be made In the seventeenth year of the Reign of King Edward the second a nihil habet being returned by a Sheriff upon a Distringas in wast a Capias was awarded by the Justices of the Court of Common Pleas against the defendant And that if a Sheriff return upon a pone a Tarde that the VVrit came so late unto him as he could not execute it and it be averred that the VVrit came time enough or that the Party was present and might be attached the Sheriff was to be amerced Personal Actions saith the Mirrour of Justice so much admired by Sir Edward Coke have their introductions by Attachments of their Bodies real by Summons and mixt actions By Summons and after by Attachment in personal Action And in the same Kings Reign if a Religious man Professed had forsaken the house and become vagrant a VVrit upon a Certificate of the Abbot or Prior issued out of the Chancery to the Sheriff to take him In the eight year of the Reign of King Edward the third presentatio facta fuit apud Lincolne contra Thomam de Carleton sub Vicecomitem Indictatum de extorsionibus aliis malefactis inter alia quod mittit homines arrestatos pro debitis in ergastulum strictum fetidum inter latrones quousque finem fecerint cum illo pro deliberatione sua extra c. Contra formam statuti plurima alia pro quibus fecit finem cum Rege postea pardonatur per breve domini Regis eo quod invenit Regi in guerra sua Scotiae tres homines armatos duos Hobelarios Thomas de Carleton under Sheriff of the county of Lincolne was indicted at Lincoln for several Extortions and Misdemeanors and amongst other things for that he did put such as were Prisoners and arrested for Debt in a close and loathsom Prison amongst Theeves until they gave him mony for their better accomodation against the form of the Statute and did commit many other Misdemeanours for which he paid a Fine to the King and was pardoned for that he furnished the King in his VVars in Scotland with three armed men and two Hoblers or common Soldiers By an Act of Parliament made in the 18 year of the Reign of the same King a Capias is to be awarded against such as not having wherewithal to live do refuse to serve 22. Ed. 3. It was held for Law that upon a Judgment obtained for Debt or Damages the Body of the Defendant might be taken in execution and by the opinion of Thorpe and Basset Judges where conusance of Pleas is granted there are also granted all things necessary unto it as to proceed by way of Capias Distresse c. And it was in those times agreed to be Law that the Judges have Power by Word of Mouth to command a Defendant to be Attached and that he that Bailed a man might by the Law without Process Arrest or take the partie Bailed and bring him into the Court. All which put together and brought to a due consideration with the small or no difference which is betwixt a Pone and a Capias as to the Attaching and Compelling of Defendants to appear in the Tenor and antiently practised and yet intended use of it may be enough to Rescue us from the imputation of Error or presumption if pace tanti viri we shall take that which hath been said in Sir Will. Herberts case by Sir Edward Coke in his third Reports that the Body of a Defendant in an Action of debt was not subject or lyable to an execution before the Statute made in the 25th year of the Reign of King Edward the third to be no more than an opinion built upon a great mistake for that Statute was not made only to give Process of Arrest by Capias upon a nihil habet or non est Inventus upon a Pone or a nihil habet or non est Inventus returned upon a Distringas by a Sheriff because it was so before by the Common Law of England it being altogether improbable that those who had Lands or any visible Estate in Goods or Chattels were before the making of that Statute always Resident or did never hide or absent themselves for Debt or some other Actions to avoid a Summons or some Arrest or compulsory way to bring them into Courts of Justice to answer and give satisfaction unto such as had cause to complain of them or that those who had no Lands or Goods were always to be free and exempted from any restraint or arrest of their Bodys upon actions of Debt or for any other matters commenced against them But was intended only to have Process to the Exigend and Utlary which could not be without a Write of Capias in Actions of Debt detinue of Chattels and taking of Beasts per Capias Exigend selon retourne du vicecount come home use en breifs daccompt by Capias and Exigenâ— according to the return of the Sheriff as was used in Writs of accompt and being at the petition of the Commons in Parliament priont les Commons the King as the record it self witnesseth did