum est, & ne quid superesset, quo non plane fractam illius vim esse constaret, leges omn●s, decreta, atque instituta, quae ab Authore Episcopo Romano profecta sunt, prorsus abroganda censuimus.  Epist. Hen. 8. praesixa libro cui Titulus, Reformatio Legum Eccles. impr. Londini. Anno 1641. 
London, Printed for Tho. Parkhurst at the Bible and Three Crowns at the lower end of Cheapside, 1680.   

To his highly honoured Friend, J. B. Esq  
Honoured Sir,  
THE charitable design of this Paper is (amongst the many oppressed, which His Most Sacred Majesty, in conjunction with His two Houses of Parliament, hath made to go free,) to show you one species of Prisoners, whom no Parliament hath had leisure as yet to take notice of; who beseech your Honours, that you would also allow them to be Prisoners of hope, being such as no Act of Habeas Corpus will relieve. The Adversaries of the Non-conformists, could not be satisfied that their Ministers were outed of their live, and (many of them) of their whole Subsistence for themselves, Wives and Children, and by another Act forbidden to reside in any place where they might expect a relief from the Charity of good People, but many of them have been pursued to Excommunication upon the Statutes for not coming to their Parish Church, (though certainly they being Ministers of the Gospel, were themselves obliged to Preach on Lords Days,) and being excommunicated, they have had the old Common Law writ, de excommunicato capiendo taken out, and some of them upon it have been detained 3, 4, 7 Years; nor at the end of that Term, have their merciless Enemies been willing to let them out, or let them take the advantage of the Law to come out, and amongst the ordinary people, not a few have been thus used, to the ruin of many Families, the exhausting great Sums of Money most injuriously from many persons, and the prejudicing the Trade and Commerce of the Nation; and all this by the abuse and profanation of a great Ordinance of God, that I mean of Excommunication, using what was ordained of God for the purging of his Church from persons not fit for its holy communion, merely to serve their Lusts of malice and revenge; and to keep worthy Patriots from being chosen Members to represent their Countries in your Honourable Assemblies, among many instances of which nature you had one the last Parliament at Berwick in the case of Mr Rushworth: and you have one yet more notorious this Parliament in Leicestershire: as if their Excommunications disseised men of their Freehold, or (which indeed looks more likely) the Subjects subjection to their Courts brought them into the Notion of Bondmen. A practice which (if not timely by your Honours taken notice of, and restrained) will give the Monopoly of suffrages into the hands of Registers, Officials and Proctors. This, Sir, certainly will give our Honourable Senators just cause to inquire,  
1. Whether Excommunication as now practised by Officials in Ecclesiastical Courts, be not an horrid profanation of a great Ordinance of God, and fit to be reflected on by our Governors?  
2. Whether the imprisonment of persons Excommunicated, by virtue of the writ de excommunicato capiendo, be not as practised a great oppression of the Subject, and worthy of a Parliamentary consideration and relief?  
3. Whether the writ de cautione admittenda, being the only relief provided by Law for persons so imprisoned, hath its just and free course?  
The Honour and Glory of God being the first and principal concern, as well of great Counsels, as of particular persons; the first of these questions deserveth and challengeth the preference, in disquisitions of this nature.  
Whatever be the Judgement of some Foreign Divines, and whatever hath been said by Erastus, or others to the contrary; It is manifest, That our Church looketh upon Excommunication, as an Ordinance and institution of Christ, for the keeping of the Church pure and unspotted (as the Spouse of Christ should be) and this appeareth as from other evidence, so from the very form of Sentences at this day usual in the Ecclesiastical Courts, which they usually begin In Dei nomine, in the Name of God, and they tell us, they proceed to such sentences, Christi nomine prius invocato, having first called upon the Name of Christ, ac ipsum solum Deum praeponentes, setting God alone before them. Our Articles, 1552 tell us,  
That excommunicate persons are to be avoided, as being rightly cut off from the unity of the Church, and aught to be taken of the whole multitude of the faithful, as Heathens and Publicans: Which Article is also verbatim in those 1562, and manifestly allude to that Text of our Saviour, Matth. 18. 17. generally judged to be the Institution of this Ordinance under the Gospel; Nor can any thing be clearer, than the declared Judgement of Archbishop Cranmer, Bishop Goodrick, Dr. Cox, Dr. Peter Martyr, Dr. May, Dr. Taylor, Mr. Lucas, and Mr. Goodrick; who were the 8 Persons, (part of 32 afterward intended) who according to Three Acts of Parliament made in the case, were appointed by the Letters Patents of Edward the 6th. Dat. Nou. 11. in the Fifth Year of His Reign, and authorised to revise the Canon Law, and out of it to draw up a body of Canon Law, which should alone be used in England, who did meet and draw up such a body, (though King Edward lived not to confirm what they had done by His Royal Sanction,) as may be seen by a Book, called Reformatio Legum Ecclesiasticarum; printed 1670, and reprinted 1641. These great Divines tell us in their Chapter about Excommunication;  
That it is a Power and Authority derived from God to his Church, etc. and Chap. 2. That the Church receiveth these keys from Christ.  
To multiply words in this cause were vain, for none that ever owned Excommunication, owned it in any other notion then as an Institution of Christ's. And there is no pretence for any to seclude men from the enjoyment of the means of Salvation, but Christ who is the Lord of the Church. Which being granted, the true notion of excommunication is this.  
It is a power granted by Christ to his Church, to remove lewd Persons, or such as are Heretical, and are pertinacious in their lewd opinions and practices from the Communion of the Church, in the holy Sacraments, and the fellowship of Christians, till they reform: Which exactly agreeth with the notion of it given us in these words by Archbishop Cranmer, and other of our first Reformers in their Book called Reformatio Legum Ecclesiasticarum. De Excommun. cap. 1.  
