Abridgment of Ecclesiastical Laws, Treatise · Chapter 42
CHAP. XLII.
Of Excommunication.
1. What Excommunication is: It is Twofold.
2. By what Appellations the Greater and Leſſer Excommunication are known and diſtinguiſhed; their reſpective derivations and ſignifications, and the nature of each.
3. Eccleſiaſtical Cenſures in the general may be Threefold.
4. What the Law intends by Excommunication ipſo facto.
5. What the Excommunicate is not debarr'd of by Law.
6. Legal Requiſites to the due pronunciation of the Sentence of Excommunication.
7. What courſe the Law takes with an Excommunicate, after Forty days ſo periſiſting obſtinate.
8. The ſeveral Cauſes of Excommunication ipſo facto, enumerated by Lindwood.
9. The Cauſes of Excommunication ipſo facto, by the Canons now in force in the Church of England.
10. The ſeveral Writs at Law touching perſons Excommunicate; and the Cauſes to be contained in a Significavit, whereon the Excommunication proceeded.
11. What the Writs de Excommunicato Deliberando, alſo de Excommunicato Recipiendo do ſignifie in Law.
12. A ſufficient and lawful Addition to be in the Significavit, and in the Excom. Capiend. Vid. Sect. 10.
13. Several Statutes touching Perſons Excommunicated.
14. Excommunication for ſtriking in the Church.
15. Whether a Biſhop hath Juriſdiction, or may Cite a man out of his Dioceſe.
16. What are the Requiſites of a Certificate of Excommunication for ſtay of Actions, and how it ought to be qualified.
17. A Significavit of Excommunication, for not Anſwering Articles, not ſhewing what they were, not good.
18. By whom an Excommunication may be Certified, and how.
19. In what caſe the Significavit of an Excommunication ought to expreſs one of the Cauſes mentioned in the Statute.
20. Whether a General Pardon doth diſcharge an Excommunication for Contempt precedent to the Pardon, or ſhall diſcharge the Coſts of Court thereon?
21. A man taken upon an Excom. Cap. and diſcharged, becauſe the Significavit did not expreſs the party to be Commorant within the Biſhops Dioceſs at the time of the Excommunicat.
22. Where a man is twice Excommunicated, whether an Abſolution for the latter ſhall purge the firſt Excommunication.
23. Whether a Prohibition lies to the Eccleſiaſtical Court, upon Coſts there given, not in an Action at the Suit of the party, but upon an Information there exhibited.
24. What Remedy in Law for a party wrong fully Excommunicated, and ſo remaining Forty daies, without ſuing a Prohibition.
25. Whether a Perſon taken by a Capias de Excom. Capiend. be Bailable or not; And whether the Biſhop may take Bond of the Excommunicate to perform Submiſſion for their Abſolution.
(1.) EXcommunication, An. 23. H. 8. c. 3.commonly termed in the Common Law, in the Law-French thereof, Excommengement, is a Cenſure of the Church, pronounced and inflicted by the Canon or ſome Eccleſiaſtical Judge lawfully Conſtituted, whereby the party againſt whom it is ſo pronounced, is pro tempore deprived of the lawful participation and Communion of the Sacraments. And is alſo ſometimes (as to Offenders) a deprivation of their Communion, and ſequeſtration of their perſons from the Converſe and Society of the Faithful. And therefore it is diſtinguiſh'd into the Greater and Leſſer Excommunication; the Greater comprizing as well the latter as the former part of the aboveſaid definition or deſcription; the Leſſer comprizing only the former part thereof. de Except. c. a nobis. Lindw. de Cohab. Cler. gl. in verb. Sacramenta. Excommunicatio, quaſi, extra Communionem. For Excommunication is, Extra Communionem Eccleſiae ſeparatio; vel Cenſura Eccleſiaſtica excludens aliquem à Communione Fidelium a11. queſt. 3. cap. nihil. in Jur. Can.This Eccleſiaſtical Cenſure, when it is Juſt, is not by any means to be deſpiſed or oppoſed; for Chriſt himſelf is the Author thereof bMatt. 18. 17. 1 Cor. 5. 9, 11. 2 Theſſ. 3. 14.Anciently among the Hebrews, ſuch perſons as were Excommunicated, were termed Apoſynagogi, as being quaſi Synagoga exacti, and to be ſhun'd or avoided of all men until they repented. That of our Saviour in Matth. 18. 17. [Let him be unto thee as an Heathen man, and a Publican] ſeems to referr to ſome ſuch Excommunication, the power whereof by way of Judicature being then in the Jewiſh Sanhedrim, or Colledge of Elders.