answer I l plese ou Roy que ainsi soit quil soit mys en Estatut it pleaseth the King that it should be so and that it be put or formed into a Statute And the reason of that petition of the Commons in Parliament to the King which introduced and procured that Act of Parliament many Acts of Parliament and good Laws in the former Ages being usher'd in and obtained by the Petitions of the Commons in Parliament to their King and Sovereign may in all probability seem to be for that they did not think either the former Process of the Law by Summons Pone Distringas or Capias to be severe or sufficiently coercive or so powerful to bring a Defendant to Justice as the fear of an Utlary which in the Saxons times were so Terrible as he that was outlawed was accompted to be a Friendless or Lawless man and was afterwards so formidable to those that by the contempt of the Laws incurred in the forfeiture of their Liberties Goods Chattels Profits of their Lands and Benifits of the Laws as it might well be believed every man would be careful to avoid so great a danger and trouble And therefore in the eighteenth year of the Reign of that King being but seven years before the making of that Statute it was deemed to be for the good of the People to have it declared by Act of Parliament in what cases process of Exigend and Utlary should be that is to say against such as received the Kings Wool or Mony and detained it such as transported Wool not Cocquetted or without Custom against Conspirators and Confederates of quarrels such as commited Ryots and brought in false mony if they could not be found or brought in by Attachment or Distress and not
which Statutes will be best expounded by Sir Edward Coke who in his Exposition and Comment upon Magna Carta ca. 29. and all the other parts thereof for out of that most commendable Law those two Acts of Parliament of 28 E. 3. ca. 3. and 42 E. 3. ca. 3. do seem to have been drawn and are but as Confirmations of it saith that by the Law of the Land is to be understood the Common Law Statute Law and Customes of England which though they be in the Negative have no reference or contrary matter unto that of 25 E. 3. ca. 17. and do not prohibit the former allowed and due Proces of the Law or declare them to be contrary to Magna Carta or any Article or point thereof nor have any express words or so much as any preamble which may signfie any purpose that they had to repeal it for all that is forbidden by those two Statutes of supposed repeal is to prevent the mischiefs complained of by suggestions to the King and his Councel and that no man be disinherited put to death or out of his Land taken imprisoned or brought to answer but by due Proces â—f the Law according to the old Law of the Land And the Statute of 37 E. 3. ca. 18. giving an order of pursuing a Suggestion made unto the King doth mention the great Charter and the words therein contained That no Man be taken nor imprisoned nor put out of his Free-hold without Proces of the Law For if our Records and Law-books and the reason thereof and all that hath been learned and believed hitherto do not fail us those Statutes or either of them cannot be interpreted to intend to take away any lawful and necessary Arrests and Imprisonments in Actions of Trespas which were in use long before the making of Magna Carta or the arresting or restraining of the persons liberties of Defendants in Actions of Debt and the like or for a Contempt of the King or his Courts of Justice in not appearing when they were summoned or cited or when they had no visible Estate to satisfie or were likely to fly or run away the true intent and meaning of those Statutes of 28 E. 3. and 42 E. 3. tending rather to confirm and establish that Act of 25 E. 3. ca. 17. then to repeal or take it away the main scope or purpose of them being only to restrain any arbitrary Government or any Lawless proceedings of the People one against the other for it is impossible by any sense or reasonable Construction of those Statutes to conclude any the least design in them or either of them to take away or alter a Law or Custom of the Nation which was not then at all so much as complained of when by forbidding to do that which was against the Law they must of necessity be understood to allow of that which was the Law or consistent with it For it hath been said and never denyed to be a rule in our Common Law as well as in the Civil Law that Exceptio firmat regulam in Casubus non exceptis The exception or saving doth preserve and allow of that to be the Law which is excepted otherwise if the exception should be as certainly it is not nugatory and serves for nothing the meaning of our Magna