Excommunicatio potestas est, & authoritas ad Ecclesiam a Deo profecta, quae facinorosas personas, vel de religione nostra corrupte sentientes & ad suam improbitatem adhaerescentes, a perceptione Sacramentorum & 
Reform Leg. Eccles. Ed. 1641. p. 159.  etiam Chhristianorum fratrum usu, tantisper summovet, donec sensus sanos recollegerint, & salutarium cogitationum apta signa dederint & poenas etiam ecclesiasticas subierint, quibus ferocia carnis comprimitur, ut spiritus salvus fiat.  
Excommunication being thus universally agreed, to be a Divine Institution, it must as to the use of it, be regulated by the Divine Rule. None can Excommunicate, but those who are by Christ thereunto appointed. None ought to be Excommunicated, but by warrant from the word of God, and Excommunication must proceed with that gravity and leisure, which the same word hath directed. And every one seethe that where any thing of this nature is done otherwise, It is an horrible profanation of the Ordinance of God, and a woeful abuse of a power which none but God could give unto any. That this power is given to the Church from Christ, is agreed on all hands: Whether it resteth in the whole Church, or in the Governors of the Church, is the only question here.  
That this power according to the institution of Christ belongs to the whole particular Church, to whom the offender relateth, is to me as clear as the light. According to the Primitive direction, Matth. 18. If he would not hear the Church, he was to be us an heathen and a publican. The Apostle speaks to the whole Church at Corinth, 1 Cor. 5. 4. That in the name of the Lord Jesus, when they were gathered together and his spirit, with the power of the Lord Jesus Christ, they should deliver such a one to Satan; and Excommunication being not only a seclusion of the party from the enjoyment of Ordinances, but from the intimate Communion of the Members of the Church; It is very absurd for Officers in a Church, to think of secluding any from the communion of those who will yet have fellowship and communion with them; and consonant to this was the Judgement of the Ancient Church, t●at none ought to be excommunicated dissentiente plebe, without the consent of the people, from whose communion he was to be secluded. And without doubt as to the Major Excommunication, it is the most rational thing imaginable, and our first Reformers in the aforementioned Book called Reformatio legum Eccles. pag. 161. cap. 6. on this subject, saith; Totius Ecclesiae consonsus quanquam optabilis esset. That the consent of the whole Church is , but because it can very hardly be procured, they ordain as there followeth. That no one person should exercise this power, etc. 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 due and full handling and weighing the cause, the party should be Excommunicated. Some will have Excommunication the Act of the whole Church only denounced by the Minister. Others will have it the Act of the Presbytery or Governors of the Church: Others who fix the Government in Bishops, will have it the Act of the Bishop; but our Primitive Reformers would not have him do it, but with a Justice of the Peace, the Minister of the place, and two or three other grave Ministers, who all together, should hear, examine, and ponder the cause, and agree, the person deserving such a punishment, which they might then Decree, and the Minister of the place might Publish.  
It being an institution of Christ's, it ought also to be denounced against none but such only, as he hath in his word appointed it for, which is not only determinable from the letter of Scripture, but from reason concluding from the End of the Institution. In the letter of Scripture, there is no pretence for Excommunication of any, but for such crimes as shut a man (without Repentance) out of the kingdom of God; those are either damnable Heresies, according to St. Paul's direction to Titus, Chap. 3. v. 10. An Heretic after the first and second admonition reject, and the example of St. Paul, 1 Tim. 1. 20. who delivered up to Satan Hymeneus and Philetus, having made shipwreck of Faith; Or lewd and vile practices, for which we have a precedent in the incestuous person, mentioned 1 Cor. 5. and conform to this hath been the constant judgement of the Church, and our aforementioned Reformers in the book, and place aforementioned determine, that they must be personae facinorosae & de Religione nostra corrupte sentientes & ad suam improbitatem adhaerescentes. Lewd persons, corrupt in their sentiments of Religion, pertinaciously adhering to them, and yet more plainly in their third Chapter, which I shall Translate:  
Excommunication ought not (say they) to be used in minute offences, but upon atrocious horrible crimes, when the Church is grievously scandalised, either because Religion is overthrown, or good manners perverted by them, of this sort are those of which St. Paul saith, that those who do such things, shall not enter into the Kingdom of God, or shall not inherit the Kingdom of God, or because of those things the wrath of God cometh upon the children of disobedience. These horrible wickednesses ought to be punished by Excommunication, so as they who are guilty of them shall be thus punished, unless they in time reform, and when they are admonished, withdraw themselves from these courses, and be willing to satisfy the Church for the damage it hath sustained from their offences: for Excommunication is not to be used, but when men have hardened themselves in their wickednesses, which happeneth two ways, either when being called to answer for such offences, they will not appear; or if they do appear, they will not obey the admonitions of Judges.  
This was the opinion of holy Cranmer, and Tailor, (two of our blessed Martyrs) and those other good and learned men, that lived in King Edward's days, in the very beginning of the Reformation, and were known to be none that could be justly called Presbyterians by any who understand what Presbyterians are. Besides, this is evident from the end of this Appointment, which is keeping the Church pure as the spouse of Christ. Now how can the communion of any Church be corrupted, but either by damnable Heresy, Superstitious or Idolatrous worship, or by the lewd conversation of its members? from whence what was said before follows, that none but damnable Heretics, Idolatrous, and persons lewd in their lives, and Pertinaciously resolved to continue so, can by any right, or authority from Christ be Excommunicated.  
