The Source, Force, and Course OF EXCOMMUNICATIONS, Conducing to the clearing of that seeming perplexed question, of and amongst the ASSEMBLY of DIVINES.  
Where the seat of the power of Excommunication is? RESOLVED.  
Whether in the Churches of, and in Monarchies; or in the PRESBYTERIAN.  
Extracted out of the originals in the Old Testament, as the RADIX; pursuing the New Testament, and so to the Civill and Cannon laws, and their congru●ties with both.  Nec semper blanditur a pes dulc●dine mellis. 
By J. D. S.  
London, Printed 1646.   

The Source, Force, and Course of Excommunications.  
THe holy Sabbath was instituted for the Sanctifying; The A ke was prepared for the preserving; The Decalogue promu●gated for the Instructing; and Excommunication ordained for the Purging of the Church: All which( amongst other things) show that of all those the Church hath need.  
The latter of these hath in these latter times fa●ne into the managing of Masters, more exorbitant, then unskilful, the ecclesiastical Lamechs and Nimrods: Which I know not to whom better in one respect to compare, then to Bearewards, who publicly carry about with them things of danger, muzzled to get money with; whereby as those, so this hath been more slighted and sported with( if not more scorned) then feared the use and result whereof, I know not well how to distinguish from simony when a man for every trivial occasion shut out of the Church, may buy himself in again for money.  
The present times are full of expectation of Reformation, principally of the Church, both for Doctrine, and Discipline: I conceive the latter in its degree hath as much need as the former; towards which I also conceive the true consideration and understanding of the original the nature, the power, the extent, the danger and true, and due administration of Excommunication may much conduce, to which purpose, I have yet timely enough( I hope) hewed out( only) this block, leaving and humbly submitting it to the Masters of the Assemblies to be by them proportioned, cleansed, and polished into goads, 
Eccl. 12.11.  and N●iles, and then fastened: The method I shall use, is by drawing the matter into three general Queres; with their divisions, distinctions▪ and in some part resolutions: Thus much for Jntroduction.  

1. First, the original, and the right understanding and sense of the word Excommunicate, and of those whence it is derived or taken.  
2. The Nature, Power, Extent, Lymitation, and several sorts and effects of it: And under that head also of appeals from the sentence of Excommunication.  
3. The Power of sentemcing in whom.   
Concerning all which, to be rightly informed, wee must have recourse.  
1. To the Law of God in the Old Testament, and the practise of his people therein and since.  
2. The Doctrine of Christ and his Apostles in the new.  
3. The Laws of Nations commonly called the Civill and Cannon Law, and how in many cases they take their ground from Scripture.  
For the first of these three Questions, it is best understood, by taking into consideration all the words by which in Scripture it is termed or expressed, as Anathemate, Execrable, Abominable, Cursed, Damned, Cast out, Cut off, Excommunicate: All which, as they are found in several places may sometimes be taken to signify one and the same thing. Yet in other places and cases there is found plain and perspicuous differences and sences, some as much different as good from bad. First then of the word Anathema, which hath three several extentes.  
1. To things Inanimate. 2. To Persons. 3. To Places.  
1. To things Inanimate, 
Deut. 7.25 26.  Covet not the silver or Gold of the idol, nor take it unto thee, bring not the abomination into thine house lest thou be accursed, like it Saint Jerom nearest the Original ne fias Anathema, and Deut. 13.27. it is called damned, Saint Jerom Anathema.  
2. To Persons: 
Jos. 6.26.  Cursed be the man that riseth up and buildeth this city, Saint jerom. Sit ille Anathema.  
3. To places: The city shall be an execrable thing, 
Jos. 6.17.  Saint jerom: Res Anathemata.  
Therefore of this one word which comprehends so much and much more variety; we must yet search out the original, composition, and further signification.  
For that, we must resort to Ios: again; where we shall find one and the same word, used to one and the same thing, in two contrary sences; in one place for Silver and Gold consecrated to the Lord: and the other place for the same silver and gold accursed, yet both very well reconciled; and for the better understanding of it, which hath two several expositions suitable to the said two contrary sences, wee must expound this compound word of Ana quod est sursum, and Thesis quod est positio: Then in the first sense, Res Anathema is a thing put or lift up to the Lord from common uses, in one word Consecrate: So in the first of those places: The Gold and Silver of jericho( of the very same whereof Achan took part) is commanded to bee consecrate to the Lord: 
Jos. 6.17, 18, 19.  what the Consecrating, is in the same place marginally expounded( and warranted by other places of Scripture sheweth) molten in the fire:  
But then secondly, in the second place and contrary sense: 
Jos. 7.2.  Achan taking a Wedge of the same Gold, is said to take the accursed or excommunicate thing, but more properly as Saint jerom hath it: Usurpavit de Anethemate; which thing being by him as it were taken and purloined from the Lord, was to him accursed: But then for the exposition of this compound word to this sense, I will as I mentioned before take some Observations out of the Civill or Cannon Laws, so in one of their books, I find it thus expounded or derived: ab Ana quod est sursum, and Thema quod est figura r●tunda, 
Extravag: come. 58. c, 3.  haben te telum extransverso queen consnevit poni in frontibus D●mnatorum.  