Carta it self and all those very many Statutes of Confirmation afterwards enacted must be as they can never be rightly taken to be that be the matter or cause Civil or Criminal Treason Murder or Felony no Man is at all to be disseised or put out of his Lands arrested imprisoned or compelled to answer and the King who is sworn to administer Justice to his Subjects must by Magna Carta it self be denyed and debarred the use of means to do it and the People thereby put into a condition not to be able to obtain Justice one against another And if no Laws concerning Proces in Debt or other personal Actions which have been enacted or allowed by Acts of Parliament subsequent to those before mentioned and supposed repealing Acts of Parliament made in the 28. and 42 E. 3. or derived by necessary deduction from reason which ought to be the Soul and Constituting part of all Laws shall not be allowed or taken for Laws the Parliaments of England wherein all manner of grievances and many times very small and inconsiderable were seldom omitted to be complained of or petitioned against have by making of the Statute of 7 H. 5. for giving Proces of Arrest and Capias in Actions of forging of Charters of 9 H. 7. in Actions of the Case and 23 H. 8. in Actions of Annuity not only not remedied but enacted grievances and all our other Laws which have been since made concerning the taking or imprisoning of Mens Bodies in Actions of Debt or other Civil and personal Actions or been put in Execution have been no other then abuses and transgressions of the Law and all that so many learned conscientious and Reverend Judges of the Law and sworn to judge according to it have since those times done or permitted to be done in pursuance of those latter Laws have been but as so many great mistakings to the oppression of the People And the Parliament of 3 Car. primi whereof the very learned Selden and that great Lawyer Sir Edward Coke and many very worthy Men and Lovers of our English Laws and Liberties were Members some of which had not long before made themselves Prisoners to secure a pretended Liberty would have been guilty of a great oversight and inadvertency in not getting better Provisions in the Act of Parliament made upon that which was called the Petition of Right wherein that aforesaid part of Magna Carta ca. 29. and the Statutes of 37 E. 3. ca. 9. 17 R. 2. ca. 6. and the very Act of 28 E. 3. ca. 3. now so much insisted upon are confirmed And the Acts of Parliament of 37 E. 3. ca. 18. 38 E 3. ca. 9. 42 E. 3. ca. 3. and quoted in the margent of the said Act are declared to be good Laws and Statutes of the Realm and it was ordained That no Offender of what kind soever be exempted from the proceedings to be used and punishments to be inflicted by the Laws and Statutes of the Realm All those Acts of Parliament being then expounded and understood to be only intended against the Imprisonment of Men by the King or his Councel without cause shewn and the same Parliament did then procure diverse Acts of Parliament to be repealed but not that of 25 E. 3. ca. 17. which neither was repealed in that nor any other Parliament in Terms or words intelligible or by implication or otherwise and did never yet deserve to be so since the making thereof Nor would that Parliament labouring so much for liberty have at the same time allowed of that Act of Parliament of 25 E. 3. ca. 17. for the Proces of Capias and Exigent or Outlawry in Actions
Jurisdictions being great grievances and oppressions might be taken away the Laws translated into English the Six Clarks Head Registers Masters of Chancery and the Petty-bag Affidavit Office Prothonotaries and all other grand Monopolies and Patentees might be abolished no mans life taken away for Felony unless accompanied with Murther that the eldest Sons in every Family might have a double Portion in the Fathers Estate and the rest be divided amongst the younger Children that no Fines be paid to any Cursitor or upon any Original Writ but may be quite abolished that no mans person might be imprisoned for Debt but his Estate made liable to satisfie the same it being more suitable to the Turkish or Heathenish practice then to Christian English Professors of the Gospel to rack and grind the bodies of men in prison At the heels whereof was brought to that Assembly at Westminster who named themselves a Parliament and to cherish such doings seldom failed by their Speaker to give thanks in the name of the House to all Petition and Declaration-drivers a Petition of the Well-affected in the County of Buckingham said to be a Representation of the middle sort of men within the three Chilterne Hundreds of Disborough Burnam