(2.) This Eccleſiaſtical Cenſure, when limited or reſtrained only to the Leſſer Excommunication, the Theologiſts will have to be underſtood by the Greek word Anathema, Rom. 9. 3. Gal. 1. 8. 1 Cor. 16. 22.Accurſed or Separated; and when it extends to the Greater Excommunication, then to be underſtood by the Syriack word Maran-atha, or [Our Lord cometh] Anathema Maran atha. [Anathema] Let him be Accurſed, quaſi, Devoted to the Devil, and ſeparated from Chriſt and his Churches Communion: [Maran-atha] Some take this for a Syriack wordcBez. Annot. in 1 Cor. 16. 22.. Others, not ſo well ſatisfied with that Judgment, will have it to be a Chaldee word, yet uſed in the Hebrew, and familiarly known among the Greeks dCalv. Com. ibid. & Buxtorf. Lexic.. [Maran-atha] viz. [Our Lord cometh,] for Maran is, our Lord, and atha, cometh; or rather three words more properly, viz. Mara-na-atha, Our Lord cometh. Being a word uſed in the greateſt Excommunication among the Chriſtians, intimating or implying, That they ſummoned the perſon Excommunicated before the dreadful Tribunal at the laſt coming of the Son of God, or that ſuch as were under this Cenſure of the Church, were given up and reſerved to the Lords coming, to be judged by him; and mean while (without Repentance and Abſolution) are to expect nothing, but the Terrible coming of Chriſt to take Vengeance of them. To which that Propheſie of Enoch ſeems to allude, Behold, the Lord cometh with Ten thouſands of his Saints, to execute Judgment upon all, &c. The Venerable Mr. Bede doth ſuppoſe, that this anſwers to the heavieſt Curſe amongſt the Jews; for they had (1) their [Niddui,] (2) their [Cherem] that is, Anathema. This their Cherem, was either the ſimple and ſingle Anathema, or their Shematha or Maranatha: For this dreadful kind of Excommunication, here called Maran-atha, the Jews called Sammatha; Sem ſignifying the name of God Tetragrammaton, or Jehovah, and atha, he cometh; though others will have that Sammatha to be derived from [Sam] that is [their] and [Mitha] that is [death] their death. But not to inſiſt further on the words whereby this Eccleſiaſtical Cenſure of Excommunication is ſignified; for that is but as a Flaſh of Lightning, in reſpect of the Thunder of the Curſe it ſelf.
(3.) Although every Excommunication is an Eccleſiaſtical Cenſure, yet every Eccleſiaſtical Cenſure is not an Excommunication; for an Eccleſiaſtical Cenſure may be as well per Suſpenſionem, and per Interdictum, as per Excommunicationem. Extr. de verb. ſig. c. quaerenti. Hanc autem Cenſuram fulminare poſſunt Eccleſ. Praelati, quibus ab homine, Lege, vel Canone, aut Conſuetudine tribuitur Juriſdictio Ordinaria. De Offic. Ord. c. cum ab Eccleſiar.
4. It hath been ſometimes queſtion'd, what the Law intends by Excommunication ipſo facto; that Clauſe imports, ac ſi diceret, ipſo jure, that is, nullo hominis miniſterio interveniente. Not. per Arch. de Reſcrip. c. 1. verb. ipſo jure. li. 6. Lindw. de Offic. Archid. gloſſ. in c. Vt Archidiacont, verb. ipſo facto. And regularly when a perſon is Excommunicated, it is not intended only of the Leſſer Excommunication, Nam Excommunicatio ſimpliciter prolata, intelligitur de Majori. Extr. de Sen. Excom. c. Si quem 11. q. 3. debent. & Lindw. gloſ. verb. Excommuni. c. Exhorrenda. De Procuratorib.
(5.) Notwithſtanding, the Law doth not exclude the Excommunicate from ſuch lawful Acts, as ſine quibus vix poteſt conſiſtere vita hominis. Gloſ. ibid. in verb. Actu Legitimo. And although depending the Excommunication, he is diſqualified to commence Actions at Law as a Plaintiff, yet he may ad ſui defenſionem appellare, & caetera in Judicio facere & exercere, quae ad ejus defenſionem pertinent. Gloſs. Lindw. ibid. And according to Lindwood, he may Matrimonium Contrahere; etiam & Teſtari. Lindw. ibid.
(6.) This Sentence of Excommunication ought not to be pronounced againſt Offenders otherwiſe than rite & cum debita ſolennitate, that is, juris ordine ſervato; and therefore the Canon requires, That there iſſue a Summons or previous Citation to the Delinquent, before Sentence of Excommunication be pronounced againſt him. Primo vocetur Delinquens propoſiturus Cauſam rationabilem, quare pronunciari non debeat incidiſſe in dictam Sententiam. Ad effectum namque quod aliquis denuncietur Excommunicatus, à Canone vel Conſtitutione requiritur Citatio praevia. C. Si per vim vel alio modo. l. fin. de Man. & Obed. c. inter quatuor. de Cenſ. c. fi. in Oec. cum gloſ. So likewiſe the Canon is, That Nemo Excommunicationem promulget, ubi Exceſſus non eſt manifeſtus, niſi Monitione Canonica praecedente. Lindw. de Sentenia Excom. c. Vt Archidiaconi. unleſs the ſame party for the ſame cauſe be Excommunicated again, in which caſe there needs not any previous Citation or Monition as before; Nam Excommunicatio quae ſit ſaepius ex eadem Cauſa, poteſt fieri nulla Citatione, nullaque Monitione praevia. Ibid. c. praeteria. ver. Excommunicentnr: For in truth this Excommunication in ſuch caſe is not any new Sentence of Excommunication, but only a Ren…vation of the former with an Aggravation; for which reaſon it is, that ſuch Excommunication as is again pronounced againſt the ſame perſon for the ſame cauſe repeated by him, may be nulla Citatione, nullave Monitione praecedente. Ibid. & Extr. de Judaeis. c. ita quorundam. Whence it doth appear, That a perſon Excommunicated may be Excommunicated again, either for the ſame or ſome other new Cauſe. Ibid. & 3. q. 4. engeltrudam. And although the Firſt Excommunication is in effect ſufficient for the ejecting ſuch an one out of the Church, ſo that he who is once caſt out of the Church, amplius excludi non poteſt; yet by this Second Denunciation there follows another effect, and that is, That thereby he may be reputed and held by all the Faithful in all places, as a perſon utterly ſhut out of the Church, donec per ſuum Judicem ſecundum formam Eccleſiae fuerit abſolutus. Gloſſ. ibid. verb. & denuncientur.