3. And if we would have it yet more plain, observe but the 17th verse of that 6th Chapter: there it is said the city shall be Anathem●, or an Execrable thing( wherein was the Gold the Silver and the brass) Those which tend●r the Hebrew word there used, say it is Herem: This I find the Expositors call an equivocal of this double signification, 
Lyra supper Ios. 6.  Destructio& consecratio: So thus have we the true sense of that first word taken in two several contrary sences, reconciled: And thus much concerning Anathema as we find it in the Old Testament; wherein following our vulgar translations wee have it in the several terms of execrable, abominable, accursed, damned: yet Saint jerom as nearest to the original doth in all these places use onely the same word Anathema.  
Thus much may serve observable out of the Old Testament.  
2. But then secondly as concerning the same word in the the New Testament: where we find the word Excommunicate as a general word, if wee consider it according to the several places, matters, occasions, and sences where or wherein it is used; we shall find as three several sorts of Excommunication; so likewise three several terms by which Excommunication is notified, and amongst them the terms of casting out, and cut off, all of different signification extent and use which concludeth the first, and will also explain in part the second general question.  
The first is Casting out, John 9.22. and 24. concerning him that was born blind, and his Parents, in which place, those which render the Hebrew word, for it Niddim, English it, separation or putting away,[ though I am not ignorant that his gospel was not written in Hebrew) It was in the practise and use of it against such, as were of a contrary faith to the Synagogue: done( though not publicly or published) by the whole Synagogue, 
Mos de ratibus Indeorum.  it extended to both Sexes, it excludes from all manner of company society, eating or drinking with others, from the marriage bed: only it had with it a supersedeas of 30. dayes if the party repented: and in the mean time he might bee present at divine service, he might learn, teach, hire or be hired: if after he continued unrepentant, his Male Children were not cirumcised: if he dyed in that condition, he was not butted in usual burial: A ston was cast upon his Coffin, to signify he was worthy to be stoned to death.  
The second was giving over to satan, or Cut off: this we have 1 Cor. 5.5. and 1 Tim. 1.20. in which case those which render the Hebrew Word Cherem, do in that differ, as in the cause, so in the manner circumstance, and extent: The manner and cirumstance was 3. fold.  

1. It was published in the audience of the whole Church.  
2. Maledictions and curses were added to it.  
3. At the publishing Candles were lighted, and at the end of the Curses they were all put out, which signified that those thus Excommunicate or delivered over to satan were deprived of the light of Heaven.   
Thus in the New Testament; and so further in the time and by the direction and sentence of the Apostle, St Paul in two particular cases; the one of the Incestuous person; the other of Hymeneus and Alexander who had made ship●rack of their Faith.  
The third sort was Excommunication to death; 1 Cor. 16.22. Those which render the word in that case have Maranatha a Syriach word the jews use the word Schammatha: both thus in the Etymologue Maran or Schem, the Lord Atha, Commoth: Others thus, Schem there, Mitha death: so an Excommunication to death, and this was termed by some Excommunicatio in secreto nomine Tetragrammati, Those that were thus Excommunicate, were by some thought to bee such as hated or denied the Lord-Iesus. By others such as had committed the sin against the Holy Ghost; thus much for these words and the several acceptations, sences, and extents of them, in the New Testament, and in part of the three sorts of Excommunication.  
But we cannot yet leave the new Testament unless we should leave out the Alpha and Omega therof: who beside the matter now handled, doth also for the manner of proceedings( which will fall out to bee of extraordinary consequence in this case) give such a standard rule as that for motion, practise and conclusion, the whole matter must depend on, and is in the doctrine touching the offending and offended brothers: for the clearer understanding and evidence wherein, we will take in the very text; 
Mat. 18.15 16, 17.  Moreover if thy brother trespass against thee; go and tell him his fault between thee and him alone, if he hear thee, then hast thou won thy brother: But if he hear thee not, take yet with thee one or two, that by the mouth of two or three witnesses, every word may bee confirmed: And if he will not vouchsafe to hear them, tell it unto the Church, and if he refuse to hear the Church also, let him be to thee as an heathen man and Publican.  