and Stoke and part of Alesbury Hundred declaring That they had waited eight years in the pursuance of their just Rights and Freedom with which God had invested them and the whole Nation kept from them by Arbitrary power and Tyrannical factors of the Nobility Courtiers Episcopal Priests cheating Lawyers Impropriators Patentee men Lords of Mannors and all illegal Courts and other diabolilical interessed parties and desire that all Licences Commissions c. and Grants from the late King whose first predecessor was that Outlandish Bastard William the Conqueror from whence proceeded the original of all their slavery both in Tenures Laws Terms Customs c. in an Outlandish tongue the Lawyers being the chief Instruments of their misery might be abolished and protesting against all arbitrary Laws Terms Lawyers Impripriators Lords of Manors Priviledges Customs Tolls Tithes going to the Terms at Westminster payment of Heriots Quit-Rents Head-Silver Lawyers Fees and the whole Norman power being a burden too intollerable to bear did invite all men to enter upon Commons and cut and fell the Wood growing thereon and desired which they would not be willing to do if they had been Lords of Manors and other the parties struck at to go by the golden rule of Equity viz. to do as they would be done by not to tyrannize over any or to be tyrannized over Another Pamphleteer feared he should be taken to be ill affected to the babe of Sedition if he also should not be doing somewhat in a Modest Plea as he terms it dedicated to the High Court of Parliament which he would have to be the Supreme Authority of the Nations prayed that there might be an equal Commonwealth against Monarchy wherein there is a Lift against the Vniversities Colledge Lands Tenures Hereditary Nobility Church Revenues Churches and Bells Mercenary Lawyers and Tithes with an Apology for Younger Brothers and desires a restitution of the Tenures in Gavelkind In the same year the Lord General Fairfax Lieutenant General Cromwell the Lord Mayor of London Colonel Harrison Mr. Francis Allin Colonel Martin and others were impowred to place and displace any Judges of the Courts at Westminster and all Officers thereunto belonging and all Sheriffs and Justices of Peace Mr. John Hare being unwilling to stay behind such Company in a Pamphlet sent out upon that design desired that the Norman yoke might be taken off and saith that the Norman Innovations are destructive to the honour freedom and other unquestionable Rights of the Nation In the same year the Officers and Souldiers in the Regiments of Colonel Scroope Sanders and Walton and the Souldiers in the Garrisons of Arundel Rye and Chichester did petition the Lord General Fairfax that the abuses in the Courts of Justice be reformed that there be a Registring of Deeds and Contracts Tithes abolished Six Clarks in Chancery taken away and their Clarks sworn Attornies Mr. Sadler a Lawyer and a man in such favour with the Usurper as he was by them made one of the Judges for the proving of Wills and Testaments in his Book entituled The Rights of the Kingdom and Custom of our Ancestors saith that the Writs of Capias as now used were very mischievous did not lye at the Common Law in Actions of Debt cites Sir Edward Cokes opinion in Sir William Herberts Case and declared that in Debt the Mirrour of Justice did pronounce the Outlawry to be a great abuse In the year 1650. S. D. then an Attorney but since his Majesties happy Restauration and the altering of the Scene Knighted and put into several places of Honour and Trust having convened and gathered together some Tides-men and small understanding Clarks and Attorneys that were well inclined to set their Watches by Cromwells new Court-Dial did in order to the Regulation of the Law propound a Law to be made against Fines to be paid upon Original Writs for that the best reason that they could give against it it was against the reason of the Fundamental Laws of England which never imposeth any Fines but against offenders and the like against Vtlaries which were unnecessary and did tend only to Charges and delay and that a second Summons being served upon a Defendant and left at his house and by the Sheriff or his Officer retorned upon Record the first Summons being made seven days before the day of Apparance in which time the Plaintiff may enter his Declaration in Court and if no Apparance entred within eight days after then a new Summons in the nature of a Scire facias to be awarded upon the Imparlance roll to summon him to appear at a certain day to come when not appearing and pleading within eight days after Judgment shall be given by default Mr. John Jones of Nayoth in the County