(7.) Alſo,Old N. P. 34. 35. b. when a perſon Excommunicated hath Forty daies perſiſted in his obſtinacy contrary to Law under that Sentence, the Biſhop may then make his humble addreſs to the King for the apprehending and impriſoning ſuch obſtinate Excommunicates; but this may not be done by any inferiour to a Biſhop, Nam ad rogatum praelatorum inferiorum Rex non conſuevit ſcribere pro Captione Excommunicatorum. Lindw. de Sententia Excom. c. praeteria. gloſ. in verb. Praelatorum. And therefore if a man be Excommunicated by any inferiour to a Biſhop, as by a Dean, Archdeacon, or the like, yet the Supplication for his Majeſties Writ ought to be by the Biſhop of that Dioceſs, and in his Name; Nam Inferiores Epiſcopis non poſſunt invocare Brachium Seculare. Ibid. & Lindw. de Cohab. Cler. & Mul. c. 1. §. & ſi nec. ver. Brachium Seculare. And in caſe the Biſhop ſhall herein refuſe to do what the Law requires, he may be conſtrained thereto by the Archbiſhop. Ibid. & de jur. patron. c. nullus. Nor can the Excommunicated perſon, who (after Forty daies perſiſting in his obſtinacy) is upon the Kings Writ (on the Significavit) pro Corp. Excom. Capiendo apprehended or like to be apprehended, evade Impriſonment, or defend himſelf by an Appeal, or by virtue thereof, or by ſhewing the ſame to the Temporal Judge, that ſo under pretence of a dependency of an Appeal he may eſcape Impriſonment; becauſe ſuch Appeal as to the validity or invalidity thereof, or teneat vel non teneat, legitima vel non legitima, falls under the ſcrutiny and examination, not of the Temporal, but Eccleſiaſtical Judge; and therefore ſi talis indag… ſive diſcuſſio pertains not to the Secular Judge, it were frivolous to alledge that before one not qualified to examine the merits of the Appeal. Dict. c. praeteria. gloſ. in verb. Dari debet. And as perſons Excommunicated cannot legally have any ſhelter or ſubterfuge under pretence of ſuch Appeals: ſo neither do the Canons ſuffer the Contemners of this Sentence of Excommunication to go unpuniſhed; under which number regularly and generally are computed all ſuch as animo indurato do perſevere under Excommunication by the ſpace of Forty daies, according to the Cuſtome of the Realm of England. Lindw. de Sententia Excom. c. ut Archidiaconi. gloſ. in verb. Contemnentes. But more particularly the Canons hold them Contemners of this Excommunication, who add Culpam culpae; or go into the Church, albeit Divine Service be not then celebrating, unleſs it be to hear the word preached, which being ended, he is immediately to depart; or ſtand at the Church-door in the time of Divine Service, and hearing the ſame, albeit he go not within the Church it ſelf; or thruſt himſelf into the company of others, when it is in his power to avoid it; or laſtly, when he continues too long ſecure under ſuch Sentence of Excommunication without repentance, whereby the Law concludes him ſo manacled by his obſtinacy, as no Spiritual Phyſick can have any operation upon him: And although regularly the Return of ſuch a one is to be expected uſque ad annum; yet in this Kingdom (quoad incovationem Brachii Secularis) it is ſufficient if Forty daies be expired after his Excommunication. Ibid. c. 1. authoritate gloſ. in verb. Contemnentes. And whereas we often in the Law meet with certain Caſes of Offences, incurring the Sentence of Excommunication ipſo facto, that is as aforeſaid, nullo hominis miniſterio interveniente; Requiritur tamen, even in that caſe, Sententia Declaratoria. C. cum ſecund. Leges. de Haeret. li. 6. & Lindw. de Foro Comp. c. 1. gloſ. in verb. ipſo facto.
