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<DATE>2014-11-18</DATE>
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<NAME>Olivia Bottum</NAME>
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<DIV1 TYPE="title page">
<PB REF="1">
<PB REF="2" MS="y">
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<P>The Source, Force, and Cour&s;e OF <HI>EXCOMM&V;NICATIONS,</HI> Conducing to the clearing of that &s;eeming perplexed que&s;tion, of and among&s;t the ASSEMBLY of DIVINES.</P>
<P>Where the &s;eate of the power of Excom|munication is? RESOLVED.</P>
<P>Whether in the <HI>Churches</HI> of, and in <HI>Monarchies;</HI> or in the <HI>PRESBYTERIAN.</HI></P>
<P>Extracted out of the Originalls in the Old Te&s;tament, as the RADIX; pur&s;uing the New Te&s;tament, and &s;o to the Civill and Cannon Lawes, and their congru<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ties with both.</P>
<Q>Nec &s;emper blanditur a pes dulc<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">dine mellis.</Q>
<P>By <HI>J. D. S.</HI></P>
<P><HI>London,</HI> Printed 1646.</P>
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<DIV1 TYPE="text">
<PB REF="3" MS="y">
<PB N="3" REF="3">
<HEAD>The Source, Force, and Cour&s;e of <HI>Excommunications.</HI></HEAD>
<P>_THe holy <HI>Sabbath</HI> was in&s;tituted for the <HI>Sanctifying;</HI> The <HI>A ke</HI> was prepared for the pre&s;erving; The <HI>Decalogue</HI> promu<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">gated for the <HI>In&s;tructing;</HI> and <HI>Excommuni|cation</HI> ordained for the <HI>Purging</HI> of the <HI>Church:</HI> All which (a|mong&s;t other things) &s;hew that of all tho&s;e the Church hath need.</P>
<P>The latter of the&s;e hath in the&s;e latter times fa<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ne into the managing of Ma&s;ters, more exorbitant, then unskilfull, the Eccle&s;ia&s;ticall <HI>Lamechs</HI> and <HI>Nimrods:</HI> Which I know not to whom better in one re&s;pect to compare, then to <HI>Bearewards,</HI> who publikly carry about with them things of danger, muz|led to get mony with; wherby as tho&s;e, &s;o this hath bin more &s;lighted and &s;ported with (if not more &s;corned) then feared the u&s;e and re&s;ult whereof, I know not well how to di&s;tin|gui&s;h from <HI>Symonie</HI> when a man for every triviall occa&s;ion &s;hut out of the Church, may buy him&s;elfe in againe for money.</P>
<P>The pre&s;ent times are full of expectation of Reformation,
<PB N="4" REF="4"> principally of the <HI>Church,</HI> both for <HI>Doctrine,</HI> and <HI>Di&s;cipline:</HI> I conceive the latter in its degree hath as much need as the former; towards which I al&s;o conceive the true con&s;iderati|on and under&s;tanding of the <HI>Originall the nature, the power, the extent, the danger and true, and due administration</HI> of <HI>Ex|communication</HI> may much conduce, to which purpo&s;e, I have yet timely enough (I hope) hewed out (only) this block, lea|ving and humbly &s;ubmitting it to the Ma&s;ters of the A&s;&s;em|blies to be by them proportioned, clen&s;ed, and poli&s;hed into <HI>Goades,</HI><NOTE PLACE="marg">Eccl. 12.11.</NOTE> and <HI>N<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">iles,</HI> and then fa&s;tned: The method I &s;hall u&s;e, is by drawing the matter into three general Queres; with their divi&s;ions, di&s;tinctions&punc; and in &s;ome part re&s;olu|tions: Thus much for <HI>Jntroduction.</HI></P>
<LIST>
<ITEM>1. Fir&s;t, the <HI>Originall,</HI> and the right under&s;tanding and &s;ence of the word <HI>Excommunicate,</HI> and of tho&s;e whence it is derived or taken.</ITEM>
<ITEM>2. The Nature, Power, Extent, Lymitation, and &s;e|verall &s;orts and effects of it: And under that head al&s;o of appeales from the &s;entence of <HI>Ex|communication.</HI></ITEM>
<ITEM>3. The <HI>Power</HI> of <HI>Sentencing</HI> in whom.</ITEM>
</LIST>
<P>Concerning all which, to be rightly informed, wee mu&s;t have recour&s;e.</P>
<P N="1">1. To the <HI>Law</HI> of <HI>God</HI> in the Old Te&s;tament, and the pra|cti&s;e of his people therein and &s;ince.</P>
<P N="2">2. The Doctrine of <HI>Christ</HI> and his Apo&s;tles in the new.</P>
<P N="3">3. The <HI>Laws</HI> of <HI>Nations</HI> commonly called the Civill and Cannon Law, and how in many ca&s;es they take their ground from Scripture.</P>
<P><MILESTONE N="I"> For the fir&s;t of the&s;e three Que&s;tions, it is be&s;t under|&s;tood, by taking into con&s;ideration all the words by which in Scripture it is termed or expre&s;&s;ed, as <HI>Anathemate, Exe|crable, Abominable, Cur&s;ed, Damned, Cast out, Cut off, Ex|communicate:</HI> All which, as they are found in &s;everall places may &s;ometimes be taken to &s;ignifie one and the &s;ame thing. Yet in other places and ca&s;es there is found plaine and per|&s;picuous differences and &s;ences, &s;ome as much different as
<PB N="5" REF="4"> good from bad. Fir&s;t then of the word <HI>Anathema,</HI> which hath three &s;everall extentes.</P>
<P N="1">1. To things <HI>Inanimate.</HI> 2. To <HI>Per&s;ons.</HI> 3. To <HI>Places.</HI></P>
<P N="1">1. To things <HI>Inanimate,</HI><NOTE PLACE="marg">Deut. 7.25 26.</NOTE> <HI>Covet not the &s;ilver or Gold of the Idoll, nor take it unto thee, bring not the abomination into thine hou&s;e le&s;t thou be accur&s;ed, like it</HI> Saint <HI>Jerom</HI> neere&s;t the <HI>Original ne fias Anathema,</HI> and <HI>Deut.</HI> 13.27. it is called <HI>dam|ned,</HI> Saint Jerom <HI>Anathema.</HI></P>
<P N="2">2. To Per&s;ons:<NOTE PLACE="marg">Jo&s;. 6.26.</NOTE> <HI>Cur&s;ed be the man that ri&s;eth up and buil|deth this Citie,</HI> Saint <HI>Ierom. Sit ille Anathema.</HI></P>
<P N="3">3. To places: <HI>The Citie &s;hall be an execrable thing,</HI><NOTE PLACE="marg">Jo&s;. 6.17.</NOTE> Saint <HI>Ierom: Res Anathemata.</HI></P>
<P>Therefore of this one word which comprehends &s;o much and much more varietie; we mu&s;t yet &s;earch out the Ori|ginall, compo&s;ition, and further &s;ignification.</P>
<P>For that, we mu&s;t re&s;ort to <HI>Io&s;:</HI> again; where we &s;hall find one and the &s;ame word, u&s;ed to one and the &s;ame thing, in two contrary &s;ences; in one place for Silver and Gold con|&s;ecrated to the <HI>Lord:</HI> and the other place for the &s;ame &s;ilver and gold accur&s;ed, yet both very well reconciled; and for the better under&s;tanding of it, which hath two &s;everall ex|po&s;itions &s;uitable to the &s;aid two contrary &s;ences, wee mu&s;t expound this compound word of <HI>Ana quod est &s;ur&s;um,</HI> and <HI>The&s;is quod e&s;t po&s;itio:</HI> Then in the fir&s;t &s;ence, <HI>Res Anathema</HI> is a thing put or lift up to the <HI>Lord</HI> from common u&s;es, in one word <HI>Con&s;ecrate:</HI> So in the fir&s;t of tho&s;e places: The Gold and Silver of <HI>Iericho</HI> (of the very &s;ame wherof <HI>Achan</HI> tooke part) is commanded to bee con&s;ecrate to the <HI>Lord:</HI><NOTE PLACE="marg">Jo&s;. 6.17, 18, 19.</NOTE> what the Con&s;ecrating, is in the &s;ame place marginally ex|pounded (and warranted by other places of Scripture &s;hew|eth) moulten in the fire:</P>