of Brecon in a Book printed and published in the same year entituled Judges Judged out of their own mouths or the Question resolved by Magna Charta who have been Englands Enemies King-seducers and the Peoples destroyers from King Henry the 3d. to King Henry the 8th and before and since stated by Sir Edward Coke late Lord Chief Justice of the Court of Kings-Bench wherein that mighty Cambro-Britain in his own opinion doth with as little Law as Reason charge the Judges and Professors of the Law with the destruction of honest men whom it should save and the saving of all those whom it should destroy or punish for unlawful respects and considerations tending to their own profits and ends And that by Prerogative Statutes devised by mercenary Lawyers to steal from the people their Birth-right contrary to Magna Charta and the Common Law of England they are become an intollerable mischief to the Commonwealth and do deserve exemplary punishments and cites the said Sir Edward Cokes opinion
represents his Client shall be suffered to make the summons or Citations and to be both Party Judge and Sheriff without an authentication of hand seal or stamp of any Court or their subordinate officers which no Court of Justice Christian or Heathen hath yet adventured to allow be hugely opposit to the rules and maximes as well of the Civil as the Comon Law used for more then one thousand years that nemo privatus Citare potest and bereave the high court of Chancery of those Rights which do truly and justly belong unto it and the Judges of all other the Courts and circuits of England and Wales who by an act of Parliament made in the thirteenth year of the Reign of King E. 1. and by ancient custom long before used are to have their Clericos Irrotulantes sworn and intelligent officers to record and make their writs and process Frustrate the Antiently well approved power of the court of Chancery in their process upon contempts when there shall be as there will always happen to be matters of Equity in cases of Fraud Combinations Hardships or Rigours of Law fit to be releived by the said court and a great deale more then were formerly if the Creditors shall by this new Model of common Law proceedings be let loose to act their own will and furies upon their insolvent or not punctually performing debtors and that high court shall upon contempts or disobedience of its process of Attachments or commissions of Rebellion have no power to punish them by arrest or imprisonment being the only meanes tueri Jurisdictionem to maintain and uphold its Authority and Jurisdictions The hands of Justice and coercive power authority of it will be paralitique manacled less in the laying by of the Sheriffs and their very necessary under Officers by whom the Law received its Execution which is as the life of it and might as well be made use of in the Summons Attachment or Process before Judgment as they are to be afterwards where there are and may be dangers of killing of men if ever there were so many as is informed by how much an execution after Judgment of Body or goods being unbaylable is more terrible and to be avoided by the debtor then that which is baylable and in many cases to be discharged by an appearance only to the action and if the Plantiffs or their servants the Attornies Clarks Constables or Porters must be the Sheriffs or their Bailiffs there may be more danger of resistance killing tumults and commotions then ever there was of Bayliffs and of more extortion and tricks in those that are not sworn then in those that are sworne and bound up by many Statutes and Acts of Parliament and the penalties thereof Or if arrests and the execution of Justice by the Sheriffs and their subordinate officers could be any primary or never failing efficient causes of the slâ—ughters seldom happening upon arrests or that to prevent it there will be any such necessity of laying aside or disuseing that necessary office of Sheriffs in the execution of Justice as well after judgment as before that of the raising the posse comitatus in cases of a forcible resistance of their taking possessions or levying the Kings debts is to be put under the same fate and neither Sheriff or Constable may arrest a felon but obey the like method of Summoning him at his house or Lodging to know if he be willing to be indicted come to his Trial and adventure a Hanging But no well built or grounded reason being likely to be found to support such reasonless and lawless opinions the Adorers of such Imagination may assure their disciples that Elias is to bring the reason and that until then they must expect it and may in the mean time do much better to give them leave to believe