From which there are two things principally in this case to be observed.  
One thing necessary implyed in these words; If he refuse to hear the Church, which is[ if it come so far) the Church is also bound to hear the offending, as well as the offended brother: else how can the Church know whether he hear it or not, for the offending brother may hear both the offended and the Church, and aclowledge his fault, and give satisfaction, and yet the offended brother not having it punctually according to his own mind and judgement, will not aclowledge that the offending brother hath heard him or the Church: besides which also there may bee divers other varieties of cases, and as it is the rule of Gods word, so it is Jus Commune of all Nations, and of nature itself, before judgement, to hear both parties: But the other thing to be observed is, that before sentence the offender must be summoned, and here in this case there are of it three degrees.  
First, By the Offended brother between them two alone.  
Secondly, By or at leastwise before two or three witnesses.  
And lastly by the Church it self, for otherwise how can he hear the Church before condemation, if the Church do not call and summon him to hear it.  
The reason why I urge this so much will appear by that which follows.  
First, because a man so contumax as not to hear the Church, is upon the point( though not in express term) pronounced by Christ himself to be Excommunicate: to make that plain, the words are, Let him be to thee as an heathen man, and a Publican: an heathen is one so far shut out of the Church as never of himself in, and that by the strong Covenant of Grace too: but he must bee also as a Publican too; A Publican was one that when the state of the Jews was a Tributary to the Romans, gathered up all the Tribute money: which was an employment so odious to all the jewish Nation in respect of the exactions and extortions imputed to be used therein that some hol●[ as Tertullian, that no Jew would take it upon him, 
Tertul. Eopudu. c. 9.  but how ever true or not, this is certain the Office was so odious and abominate amongst them, that they had and held this general Rabinicall proverb and Rule: Take not a wife out of that Family, wherein there is a Publican: All this& this condition amounted to an Excommunication in a high( though not in the highest) degree, and so proper to the point in hand.  
But then secondly, for and as a general concluding and binding Rule, no Excommunication without gradual Monition.  
So taking these grounds out of the Scripture, to fortify all which I shall collect out of the Civill and Cannon laws, and which in this point do all generally concur with this Rule of Scripture, I shall now fall upon it, which is the last Rule of explanation, and must also satisfy, resolve and clear the points of the two last general Queres. 
The Civil and Cannon Laws resolving the second general Quere.   
And finding the laws in this point to bee almost of an unlimited latitude, and such as will rather cloye then content, the investigation; that I might therein neither impertinently wander, nor slight things pertinent, I put on this double resolution.  
First to take my observations out of those authors or authorities, whether Cannons or decretals as were in this case most contracted.  
Secondly to take out, and bound my way, by or within certain lines or points, Classes or ranks, some general, some particular, all or most of them taking their grounds from the former, which shall be principally these five.  
First, The several natures, kindes, or degrees, and extents of Excommunication.  
Secondly, What persons exempt or not exempt if any.  
Thirdly, Excommunications appealeable; which and in what Cases they are and are not, and what persons capable or uncapable of appeals.  
The fourth, the manner and degrees of legal proceedings in them all.  
Fifthly,[ so far forth as these authorities will give leave] who are or ought to bee the competent Judge or Judges in appeals: None of which I intend to prosecute as a common place, but onely as a Land-mark directing to the right and Sea-marks for declining the wrong still under the submission aforesaid for the regulating of the use and Reformation of the abuse of this legal, Clavis& Virga Ecclaesiae Excommunicatio.  
To these five I could have added a sixth[ though not worthy to be any, which is that of Ipso facto, or Ipso jure; concerning which I will briefly give a touch, as a man would do to an impertinency as this is, remove it out of his way that it may bee no Remora in a full and clear course to matters of consequence, briefly thus.  
This kind is by the Civilians or Canonists to be predominant in 52. several cases: whereof say they, 16. are reserved to the Pope; that is as I conceive in point of absolution: But having nothing to do with that Chaos of confusion and damnable doctrine, but christian-like, and charitably to pray for the conversion of him and his followers; or if that may not be, then in Gods good time for their utter subversion: I will have as little to do with his reservations, and no more to do with this kind of Ipso facto, which indeed by some of the Rules of their own law cannot bee lawful: But if in any case then against Apostatats: and in that case I think it may be well warranted if by no other, yet by the true Law of Reason; in that they exclude themselves out of the Church, and so to the five points last mentioned.  