<P>But then &s;econdly, in the &s;econd place and contrary &s;ence:<NOTE PLACE="marg">Jo&s;. 7.2.</NOTE> <HI>Achan</HI> taking a Wedge of the &s;ame Gold, is &s;aid to take the accur&s;ed or excommunicate thing, but more properly as Saint <HI>Ierom</HI> hath it: <HI>U&s;urpavit de Anethemate;</HI> which thing being by him as it were taken and purloined from the <HI>Lord,</HI> was to him accur&s;ed: But then for the expo&s;ition of this compound word to this &s;ence, I will as I mentioned before
<PB N="6" REF="5"> take &s;ome Ob&s;ervations out of the Civill or Cannon Laws, &s;o in one of their bookes, I finde it thus expounded or deri|ved: <HI>ab Ana quod e&s;t &s;ur&s;um,</HI> and <HI>Thema quod e&s;t figura r<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">|tunda,</HI><NOTE PLACE="marg">Extravag: com. <HI>58.</HI> c, <HI>3.</HI></NOTE> <HI>haben te telum extran&s;ver&s;o que con&s;nevit poni in fron|tibus D<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">mnatorum.</HI></P>
<P N="3">3. And if we would have it yet more plain, ob&s;erve but the 17th ver&s;e of that 6th Chapter: there it is &s;aid the Citie &s;hall be <HI>Anathem<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">,</HI> or an Execrable thing (wherein was the Gold the Silver and the Bra&s;&s;e) Tho&s;e which tend<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">r the He|brew word there u&s;ed, &s;ay it is <HI>Herem:</HI> This I find the Ex|po&s;itors call an equivocall of this double &s;ignification,<NOTE PLACE="marg">Lyra &s;uper Io&s;. <HI>6.</HI></NOTE> <HI>De|&s;tructio &amp; con&s;ecratio:</HI> So thus have we the true &s;ence of that fir&s;t word taken in two &s;everall contrary &s;ences, reconciled: And thus much concerning <HI>Anathema</HI> as we finde it in the Old Te&s;tament; wherein following our vulgar tran&s;lations wee have it in the &s;everall termes of <HI>execrable, abominable, accur&s;ed, damned:</HI> yet Saint <HI>Ierom</HI> as neere&s;t to the Origi|nall doth in all the&s;e places u&s;e onely the &s;ame word <HI>Ana|thema.</HI></P>
<P>Thus much may &s;erve ob&s;ervable out of the Old Te&s;ta|ment.</P>
<P N="2">2. But then &s;econdly as concerning the &s;ame word in the the New Te&s;tament: where we find the word <HI>Excommuni|cate</HI> as a generall word, if wee con&s;ider it according to the &s;everall places, matters, occa&s;ions, and &s;ences where or wher|in it is u&s;ed; we &s;hall finde as three &s;everall &s;orts of <HI>Excom|munication;</HI> &s;o likewi&s;e three &s;everall termes by which <HI>Ex|communication</HI> is notified, and among&s;t them the termes of ca&s;ting out, and cut off, all of different &s;ignification ex|tent and u&s;e which concludeth the fir&s;t, and will al&s;o ex|plaine in part the &s;econd generall que&s;tion.</P>
<P><MILESTONE N="1"> The fir&s;t is <HI>Ca&s;ting out, Iohn</HI> 9.22. and 24. concern|ing him that was borne blinde, and his Parents, in which place, tho&s;e which render the Hebrew word, for it <HI>Niddim,</HI> Engli&s;h it, &s;eparation or putting away, [though I am not ig|norant that his Go&s;pell was not written in Hebrew) It was in the practice and u&s;e of it again&s;t &s;uch, as were of a con|trary faith to the <HI>Synagogue:</HI> done (though not publikely or
<PB N="7" REF="5" MS="y"> publi&s;hed) by the whole <HI>Synagogue,</HI><NOTE PLACE="marg">Mos de ra|tibus Inde|orum.</NOTE> it extended to both Sexes, it excludes from all manner of company &s;ociety, ea|ting or drinking with others, from the marriage bed: only it had with it a &s;uper&s;edeas of 30. dayes if the party repen|ted: and in the meane time he might bee pre&s;ent at divine &s;ervice, he might learne, teach, hire or be hired: if after he continued unrepentant, his Male Children were not cirum|ci&s;ed: if hee dyed in that condition, hee was not buried in u&s;uall buriall: A &s;tone was ca&s;t upon his Coffin, to &s;ignifie he was worthy to be &s;toned to death.</P>
<P><MILESTONE N="2"> The &s;econd was giving over to &s;atan, or <HI>Cut off:</HI> this we have 1 <HI>Cor.</HI> 5.5. and 1 <HI>Tim.</HI> 1.20. in which ca&s;e tho&s;e which render the Hebrew Word <HI>Cherem,</HI> doe in that differ, as in the cau&s;e, &s;o in the manner circum&s;tance, and extent: The manner and cirum&s;tance was 3. fold.</P>
<LIST>
<ITEM>1. It was publi&s;hed in the audience of the whole Church.</ITEM>
<ITEM>2. Maledictions and cur&s;es were added to it.</ITEM>
<ITEM>3. At the publi&s;hing Candles were lighted, and at the end of the Cur&s;es they were all put out, which &s;ignified that tho&s;e thus <HI>Excommunicate</HI> or delivered over to Sathan were deprived of the light of Heaven.</ITEM>
</LIST>
<P>Thus in the New Te&s;tament; and &s;o further in the time and by the direction and &s;entence of the Apo&s;tle, St <HI>Paul</HI> in two perticular ca&s;es; the one of the Ince&s;tuous per&s;on; the other of <HI>Hymeneus</HI> and <HI>Alexander</HI> who had made &s;hip|<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">rack of their Faith.</P>
<P><MILESTONE N="3"> The third &s;ort was <HI>Excommunication to death;</HI> 1 <HI>Cor.</HI> 16.22. Tho&s;e which render the word in that ca&s;e have <HI>Maranatha</HI> a <HI>Syriach</HI> word the <HI>Iews</HI> u&s;e the word <HI>Schammatha:</HI> both thus in the Etymologue <HI>Maran</HI> or <HI>Schem,</HI> the Lord <HI>Atha, Com|moth:</HI> Others thus, <HI>Schem</HI> there, <HI>Mitha</HI> death: &s;o an Ex|communication to death, and this was termed by &s;ome <HI>Ex|communicatio in &s;ecreto nomine Tetragrammati,</HI> Tho&s;e that were thus Excommunicate, were by &s;ome thought to bee &s;uch as hated or denyed the <HI>Lord-Ie&s;us.</HI> By others &s;uch as had committed the &s;inne again&s;t the <HI>Holy Gho&s;t;</HI> thus much for the&s;e words and the &s;everall acceptations, &s;ences, and extents of them, in the New Te&s;tament, and in part of the three &s;orts of <HI>Excommunication.</HI></P>
<PB N="8" REF="6">