(8.) It is therefore not impertinent here to inſert, what principally thoſe Offences are, on the Guilty whereof the Law doth inflict this Excommunication ipſo facto. Lindwood tells us, that there are found among the Canons and Conſtitutions Provincial theſe Caſes following, wherein Excommunication ipſo facto is incurr'd; viz. (1) A wilful and malicious impeding the execution of the Canon againſt Incontinency, ſpecially in Eccleſiaſticks as to Concubines. (2) A clandeſtine and ſurreptitious Proceeding at Law, even to the Writ of Baniſhment, againſt an innocent perſon, and ignorant of the Proceedings. (3) Bigamy. (4) Falſe Accuſing of any Innocent Clergy-man before a Temporal Judge, whereby he happens to ſuffer under the Secular Power. (5) A laying Snares to entrap any in holy Orders; whereby afterwards to charge them falſly before the Secular Powers with Crimes, whereof they were not guilty. (6) A violation of lawful Sequeſtrations made by the Biſhops, their Vicars general, or principal Officials. (7) The exerciſe of Eccleſiaſtical Juriſdiction by any Clerk married, or by any Lay-perſon, in matters only and properly pertaining to the Cognizance of the Church. (8) Diſobedience to the Gregorian Conſtitution, forbidding the holding of Two Benefices Incompatible cum Cura animarum without a Diſpenſation. (9) A procuring to be Preſented to a Benefice that is already full of an Incumbent, by virtue of the Writs of Quare non admiſit, or Quare impedit, or the like. (10) Abettors and Adviſors of any to fraudulent Conveyances or Deeds of Gift in fraudem Eccleſiae, Regis Creditorum, aut haeredum. (11) All ſuch as hinder any of what quality ſoever, that are legally Teſtable, from making their laſt Wills and Teſtaments, or afterwards do unjuſtly obſtruct the due execution of the ſame. (12) All ſuch as hinder the devotion of the people, in making their Offerings and paying their Tithes, converting them to their own uſe. (13) All ſuch as deny the gathering of the Tithes of any Fruit, or moleſt and hinder the Collectors thereof. (14) All Layperſons who uſurp upon ſuch Oblations and Offerings as are due and appertain only to Eccleſiaſtical perſons, without their aſſent and the aſſent of the Biſhop. (15) Sacrilegious perſons, and all ſuch as invade the juſt Rights, Liberties, or Revenues of the Church, or otherwiſe unjuſtly poſſeſs themſelves de bonis Eccleſiaſticis. (16) All Bayliffs and other Officers, that unjuſtly enter upon the Goods of the Church, or unduly exact from the ſame, or commit Waſte upon any the Revenues of a Church vacant. (17) All Oppugners of Epiſcopal Authority, or that reſiſt and oppoſe the exerciſe of Eccleſiaſtical Juriſdiction, and all ſuch as diſſwade others from their due Obedience thereunto. (18) All ſuch as being impriſoned for their Contempt to ſome Eccleſiaſtical Sentence, are thence ſet at liberty contrary to the Liberties and Cuſtomes of the Church of England, being Excommunicate perſons when they were firſt apprehended. (19) All ſuch as violently uſurp upon the propriety of ſuch Trees and Fruits as grow in the Church-yards, rooting them up or felling them down, or mowing down the Graſs thereof, contrary to the will and without the conſent of the Rector, or Vicar of any Church or Chappel, or their Tenants. (20) All ſuch as ſhould non ritè ſolemnize Prohibited Marriages, that is, ſuch as have any Canonical Impediment. (21) All ſuch as contrary to the true Catholick ſenſe ſhall aſſert any thing, or lay down poſitions, or make propoſitions, ſauouring of Hereſie, publickly in the Schools. (22) All ſuch as in their Preaching or otherwiſe ſhall violate the Canon, that enjoyns a due examination and approbation of perſons before they are admitted to Preach the Word of God. (23) All ſuch as touching the Sacraments aſſert any thing beſide or contrary to the determination of the Church, or call ſuch things into doubt publickly, as are defined and ſtated by the Church. (24) All ſuch as in the Univerſities do (after a premonition to the contrary) hold any Opinions, or aſſert any Doctrines, Propoſitions or Concluſions, touching the Catholick Faith, or good manners, of an ill tendency, contrary to the determination of the Church. (25) All ſuch Clerks as without Eccleſiaſtical Authority, ſhall of themſelves or by any Lay-power intrude themſelves into the poſſeſſion of any Parochial Church, or other Eccleſiaſtical Living, having Curam animarum. Theſe Caſes, and ſome others, now not of uſe in this Realm, are enumerated by Lindwood. Lindw. de Sententia Excom. c. ult. gloſſ. in verb. Candelis accenſis. But there are very many other Caſes in the Canon Law that fall under this Excommunication ipſo facto, by which in the Law is ever underſtood the Major Excommunicatio, and was wont to be publiſhed and denounced in the Church Four ſolemn daies in every year, when the Congregation was likelieſt to be moſt full, and that in Majorem terrorem.