First the several natures degrees and extents of Excommunications: they are in number especially two; And herein also observe how the Civill and Canon Laws concur with the practise of Gods people in the old Law, and how far, and how it hath its ground from or agreement with holy Scripture.  
1. Excommunicatione mayor, which carries with it the title of Anathema, this excludeth A Sacramentorum participatione, a Communicatione fidelium, ab ingressu Ecclesiae, 
sixth. 232.  a Sepultura in eo statu in Cemiteriis: in a word it is styled, Mortis etern damnatio.  
2. The second Excommunicatio minus, solum separat a Sacramentorum participatione: 
Clem. 42. c. 4. sixth: 225. c. 2.  So the Canons and Constitutions of Sixtus Clement and the rest agree. This of a narrow scantling, That a person so excommunicate may for a time officiate, and celebrate without any appeal or absolution: but for the former an appeal must be had before the party so Excommunicate can celebrate. And as in both these there must be in all points due course of proceedings held, so in some cases also that being observed, they may be void in themselves after denunciation: which point will fall out to be further explained in the Section of appeals, or more properly in the handing the fourth point.  
2. The second concerning persons exempt or not exempt from both, or either sorts of Excommunication.  
First it being granted by the Civilians and Cannonists, that the King of France and some temporal Lords also have Immunity from Excommunication: I shal make bold to extend that line to all Christian Kings whosoever for several reasons.  
First for that no particular cause is by them shewed( nor doth appear in the grounds of their Rules) wherein or for which the Kings of France have such particular exemption.  
Secondly for that all power in all the Protestant Monarchies, and in France, also the donative power of the Judge which must grant it is subordinate and holdeth of the King, who neither giveth nor can give power to Exommunicate himself, besides the act and jurisdiction of Excommunication is an appendent to the place and Office, not to the person, and thereupon vacancy remaines till a person capable be admitted, which the King may do to the place in general not particularly, and alone to the power of Excommunication, which in the vacancy lieth lapped up in the rest, as Goliahs sword in the Ephod, more may be rendered; But these only may suffice.  
True it is that the Bishops Electors of the Empire do not subordinarily hold off the Emperour, but their power in this case to him is as limited as to the rest.  
The next then that may pretend in some cases to challenge exemption are Arch-Bishops( for temporal Lords in the general may be excommunicate) who though I find invested with many privileges, As not to be tied to lay his hand on the Evangelist, 
sixth. 28. c. 1.  when he taketh an Oath: That he may upon just cause take some rights from one Church, and give it to an other: That he may without consent of the Chapter grant a faculty or Warrant to alyenate Church goods: That he may leavy and exact relief for the poor upon spiritual livings: That if by Letters of mark, a ship be taken at Sea where in an Arch-bishop is, he cannot be holden, and divers others, yet it is resolved that he hath no exemption from a due and legal Excommunication, issuing upon just cause, duly prosecuted, and withall, Acudice competent: But who that is, is so great a question as I will not take upon positively to decide, yet must bee argued so far as it may for the resolving of the last general Quere.  
The third as touching appeals and under his head also of Eccommunications void of themselves, in before, or after the sentence given, touching which last it may be in several particulars, As when the due order of monition is not observed.  
Also when there is an appeal before sentence given, likewise when the sentence or process contain manifest error. again if any judge whether delegate or other be excommunicate himself, and in this last case I will not look after any further authority of approbation then from our own Records and Chronicles in the most pregnant case,( and it is a fortiori too) of the first sentence against that most worthy Martyr Mr. John Bradford. He in the year, 1554. was by Doctor Weston and others condemned of heresy, and had sentence pronounced against him, but not then executed, after in Anno 1556. the matter being again revived to have the former sentence put in execution, 
Fox in Hist. jo. Bradford.  it was determined by the Judges themselves that the first sentence was voided of itself, because some of those Judges at the time of the sentence given were excommunicate themselves and were not then absolved, therefore new Commissions were granted to them for the Convention and sentemcing of him, and Latimer and Ridley upon which they were all three sentenced and delivered to the secular power. 
sixth. 20 c. 1.  But howsoever( to go on) from Excommunications lawfully prosecuted and denounced, the party so Excommunicate may lawfully appeal: If the question be demanded to whom he may appeal, the definition in those laws what an appeal is resolves it Appelatio est de inferiori ad superiorem provocatio, and in some cases particularly to a Synod which we shall further explain a non. 
sixth. 131. Idem 132.   