<P>But we cannot yet leave the new Te&s;tament unles we &s;hold leave out the <HI>Alpha</HI> and <HI>Omega</HI> therof: who be&s;ide the mat|ter now handled, doth al&s;o for the manner of proceedings (which will fall out to bee of extraordinary con&s;equence in this ca&s;e) give &s;uch a &s;tandard rule as that for motion, pra|cti&s;e and conclu&s;ion, the whole matter mu&s;t depend on, and is in the doctrine touching the offending and offended bro|thers: for the clearer under&s;tanding and evidence wherein, we will take in the very text;<NOTE PLACE="marg">Mat. 18.15 16, 17.</NOTE> <HI>Moreover if thy brother tre&s;|pa&s;&s;e again&s;t thee; goe and tell him his fault betweene thee and him alone, if hee heare thee, then ha&s;t thou woon thy brother: But if hee heare thee not, take yet with thee one or two, that by the mouth of two or three witne&s;&s;es, every word may bee confir|med: And if hee will not vouch&s;afe to heare them, tell it unto the Church, and if he refu&s;e to heare the Church al&s;o, let him be to thee as an heathen man and Publican.</HI></P>
<P>From which there are two things principally in this ca&s;e to be ob&s;erved.</P>
<P>One thing nece&s;&s;arily implyed in the&s;e words; <HI>If he re|fu&s;e to heare the Church,</HI> which is [if it come &s;o farre) the Church is al&s;o bound to heare the offending, as well as the offended brother: el&s;e how can the Church know whether he heare it or not, for the offending brother may heare both the offended and the Church, and acknowledge his fault, and give &s;atisfaction, and yet the offended brother not having it punctually according to his owne mind and judgment, wil not acknowledge that the offending brother hath heard him or the Church: be&s;ides which al&s;o there may bee diver&s;e o|ther varieties of ca&s;es, and as it is the rule of Gods word, &s;o it is <HI>Jus Commune</HI> of all Nations, and of nature it &s;elfe, be|fore judgment, to heare both parties: But the other thing to be ob&s;erved is, that before &s;entence the offender mu&s;t be &s;ummoned, and here in this ca&s;e there are of it three degrees.</P>
<P>Fir&s;t, By the Offended brother betweene them two a|lone.</P>
<P>Secondly, By or at lea&s;twi&s;e before two or three wit|ne&s;&s;es.</P>
<PB N="9" REF="6" MS="y">
<P>And la&s;tly by the Church it &s;e<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">fe, for otherwi&s;e how can hee heare the Church before condemation, if the Church doe not call and &s;ummon him to heare it.</P>
<P>The rea&s;on why I urge this &s;o much will appeare by that which followes.</P>
<P>Fir&s;t, becau&s;e a man &s;o contumax as not to heare the Church, is upon the point (though not in expre&s;&s;e tearme) pronounced by Chri&s;t him&s;elfe to be Excommunicate: to make that plaine, the words are, <HI>Let him be to thee as an hea|then man, and a Publican:</HI> an heathen is one &s;o farre &s;hut out of the Church as never of him&s;elfe in, and that by the &s;trong Covenant of Grace too: but hee mu&s;t bee al&s;o as a Publican too; A Publican was one that when the &s;tate of the Jewes was a Tributary to the <HI>Romans,</HI> gathered up all the Tribute mony: which was an imployment &s;o odious to all the Iewi&s;h Nation in re&s;pect of the exactions and ex|tortions imputed to be u&s;ed therein that &s;ome hol<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> [as <HI>Ter|tullian,</HI> that no <HI>Jew</HI> would take it upon him,<NOTE PLACE="marg">Tertul. Eo|pudu. c. <HI>9.</HI></NOTE> but how ever true or not, this is certaine the Office was &s;o odious and abominate among&s;t them, that they had and held this gene|rall <HI>Rabinicall</HI> Proverbe and Rule: <HI>Take not a wife out of that Family, wherein there is a Publican:</HI> All this &amp; this condition amounted to an <HI>Excommunication</HI> in a high (though not in the highe&s;t) degree, and &s;o proper to the point in hand.</P>
<P>But then &s;econdly, for and as a generall concluding and binding Rule, no <HI>Excommunication</HI> without graduall <HI>Mo|nition.</HI></P>
<P>So taking the&s;e grounds out of the Scripture, to fortifie all which I &s;hall collect out of the <HI>Civill</HI> and <HI>Cannon Lawes,</HI> and which in this point doe all generally concurre with this Rule of Scripture, I &s;hall now fall upon it, which is the la&s;t Rule of explanation, and mu&s;t al&s;o &s;atisfie, re&s;olve and cleere the points of the two la&s;t generall Queres.<NOTE PLACE="marg">The Civil and Can|non Laws re&s;olving the &s;econd generall Quere.</NOTE></P>
<P>And finding the <HI>Lawes</HI> in this point to bee almo&s;t of an unlimitted latitude, and &s;uch as will rather cloye then con|tent, the inve&s;tigation; that I might therein neither imper|tinently wander, nor &s;light things pertinent, I put on this double re&s;olution.</P>
<PB N="10" REF="7">
<P>Fir&s;t to take my ob&s;ervations out of tho&s;e authors or au|thorities, whether <HI>Cannons</HI> or <HI>Decretalls</HI> as were in this ca&s;e mo&s;t contracted.</P>
<P>Secondly to take out, and bound my way, by or within certaine lynes or points, Cla&s;&s;es or rankes, &s;ome generall, &s;ome perticular, all or mo&s;t of them taking their grounds from the former, which &s;hall be principally the&s;e five.</P>
<P><MILESTONE N="1"> Fir&s;t, The &s;everall natures, kindes, or degrees, and ex|tents of <HI>Excommunication.</HI></P>
<P><MILESTONE N="2"> Secondly, What per&s;ons exempt or not exempt if any.</P>
<P><MILESTONE N="3"> Thirdly, <HI>Excommunications</HI> appealeable; which and in what Ca&s;es they are and are not, and what per&s;ons capable or uncapable of appeales.</P>
<P><MILESTONE N="4"> The fourth, the manner and degrees of legall proceedings in them all.</P>
<P><MILESTONE N="5"> Fifthly, [&s;o far forth as the&s;e authorities will give leave] who are or ought to bee the competent Judge or Judges in Appeales: None of which I intend to pro&s;ecute as a <HI>com|mon place,</HI> but onely as a Land-mark directing to the right and Sea-marks for declining the wrong &s;till under the &s;ub|mi&s;&s;ion afore&s;aid for the regulating of the u&s;e and Reforma|tion of the abu&s;e of this legall, <HI>Clavis &amp; Virga Ecclae&s;iae Ex|communicatio.</HI></P>
<P>To the&s;e five I could have added a &s;ixth [though not wor|thy to be any, which is that of <HI>Ip&s;o facto,</HI> or <HI>Ip&s;o jure;</HI> con|cerning 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 <HI>Remora</HI> in a full and cleere cour&s;e to matters of con&s;equence, briefly thus.</P>
<P>This kinde is by the Civilians or Canoni&s;ts to be predo|minant in 52. &s;everall ca&s;es: whereof &s;ay they, 16. are re|&s;erved to the Pope; that is as I conceive in point of ab&s;olu|tion: But having nothing to doe with that <HI>Chaos</HI> of confu|&s;ion and damnable doctrine, but Chri&s;tianlike, and charita|bly to pray for the conver&s;ion of him and his followers; or if that may not be, then in Gods good time for their utter &s;ubver&s;ion: I will have as little to doe with his re&s;ervati|ons, and no more to doe with this kinde of <HI>Ip&s;o facto,</HI> which