that Such a System of Infamy and Cruelty and an unmerciful credit tearing course of summoning publickly by papers left at the debtors Houses or Lodgings or which is worse fastned upon the outward doores which the malitious contrivances or tricks of ill affected or violent Plaintiffs if not prohibited by some severe penalties will too often prompt them unto and in the consequence bring an Inundation of ruins upon this Nation who do now more than half of them live upon credit and are so generally indebted as they will not be much wide or from the Mark who do believe that half the Lands and Estates real and Personal of the Kingdom sold to the utmost will not be enough to pay the debts thereof And by Suing out as it were Commissions of Bankrupt against all the Nation write Lord have mercy upon us upon too many mens doors and now there is so little money left them take a way the Credit that should help to support them Add affliction to affliction to all the Loyal nobility Gentry and Citizens that had impoverished themselves by their Loyalty and taking part with their King and his Laws and the Church of England and leave them to the invisible mercy of those that did help to Rob Plunder and Sequester them Bankrupt and undo most of the Tradesmen and be a meanes to help the over-hasty Creditors to a composition of four Shillings in the Pound or a great deal less when as otherwise with a little patience they might have had their whole debts pay'd unto them and make the unbridled fury of one Creditor to be a cause of the never payment of other Creditors debts When plaintiffs are many times as unreasonable as they are unmerciful insolent and unperswadable where they can either find or keep advantages and that many an Action as well as many a Plaintiff may be Malitious Oppressive Unjust and Vexatious and such a fancied speedy way of geting in debts may be very instrumental for the advance of evil purposes and knavish designs No Inhabitant of Wales where their Laws do already allow them an Iterum summons nor in the Cincque ports or any of the Counties palatine of Chester Lancaster or Durham will be able to borrow any money in London or out of their own Countries upon the best security when that those who shall be imployed to serve the Summons being not the Sheriffs officers may be in danger to be beaten and cannot be outlawed without several Writs of Capias Many Tradesmen do only subsist by their credits and take up great sums of money upon an opinion of their present abilities or future gain by which they do commonly give no other security then their Persons and by the advantages therof do many times by their industry attain unto great Estates but if the process of arrest be taken away they can hope no more to be so easily entrusted for that an Attachment of the person doth secure the plaintiffs debt either by present payment or causing other satisfaction which the proceedings by summons in this manner will never attain unto The fear and disgrace of a Process of
or peremptory is by the Civilians themselves acknowledged to be a deviation à jure communi in casibus necessitatis tantum recepta quando alio modo quiâ— citari non potest Secondly Vbi locus non est â—utus ubi citandus habitat Thirdly Si persona est vagabunda quo casu edictum eo loco affigi debet ubi solita est conversari That such a possession is notwithstanding but fiduciary and the Plaintiff only put in possession Custodia causa vice pignoris detiâ—et donee reus veniat responsurus That a 2d trial decree or sentence restitutio in integrum do not seldom afterwards follow And that appeals from the lower Courts or Judges to the higher Commissions of adjuncts and revisions will never allow that Law to be â—o desirable expedite or little chargeable as our Common Laws are which our Novellists would perswade us to renounce and abandon Of which and the disparity of a great part of the Body of the Civil Laws with those of our cipal and common Laws the Dukes Earls and Barons of England were so sensible as in the eleventh year of the Reign of King Richard the 2. in the cause and appeal of Thomas Duke of Glocester and others against Robert de Vere Duke of Ireland the Earl of Suffolk and others they denyed to proceed to Judgment thereupon according to the Law civil and declared que la Roialme de Angliterre ne estoit devant ces Heures ne al intent du Roy signiours de parlement unques ne serra rule ne govern per le ley civil and our Ancestors more than what they retained of some of the actions rules and directions of reason which that excellent Law afforded and was necessary would not as our learned Selden hath observed constanti adhaesione by a constant perseverance