3. Further, it being an Institution of Christ, it must be used, as by those persons whom he hath appointed to it, and towards those persons only whom he hath willed should be so punished, as a means in order to their Reformation; So with those circumstances and in that order only which he hath prescribed, what is that? let us look Matth. 18. 16, 17. we shall find it must be after first, second, and third admonition. St. Paul saith, Titus 3. 10. After the first and second admonition; Conformable to this hath been the practice of the Primitive Church, and such was the Judgement of our first Reformers, as may be seen in the book beforementioned, cap. 4. pag. 160. I will translate the whole Chapter.  
No Judge shall Excommunicate any person, unless he hath admonished him once, and again, and a third time if occasion be, that if it might be he might seasonably reform his life, and there shall be a certain time allotted to the offender for him to think and conclude with himself, whether he will obey the admonition. But he that is rightly called [that is for such crimes as Excommunication ought to proceed against] if he appeareth not prejently, runs the danger of Excommunication.  
From the premises naturally followeth, That it is impossible that the holy name of God our Saviour should be more profaned, in the pretended use of any institution of his, Then for them to meddle with it, whom he never appointed thereunto, and for it to be applied to those whom he never directed the application of it unto, and for it to be used in a method or manner contrary to what he hath directed. And for this Ordinance, it is an institution which he hath appointed for purging his Church from stubborn Heretics and lewd livers, which he hath ordained his Church, and the officers of it, should discreetly, and with great gravity, leisure, and seriousness, use in order to that end. First, calling before them persons accused of such guilt, then gravely admonishing them, a first, second, third time giving them due leisure to think upon their pious and grave counsel, and to amend, and if they do not, than they are to declare them Separated from the Church in the Communion of all Ordinances, but such as Heathens may communicate in, and such with whom the members of the Church must have no intimate and unnecessary communion with them, though they may buy and sell with them, as they may with Heathens, and they ought to admonish them occasionally as they meet them, as those who have formerly been Brethren, not counting them as Enemies. 2 Thes. 3. 14, 15.  
Let us now, Sir, Examine, how this grave and dreadful Sentence is made use of by Officials, for what end, upon what persons, and in what manner.  
1. Excommunication among us is decreed by Officials, who are most of them Doctors of Civil and Cannon Law, some of them but very few ordained persons, but seldom or never by the Bishop or Minister of the place to which the concerned person belongeth; We indeed plead the necessity of Bishops for jurisdiction, of which this is the main, but in practice confess there is no such need, for persons are cited, admonished, Excommunicated, laid up in Gaols, and the Bishop never knows of it. For persons not in orders to Excommunicate, is an abomination not allowed in the Popish Church, and for any in orders to excommunicate persons to whom they stand neither in the Relation of Chief Pastors (as Bishops are accounted) nor curates, or subordinate pastors, is what is warranted by no Authority from God's word, nor any true primitive Authority, nor the judgement, or practice of any other Reformed Church, nor the judgement of our own first Reformers: So that plainly the institution is perverted, profaned and abused, as to the Administrators of it. But let us inquire further.  
2. All Excommunications proceed upon contempt, and ought not otherwise to proceed. This contempt may be,  
(1.) When persons duly cited for such Crimes, as by the rule of Christ men ought to be censured for, do not appear.  
(2.) When appearing, they yet refuse to obey the Ecclesiastical Judge's admonition of them, to amend such courses and practices as according to the word of God they are to avoid, or if they persist in, to be cast out of the Church. For, our Officials cause men ordinarily to be cited to their Courts, not only for erroneous Doctrines, or for their lewd practices, such as Drunkenness, Fornication, Adultery, Incest, Cursing, profane Swearing, etc. but for any Crimes or Offences which they take their Courts to have jurisdiction of, which (as they make them) are almost innumerable; if they appear not as the day, they are presently Excommunicated, though it may be, they were cited for not paying a Churchwardens rates; and it may be where they were unjustly taxed, or a Proctor's Bill, which it may be is thrice what by Law it should be, or for not coming to prove a Will, and an Hundred such like trivial things.  
If they do appear, and the Judge admonisheth them to appear next day, and they fail, or to answer a Libel, which is illegal, and they are not in Law bound to answer: Or an Hundred such like light things, they are again, if they obey not, Decreed Excommunicate; So the punishment which Christ hath appointed for the most vile and flagitious Crimes, is daily made use of to punish the most minute and trivial Offences; expressly contrary both to Scripture, and to the Judgement of all Reformed Churches, and our own Primitive Reformers.  
3. According to the Rule of the Word of God, the Judgement of all Reformed Churches, and our own First Reformers, Excommunication ought not to be agreed, or decreed by any single persons, nor before a first, second, and (if need be) a third admonition; and those so given, that the presumed guilty person, have due leisure to consider with himself what to do, and to digest his pious admonitions. But the way of our Officials is to admonish thrice in a Breath, saying, I admonish you the first time, I admonish you the second time, I admonish you the third time; I decree you Excommunicate, all in the Tenth part of an hour.  
Now, Sir, I offer it to your serious consideration, and the Reflection of any person of Religion and Sense, whether this be not as high a profanation of an Holy Institution of our Saviour's, as can reasonably be imagined: Nor had it been so long endured in this Reformed Church, had not King Hen. 8th. first, than Edw. 6th. died before they had called together the 32 Persons which each of them was by Authority of Parliament, designed to call together to revise the Canons, and compile one body out of them, as may be seen by the Act 25, Hen. 8th. 19 and another Act in Hen. 5th. time, and another in the 3. Edward 6th There being but Eight of them called, and those by Edw. 6th in the Fifth year of his Reign, (as appears by his Commission, dat. 11. day of Nou. that year, and preferred to the book before mentioned, called Reformatio Legum Ecclesiasticarum.) But that Excellent Prince died, before that he had added his Royal Sanction to that new form systeme of Canons: So as though we have had considerable Reformation in Doctrine and Worship; yet, we have had none in Discipline, but 
25. Hen. 8. 19 14. Car. 2.  proceed according to all old Popish Canons and Methods, where they are not contrariant or repugnant to the King's prerogative, or the Laws of the Land, which the Stat. restrains. I beseech you Sir, seriously consider▪ whether this practice be not apparently a profanation of a Divine Institution, and taking the Holy Name of God in vain; who hath said, He will not hold him guiltless, that takes his Name in vain. If it be, whether it be fit any longer to be endured in a Nation that professeth to Christ, especially considering, that by the common Execution of this sentence, in stead of purging out the rotten and putrid members of the Church, the soundest members are cut off; I mean, persons of soberest Principles as to Faith, and the severest Lives; and men's Lusts are served instead of Christ Our Excommunications being grown ordinary revenges of particular spite and malice, when they have a mind to get a person out of a City, or County, they know not why, or to be even with those, that would not be awed to give their Suffrages for such Members to serve in Parliament as the Officials, Registers and Proctors would have had. To all which is considerable, the eminent oppression and ruin of many Persons and Families consequent to this practice, which brings me to the second question propounded.  
2. Whether the Imprisonment of persons upon the Writ de Excommunicato capiendo, be not (as practised) a great oppression of the Subject, and a grievance worthy of a Parlimentary consideration, for Relief?  
Our Common Law is, That when a person hath stood Excommunicated 40 days, the Bishop may send into the Chancery a Writing, signifying so much, (which Writing is usually made, and the Bishop's Hand and Seal set to it of course without his knowledge;) upon which the party suing for it, shall have a Writ, which is called the Writ de excommunicato capiendo, directed to the Sheriff, commanding him to seize and imprison the person concerned, where he must lie without Bail or Mainprize. This may be done as to any person who hath stood Excommunicated so long, but is seldom done, but where any Official, or Promoter, or Churchwardens have a particular revenge to execute, or where the Registers want Money; But these Writts within these few years, have flown abroad at a very strange rate. If the Register can take any persons, they will serve out 5, 8, 10 pound, and set them at Liberty. Others shall lie in Prison during their pleasure, till their Families be impoverished and ruined for want of their Labour and care; and themselves have contracted some fatal disease, that either they die there, or soon after they come out, or live a valetudinarious Life ever after. Myself have known, One, a reverend Minister, kept thus 7 years, another 4 years, others a long time: One poor man I knew, dragged out of his deathbed, (so it was then like to prove, and in few days did prove,) by Bailiffs, and his Friends enforced to redeem him for five pounds paid to the Register, which proved but the dear purchase of a few hours life, abundance of such instances might be produced. These punishments are all inflicted by the civil Magistrate, he issueth the Writ to the Sheriff, whose Bailiffs by his precept seize the person, and whose Jailor keeps them. Sir, I have oftenstood amazed to think how any intelligent civil Magistrate could answer this dealing with people before God. Admitting a person unduly Excommunicated, (and it is not one of ten but is so) either for a cause which the Law of God will not justify, (and that alone can justify the lawfulness of an Excommunication,) or for causes, or in manner and methods which the Law of men will not justify, only the ignorance of honest simple souls, or their want of money keeps them prisoners. I would gladly know of him that can answer me, upon whom the blood and ruin, of these persons or their wives and children must lie, and who shall account to God for it another day? For an account must be made, and the cry of the innocent shall be heard and adjudged.  
In the case admitted, here is plainly an Act of high unrighteousness, oppression and cruelty, and what before God amounts to no less than Murder or Robbery. The question is, who is guilty of it? It is true, the King's Name for form sake is used in those Writts, but he is not concerned in the guilt, nor knoweth any thing of it. It shall not lie upon me, saith the Cursitor, I did issue out the Writ indeed, but that is the duty of my place to issue out any Common-Law Writ; Not upon me saith the Sheriff, I did but Execute the Writ, Nor upon me saith the Bailiff, I did but Execute the Sheriff's precept upon the Writ; Nor upon me saith the Gaoler, I did but keep him according to the Sheriffs Warrant. I do not think any one can be excused, who knowingly hath had an hand in the action. Neither the Official who decreed the Excommunication. Nor the Minister that published it, nor the Officials or Register that signified in the cause; nor the Cursitor that issued out the Writ, nor the Sheriff that Executed it; nor the Bailiff or Gaoler. I am sure in other causes at our Law, the Justices or other Officers illegal warrant will not justify the Constable or Gaoler for false imprisonmen. We had another Writ much of the same batch taken away by the last Parliament; upon which the Sheriff burned honest men, judged Heretics by the Churchmen. I would gladly understand who were guilty of those worst of murders. The Sheriff there did but Execute the Common Law Writ in the cause, would that excuse him, think we? It seemeth my Lord Cook did not so judge, for before he would take the Sheriff's Oath, he got the clause abated, by which he should have been obliged to persecute the Lollards; but admit, Sir, that all these inferior Ministers of Magistracy were excused, because they do but Execute an unrighteous Law: The guilt must then lie upon those that made the Law, and that suffer it still to continue in force, having power in their hands to annul it. I take it to be true in Divinity, that no command of man can justify any Minister before God, in any act of impiety or unrighteousness, much less alter the nature of the action, and make that pious and righteous, which is predetermined by the Law of God impious or unrighteous to assert any such Atheological position, is in plain terms to make the Creature paramount to God, and a Controller of his Creator; but if it would, still the guilt must lie somewhere.  