And here as in a convenient place we shall draw in the true cause and end of appeals which is, that they were devised and ordained for a remedy of the Innocent, but not to protect the nocent person, and doubtless hath( as in case of so great consequence as fit they should have) their ground and warrant from holy Scripture.  
Lastly, If it should be demanded( to end this point) whether all persons excommunicate be capable of appeals it is Answered, divers are not as felons, Murtherers, Jews, persons convict of any notorious crime, as usury, simony and divers others: 
Clem. 51. c. 3.  Persons arrested upon the Writ de Excommunicatio capiendo; And of some it is questioned whether Common Stage-Players may appeal or not? Neither can any appellant appeal the third time? Niether shall any appeal hold, but is voided in Law when the appellant will sue in other Causes under the same Judge from whom he hath formerly appealed, Because if he bring a second appeal, and do neither prosecute nor prevail, it brings a third sentence against the appellant by and before the same judge, Thus much in brief for appeals.  
The 4th. concerning the due and legal course of proceedings in them all.  
In which though there be many rules and points to proceed by; I will touch only one, which must be generally held in all, not omitting those ipso Facto, if any such may legally be, of which I make so great a quere as to leave it to abler judgements to resolve. But the general rule of the Law is that of Christs; the persons to be excommunicate must all be proceeded against by way of monition, which in the legal practise of it, ought to be thrice, though but two days between each: But if but one monition, then six dayes must be elapsed before sentence of Excoication; In which Case the Law is so punctual, that if the Pope whom they would make both Fulminator and controller general of all Excommunications, or A Bishop should know of his own knowledge, a man to keep a Concubine, he cannot excommunicate him without a monition Sub pena Excommunicationis Concubinam dimittere.  
This point that I so much insist upon, I know may bee thought by some useless, because in most places and cases used, but the reasons of my insisting upon it are two. First because I find that of late time in some very weighty cause it hath been omitted, which how great the prejudice( nay I will say the sin) may be I leave to others to judge. Secondly for Caution in new discipline; a thing so requisite so warrantable nay so commended by the word of God as may no wise be omitted. I will not take upon me to tutor away, but as it is most true that all human actions even the most quintessenced are mixed with imperfections, so whether by any slight esteem, want of scrutiny, Iudgement, memory, or the like; abundance cautela non nocet.  
This only for the 4th. legal course of proceedings. To which only I shall in this place, as most proper, desire to be observed, and so conclude this point, that in some point an excommunication obtained by a person uncapable to sue, shall nevertheless stand good, 
sixth 96. c. 3  which is if in a cause sentence shall be given for an excommunicate person as plaintiff, and the Defendant never allege the excommunication of the Plaintiff till after sentence pronounced against the defendant, it shall not bee void for that point of excommunication in the Plaintiff, which in point of Cautions wherein I now am, I thought not amiss to be observed, thus much for the 4th. point; Next to the 5th. Competent Iudges.  
In this point having viewed divers Cases I shall insist only upon two.  
The first is that wherein a sentence of Excommunication is given by an official or suffragan, the party grieved cannot appeal to the Bishop, he is in this cause no competent judge for they having both one& the same consistory, such an appeal is but from one judge to the same, then by th● former general Rule all appeals must be ab inferiori ad superiorem, it fo lowes therefore the Archbishop or his delegate in this case is the only competent judge in cases of appeal, but now here the question which the times in this kingdom hath produced is to be answered, what is to be done where there is neither Archbishop nor Bishop; This is most properly to be answered in the resolution of the their general Quere.  
The second is only concerning the times limited for beginning and ending of appeals( which commonly are accounted delatorie) the general● Rule is the appeal must be brought within ten dayes and ended in a year, unless some special cause bee or intervene to the contrary, thus much briefly for satisfying of the 5th. point and so am now come to the proceedings of the third and last general Quere.  

The power of sentenceing in whom.  