<PB N="11" REF="7" MS="y"> indeed by &s;ome of the Rules of their owne law cannot bee lawfull: But if in any ca&s;e then again&s;t <HI>Apo&s;tatats:</HI> and in that ca&s;e I thinke it may be well warranted if by no other, yet by the true Law of <HI>Rea&s;on;</HI> in that they exclude them|&s;elves out of the Church, and &s;o to the five points la&s;t men|tioned.</P>
<P>Fir&s;t the &s;everall natures degrees and extents of <HI>Excom|munications:</HI> they are in number e&s;pecially two; And herein al&s;o ob&s;erve how the Civill and Canon Laws concurre with the practice of Gods people in the old Law, aad how farre, and how it hath its ground from or agreement with holy Scripture.</P>
<P N="1"><MILESTONE N="1"> 1. <HI>Excommunicatione major,</HI> which carries with it the title of <HI>Anathema,</HI> this excludeth <HI>A Sacramentorum parti|cipatione, a Communicatione fidelium, ab ingre&s;&s;u Eccle&s;iae,</HI><NOTE PLACE="marg"><HI>Sixt.</HI> 232.</NOTE> <HI>a Sepultura in eo &s;tatu in Cemiteriis:</HI> in a word it is &s;tiled, <HI>Mor|tis eterne damnatio.</HI></P>
<P N="2"><MILESTONE N="2"> 2. The &s;econd <HI>Excommunicatio minus, &s;olum &s;eparat a Sa|cramentorum participatione:</HI><NOTE PLACE="marg"><HI>Clem.</HI> 42. c. 4. <HI>Sixt:</HI> 225. c. 2.</NOTE> So the Canons and Con&s;tituti|ons of <HI>Sixtus Clement</HI> and the re&s;t agree. This of a narrow &s;cantling, That a per&s;on &s;o excommunicate may for a time officiate, and celebrate without any appeale or ab&s;olution: but for the former an appeale mu&s;t be had before the partie &s;o Excommunicate can celebrate. And as in both the&s;e there mu&s;t be in all points due cour&s;e of proceedings held, &s;o in &s;ome ca&s;es al&s;o that being ob&s;erved, they may be voyd in them&s;elves after denunciation: which point will fall out to be further explained in the Section of Appeales, or more properly in the handing the fourth point.</P>
<P N="2">2. The &s;econd concerning per&s;ons exempt or not exempt from both, or either &s;orts of Excommunication.</P>
<P>Fir&s;t it being granted by the Civilians and Cannoni&s;ts, that the King of <HI>France</HI> and &s;ome Temporall Lords al&s;o have Immunity from Excommunication: I &s;hal make bold to extend that line to all Chri&s;tian Kings who&s;oever for &s;e|verall rea&s;ons.</P>
<P>Fir&s;t for that no perticular cau&s;e is by them &s;hewed (nor doth appeare in the grounds of their Rules) wherein
<PB N="12" REF="8" MS="y"> or for which the Kings of <HI>France</HI> have &s;uch perticular ex|emption.</P>
<P>Secondly for that all power in all the Prote&s;tant Monar|chies, and in <HI>France,</HI> al&s;o the donative power of the Judge which mu&s;t grant it is &s;ubordinate and holdeth of the King, who neither giveth nor can give power to Exommunicate him&s;elfe, be&s;ides the act and juri&s;diction of Excommunica|tion is an appendant to the place and Office, not to the per|&s;on, and thereupon vacancy remaines till a per&s;on capable be admitted, which the King may doe to the place in gene|rall not perticularly, and alone to the power of Excommu|nication, which in the vacancy lyeth lapped up in the ve&s;t, as <HI>Goliahs</HI> &s;word in the Ephod, more may be rendred; But the&s;e only may &s;uffice.</P>
<P>True it is that the Bi&s;hops Electors of the Empire doe not &s;ubordinarily hold off the Emperour, but their power in this ca&s;e to him is as limited as to the re&s;t.</P>
<P>The next then that may pretend in &s;ome ca&s;es to chal|lenge exemption are Arch-Bi&s;hops (for temporall Lords in the generall may be excommunicate) who though I find in|ve&s;ted with many priviledges, As not to be tyed to lay his hand on the Evangeli&s;t,<NOTE PLACE="marg"><HI>Sixt.</HI> 28. c. 1.</NOTE> when he taketh an Oath: That he may upon ju&s;t cau&s;e take &s;ome rights from one Church, and give it to an other: That hee may without con&s;ent of the Chapter grant a faculty or Warrant to alyenate Church goods: That he may leavie and exact reliefe for the poore upon &s;pirituall livings: That if by Letters of <HI>Marque,</HI> a &s;hip be taken at Sea where in an Arch-bi&s;hop is, he cannot be holden, and diver&s;e others, yet it is re&s;olved that he hath no exemption from a due and legall Excommunication, i&s;&s;u|ing upon ju&s;t cau&s;e, duely pro&s;ecuted, and withall, <HI>Acudice competente:</HI> But who that is, is &s;o great a que&s;tion as I will not take upon po&s;itively to decide, yet mu&s;t bee argu|ed &s;o farre as it may for the re&s;olving of the la&s;t generall <HI>Quere.</HI></P>
<P>The third as touching Appeales and under his head al&s;o of Eccommunications voyd of them&s;elves, in before, or after the &s;entence given, touching which la&s;t it may be in
<PB N="13" REF="8" MS="y"> &s;everall particulars, As when the due order of monition is not ob&s;erved.</P>
<P>Al&s;o when there is an appeale before &s;entence given, likewi&s;e when the &s;entence or Proces containe manife&s;t er|ror. Againe if any Iudge whether delegate or other be ex|communicate him&s;elfe, and in this la&s;t ca&s;e I will not looke after any further authority of approbation then from our owne Records and Chronicles in the mo&s;t pregnant ca&s;e, (and it is a fortiori too) of the fir&s;t &s;entence again&s;t that mo&s;t worthy Martyr Mr. <HI>John Bradford.</HI> He in the yeare, 1554. was by Doctor <HI>Weston</HI> and others condemned of He|ri&s;ie, and had &s;entence pronounced again&s;t him, but not then executed, after in <HI>Anno</HI> 1556. the matter being againe re|vived to have the former &s;entence put in execution,<NOTE PLACE="marg">Fox in Hi&s;t. Io. Bradford.</NOTE> it was determined by the Judges them&s;elves that the fir&s;t &s;entence was void of it &s;elfe, becau&s;e &s;ome of tho&s;e Judges at the time of the &s;entence given were excommunicate them&s;elves and were not then ab&s;olved, therefore new Commi&s;&s;ions were granted to them for the Convention and &s;entencing of him, and <HI>Latimer</HI> and <HI>Ridley</HI> upon which they were all three &s;entenced and delivered to the &s;ecular power.<NOTE PLACE="marg">Sixt. 20 c. 1.</NOTE> But how&s;oever (to go on) from Excommunications lawfully pro&s;ecuted and denounced, the party &s;o Excommunicate may lawfully appeale: If the que&s;tion be demanded to whom hee may appeale, the definition in tho&s;e Lawes what an appeale is re&s;olves it <HI>Appelatio e&s;t de inferiori ad &s;uperio|rem provocatio,</HI> and in &s;ome ca&s;es particularly to a <HI>Synod</HI> which we &s;hall further explaine a non.<NOTE PLACE="marg">Sixt. 131. Idem 132.</NOTE></P>
<P>And here as in a convenient place we &s;hall draw in the true cau&s;e and end of appeales which is, that they were de|vi&s;ed and ordained for a remedy of the Innocent, but not to protect the nocent per&s;on, and doubtle&s;&s;e hath (as in ca&s;e of &s;o great con&s;equence as fit they &s;hould have) their ground and warrant from holy Scripture.</P>