2. But, Sir, Doth it not deserve some further deliberation, whether the Civil Magistrate hath any obligation from God upon him thus to corroborate Church-censures? I do know that our Common Law Writt de excommunicato capiendo saith, — qu●a querelis Ecclesiae deesse non debemus: But I want one Text of Scripture to prove any such thing. The great ends of excommunication are  

1. Purging the communion of the Church.  
2. The Reformation of the offender.   
The first end is obtained by Excommunication; if indeed an Excommunicated person will intrude into the Communion of the Church, it is a breach of the peace, and falleth under the Magistrate's cognisance.  
For the Second end, A Gaol in ordinary cases proveth a very inadequate medium to the Reformation of any person, and where it doth one good, it is found upon experience to do hurt to an hundred: Humane Nature is rarely tamed by such rough applications: I never yet knew any cured of their Nonconformity by being laid up in Prison: 'Tis such an Anti-Evangelical way of Cure, as hath not met with any success, that can farther commend it. When our Blessed Saviour instituted the purgation of his Church, He spoke not a word of a Gaol; He ordained, that his Church should send for an Erroneous and Scandalous person, endeavour to convince the Gainsayer of his error, instructing him with all meekness, rebuking him with all gravity, by the Mouths of their grave Pastors and Teachers. That if doing this once would not produce the desired effect, they should do it a second, than a third time, waiting to see if God at any time would give him a heart to repent. If this would not do, That the Church being in the Name of Christ gathered together, should declare such a person cut off from the Communion of his People. This now done by persons not guilty of the like or worse Crimes, and clothed with the Authority of Christ, is a probable means to reduce the offender; however, the Church is cleared from such a person, and its Communion is kept pure; though the Person be thus cut off from Communion, yet the Church shall not count him as an Enemy, but mourn over him, pray for him, admonish him as a Brother. How came in the Writ de Excommunicato capiendo; as if the Ordinance of God had not sufficient Authority for its ends? For 300 years after Christ, the Church could have no such assistance, nor do we read that it complained for the want of it, possibly here and there God might make some pertinacious Heretic or debauchee, an extraordinary Example of his Vengeance. He hath done so in our Age, in the case of Mrs. Hutchinson in New England; but that God ever did. This ordinarily for the first 300 years can be proved by no Scripture, no Authentic Authority; But as the Popish Government crept up by degrees, so pretended Church Officers began to enlarge their jurisdiction, and to excommunicate for slight and trivial causes without any pretence of Authority from God, but merely to subjugate people to their Wills, and get fees for Chancellors, Officials, Registers, etc. They had no reason to trust God any longer to vindicate their usurped Authority, and to justify their groundless and impious Excommunications and Anathemaes. They must therefore now call in the Civil Magistrate to do that which they could not expect that God should ever do. Now come Writts to be invented. To imprison persons excommunicated. To take Apostates. To burn Heretics, etc. The Ordinance of God, was first turned into Ridicule, by dealing it out as Solomon saith, Prov. 26. 18. the mad man casteth firebrands, arrows and death, and most lewd and vicious persons employed to dispense this grave sentence, principally to be used against lewd persons, so as every one that heard them, cried out, Physician heal thyself, and all sober persons thought they heard God speaking to them; What hast thou to do to declare my Statutes, and that thou shouldst take my name, or my authority, or my censures into thy mouth, seeing thou hatest instruction, and castest my words behind thee? and then the civil Magistrate was called in to help the Church, in her maladministrations, whose work indeed was to have whipped these buyers and sellers out of the Lords Temple, and then the glory of the Lord would again have appeared betwixt the Cherubims, Excommunication would have appeared dreadful enough without the appendix of a Gaol. There was never any need of Gaoles to punish excommunicated persons, till persons came to be excommunicated for not paying Sexton's wages, Proctors fees, Easter twopences, Tythe-piggs, and Geese, not coming to the Parish-Church, not signing with the Cross, not wearing Surplices, not kneeling at the Sacrament (crimes not mentioned in the word of God) yea for preaching the Gospel, meeting together to pray to God, or to hear a good Sermon. And it is not a Gaol will convince those offenders that they do evil. Obj. But I hear some say, These are all acts of disobedience to Authority, and disobedience is as the sin of witchcraft. Resp. Disobedience to the Law of God, (of which Samuel speaks) is indeed as the sin of witchcraft, but yet every disobedience to the Law of God is not to be punished by Excommunication. It will be hard to justify it to be the will of God, that persons should be excommunicated for every idle word, of which they must give account, or for an 100 things forbidden by the Law of God, much less for all things forbidden by the Law of God. Nor is a Gaol the punishment set for every disobedience to the Law of man.  
3. But, Sir, admit a person were duly Excommunicated according to the Law of God (which not one of a hundred is, not one of ten duly according to the laws of men, witness the Judges relieving many by Writs of prohibition, habeas corpus, supersedeas, etc. and many more would be so relieved, were they acquainted with the law, or had they purses to take the advantage of it;) yet I very much doubt, whether the Civil Magistrate with a safe Conscience can send him to prison, and so be a means of his ruin. My reason is because he hath had no knowledge of his crime, further than that an Official hath told him, he hath been excommunicated 40 days. I take for granted, and I appeal to your reasons, whether any Magistrate ought not to do what he doth out of judgement and upon certain knowledge? Our law suffereth not the Magistrate to grant an execution against any for forty shillings, till he hath been arrested, and he hath heard what he or his Council can say in his own defence; but in these cases, the Magistrate commands a person to be imprisoned and ruined, and neither doth, nor may hear any thing of his cause. It is true at our Assizes and Sessions Malefactors are condemned, to be whipped, branded, imprisoned, hanged; but the Sheriff who is to be the Executioner of these sentences, hath his place there, and a liberty to hear the persons case tried, and he doth hear the case argued, so as that he is or may be convinced the person deserveth such a punishment, which done, as a Minister of God and of Justice he may proceed with a conscience not rebuking him. But in these cases, the Civil Magistrate hath no such liberty, but proceeding upon the credit of the Official, and his supposed justice and honesty.  
4. I cannot discern a figleaf to cover the nakedness of this, but what is usually objected; That this is according to Law. The meaning of which is no more than this; That this hath been a custom in England, and there is a Common law writ in this case, form by Judges in Popish-times, and not since corrected by Act of Parliament. If this plea be good, we have reason to bless God, that we were not burnt at stakes before the writ de combu●endis Haereticis was by the last Parliament annulled, there was then as much law for that, as for this. But is it to be wondered, that while the Nation was enslaved to the Pope, such things should be? A Magistrate under Popery, is but the Pope's slave and Executioner. If a Magistrate would not do what the Church (as they called it) commanded, he was Excommunicated, his Nation interdicted, no Priests durst perform any divine Offices in that unholy ground, and no sooner is a Prince Excommunicated by them, but every subject is by them made a Traitor, authorised to poison, stab, shoot him, or to rise up in Rebellion against him, and all his neighbour Princes are armed with what authority the Pope can give them to invade him, and despoil him of his Dominions. Now that magistrates under these circumstances should have temptations, to burn, and hang, and imprison men, never knowing why, or whether they were any way guilty of any thing worthy of any such death or bonds, is no way to be admired. But that in a Protestant Country, where Magistrates are under no such temptations to fear, such things should be done, is matter of just admiration; and no Magistrate ought to punish persons under pretence of an usage and custom so to do, before they be satisfied, that they have deserved such a punishment.  
5. But further, Sir, Admit That the practice hath been Law, as they call it, that is a custom in England time out of mind; and that it is law, that is, that there is such a Writ still may be had from Cursitors. This custom had never been continued after the Reformation, had not King Hen. 8. and K. Edw. 6. both died, before they had perfected what by Act of Parliament they were to do, and had begun to do, as appears by the Epistle of Hen. 8. and the Letters Patents of Edw. 6. prefixed to the book Entitled Reformatio legum Ecclesiasticarum. It is true (as it may appear from the 13 chap. of that Book) persons that stood Excommunicated 40 days, should have been imprisoned. But therefore none was to be Excommunicated, but a Civil Magistrate, as well as the Bishop, etc. was to hear his cause, and if any Judge Excommunicated any, unless for such notorious crimes as are mentioned chap. 3. and with such deliberation as is mentioned chap. 4. himself (as appears chap. 8.) was not for a month's space to enter into Church, (unless to receive the Commuinion.) The Superior was to relieve the person so injured, & to annul the Excommunication, and the Judge that so Excommunicated, was to pay all the charges, and further punished at the pleasure of the Superior Judge. — That (say they) Judges may be afraid of bringing persons into so great calamity without a most weighty cause. And may not such a custom be rescinded by a Statute law? have not many old Popish Customs been so abolished? Is there not reason sufficient? are not the cries of people in all corners of the Nation against it? Is there not in the skirts of it great quantities of the blood of Innocents'? Have there not within these late years been more precedents than ever before of most unrighteous Excommunications? were there ever before 100 in one place, 5 or 600 in another decreed Excommunicated, whose greatest crime (whatever is pretended) was their giving free Suffrages for Members to serve in Parliament?  
Let Sir, I beseech you the cry of the oppressed come before you, for your God doth not despise it. Let the honour of Magistracy be valued by you, let them no longer be mere blind Executioners of the lusts and malice of men, and vindicators of the illegal and impious actions of others. There is no Sober man in these Nations, but dreadeth Excommunication duly administered and applied, because of the authority of God in it. But they must then see it used only against the enemies of God; Drunkards,  persons, Cursers, Swearers, Heretics, Idolaters, Perjured persons, Blaspemers, etc. and applied to them by grave and holy Bishops and Ministers, before it, once and again, labouring to convince them of their sin from the word of God, and advising them to reform, and waiting for their Reformation, and at last with grief and tenderness, with gravity and seriousness, proceeding to so dreadful a sentence. How forcible are such right words? but what or whom have our arguings of that nature reproved? who will, who can believe, that is bound in heaven, which by these hands, and for these causes, and in this slighty and praecipitant manner is bound on Earth? But, Sir, there is yet one thing more in this case, which I must crave leave to offer to your Deliberation.  
3 Qu. Whether the Writ de Cautione admittenda, being almost the only Writ for the relief of persons imprisoned, upon the Writ de Excommunicato capiendo, hath its free course yea or no?  