(9.) The Cauſes of Excommunication ipſo facto, according to the Conſtitutions and Canons Eccleſiaſtical of the Church of England, now in force, are ſuch as theſe, viz. (1) Impugners of the Kings Supremacy. (2) Affirmers of the Church of England, as now eſtabliſhed, to be not a true and Apoſtolical Church. (3) Impugners of the Publick Worſhip of God, eſtabliſh'd in the Church. (4) Impugners of the Articles of Religion, eſtabliſh'd in the Church of England. (5) Impugners of the Rites and Ceremonies, eſtabliſhed in the Church of England. (6) Impugners of the Government of the Church by Archbiſhops, Biſhops, &c. (7) Impugners of the Form of making and Conſecrating Archbiſhops, Biſhops, &c. in the Church of England. (8) Authors of Schiſms in the Church. (9) Maintainers of Schiſmaticks, Conventicles, and Conſtitutions made in Conventicles. Likewiſe by the ſaid Canons, the Eccleſiaſtical Cenſure of Excommunication is incurr'd by all ſuch Miniſters, as Revolt from the Articles unto which they ſubſcribed at their being made Miniſters, and do not reform after a months ſuſpenſion: Alſo by all ſuch perſons as refuſe the Sacraments at the hands of Unpreaching Miniſters, after a months obſtinacy, being firſt ſuſpended: Alſo by all ſuch Miniſters as without their Ordinaries Licenſe under his Hand and Seal, appoint or keep any Solemn Faſts either publickly or in private Houſes, having been formerly ſuſpended for the ſame fault; and finally by all Miniſters who hold any private Conventicles, to Conſult on any thing tending to the impeaching or depraving of the Doctrine of the Church of England, or of the Book of Common Prayer, or of any part of the Government, and Diſcipline now eſtabliſhed in the Church of England, which by the Seventy third Canon, is Excommunication ipſo facto.
(10.) Touching perſons thus Excommunicated, perſiſting Forty daies in their obſtinacy, there are Three ſeveral Writs at the Law, iſſuing from the Secular power, viz. Excommunicato Capiendo: Excommunicato Deliberando: Excommunicato Recipiendo. The Excommunicato Capiendo is a Writ iſſuing out of Chancery, directed to the Sheriff, for the apprehending and impriſoning of him who hath obſtinately ſtood Excommunicated Forty daies; for the Contempt to the Eccleſiaſtical Laws, of ſuch not in the interim obtaining their Abſolution, being by the Ordinary certified or ſignified into Chancery, the ſaid Writ thence iſſues for the apprehending and impriſoning them without Bail or Mainprize, until they ConformbF. N. B. fo. 62. Stat. 5. Eliz. c. 23. Orig. Reg. Writs, fo. 65, 67.. Which Writ as by the Statute of 5 Eliz. c. 23. is to be awarded out of the high Court of Chancery, ſo it is to iſſue thence only in Term time, and Returnable in the Kings Bench the Term next after the Teſte thereof, and to contain at leaſt Twenty daies between the Teſte and the Return thereof. And in caſe the Offender againſt whom ſuch Writ ſhall be awarded, ſhall not therein have a ſufficient and lawful Addition, according to the form of the Statute of 1 H. 5. Or if in the Significavit it be not contained, That the Excommunication doth proceed upon ſome cauſe of Contempt, or ſome Original matter of Hereſie, or refuſing to have their Children Baptized, or to receive the Holy Communion, as it is now uſed in the Church of England, or to come to divine Service, now commonly uſed in the ſaid Church, or Error in matters of Religion or Doctrine now received and allowed in the ſaid Church, Incontinency, Uſury, Simony, Perjury in the Eccleſiaſtical Court, or Idolatry: That then all pains and Forfeitures limited againſt ſuch perſons Excommunicate by the ſaid Statute of 5 Eliz. 23. by reaſon of ſuch Writ of Excom. Capiend. wanting ſufficient Addition, or of ſuch Significavit wanting all the Cauſes aforeſaid, are void in Lawcdict. St. 5. El. 21..
(11.) The Excommunicato Deliberando, is a Writ to the Under-Sheriff for the releaſing and delivery of the Excommunicate perſon out of Priſon,Old N. B. 35. a. upon Certificate from the Ordinary into the Chancery of his Submiſſion, Satisfaction, or conformity to the Eccleſiaſtical JuriſdictiondF. N. B. fo. 63. Reg of Writs, fo. 67.. And the Excommunicato Recipiendo, is a Writ whereby Excommunicated perſons, who by reaſon of their Obſtinacy having been committed to Priſon, and thence unduly delivered, before they had given ſufficient Caution or Security to obey the Authority of the Church, are to be ſought for, and committed again to PriſoneRep. of Writs …. This Sentence of Excommunication by the 65th Canon pronounced againſt any, and not abſolved within Three months next after, is every Sixth month enſuing, as well in the Pariſh Church, as in the Cathedral of the Dioceſs wherein they remain, by the Miniſter openly in time of Divine Service upon ſome Sunday, to be denounced and declared Excommunicate; and where by the 68th Canon Miniſters are enjoyned not to Refuſe to Bury, it is with an exception to ſuch perſons Deceaſed, as were denounced Excommunicated Majori Excommunicatione; for ſome grievous and notorious Crime, and of whoſe repentance no man is able to teſtifiefC…n. 65. 68..