HAving made a very short Cut over the Oceans of appeals and course of proceedings, I am now to shoot the gulf of this power, or the seat of this power of sentemcing in whom? wherein I see in respect of the alterations which the times are like to produce in point of ecclesiastical Discipline, I cannot be so brief nor come off with so little labour as I would for that divers points, and some of great moment and consequence are to be handled yet because in this point as in the rest I will pursue all brevity, and clearness too, to this purpose as more satisfactory to the main point in question if any be, to draw both the questions into one; That of the Assembly, where the seat of the power of Excommunication is; and mine own The power of sentenceing in whom; between which I can perceive no essential difference: But then first concerning theirs, I may rather admit of the resolving of a question out of or upon it, then the raising of it, in which question certainly by those words where the seat? they intend according to the laws: if any question in that be, it is which laws they mean, whether the laws of God▪ or the other now in force if by the laws of God, it being a question in Divinity, who can better resolve it then Divines; I am not ignorant that this question may be put only as leve●led to one only point or pin that is to the independents to which if they give a direct answer punctual and not dilatory or with subter fuges it is to see whither and how, and wherein and how faire their opinion in that Case will agree or disagree with, or from theirs that put the question, but for the independents, I think they are more froward then forward herein; for such as their Religion, such will be their resolution, and certainly their Religion if it bee any, is but a whispering Religion concerning which, though I forbear to enlarge myself, others may know what I mean but to go on: if the propounders of the question mean or intend the other laws; then certainly we are in so right a way hitherto, as will either fully resolve, or draw it to so near a scanling as will require no more in a manner then the word to bee given fully to assoil it: And here for further question upon upon that point, I conceive there is Nullum tercium; for they cannot intend by it any laws in that case to bee made; for then the question would have been where it is or ought to be the seat, not barely, where is it so, then to conclude that point in their own question, it must bee confined, unto, or within the laws of God, or those now in force: and then it may the easilier be discovered, whether it doth tend, and where it will end which is in all questions one principal furtherance of resolution, and so now to go on to the place and course from which by this last question I may seem to have deviated.  
First, then admit as undeniable the power of Excommunication is vested and lodged wholly in ecclesiastical persons: Of these Bishops being now pared of, and excluded, the seat and power, must either remain in the rest, or else it is quiter and in seperably gone with those Cashiered: and under favour and submission to better judgments, I cannot see how for or by any thing that is yet done, that Bishops are or can be so totally cashiered or irradiated, but in the construction of the Civill and Cannon[ if not in and by our Common laws too, he is still a Bishop, especially if we consider him in these three particulars, and so hath in all or most of them a peculiar legal power.  
1. His Consecration.  
2. His legal power of Ordinations and institutions.  
3. His Office and power in spiritualibus as administrator or dispenser of the personal estates of deceased persons, his jurisdiction and sentence touching divorces, Marrying, Contracts, legitimation or illegi●imation of issues, his power concerning Dowers of Women joynturelesse, the several affairs and interests, the several statutes of this Kingdom in trust him with; and to omit the rest, this very case of no small importance, Excommunications, in which he hath an intermixed and refortified interest and power by the stratutes[ with that of the Civill and Cannon Laws of this kingdom, and without which till legally derived unto continued& confirmed in some other person Excommunication against refractory and exorbitant persons will do ●ittle good without the Writ, De Excommunicato Capiendo, which delivering the offender to the pow●r of the secular magistrate must first take its rise from the Bishop or such as shall have the same legal power: but being now within the Line of Excommunication, I must onely keep me to that glancing by the way, to take off or rather satisfy others, exceptions concerning degradation, which as it is only to be don by ecclesiastics, and those too such as have power and capacity to do it, yet( when used) is only a formal favour in respect of the function and dignity, otherwise needless; when a Bishop for some capital offence may be and is justly liable to punishments in such cases due. And I hearty wish some of them had not deserved too much in that kind already; But to go on with Excommunication, and for clearing the way and explaining the matter to that which follows, I will put a short case or question, suppose one of our now cashiered Bishops should commit some fact, or may teach or hold some error or the like, justly and merely punishabl by excommunication: I would know who shall do it or how it may legally be don? and if it could be done, how it may hold? Certainly as from degradation, there is no appeal, so it is as certain from Excommunication an appeal is as lawful and cannot be denied.  
To shorten the business▪ no inferior Minister as the laws now stands can do it, for if it could be devised, the Bishop may restrain the power and process of the Minister, in rebus quo ad lights: if a whole Congregation nay, all the Divines in the kingdom should Excommunicate him, there must be form as well as matter; if both could be had yet by all the laws in christendom nay and Heathen too nay I may say further, if not jure Divino, yet jure Apostolico he may appeal& it ought not cannot be denied him carrying this always along with us that all excommunications( except in the Cases excepted, have and must inseparably have and be accompanied with these two adjuncts and appendents monition& appeal; so then no power of excommunication in any but such as may be appealled from.  