The tenderness of our forefathers for the liberty of the Subjects person, is obvious to every one, who hath the least knowledge of the Law of England. If a man be unduly imprisoned, he may relieve himself, 1. By Action upon Magna Charta, which provideth that none shall be imprisoned, but upon the judgement of his Peers, or by the Law of the Land. 2. By the Writ de Odio & Atia. 3. By the Writ de Homine Replegiando. 4. By a Writ of Habeas Corpus, Supersedeas, Prohibition. etc. in divers causes. But because by an old custom, persons imprisoned at the Churchs' desire were not Bailable, There was a particular Writ devised for their relief. For our forefathers never intended the Subjects should lie at the Officials mercy. The old Law therefore provided, that persons so imprisoned sending to the Bishop, and tendering him a Caution for their future obedience, to that command of the Ecclesiastical Court which they had disobeyed, they should be discharged, three legal Cautions were prescribed. 1. By Pledge. 2. By Bond▪ 3. By Oath. The Subject tendering any of these might be discharged, by the old Law of England, under the greatest Popish Tyranny and Usurpation. The Law further provided a Writ (if the Bishop refused the Caution) to command him to take it. I will transcribe it as I find it in the Register of Writs, immediately following the Writ de Excommunicato capiendo, (as they say the God of Nature hath in some Countries planted Antidotes in view of poisonous plants. v. Reg. Bren. Orig. & Judicialium, Londini, 1634.) It hath this Rubric:  Si Episcopus idoneam cautionem de parendo mandatis Ecclesiae ab hujusmodi excommunicato imprisonato admittere recusaverit, volens ipsum per prisonam gravare. Tunc mittat amicum ad Curiam & fiat ei Breve sic. 
That is, If the Bishop having a mind to oppress the party, shall refuse to accept a fit Caution, then let him send any friend to the Court, and let a Writ be made to him thus. Whence I observe,  
1. That even in those times, Officials were for keeping Persons in Prison contrary to all Law and Justice.  
2. That to remedy that Evil, this Common Law Writ was invented.  
3. That it is of the same Authority and as much Law, as the Writ de Excommunicato capiendo.  
4. That it is not a Writ of Discretion, which may be granted, or refused, as Officers please, and therefore to be obtained by Petitions or Motions, but a Writ of Common Justice, which ought not to be denied by Cursitors to any Friend of the Imprisoned Person, coming to the Cursitor, and demanding it.  
5. One thing I might further add, that it is upon the point, the only remedy provided in Law for persons thus imprisoned. The party is not remediable by action, or indictment upon Magna Charta, because though he be not imprisoned by the Verdict of his Peers, yet he is imprisoned per Legem terrae, by the Custom of England; nor by the Writ de Homine replegiando, because that runs. — Unless the party be imprisoned for something, for which according to the custom of England he is not repleviable, which is the case here; nor by the Wit de Odio & Atia, for it is hard to make out that such a Person is imprisoned out of malice, though he indeed be so: Nor by any Writ of Supersedeas. Indeed by the Writ of Habeas Corpus, a person thus imprisoned, may bring himself before the Judges at Westminster, but they shall only judge whether he be justly Excommunicated from the Significavit which is before them. If the significavit saith it is for contempt of the Court, being legally cited to answer for such Crimes as are Cognoscible in that Court, whether he were ever legally cited, or no, The Judges cannot relieve him, the party's Remedy lies against the Official, by Action of the case, and if he tryeth that way, if the Apparitor hath sworn in the Court, that he did duly cite him, whether he did or no; No action will lie but against the Apparitor, which is a lamentable remedy. If indeed it be contained in the significavit that he hath been accused for Crimes, which have been legally proved, and he admonished, and not obeyed, but suffered himself to be Excommunicated, and stood so forty days. And the party can make it appear, That the pretended Crimes were no Crimes, or not cognoscible in that Court, or that they were not legally proved by two Witnesses, or that they have been pardoned, or that he offered the Bishop caution, and he hath refused, or that he did not stand Excommunicated 40 days, or that the Writ of Excommunicato capiendo, was not legally taken out as is limited by the Stat. 5. Eliz. 23. Or that he hath appealed according to Law; in these cases he may be relieved by Habeas Corpus, or it may be a less chargeable way by Supersedeas (of which yet I am not certain if the Writt be Executed) but the true legal relief of the Subject, if the Bishop refuseth Caution, I take to be by this Writ the cautione admittenda: Though it be advisable for every Excommunicated person, as soon as his Excommunication is published, to send one or two to the Bishop, and to offer a Cautionary bond, which by Law he ought to take; if he refuseth, it may be advisable for him, as soon as he heareth the Writ is out against him, to move for a supersedeas upon that suggestion, or a Prohibition (if it will bear it;) if not, without more ado, to yield himself a Prisoner, and then bring this Writt de Cautione admittenda, you shall find the Writ in the Register of Writ, Printed in Lat. 1634. p. 66. in English thus,  
The King to the Venerable, etc. On the behalf of A. whom upon your denunciation, we have commanded by our High Sheriff to be Imprisoned, as a person excommunicate, and contemning the Keys of the Church, until he shall give Satisfaction to Holy Church, as well for his contempt, as for the injury done unto it. It hath been showed us, that although A. aforesaid hath often offered you a fitting Caution for his obeying the Legal Commands of the Church, that so he might have the benefit of absolution; yet, you to our admiration have hitherto refused to accept such Caution. And because we will not have the said A. detained in Prison against Justice; We Command you to accept the aforesaid Caution, and deliver A. from the Prison in which he is detained upon the aforesaid Account. Otherwise we will do what is our part to perform.  
Our wise Ancestors foresaw some Bishops might refuse Obedience to the King's Writ, and in that case they provided that the Prisoner should have a second Writ directed to the High Sheriff of the County: The tenor of which in English is thus, as it stands upon Record in the Register of Writts in the place aforementioned.  