(12.) A Sentence was given in the Chancellors Court at Oxford at the Suit of B. againſt H. and thereupon H. was Excommunicated, and taken in London, upon the Writ of Excom. Capiendo. And it came into the Kings Bench, where he pleaded, That there was no Addition in the Significavit according to the Statute of 5 Eliz. and thereupon prayed to be diſcharged. And the Opinion of the Court was, That by the Statute of 5 Eliz. the Penalties mentioned in the ſaid Statute are diſcharged, but not the Impriſonment nor the ExcommunicationgHill. 6 Car. B. R. Hughes verſ. Bendy. Jones Rep..
(13.) By the Statute of 9 Ed. 2. 12. the Writ de Excom. Capiendo may be awarded to take a Clerk Excommunicate for Contumacy, after Forty daies. And by the Statute of 9 Ed. 2. 7. the Kings Letters may not be ſent to an Ordinary to Abſolve an Excommunicate, but where the Kings Liberty is prejudiced. By the Statute of 5 & 6 Ed. 6. cap. 4. ſtriking, or laying of violent hands upon any perſon in a Church or Church-yard, is Excommunication. And by the Statute of 2 Ed. 6. 13. it is Excommunication to diſobey the Sentence of an Eccleſiaſtical Judge in Cauſes of Tithes. By the Statute of 3 Jac. 4. the Sheriff may apprehend a Popiſh Recuſant ſtanding Excommunicate; and by the Statute of 3 Jac. 5. a Popiſh Recuſant convicted, ſhall ſtand as a perſon Excommunicate. And by the Statute of 3 Ed. 1. 15. he that is Excommunicated ſhall be debarred of Mainprize.
(14.) V. againſt E. in the Eccleſiaſtical Court, where the Suit was for Striking in the Church, which by the Second Branch of the Statute of 5 Ed. 6. cap. 4. is Excommunication ipſo facto. By which he ſurmized him incidiſſe in poenam Excommunicationis. And being granted, if, &c. And Aſhley ſhewed cauſe why it ſhould not iſſue, viz. There ought to be a Declaration in the Eccleſiaſtical Court of the Excommunication, before any may prohibit him the Church. Richardſon ſaid, That the Proceedings are not contrary to the Statute, but ſtood with the Statute. And it was ſaid by Yelverton, It ſeems there ought to be a Declaration in the Eccleſiaſtical Court: But the difference is, where it is Officium Judicis, or Ad inſtantiam paris, they will give Coſts, which ought not to be. Hutton and Richardſon, If the party will not proſecute it, none will take notice of it, and they proceed to give Coſts, then a Prohibition may be granted. And if he be a Miniſter, he ought to be ſuſpended for an offence againſt the Statute. And it ought to be firſt declared, and ſo to Excommunication; and that cannot be pleaded, if it be not under Seal. Dyer 275. And after all theſe were agreed by the Court, and no Prohibition was grantedhViner againſt Eaton. Hetley: Rep..
(15.) B. was ſued in the Eccleſiaſtical Court in a cauſe of Defamation in another Dioceſs than that wherein he lived, and being Cited, was for Non-appearance Excommunicated, and upon Significavit the Writ de Excommunicato Capiendo was awarded. Serjeant Finch, Recorder, prayed a Superſedeas for two Reaſons. (1.) Upon the Statute of 23 H. 8. becauſe he was Sued out of the Dioceſs; to which the Court (viz. Jones and Whitlock) anſwered, That at the Common Law a Biſhop cannot Cite a man out of his Dioceſs. And that the Statute of 23 H. 8. inflicts a puniſhment, &c. and Whitlock ſaid, That a Biſhop hath not power of Juriſdiction out of his Dioceſs, but to Abſolve him being Excommunicate. (2) Upon the Statute of 5 Eliz. cap. 23. becauſe the Caſe of Defamation is not within the Statute, and then the Statute Enacts, That it ſhall be void. To which the Court anſwered, That he ought to averr that by way of Plea, and ſo alſo ſaid the Clerks of the Court, That he ought to have Sued a Habeas Corpus, and upon Return thereof to Plead. But the Plea was admitted de bene eſſe, and the party bailediBro… no Caſe. Latch. Rep..
(16.) No Letters of Excommunication are to be received in ſtay of Actions, if they are not under the Seal of the Ordinary k20 H. 6. 1., for an Excommunication under the Seal of the Commiſſary is not to be allowed in ſuch caſelIbid. Adjudg'd.. If the principal cauſe of the Action, for which the Excommunication was, be not comprized within the Letter of the Certificate, it is not to be allowed; that ſo it may appear to the Court, that the Eccleſiaſtical Court had Juriſdiction of the Cauſe for which he was Excommunicated m14 H. 4. 14. b.. The Certificate ought to be Vniverſis Eccleſiae Filiis, or to the Juſtices of the Court where the Suit is to be ſtayedn20 H. 6. 25.. Alſo the Excommunication certified ought to be duly dated, that is, the Certificate ought to contain the day of the Excommunicationo20 H. 6. 25.. A Certificate by the Archdeacon is ſufficient by the CuſtomepContra 8 H. 6. 13.; And upon an Excommunicato Capiendo, if it appears that the Excommunication was by an Archdeacon of ſome certain place, it ought alſo to appear either expreſly or by implication in the Certificate, that the matter for which the Excommunication was, was within his Juriſdiction, otherwiſe it is not goodq14 Ja. Starling, Caſ. Rol. Abr. ver. Excommunication..
(17.) F. being apprehended upon an Excommunicato Capiendo, and the Significavit being, That he was Excommunicated for not anſwering Articles, and not ſhewing what they were, his diſcharge was prayed for the Incertainty thereof,Excom. Cap. Incertainty. and per Curiam it is not good, and therefore was Bailed: Coke 22 E. 4. is, That a man was Excommunicated for certain Cauſes,Hill. 12 Jac. B. R. Fox his Caſe. Rol. Rep. not good; and ſo Co. 5. Arſcots Caſe Schiſmaticus inveteratus is not good Excommunication, nor ſhall be allowed in the cauſe of him who Excommunicates him, 5 E. 3. quod fuit conceſſum per Doderidge.
(18.) In Trollops Caſe it was Reſolved, That the Official cannot certifie Excommunication, for none ſhall do that, but he to whom the Court may write to aſſoil the party,Co. 8. Trelleps Caſe. 6 Jac. as the Biſhop and Chancellor of C. or O. and for that if a Biſhop certifie and die before the Return of the Writ, it ſhall not be received, but the Succeſſor ſhall do it; and one Biſhop ſhall not certifie an Excommunication made by a Biſhop in another Court, but a Biſhop after Election before Conſecration may, and ſo may the Vicar-General, if it appears that the Biſhop is in Remotis agendis; alſo that the Suit and the Cauſe are to be expreſſed in the Certificate, that the Temporal Court may judge of the ſufficiency, and if it be inſufficient (as if a Biſhop certifie an Excommunication made by himſelf in his own Cauſe) the Court may write to abſolve him.
(19.) H. was condemned in the Chancellors Court of Oxford, in Coſts, and had not paid; an Excommunicato Capiendo being awarded upon a Significavit, Trin. 6 Car. B. R. Hughe, Caſe. Cro. par. 3.returned and delivered here in Court, according to the Statute of 5 Eliz. cap. 23. He was Arreſted thereupon. Reſolved, The Excommunication was good, though the Significavit doth not mention any of theſe Cauſes in the Statute, but it is for other Cauſes; but if any Capias with Proclamations, and Penalties be therein awarded, the Penalties be void un…eſs the Significavit expreſs it to be for one of the Cauſes mentioned …n the Statute.
(20.) In another Caſe, where a man was Excommunicated upon a Sentence in the Delegates for Coſts in Caſtigatione Morum, Trin. 6 Car. B. R. The King and Rodmans Caſ. Cro. par. 3.21 Jac. a Capias with Proclamations iſſued; and he being taken, Quoad the Excommunicato Capiendo pleads, That the Offence and Contempt was pardoned by the General Pardon of 21 Jac. It was Agreed, That the Pardon did not diſcharge the Coſts of the party, which were taxed before the Pardon: It was moved there, That as the Coſts were not taken away, ſo no more was the Excommunication, which is the means to enforce them to be paid. But Reſolved, That this Excommunication before the Pardon, is but for a Contempt to the Court, and all Contempts in all Courts are diſcharged by the Pardon; wherefore the ſame was diſcharged; and for the payment of the Coſts, the party is to have new Proceſs.
(21.) A man was taken upon an Excommunicato Capiendo; … C. Mores Rep.and the Significavit did not mention, That he was Commorant within the Dioceſs of the Biſhop at the time of the Excommunication, and for that cauſe the party was diſcharged. And in an Action where an Excommunication was pleaded in Bar,L. … and Edwards Caſe. More. ibid. and the Certificate of the Biſhop of Landaph ſhewed of it, but did not mention by what Biſhop the party was Excommunicated, it was for that reaſon adjudged void.
(22.) Upon a Contract Sentence in the Eccleſiaſtical Court was, That the Defendant ſhould marry the Plaintiff,… Caſe. Mores Rep. he did not do it, for which cauſe he was Excommunicated. The Defendant appealed to the Delegates, by whom the Cauſe was remitted to the Judge à Quo, who Sentenced him again, where he was alſo Excommunicated again for non-performance of the Sentence: He appealed to the Court of Audience, and then had …. He was taken by a Capias Excom. upon the firſt Excommunication, upon a Habeas Corpus it was Reſolved, That the Abſolution for the latter had not purged the Firſt Excommunication, quia Eccleſia decepta fuit. (2) That the Appeal did not ſuſpend the Excommunication, although it might ſuſpend the Sentence.
(23.) In Weſton and Ridges Caſe it was Reſolved, That upon an Information exhibited in the Eccleſiaſtical Court,More's ibid. for laying of violent hands upon a Clerk, and Coſts there given againſt the Defendant, for which he was Excommunicated for not paying them; a Prohibition ſhould iſſue forth, becauſe it was not at the Suit of the party, and Coſts are not grantable there upon an Information.