<P>La&s;tly, If it &s;hould be demanded (to end this point) whe|ther all per&s;ons excommunicate be capable of appeales it is An&s;wered, divers are not as Fellons, Murtherers, Jewes, per&s;ons convict of any notorious crime, as V&s;urie, Symony
<PB N="14" REF="9" MS="y"> and divers others:<NOTE PLACE="marg">Clem. 51. c. 3.</NOTE> Per&s;ons arre&s;ted upon the Writ <HI>de Excommunicatio capiendo;</HI> And of &s;ome it is que&s;tioned whether Common Stage-Players may appeale or not? Neither can any appealant appeale the third time? Nie|ther &s;hall any appeale hold, but is void in Law when the appealant will &s;ue in other Cau&s;es under the &s;ame Judge from whom he hath formerly appealed, Becau&s;e if he bring a &s;econd appeale, and do neither pro&s;ecute nor prevaile, it brings a third &s;entence again&s;t the appealant by and before the &s;ame Iudge, Thus much in briefe for appeales.</P>
<P><MILESTONE N="4"> The 4th. concerning the due and legall cour&s;e of procee|dings in them all.</P>
<P>In which though there be many rules and points to pro|ceed by; I will touch only one, which mu&s;t be generally held in all, not omitting tho&s;e <HI>ip&s;o Facto,</HI> if any &s;uch may legally be, of which I make &s;o great a quere as to leave it to abler judgements to re&s;olve. But the generall rule of the Law is that of Chri&s;ts; the per&s;ons to be excommunicate mu&s;t all be proceeded again&s;t by way of monition, which in the le|gall practi&s;e of it, ought to be thrice, though but two days be|tween each: But if but one monition, then &s;ix dayes mu&s;t be elap&s;ed before &s;entence of Excoication; In which Ca&s;e the Law is &s;o punctuall, that if the Pope whom they would make both Fulminator and Comptroller generall of all Excommunications, or A Bi&s;hop &s;hould know of his owne knowledge, a man to keepe a Concubine, he cannot ex|communicate him without a monition <HI>Sub pena Excommu|nicationis Concubinam dimittere.</HI></P>
<P>This point that I &s;o much in&s;i&s;t upon, I know may bee thought by &s;ome u&s;ele&s;&s;e, becau&s;e in mo&s;t places and ca&s;es u&s;ed, but the rea&s;ons of my in&s;i&s;ting upon it are two. Fir&s;t becau&s;e I find that of late time in &s;ome very weighty cau&s;e it hath beene omitted, which how great the prejudice (nay I will &s;ay the &s;inne) may be I leave to others to judge. Se|condly for Caution in new di&s;cipline; a thing &s;o requi&s;it &s;o warrantable nay &s;o commended by the word of God as may no wi&s;e be omitted. I will not take upon mee to tutor away, but as it is mo&s;t true that all humane actions
<PB N="15" REF="9" MS="y"> even the mo&s;t quinte&s;&s;enced are mixed with imperfections, &s;o whether by any &s;light e&s;teeme, want of &s;crutinie, Iudge|ment, memorie, or the like; <HI>abundans cautela non nocet.</HI></P>
<P>This only for the 4th. legall cour&s;e of proceedings. To which only I &s;hall in this place, as mo&s;t proper, de&s;ire to be ob&s;erved, and &s;o conclude this point, that in &s;ome point an excommunication obtained by a per&s;on uncapable to &s;ue, &s;hall neverthele&s;&s;e &s;tand good,<NOTE PLACE="marg">Sixt 96. c. 3</NOTE> which is if in a cau&s;e &s;en|tence &s;hall be given for an excommunicate per&s;on as plain|tiff, and the Defendant never alledge the excommunica|tion of the Plaintiff till after &s;entence pronounced again&s;t the defendant, it &s;hall not bee voyd for that point of excom|munication in the Plaintiff, which in point of Cautions wherein I now am, I thought not ami&s;&s;e to be ob&s;erved, thus much for the 4th. point; Next to the 5th. <HI>Competent Iudges.</HI></P>
<P>In this point having viewed divers Ca&s;es I &s;hall in&s;i&s;t on|ly upon two.</P>
<P>The fir&s;t is that wherein a &s;entence of Excommunication is given by an Officiall or &s;uffragan, the partie grieved cannot appeale to the Bi&s;hop, he is in this cau&s;e no com|petent Iudge for they having both one &amp; the &s;ame con&s;i&s;to|ry, &s;uch an appeale is but from one Iudge to the &s;ame, then by th<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> former generall Rule all appeales mu&s;t be <HI>ab inferio|ri ad &s;uperiorem,</HI> it fo lowes therefore the Archbi&s;hop or his delegate in this ca&s;e is the only competent Iudge in ca|&s;es of appeale, but now heere the que&s;tion which the times in this Kingdome hath produced is to be an&s;wered, what is to be done where there is neither Archbi&s;hop nor Bi|&s;hop; This is mo&s;t properly to be an&s;wered in the re&s;olu|tion of the their generall <HI>Quere.</HI></P>
<P>The &s;econd is only concerning the times limited for begining and ending of appeales (which commonly are ac|compted delatorie) the general<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> Rule is the appeale mu&s;t be brought within ten dayes and ended in a yeare, unle&s;&s;e &s;ome &s;peciall cau&s;e bee or intervene to the contrary, thus much briefly for &s;atisfying of the 5th. point and &s;o am now come to the proceedings of the third and la&s;t generall <HI>Quere.</HI></P>
<DIV2 TYPE="part">
<PB N="16" REF="10">
<HEAD>The power of &s;entenceing <HI>in whom.</HI></HEAD>
<P><MILESTONE N="III"> HAving made a very &s;hort Cut over the Oceans of ap|peals and cour&s;e of proceedings, I am now to &s;hoot the Gulfe of this power, or the &s;eat of this power of &s;entencing in whom? wherein I &s;ee in re&s;pect of the alterations which the times are like to produce in point of Eccle&s;ia&s;ticall Di|&s;cipline, I cannot be &s;o briefe nor come off with &s;o little labour as I would for that divers points, and &s;ome of great moment and con&s;equence are to be handled yet becau&s;e in this point as in the re&s;t I will pur&s;ue all brevitie, and cleerene&s;&s;e too, to this purpo&s;e as more &s;atisfactory to the maine point in que&s;tion if any be, to draw both the que&s;ti|ons into one; That of the A&s;&s;embly, where the &s;eat of the power of Excommunication is; and mine owne The power of &s;entenceing in whom; between which I can perceive no e&s;&s;entiall difference: But then fir&s;t concerning theirs, I may rather admit of the re&s;olving of a que&s;tion out of or upon it, then the ray&s;ing of it, in which que&s;tion certainly by tho&s;e words where the &s;eat? they intend according to the laws: if any que&s;tion in that be, it is which lawes they meane, whether the Lawes of God&punc; or the other now in force if by the Lawes of God, it being a que&s;tion in Divi|nity, who can better re&s;olve it then Divines; I am not ig|norant that this que&s;tion may be put only as leve<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">led to one only point or pin that is to the Independants to w^c^h if they give a direct an&s;wer punctuall and not dilatory or with <HI>&s;ub|ter fuges</HI> it is to &s;ee whither and how, and wherein and how faire their opinion in that Ca&s;e will agree or di&s;agree with, or from theirs that put the que&s;tion, but for the Indepen|dants, I think they are more froward then forward herein; for &s;uch as their Religion, &s;uch will be their re&s;olution, and certainly their Religion if it bee any, is but a whi&s;pering Religion concerning which, though I forbeare to enlarge my &s;elfe, others may know what I meane but to goe on: if the propounders of the que&s;tion meane or intend the other Lawes; then certainly we are in &s;o right a way hither|to, as will either fully re&s;olve, or draw it to &s;o neare a &s;can|ling
<PB N="17" REF="10" MS="y"> as will require no more in a manner then the word to bee given fully to a&s;&s;oile it: And here for further que&s;tion upon upon that point, I conceive there is <HI>Nullum tercium;</HI> for they cannot intend by it any Lawes in that ca&s;e to bee made; for then the que&s;tion would have beene where it is or ought to be the &s;eat, not barely, where is it &s;o, then to conclude that point in their own que&s;tion, it mu&s;t bee con|fined, unto, or within the Lawes of God, or tho&s;e now in force: and then it may the ea&s;ilier be di&s;covered, whether it doth tend, and where it will end which is in all que&s;tions one principall furtherance of re&s;olution, and &s;o now to goe on to the place and cour&s;e from which by this la&s;t que&s;tion I may &s;eeme to have deviated.</P>
<P>Fir&s;t, then admit as undenyable the power of Excom|munication is ve&s;ted and lodged wholly in Eccle&s;ia&s;ticall per&s;ons: Of the&s;e Bi&s;hops being now pared of, and ex|cluded, the &s;eate and power, mu&s;t either remaine in the re&s;t, or el&s;e it is quite and in &s;eperably gone with tho&s;e Ca&s;hie|red: and under favour and &s;ubmi&s;&s;ion to better judgments, I cannot &s;ee how for or by any thing that is yet done, that Bi&s;hops are or can be &s;o totally ca&s;hiered or irradiated, but in the con&s;truction of the Civill and Cannon [if not in and by our Common Lawes too, he is &s;till a Bi&s;hop, e&s;pecially if we con&s;ider him in the&s;e three perticulars, and &s;o hath in all or mo&s;t of them a peculiar legall power.</P>
<P N="1">1. His Con&s;ecration.</P>
<P N="2">2. His legall power of Ordinations and in&s;titutions.</P>
<P N="3">3. His Office and power <HI>in &s;piritualibus</HI> as admini&s;trator or di&s;pencer of the per&s;onall e&s;tates of decea&s;ed per&s;ons, his juri&s;diction and &s;entence touching divorces, Marrying, Contracts, legittimation or illegi<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">imation of i&s;&s;ues, his power concerning Dowers of Women joynturele&s;&s;e, the &s;everall affaires and intere&s;ts, the &s;everall &s;tatutes of this Kingdom in tru&s;t him with; and to omit the re&s;t, this very ca&s;e of no &s;mall importance, Excommunications, in which he hath an intermixt and refortified intere&s;t and power by the &s;tratutes [with that of the Civill and Cannon Laws of this Kingdome, and without which till legally derived unto
<PB N="18" REF="11"> continued &amp; confirmed in &s;ome other per&s;on Excommuni|cation again&s;t refractory and exorbitant per&s;ons will do <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">it|tle good without the Writ, <HI>De Excommunicato Capiendo,</HI> which delivering the offender to the pow<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">r of the &s;eculer Maje&s;trate mu&s;t fir&s;t take its ri&s;e from the Bi&s;hop or &s;uch as &s;hall have the &s;ame legall power: but being now within the Line of Excommunication, I mu&s;t onely keep mee to that glancing by the way, to take off or rather &s;atisfie others, exceptions concerning degradation, which as it is only to be don by Eccle&s;ia&s;tiques, and tho&s;e too &s;uch as have power and capacity to do it, yet (when u&s;ed) is only a formall favour in re&s;pect of the function and dignity, otherwi&s;e needle&s;&s;e; when a Bi&s;hop for &s;ome capitall offence may be and is ju&s;t|ly lyable to puni&s;hments in &s;uch ca&s;es due. And I heartily wi&s;h &s;ome of them had not de&s;erved too much in that kind already; But to goe on with Excommunication, and for clearing the way and explaining the matter to that which followes, I will put a &s;hort ca&s;e or que&s;tion, &s;uppo&s;e one of our now ca&s;hiered Bi&s;hops &s;hould commit &s;ome fact, or may teach or hold &s;ome error or the like, ju&s;tly and meerly puni&s;habl by excommunication: I would know who &s;hall 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 ap|peale, &s;o it is as certaine from Excommunication an ap|peale is as lawfull and cannot be denyed.</P>
<P>To &s;horten the bu&s;ine&s;&s;e&punc; no inferior Mini&s;ter as the lawes now &s;tands can doe it, for if it could be devi&s;ed, the Bi|&s;hop may re&s;traine the power and proce&s;&s;e of the Mini&s;ter, <HI>in rebus quo ad lites:</HI> if a whole Congregation nay, all the Divines in the Kingdome &s;hould Excommunicate him, there mu&s;t be forme as well as matter; if both could be had yet by all the Lawes in Chri&s;tendome nay and Heathen too nay I may &s;ay further, if not <HI>jure Divino,</HI> yet <HI>jure Apo&s;tolico</HI> he may appeal &amp; it ought not cannot be denyed him cary|ing this alwayes along with us that all excommunications (except in the Ca&s;es excepted, have and mu&s;t in&s;eparably have and be accompanied with the&s;e two adjuncts and ap|pendants monition &amp; appeale; &s;o then no power of excom|munication
<PB N="19" REF="11"> in any but &s;uch as may be appealled from.</P>