It is true in a Case of so high consequence it is fit for me for the surer warrant of this assertion to fetch my ground from holy Scripture: wherein though we find but one case that of Saint Paul, yet in that are two things Remarkable 1. That he that will do it, 
Acts 25  may so do whether the Judge will or no under whose sentence he standeth. This is plain by Festus his offer to paul and his answer to it yet Festus willing to get favour of the Jews answered Paul and said, 
Vers. 9  wilt thou go up to Jerusalem and there be judged of these things before me. Here the corrupt judge would have betrayed him into the same snare out of which by Gods wonderful providence he had newly escaped, But when paul answer resolutly; no man can deliver me to them, 
Vers 11  I appeal to caesar, he had as resolute an answer of the judge, because it could not be denied him; to Caesar shalt thou go, And here by the way is an appeal before sentence which maketh good a former assertion and point also of Law. The second the Person to whom he did appeal making good and and ●egall also another former assertion and point of Law, it was ab inferiori ad summum which rule I conceive in these cases must be held where there is no intermediat subordinate power as to a lawful Synod of Divines to which a party grieved may doubtless complain if there be any, yet I conce●ve under favour he cannot appea●e to a national Synod for ●his reason; because of such a Synod there may be some Divines who have given the first sentence of Excommunication, 
Vers 12  and then he doth appeal from one to the same judge unless in such a national Synod that may be avoided and provided for, and this with this exception or Caution. I conceive is the best rule to be held and guided by, thus far to resolve the question namely that the power if in our divines and Church is such, as may be legally appealed from.  
But this argument may beget two other questions 1. I● an appeal should be made by a Bishop to the King, what can the King do in this case? 2. What need all this stir in a kingdom or state where no Bishops are? The first of these questions is not so difficult to resolve, but that both by our own laws as they now stand, and by Presidents both of the Primitive and modern times it may be cleared. But since it seems we shall have no need of it, I shall for shortening of the business, thus far admit of the positive part of the latter; That in this kingdom no Bishop hath( or at leastwise is like to have any power at all, and these dead either by natural or Civill death there are not likely to be any more: I speak now, and all this while that I mention Bishops under that notion and title they are now commonly taken; for otherwise lest in the largest construction the case were mischievous: For who knoweth not that every general of an Army, mayor of a city, Master of a Company, Master of a Ship, clerk of a Market person of a Parish, Minister, Vicar, Curate, are every one of them Episcopus.  
Why then in that point let us conceive ourselves to bee in the condition of a free state, and a presbytery settled therein, take for example that of Geneva, as one of the most refined in that kind( which began about the year 1530. invented by Calvin, he doth so far untie his own knot as in giving a reason for it declareth that he did it not, because he judged Episcopacy, Antichristian, much less did recommend his discipline as a pattern to others as appears by his Epistle to cardinal Sadolet) But to go on, there the Minister excommunicates it may be with the consent of his Brethren Ministers for it is plain the Layick, and Secular, have not by any Law, any manner of power or capacity of power to act the least thing in the matter of sentence of Excommunication, why then it must bee insisted upon that in these cases and places the power of sentemcing( which is the great and general question) cannot bee in a mixed body of ecclesiastics and seculars if that should bee affirmed, I must then put this question quo warranto, which if it can bee clearly resolved, I shall bee the sooner drawn to yield.  
Then to that question.  
I suppose the maintainers of that power must make it good, either by the Civill or Cannon laws, or that wanting by custom for Nullum tercium Invenio.  
For the first it appeareth to bee so totally and absolutely against it, that I will mention it no further: Then next for custom, and I think the Civill or Canon Laws, choketh it also; But wee shall a little better examine this point and power of custom.  
Observing the rise of this tumerous body of custom in Free states, where Presbyteries are settled in other cases as well as this, I find the way hath been where they find laws against them or wanting, to draw their own fantasies into customs, and then to make customs their deity, ascribing to them all omnipotency: But the laws having an eye as well to former as future customs, neither abrogating nor approving all, rectifieth them into a due course, and have for compliance with those which are or may be just, granted them liberties: and for others unwarrantable set them limits, thus? first in their definition.  
custom is a certain right which is taken for law, when law wants: A little more largely.  
Consuetudo est jus quoddam moribus institutum quod pro lege suscipitur cum deficit lex, again. 
clem. 44. c. 4. sixth: 20. c. 3. sixth. 83. c. 3. sixth 132. c. 3. sixth 20. c. 4.   
Consuetudo dat jurisdictionem, again.  
Consuetudo legum interpres, thus much for privileges and liberties.  
Next for limits, and they come in as exceptions to all the former general cases.  
First, Consuetudo rationabilis est si non contra jus& sufficit si pro 40. annis continuatur. But in certain cases both custom and prescription void, as in this or the like cases.  
