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or if he be a Leafsee, tho’ he be not willing of himself, yet he may be obliged to it by the Bi. thop, Dean, and Chapter, or Body, when he comes to renew his Leafe; but if the Fee be in himself, there is no way, but to depend on his Courtesy. This I speak, upon Suppofition, that the Rails are to be faften'd into the Free hold: for I suppose there can be no doubt, but that as the Parishioners have a Right in most Places, by Custom, to receive the Communiong, Marry, and in some Places, to hold their Ve ftries in the Chancel; so they have a Right to place all such things there, as are necessary or proper to those Ends; and why they may not have moveable Rails there, as well as a Table, I can see no just Cause. Generally there are in every Chancel Pews fastend to the Freehold, for the Use of the People when they Communi. Cate; and whether these may not, at the Difacretion of the People, be changed into Rails, I leave to the Learned in the Law to determine :But, if I was Church-Warden, I should presume that my Ordinary was consenting to the having Rails, as to be sure he is, if he be one that lias any regard to the Decency of Worship; and therefore should think it sufficient to alk the express Cone fent of Parfon and Parishioners, or the Majority of them. And if the Ordinary be never fo inuch disposed to remove Pews or Rails, erected with.out his License, yet there is no great Fear of his coming to the Knowledge of it, unless it be a Church in which he keeps his Visitation ; for he rarely looks into any other: and there is no great fear, that the Parishioners that do oppofe it, will go to the Ecclesiastical Court for Rea
dress : for they know well enough, that all the Relief to be had there, in case they have a Majority against them, is, that a License will be put upon the Church-Wardens, and so the Charge be encreased.
CH A P. XIX.
Of Church Cenfures.
Here are some Censures, to which Lay
men, as well as Clergymen, are subject, viz.
I. Sufpenfio ab ingreffu Ecclefiæ. So by the Constitution of Archbishop Stratford, the Archdeacon, in fome Cases, was to be suspended from going into the Church, L. 3. T. 6. Item quia: So by Stat. 5, 6, Edw.VI. 6. 4. the Ordinary is direěted, if any Man quarrel, or chide, by Words only, in any Church, or Churchyard, to suspend every. Person fo offending, from going into the Church for so long a time as be fall think fit.
This Censure was inflicted by the Constituti. on of Archbishop Sudbury, Confeffione; on all
' that receiv'd not the Holy Eucharist at Easter. Lyndwood in his Glofs. put the Question, who should inflict this Censure, and Aniwers, That áthere is no Occasion for the Ordinary to pass
Sentence, the Curate may do it.
II. Excommunication, which is either,
1. Excommunicatio Minor, was a Sentence introduc'd in the XIIIth Century, to be pass'd on those who knowingly convers’d with those, who were by Name excommunicated, and when there was no Necessity for their so doing. I do not find any certain Proof that it was ever ufed in any other Case. Lyndwood asserts,
That it was grown out of Use in the Ecclesi(aftical Court, in his Time; and that Interdict had succeeded in its Stead. Where by the Word Interdict, he must mean prohibition laid on particular Persons against going into the Church There is no Reason to suppose that it hath been restor’d since Lyndwood's Time. See Lib. II. T. 6.c. Evenit. v. Interdiet. By this Censure Men were depriv'd of Sacraments, and Sacramentals only.
2. Excommunicatio Major, is that Sentence by which Men are depriv'd not only of Sacra. ments, and Sacramentals, but of all Communication with Christian Men, without the Church, as well as in it. But it is to be ob. fervd, that by the Practice of our Church in latter Ages, Men are actually depriv'd only of Sacraments and Sacramentals, and of Entrance into the Church, by virtue of this Sentence. They are not depriv'd of Communication of Christian People (otherwise than in the Church) till they have remain'd three Months under this Sentence, without feeking the Benefit of Absolution, (according to the 75th of our prefent Canons) and till others be admonished to avoid their Company and Society, by a publick Denunciation to be made, not only in the Parish, but in the Cathedral Church. So he who is excommunicated for preaching Heresy is not depriv'd of Conversation with Christian People, till he hath a second time been guilty of that Crime, tho' he was excommunicated for the first Offence, * But the Person thus excommunicate, is liable to be taken up by a Capias, before he is depriv'd of Conversation of Chriftian People ; if he do not reconcile him. felf within forty Days, to be reckon'd from the Time of the first Denunciation in the Parish Church. And if that Writ might not be executed before the second Denunciation, it would now not be executed at all. For I ne. ver knew any such Denunciation made, nor consequently any Prohibition of communica. ting extra Ecclefiam with Excommunicates. It was the Neglect and total Disuse of this Prohibition that led others, as well as myself, into an Opinion that an Excommunication in our common Form is of the lesser Sort.
For we could not see how Men under a greater Excoinmunication might be convers'd' with as freely as others, which yet we see commonly done without Cenfure, or Controul. But it seems evident, that the lefler Excommunication is wholly thrown out of Doors, and that therefore there is no other in being but what was of old called the Greater : and is so still in the Eye of the Law. And it is a Maxim with the Canonists, that Excommunicatio, if the
* See Arundel's Conftitut. Reverendiffim..
Word Minor be not added to it, imports the Greater: And that if a Judge say, I excommu. nicate John, or James, it implies the greater Excommunication. But let it be observ'd, that this is still in effe&t a leller Excommunication, tho' it be a greater in the Eye of the Law. For it does not actually deprive Men of Christian Society out of the Church till it hath been denounced a 'second Time, and in the Cathedral Church; which is now scarce ever practis’d. But it subjects Men to the Writ, de Excom. Capiendo, by Stat. 1 H.V.c.5. and 5 Eliz.c.23. And a Person taken by virtue of this Writ is Bailable only by the Court of King's-Bench, not by Sherifts, or Justices of Peace. Godolph. f. 42. S. 25.
In many Cases, and for many Crimes, Offen. ders are said to be Excommunicate ipfo facto. Lyndwood says, there are 175 Cafes mention'd in the Provincials only, in which Men are said to be fo; and by Statute 5, 6 Edw. VI. He tbat fmites, or lays violent bands on another in a Church, or Church-yard, shall be deem'd ipso facto Éxcommunicated.
It has been disputed, whether Persons, who are by Law, or Canon, ipfo facto Excommuni. cated, do fall under that Sentence, before they are cited by the Ordinary, and have the Fact proved against them, and they are denounced Excommunicate in Ecclefiaftical Courts.
Now the Judges have declared, that Excom. munication takes no effect, as to the Common Law, till it be denounced by the Ordinary and Curate of the place where the Offender lives no, not when such Excommunication is decreed