The King to the High Sheriff of the County of L. Greeting. On the part of A. whom we Commanded you to Imprison according to the custom of England, as being Excommunicated, and contemning the Authority of the Church, until he should satisfy, etc. And it was showed us, that although the aforesaid A. often offered the Bishop a fitting Caution, etc. yet, the said Bishop (which we wonder at) refused to accept the said Caution, etc. Because we will not that the said A. should longer be kept in Prison, contrary to Justice, we Command you to go in person to the Bishop aforesaid, and in our Name admonish him, and effectually declare [Our Will] unto him, that taking the Caution of the aforesaid A. he command the aforesaid A. to be delivered from the prison aforesaid. And if the said Bishop refuse in your presence to do it, do you Command A. to be delivered from the Prison aforesaid, if he be kept there on no other account.  
Our forefathers ordained that both these Writts might be had with sicut alias, & pluries, and not resting here ordered an Attachment against the Sheriff, in case he refused to yield obedience to the Writ, which Attachment is in the Register thus:  
The King to His Coroners in the County of K. Greeting, If W. of W. Clerk, etc. Causeth you, etc. Then put, etc. W. the High Sheriff of our County aforesaid to give security, that he shall be before us such a day, to show Cause why, whereas we lately commanded the body of the aforesaid William to be Imprisoned according to the custom of England; upon the Bishop of Ely his denunciation of him as Excommunicate, and contemning the Authority of the Church, until he should satisfy the Holy Church, etc. and we hearing that although the aforesaid W. often offered the Bishop fitting Caution, etc. yet he hath refused to accept it; by reason of which we often commanded him our High Sheriff aforesaid, in person to go to the said Bishop, etc. and that he should command the said A. to be delivered, or signify the cause to us, why he disobeyed our commands, etc. or to appear before us, etc. and there to have our Writt directed unto him; yet, the High Sheriff aforesaid despising our Command to do the premises, or at least give us a reason why he would not, or could not Execute the same, or appear before us the day aforesaid; and regarded not to make return of our Writ as we hear, to the manifest contempt both of us, and our Commands aforesaid, and the no small damage and oppression of the said W. And we command you, that you taking a fitting caution of the said W. for his obeying the Commands of the Church according to Law, and deliver him from the Prison aforesaid, if he be there detained upon that and no other account.  
This, Sir, is the known Law of England, in the case of persons so imprisoned; nor is it possible, any English Liberty should be more fortified.  
But, Sir, My Lord Chancellor Hid (to whom we are beholden for more of this nature then this) by what Authority I cannot tell, turned this Writ of Common Justice to be granted readily, and of course into a Writ of Discretion, making an Order, That it should not be granted, but upon a Petition first offered for as to him, or the Successive Lord Chancellors, or Lord Keepers; which Petition he took a liberty to grant, or not to grant as he pleased: (We were beholden to him that he did not put the like restraint upon all other Writts of Common Justice, for he might have done it by the like Authority.) Hence this Writ is not gained but with great charge and difficulty. I mean the first Writ to the Bishop: With what Justice this is done, Sir, I leave to you to determine.  
When it is granted, some Bishops have taken themselves to be at liberty, whether to Obey it or no. Some have utterly refused it, with the expression of great anger, and threatening Persons that they should seek to come out of Prison that way, [that is, by an established Common Law Writ.] Yet, all that these men have to say against the Non-conformists, is their not obeying the Law, and what Law can be plainer than this, or more strong and just?  
When the Bishop hath thus refused, (which hath been often,) I beseech you, Sir, inquire what success they have had, who have moved for the Second Writ to the High Sheriff. It hath been often moved for; I beseech you Sir inquire what the reason is, that all His Majesty's Subjects cannot obtain these Writts of Common Justice from Cursitors. Why the Writ de Excom. capiendo flies about so freely, and the Writ de Cautione admittendâ is got so difficultly, when the latter is as good Law, and as much the demanders right, as the former; and the latter is for the Liberty of the Subjects person, (which all the Law of England highly favours) and the former is for the restraint of it. If Sir, (till a Statute can be obtained to procure good men's Liberty from an old Popish Writt,) the Law must have its course on that hand: I pray let it have its course on the other hand also; and let us not have the Liberty of our persons at the mercy of every Register that wants Money.  
Sir, I would not be mistaken, I very well know, that in such Chancellors Court, in the Court of the Arches and Delegates, etc. many great and weighty causes of great and momentous natures are heard, and they at present have no engine, no method of Law, but by way of Excommunication, prescribed to force the appearance of persons to answer charges, or to force an obedience to their decrees. I have nothing to do to direct my Sovereign, or a Parliament by what Courts or Judges, such or such causes shall be tried, be they by whom his Majesty and his Parliament please; nor is it reasonable that they should be without a Coercive power, both for appearance at their commands, and obedience to their Decrees; Your Honourable Assembly knows how to reach them out a sword fit for their use, though they take not this which God hath laid up as Sacred in his Sanctuary, In our Common-Law, there is Judgement by default; in our little Courts, there are Amerciaments; In the High Court of Chancery, there is an Attachment, and then a Writ of Rebellion. May it please you, Sir, to put any of these swords into their hands. But oh forbear this edged tool, which wounds both soul and body, and is not to be used but by them, to whom, and against them, whom, and in the manner wherein our Common Lord hath said smite, and what you bind on Earth shall be bound in Heaven. I beg your pardon for so long a letter, I should truly judge it tedious, were it not upon an unusual subject, and where the matter led me to it, and did I not know your great zeal for the Glory of God, the Subjects just Liberty, and your compassion for many persons, and families, already undone, and every day undoing, if your Honourable Assembly cometh not seasonably in to their rescue. Humbly committing them, Sir, together with your Honourable Assembly to the God of all Order, and Government, and the fountain of all wisdom, I take my leave, and rest, Sir, etc.  
FINIS.