(24). In the Caſe of Prohibitions it was Reſolved, Mich. 8 Jac. That if a man be Excommunicated by the Ordinary,Mich. 8 Jac. Co. lib. 12. where he ought not, as after a General Pardon, &c. And the Defendant being negligent, doth not ſue a Prohibition, but remains Excommunicate by Forty daies, and upon Certificate in Chancery is taken by the Kings Writ de Excommunicato Capiendo, no Prohibition lies in this Caſe, becauſe he is taken by the Kings Writ. Then it was moved, what Remedy the party hath who is wrongfully Excommunicated: to which it was Anſwered, he hath Three Remedies; viz. (1) He may have a Writ out of Chancery to Abſolve him, 14 H. 4. fol. 14. And with this agrees 7 Ed. 4. 14. (2) When he is Excommunicated againſt the Law of this Realm, ſo that he cannot have a Writ de Cautione admittenda, then he ought Parere mandatis Eccleſiae in forma Juris, i. e. Eccleſiaſtici, where in truth it's Excommunicatio contra Jus & formam Juris, i. e. Communis Juris: But if he ſhew his Cauſe to the Biſhop, and requeſt him to aſſoil him, either becauſe he was Excommunicate after the Offence pardoned, or that the Cauſe did not appear in Eccleſiaſtical Cognizance, and he refuſe, he may have (as the Lord Coke ſayes) an Action ſur le Caſe againſt the Ordinary; and with this agrees Dr. & Stu. lib. 2. cap. 32. fo. 119. (3) If the party be Excommunicated for none of the Cauſes mentioned in the Act of 5 Eliz. cap. 23. then he may plead this in the Kings Bench, and ſo avoid the Penalties in the Act. Note, It was Reſolved by the Court, &c. That where one is Cited before the Dean of the Arches (in cauſe of Defamation, for calling the Plaintiff Whore) out of the Dioceſs of London, againſt the Statute of 23 H. 8. and the Plaintiff hath Sentence, and the Defendant is Excommunicated, and ſo continues Forty daies; and upon Certificate into Chancery, a Writ of Excommunicato Capiendo is granted, and the Defendant taken and Impriſoned thereby, That he ſhall not have a Prohibition upon the Statute of 23 H. 8. for no Writ in the Regiſter extends to it; but there is a Writ there called De Cautione admittenda de parendo Mandatis Eccleſiae, Co. ibid.when the Defendant is taken by the Kings Writ De Excommunicato Capiendo, and to aſſoil and deliver the Defendant.
(25.) Where the Court of B. R. was moved for the Bailing of one, who was taken by force of a Capias de Excommunicato Capiendo, upon the Statute of 5 Eliz. cap. 23. and came to the Barr by a Habeas Corpus. Williams Juſtice, He that is taken by force of a Capis de Excommunicato Capiendo, is not Bailable upon the Statute of 5 Eliz. cap. 23. which Statute doth only diſpenſe with the Forfeiture of the Ten pounds, and ſuch a perſon is not Bailable; and as to the other matter, the ſame remains as it was before at the Common Law, and the Statute of 5 Eliz. diſpenſeth only with the penalty of Ten pounds. Yelverton Juſtice of a contrary Opinion, and that in this caſe he is Bailable. Flemming Chief Juſtice, This is a Caſe which doth deſerve very good conſideration, and that therefore he would conſider well of it, and alſo of the Statute of 5 Eliz. before he would deliver his Opinion. Williams Juſtice, clearly he is not Bailable in this Caſe. Afterwards at another time, it was moved again unto the Court to have him Bailed. Yelverton Juſtice, That he is Bailable, and ſo was it Reſolved in one Keyſer's Caſe, where he was taken by a Writ De Excommunicato Capiendo, brought hither by a Habeas Corpus, and upon Cauſe ſhewed he was Bailed by the Court, de die in diem, but neither the Sheriff nor any Juſtice of Peace in the Countrey can Bail ſuch a one, but this Court here may well Bail, as in the Caſe before, de die in diem. It was further alledged here in this, That in the Eccleſiaſtical Court they would not there diſcharge ſuch a one, being taken and Impriſoned by force of ſuch a Writ, De Excommunicato Capiendo, without a great Sum of Money there given, and a Bond entered into for the ſame; otherwiſe no diſcharge there. Yelverton Juſtice and the whole Court, The Biſhop ought not to … ſuch a Bond for the performance of their ſubmiſſion. The Rule of the Court here in this was, That upon their ſubmiſſion they ſhall be Abſolved, without any ſuch Bond entred into. Flemming Chief Juſtice, They ſhall Abſolve them, and if they perform not according to their promiſe and undertaking, they … again by the Writ De Corpore Excommunicato Capiendo; but the Biſhop is to take no Bond of them for their Abſolution, to perform their Submiſſion; the taking of ſuch Bond by them being againſt the Law: And as to the Bailment, all the Judges (except Williams Juſtice) did agree that he was Bailable, and ſo by the Order and Rule of the Court he was Bailed. vid. Bulſtr. Rep. par. 1. fo. 122. Paſch. 9 Jac. in Caſe of Hall verſ. King.