<P>It is true in a Ca&s;e of &s;o high con&s;equence it is fit for me for the &s;urer warrant of this a&s;&s;ertion to fetch my ground from holy Scripture: wherein though we find but one ca&s;e that of Saint <HI>Paul,</HI> yet in that are two things Remarkable 1. That he that will do it,<NOTE PLACE="marg">Acts 25</NOTE> may &s;o do whether the Judge will or no under who&s;e &s;entence he &s;tandeth. This is plaine by <HI>Festus</HI> his offer to <HI>Paule</HI> and his an&s;wer to it yet <HI>Festus</HI> wil|ling to get favour of the Jewes an&s;wered <HI>Paul</HI> and &s;aid,<NOTE PLACE="marg">Vers. 9</NOTE> <HI>wilt thou go up to Jeru&s;alem and there be judged of the&s;e things before me.</HI> Here the corrupt Iudge would have betrayed him into the &s;ame &s;nare out of which by Gods wonderfull providence he had newly e&s;caped, But when <HI>Paule</HI> an&s;we|re re&s;olutly; no man can deliver mee to them,<NOTE PLACE="marg">Vers 11</NOTE> I appeale to <HI>Ca&s;ar,</HI> he had as re&s;olute an an&s;wer of the Iudge, becau&s;e it could not be denyed him; to <HI>Cae&s;ar</HI> &s;halt thou go, And heere by the way is an appeal before &s;entence which maketh good a former a&s;&s;ertion and point al&s;o of Law. The &s;econd the Per&s;on to whom Hee did appeale making good and and <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">egall al&s;o another former a&s;&s;ertion and point of Law, it was <HI>ab inferiori ad &s;ummum</HI> which rule I conceive in the&s;e ca&s;es mu&s;t be held where there is no intermediat &s;ubordi|nate power as to a lawfull Synod of Divines to which a par|ty grieved may doubtles complain if there be any, yet I con|ce<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ve under favour he cannot appea<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">e to a Nationall Synod for <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">his rea&s;on; becau&s;e of &s;uch a Synod there may be &s;ome Divines who have given the fir&s;t &s;entence of Excommuni|cation,<NOTE PLACE="marg">Vers 12</NOTE> and then he doth appeale from one to the &s;ame Iudge unle&s;&s;e in &s;uch a Nationall Synod that may be avoy|ded and provided for, and this with this exception or Cauti|on. I conceive is the be&s;t rule to be held and guided by, thus far to re&s;olve the que&s;tion namely that the power if in our divines and Church is &s;uch, as may be legally appealed from.</P>
<P>But this argument may beget two other que&s;tions 1. I<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> an appeale &s;hould be made by a Bi&s;hop to the King, what can the King doe in this ca&s;e? 2. What need all this &s;tirre in a Kingdome or &s;tate where no Bi&s;hops are? The fir&s;t of the&s;e que&s;tions is not &s;o difficult to re&s;olve, but that both by our owne Lawes as they now &s;tand, and by Pre&s;idents both
<PB N="20" REF="12"> of the Primitive and Moderne times it may be cleared. But &s;ince it &s;eemes we &s;hall have no need of it, I &s;hall for &s;hort|ning of the bu&s;ine&s;&s;e, thus farre admit of the po&s;itive part of the latter; That in this Kingdome no Bi&s;hop hath (or at lea&s;twi&s;e is like to have any power at all, and the&s;e dead either by naturall or Civill death there are not likely to be any more: I &s;peak now, and all this while that I mention Bi&s;hops under that notion and title they are now common|ly taken; for otherwi&s;e le&s;t in the large&s;t con&s;truction the ca&s;e were mi&s;chievous: For who knoweth not that every Generall of an Army, Major of a Citie, Ma&s;ter of a Com|pany, Ma&s;ter of a Ship, Clerke of a Market Par&s;on of a Pa|ri&s;h, Mini&s;ter, Vicar, Curate, are every one of them Epi&s;|copus.</P>
<P>Why then in that point let us conceive our &s;elves to bee in the condition of a free &s;tate, and a Presbitery &s;ettled therein, take for example that of <HI>Geneva,</HI> as one of the mo&s;t refined in that kinde (which began about the yeare 1530. invented by <HI>Calvin,</HI> he doth &s;o farre untie his owne knot as in giving a rea&s;on for it declareth that he did it not, becau&s;e he Iudged Epi&s;copacy, Antichri&s;tian, much le&s;&s;e did recom|mend his di&s;cipline as a patterne to others as appeares by his Epi&s;tle to Cardinall <HI>Sadolet</HI>) But to goe on, there the Mini&s;ter excommunicates it may be with the con&s;ent of his Brethren Mini&s;ters for it is plaine the Layick, and Secular, have not by any Law, any manner of power or capacity of power to act the lea&s;t thing in the matter of &s;entence of Excommunication, why then it mu&s;t bee in&s;i&s;ted upon that in the&s;e ca&s;es and places the power of &s;entencing (which is the great and generall que&s;tion) cannot bee in a mixt body of Eccle&s;ia&s;tiques and &s;eculers if that &s;hould bee affirm|ed, I mu&s;t then put this que&s;tion <HI>quo warranto,</HI> which if it can bee clearely re&s;olved, I &s;hall bee the &s;ooner drawne to yeeld.</P>
<P>Then to that que&s;tion.</P>
<P>I &s;uppo&s;e the mainteiners of that power mu&s;t make it good, either by the Civill or Cannon Lawes, or that wan|ting by cu&s;tome for <HI>Nullum tercium Invenio.</HI></P>
<P>For the fir&s;t it appeareth to bee &s;o totally and ab&s;olutely
<PB N="21" REF="12" MS="y"> again&s;t it, that I will mention it no further: Then next for cu&s;tome, and I think the Civill or Canon Laws, choaketh it al&s;o; But wee &s;hall a little better examine this point and power of cu&s;tome.</P>
<P>Ob&s;erving the ri&s;e of this tumerous body of cu&s;tome in Free &s;tates, where Presbyteries are &s;etled in other ca&s;es as well as this, I finde the way hath been where they find laws again&s;t them or wanting, to draw their own fanta&s;ies into cu&s;tomes, and then to make cu&s;tomes their deitie, a&s;cribing to them all omnipotency: But the Lawes having an eye as well to former as future Cu&s;tomes, neither abrogating nor approving all, rectifieth them into a due cour&s;e, and have for complyance with tho&s;e which are or may be ju&s;t, granted them liberties: and for others unwarrantable &s;et them li|mits, thus? fir&s;t in their definition.</P>
<P>Cu&s;tome is a certaine right which is taken for law, when law wants: A little more largly.</P>
<P><HI>Con&s;uetudo e&s;t jus quoddam moribus in&s;titutum quod pro lege &s;u&s;cipitur cum deficit lex,</HI> againe.<NOTE PLACE="marg"><HI>clem.</HI> 44. c. 4. <HI>Sixt:</HI> 20. c. 3. <HI>Sixt.</HI> 83. c. 3. <HI>Sixt</HI> 132. c. 3. <HI>Sixt</HI> 20. c. 4.</NOTE></P>
<P><HI>Con&s;uetudo dat juri&s;dictionem,</HI> againe.</P>
<P><HI>Con&s;uetudo legum interpres,</HI> thus much for priviledges and liberties.</P>
<P>Next for limits, and they come in as exceptions to all the former generall ca&s;es.</P>
<P>Fir&s;t, <HI>Con&s;uetudo rationabilis est &s;i non contra jus &amp; &s;ufficit &s;i pro</HI> 40. <HI>annis continuatur.</HI> But in certaine ca&s;es both cu|&s;tome and pre&s;cription voyde, as in this or the like ca&s;es.</P>
<P>The Cannons of a Church of time long enough to in|troduce a cu&s;tome (if it were rea&s;onable) were wont to re|ceave daily di&s;tributions as well tho&s;e pre&s;ent as ab&s;ent, whether this be a voyd or a rea&s;onable cu&s;tome or not? re|&s;olved in point of Law voyd: for tho&s;e ab&s;ent may not have tho&s;e di&s;tributions becau&s;e they are and ought to bee given into their hands, and are therefore rightly called <HI>Manna|lia benificia Clericorum,</HI> and &s;o both cu&s;tome and pre&s;cripti|on voyd: But to come to the point of Excommunication.</P>
<P>Excommunication cannot bee awarded or denounced meerly by any cu&s;tome onely again&s;t private per&s;ons, if not