The Cannons of a Church of time long enough to introduce a custom( if it were reasonable) were wont to receive daily distributions as well those present as absent, whether this be a void or a reasonable custom or not? resolved in point of Law void: for those absent may not have those distributions because they are and ought to bee given into their hands, and are therefore rightly called Mannalia benificia Clericorum, and so both custom and prescription void: But to come to the point of Excommunication.  
Excommunication cannot bee awarded or denounced merely by any custom onely against private persons, if not against them▪ 
Extravag: come. 23. c. 2.  much less against superiors, and then how can custom in free States or Presbyteries in them be enabled by any custom avail, have any power, to excommunicate.  
But again look into the former words of the definition of custom: it is a right taken for law where law wants, out of which is concluded aliter non. And then the laws of, and for Excommunications being not wanting to any free State or Presbytery, if they will fol owe the rules of those Laws, they must excommunicate by those laws or else they have no power by custom or otherwise to excommunicate.  
But lastly to conclude all, if we should admit them power by custom or prescription to excommunicate yet then those excommunications as all others whatsoever[ except the former excepted] upon the first sentence of excommunication must stil be inseparably accompanied with those two essential adjuncts. 1. Of due Monition. 2. Of power liberty and means to appeal, and of some certain qualified person, to whom: which if they can do and follow, I may grant, that which is not yet granted that presbyteries in free States may by custom or p●escription have power to excommunicate, aliter constant esse impossibile.  
And now having drawn the line along the work I find by a retrospect of that which is already done the work of too short a scantling for the line and therefore fits here to tie the knot: For though it and true by all this which is said it doth not yet c●earely appear in whom the power of sentemcing is; Yet is most plain that in the case of Presbytery of Divines and seculars in a free State, it is not, which may serve● for resolution sufficient for the point in hand.  
True it is the work may be pieced or spliced to a further length, and then also may the same line be found of extent enough to resolve the affirmative In the mean time I shall conclude as a skilful Engineere did, who took upon him to defend and preserve a besieged city so long as they could find him materials to work upon wherein at last they failing, he answered now also have I ended my work not for want of skill, but of materials to work upon, only I thought fit, observing the conceit of some which hold there will in a reformation( such as presbytery or the like) be no necessity of Excommunication to close up all ●●●h this addition by way of Epilogue or Lenvoy rather proving then showing an absolute necessity of it in all true Christian and Orthodox Churches, and that by a most remarkable, I may say admirable if not matchless, example and practise of the professors of the Gospe●l in the Polonick Churches which is this.  
There being amongst them some difference though not in matter of faith yet in some circumstantial points of the several confessions which they several adheere unto; some embracing the Waldensian or Bohemian, others the Augustan some the H●lvecian confession: they to preserve, unity in the bond of peace, and to keep unshaken and inviolab●e the main do all jointly meet at one general Synod and that of late yeares, in Anno 1570. 1573. 1578. 1583. 1595. 
Brerewood preface.  And their ●irst act always is a Religious& solemn profession of their unfeigned& unanimous consent in the substantial points of Christian faith necessary to Salvation; to agree in the principal head of faith. 1 Touching the holy Scripture 2 The sacred Trinity, 3 The person of the son of God God and man 4 The providence of Gob, 5. sin, 6 free-will 7 the Law 8 The gospel, 9 Justification by Christ, 10 faith in his name, 11 Regeneration, 12 the catholic church and supreme head thereof Christ, 13 Sacraments, their number, and use, 14 The state of souls afer death, 15 The Resurrection and life eternal. Amongst the rest; they generally conclude that wherein the afore name confessions there is some difference in Phrases and forms of speech concerning Christs presence in the holy Supper which might breed disscention; All disputations of the manner of Christs presence should be cut off, seeing all of them do agree, the presence itself; and that the Eucharistiall Elements are not naked and empty signs but do truly perform to the faithful receivers that which they signify and represent, and to prevent all future occasions of violating this sacred consent they ordained and decreed that no man should be called to the sacred ministry without subscription thereunto. And when any man shall be excluded by excommunication from the Congregation of one Confession that he may not be received by the Congregation of another: and now whether amongst us who are like to have too many, and many more several Congregations then in all probability can bee yet rectified and drawn into an unity; of what necessity due and legal excommunication is, let the wisest judge whiles all must be sensible of the want of it there being yet amongst us as Saint Augustine hath in the same or like Case, 
Epist: 86  Interminata luctatio.  
To conclude all, I shall end with the same submission as I began my labour, being not in exceptions to impeach or bar, but for cautious observations, and Rules to fit and square out a right legal and warrantable course( if it can be) of and in settling and pursuing Excommunications so tota●ly to rest it in the new, as not to leave nec vestigia quidem in the old.   
FJNJS: