[166] See Canons of 1597, Cardwell, Syn., i, 156. Burn, op. cit., 457-8. For such a sentence see E.H. Chadwyck Healey, Hist. of West Somerset (1901), 184 (Archdeacon of Taunton requiring a minister to denounce solemnly three obstinate excommunicates, and to warn all good Christians not to eat or drink, buy or sell, or otherwise communicate with them under the pains of being themselves excommunicated. 1628).
[167] Thus those who talked with him, ate at the same table with him, saluted him, or gave anything to him were themselves ipso facto excommunicate. See Reeve, Hist. of English Law (Finlayson's ed.), iii, 68. If such an excommunicate brought an action at law, the defendant could plead in bar the excommunication. The testimony of such a man was not admissible in court. Finally, he could not be buried in the parish churchyard nor could services be performed over his body. Burn, loc. cit., supra.
[168] See the case of Kenton v. Wallinger, 41 Eliz., Croke's Eliz. Rep., Leache's ed., Pt. ii, 838. This has already been mentioned on p. 33, note 102. In the Leverton, Lincoln, Overseers for the Poor Acc'ts, there occurs, s. a. 1574 an item of 7s. given to John Towtynge "for the discharge of … his excomynacion," and the next year a sum of 2s. 6d. given to a woman for a like discharge. Archæologia, xli, 369-70.
[169] Whereby any but a perjured man would be forced to incriminate himself.
[170] Cf. Maitland, Canon Law in the Church of England, chapter, "The Pope the Universal Ordinary." For proceedings by High Commissioners see Stubbs in Eccles. Courts Com. Rep. to Parliament (1883), i, Hist. Append., 50.
[171] As to the expense in suing out the writ, and also the slackness of bailiffs, etc., in executing it, see [R. Cosen], An Apologie of and for Sundrie proceedings by Jurisdiction Ecclesiasticall (1st ed., London, 1591), 64-5. Speaking of the great charges incurred in suing out the writ Cosen writes: "So that I dare auowe in Sundrie Diocesses in the Realme, the whole yeerly reuenue of the seuerall Bishops there woulde not reach to the iustifying of all contemnours … by the course of this writte." That temporal judges sometimes set prisoners under the writ free at their own discretion without notice to the spiritual judges, see Bancroft's Petition to the Privy Council in 1605, Cardwell, Doc. Ann. ii, 100. For hostility of temporal judges for ecclesiastical jurisdiction, see Bancroft, op. cit., 85. He counts up 488 prohibitions during Elizabeth's reign, many of them awarded without good cause and "upon frivolous suggestions" of defendants (Op. cit., 89).
[172] Hale, Crim. Prec., 145 ("Dominus decrevit scribendum fore regie majestate pro corporis capcione [etc.]." The threat subdued the excommunicate, for 15 days later "solutis xxxiiis…. pro expensis contumacie," absolution was given, and penance enjoined. 1562). Ibid., 172 (Similar threat, we do not hear of the outcome). Cf. R.W. Merriam, Extracts from Wilts Quarter Sess. In Wilts Arch. and Nat. Hist. Mag., xxii (1885), 20 (Affray because of an arrest under the writ. 1604). See also Whitgift's note to his bishops in 1583, Cardwell, Doc. Ann., i, 404-6 ("If the ordinarie shall perceave that, either by slackness of the justices or waywardness of juries," recusants cannot be indicated at quarter sessions, then the ordinary shall, after first trying persuasion, excommunicate the culprits, and after forty days procure the writ against them). Bancroft writes, March, 1605, that he will use his "uttermost endeavour" to aid his suffragans in procuring the writ, and in having it faithfully and speedily served. Cardwell, Doc. Ann., ii, 80. Cf. also the satirical single-sheet, published June, 1641, entitled The Pimpes Prerogative … a Dialogue between Pimp-Major Pig and Ancient Whiskin, in Brit. Mus. Coll. of Polit. and Personal Satires. Pig: "Tush, their Excommunications fright not us; but our Land-ladies (poore soules) lie in most danger; for them they serve after with Excommunicato capiendo, and then our Forts are beleaguer'd with Under-Sheriffs, Bum-Bayliffs, Shoulder-clappers, etc., whom we sometimes beat back by violence."
[173] Cardwell, loc. cit., 100. Ecclesiastical jurisdiction derived also much temporal strength from the fact that practically every bishop was also a justice of the peace. For proof of this see Strype, Annals of the Reformation (Oxon. ed.), iii, Pt. ii, 451 (Bishop of Peterboro' complaining that he alone was left out of the commission. 1587). Cardwell, Doc. Ann., ii, 80 (Bancroft's letter, 1605: "We that are bishops, being all of us (as is supposed) justices of the peace"). When commissioning justices Burghley referred to the bishops for lists of orthodox men. See such lists in Strype, op. cit., 453-60. Also in Strype, Life of Whitgift, i, 187-8. Victoria County History of Cumberland, ii, 73-4. Sussex Arch. Soc. Coll., ii (1849), 58-62. Mary Bateson, Letters from the Bishops to the Privy Council, 1564, with Returns of the Justices of the Peace, etc., in Camden Miscellany, ix (1895). By 1 Eliz. c. 2, bishops could at pleasure associate themselves to justices of oyer and terminer or of assize. Cf. Strype, Whitgift, 329.
[174] Presentments on this score are frequent. Take only a single jurisdiction, that of the Dean of York's Peculiar, between the years 1592-1601, and a number will be found. See Dean of York's Visit., 222 (5 persons); 226, 229, 315, 326, 329 (Remaining excommunicate for a month); 334 (Over 40 days. Also a person presented for harboring an excommunicate); 335 (Over a year); 341 (14 days).
[175] Cosen, An Apologie, etc., 64. As has been above stated, an excommunicate could not attend service. P. 47 supra.