<PB N="22" REF="13"> again&s;t them&punc;<NOTE PLACE="marg"><HI>Extravag: com.</HI> 23. c. 2.</NOTE> much le&s;&s;e again&s;t &s;uperiors, and then how can cu&s;tom in free States or Presbyteries in them be enabled by any cu&s;tome availe, have any power, to excom|municate.</P>
<P>But againe look into the former words of the definition of cu&s;tome: it is a right taken for law where law wants, out of which is concluded <HI>aliter non.</HI> And then the lawes of, and for Excommunications being not wanting to any free State or Presbytery, if they will fol ow the rules of tho&s;e Laws, they mu&s;t excommunicate by tho&s;e laws or el&s;e they have no power by cu&s;tome or otherwi&s;e to excommu|nicate.</P>
<P>But la&s;tly to conclude all, if we &s;hould admit them power by cu&s;tome or pre&s;cription to excommunicate yet then tho&s;e excommunications as all others what&s;oever [except the former excepted] upon the fir&s;t &s;entence of excom|munication mu&s;t &s;til be in&s;eparably accompanied with tho&s;e two e&s;&s;entiall adjuncts. 1. Of due Monition. 2. Of power liberty and meanes to appeale, and of &s;ome certaine qua|lified per&s;on, to whom: which if they can doe and follow, I may grant, that which is not yet granted that presbiteries in free States may by cu&s;tome or p<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">e&s;cription have power to excommunicate, <HI>aliter con&s;tant e&s;&s;e impo&s;&s;ibile.</HI></P>
<P>And now having drawne the lyne along the work I find by a retro&s;pect of that which is already done the worke of too &s;hort a &s;cantling for the lyne and therefore fits here to tye the knot: For though it <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">e true by all this which is &s;aid it doth not yet c<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">earely appeare in whom the power of &s;en|tencing is; Yet is mo&s;t plaine that in the ca&s;e of Presby|tery of Divines and &s;eculers in a free State, it is not, which may &s;erve<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter"> for re&s;olution &s;ufficient for the poynt in hand.</P>
<P>True it is the worke may be peeced or &s;pliced to a further length, and then al&s;o may the &s;ame lyne be found of extent enough to re&s;olve the affirmative In the meane time I &s;hall conclude as a skilfull Engineere did, who took upon him to defend and pre&s;erve a be&s;ieged Citie &s;o long as they could find him materialls to worke upon wherein at la&s;t they failing, hee an&s;wered now al&s;o have I ended my worke not
<PB N="23" REF="13" MS="y"> for want of skill, but of materialls to work upon, only I thought fit, ob&s;erving the conceipt of &s;ome which hould there will in a reformation (&s;uch as Presbitery or the like) be no nece&s;&s;ity of Excommunication to clo&s;e up all <GAP DESC="illegible" RESP="KEYERS" EXTENT="3 letters">h this addition by way of Epilogue or Lenvoy rather pro|ving then &s;hewing an ab&s;olute nece&s;&s;ity of it in all true Chri&s;tian and Orthodox Churches, and that by a mo&s;t re|markable, I may &s;ay admirable if not matchle&s;&s;e, example and practi&s;e of the profe&s;&s;ors of the Go&s;pe<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">l in the Polonick Churches which is this.</P>
<P>There being among&s;t them &s;ome difference though not in matter of faith yet in &s;ome circum&s;tantiall points of the &s;everall confe&s;&s;ions which they &s;everall adheere unto; &s;ome embracing the <HI>Walden&s;ian</HI> or <HI>Bohemian,</HI> others the <HI>Augu&s;tan</HI> &s;ome the <HI>H<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">lvecian</HI> confe&s;&s;ion: they to pre&s;erve, unitie in the bond of peace, and to keepe un&s;haken and inviolab<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">e the maine do all joyntly meet at one Generall <HI>Synod</HI> and that of late yeares, in <HI>Anno</HI> 1570. 1573. 1578. 1583. 1595.<NOTE PLACE="marg">Brerewood preface.</NOTE> And their <GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ir&s;t act alwayes is a Religious &amp; &s;olemn profe&s;|&s;ion of their unfained &amp; unanimous con&s;ent in the &s;ub&s;tan|tiall points of Chri&s;tian faith nece&s;&s;ary to Salvation; to agree in the principall head of faith. 1 <HI>Touching the holy Scripture</HI> 2 <HI>The &s;acred Trinity,</HI> 3 <HI>The per&s;on of the &s;onne of God God and man</HI> 4 <HI>The providence of Gob,</HI> 5. <HI>Sinne,</HI> 6 <HI>Freewill</HI> 7 <HI>the Law</HI> 8 <HI>The Go&s;pell,</HI> 9 <HI>Justification by Christ,</HI> 10 <HI>faith in his name,</HI> 11 <HI>Regeneration,</HI> 12 <HI>the Catholike Churh and &s;upreame head thereof Chri&s;t,</HI> 13 <HI>Sacraments, their number, and u&s;e,</HI> 14 <HI>The state of Soules afer death,</HI> 15 <HI>The Re&s;urrection and life eter|nall.</HI> Among&s;t the re&s;t; they generally conclude that where|in the afore named confe&s;&s;ions there is &s;ome difference in Phra&s;es and formes of &s;peech concerning Chri&s;ts pre&s;ence in the holy Supper which might breed di&s;&s;cention; All di&s;|putations of the manner of Chri&s;ts pre&s;ence &s;hould be cut off, &s;eeing all of them do agree, the pre&s;ence it &s;elfe; and that the Euchari&s;tiall Elements are not naked and empty &s;ignes but do truly performe to the faithfull receivers that which they &s;ignifie and repre&s;ent, and to prevent all future
<PB N="24" REF="14"> occa&s;ions of violating this &s;acred con&s;ent they ordained and decreed that no man &s;hould be called to the &s;acred mi|ni&s;try without &s;ub&s;cription thereunto. And when any man &s;hall be excluded by excommunication from the Congre|gation of one Confe&s;&s;ion that hee may not be received by the Congregation of another: and now whether among&s;t us who are like to have too many, and many more &s;everall Congregations then in all probability can bee yet recti|fied and drawne into an unity; of what nece&s;&s;ity due and le|gall excommunication is, let the wi&s;e&s;t Iudge whiles all mu&s;t be &s;en&s;ible of the want of it there being yet amonge&s;t us as Saint <HI>Augu&s;tine</HI> hath in the &s;ame or like Ca&s;e,<NOTE PLACE="marg">Epi&s;t: 86</NOTE> <HI>Inter|minata luctatio.</HI></P>
<P>To conclude all, I &s;hall end with the &s;ame &s;ubmi&s;&s;ion as I began my labour, being not in exceptions to impeach or bar, but for cautious ob&s;ervations, and Rules to fit and &s;quare out a right legall and warrantable cour&s;e (if it can be) of and in &s;etling and pur&s;uing Excommunications &s;o tota<GAP DESC="illegible" RESP="KEYERS" EXTENT="1 letter">ly to ve&s;t it in the new, as not to leave <HI>nec ve&s;tigia quidem</HI> in the old.</P>
</DIV2>
<TRAILER>FJNJS:</TRAILER>
<PB REF="14">
</DIV1>
</BODY>
</TEXT>
</EEBO>
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