and affection be drawn from that singular reverence and esteem which they had of the common Law which so long a course of time and antiquity had fitted to their nature and Genius In so much as William de la Pole Duke of Suffolk was in the Reign of King Henry the sixth accused amongst other things by the Commons in Parliament that he had sought to introduce the Civil Law And the great Cardinal Wolsey was in the Reign of King Henery the eight indicted or informed against quod ipse intendebat finaliter antiquissimas Anglicanas leges penitus subvertere enervare in universum hoc Regnum Anglie ejusdem Regni populum legibus Imperialibus dict legibus Civilibus earundem legum canonibus subjugare And King James coming from a Kingdom where those Laws were much in use and seemed to have some inclination to introduce or intermingle some part of it with our Common Laws did notwithstanding forbear to do it acknowledging that the Civil Law was not applicable to this government or fit for it And our Innovators that have been so wiling to intermingle with their System that part of the Civil Law which in the cases of contumacy did allowe a missio bonorum repleuisable as aforesaid may upon a further search and enquiry satisfie themselves and others that for the expedition of Justice put on and perswaded by the increase of trade and insolvency of debtors the Caesarean or Civil Law hath long ago forsaken their course of granting judgments for not appearing missionem rum and Seisure and found the Citatio realis captura incarceratio to be the more ready and less prejudicial way of compelling debtors or Defendants to appear in judgment For certainly to inforce perswade or give a libertie to the people in their Law Suits and concernments depending thereupon to circulate when they may go a more easy and less expensive way nearer more streight and better conducing to their honest ends will be but to vex and tire both Plaintiffs and defendants and multiply their charges When to draw and prepare the declarations which in Debt and common Actions were until the fourteenth year of the Reign of King James to be entred by the Filacers and ought yet if the cause or reason of their remitting that ancient part of their imployment do cease and be taken away the Plaintiffs will in this new devised expedient for a quick and Pie-powder Course of Justice be put to a charge for the drawing of their Declarations before hand when it may be there will be no need of them and to pay for the Copies of them which in a more regular course after apparances entred were to be payed for by the Defendants And to the Trouble and charge of entring judgments and the hazard of the loss of charges poundage aud other fees payd to Sheriffs and Bayliffs upon execution or paying of damages where they are wrongfully or not well obtained multitude of Affidavits pro con of motions in Court on the one side and the other many referrences and reports wagers of non-summons writs of restitution actions on the case for non summons or for slander or defamation brought for malitious contrivances cum muliis aliis which will increase and heighten the Bill of Charges And that goods Seized inventaried and sold by under Sheriffs and Bayliffs at half or less value though it may suffice one greedy and merciless Creditor will not be unlikely to defeat another or many others of their more just debts and utterly blast the Debtor in his credit by which he might well have subsisted and survived the disgrace and trouble of so furious a prosecution And that the long ago trodden path or way of compelling or bringing men unto judgment or unto Courts of Justice would not so frequently be made use of in England the way of Summons Pone and distress being not yet altogether forsaken and disused as it was formerly for that betwixt the Reigns of Canutus a Danish King the 25 year of the reign of King Edward the Third and for some ages after there neither could be any either frequency of arrest or necessity for it as there hath been since and is now CHAP. III. The reason and necessity of the more frequâ—nt use of VVrits of Arrest and Outlawry then was before thi making of the Statute of 25 E. ca. 17. IN regard that in those former Ages there were more Lands than Tenants more real Estates but little personal the Trade of the Nation not the fortieth part of what it is now so little before the Reign of King Edward the third as those few Merchants that came hither had Letters of safe conduct granted unto them before they came and that the Commerce and Trade which was in King Edward the Third's time long after was only with the Esterlings and Hanse Towns Burgundy Aquitaine some Genoese and Italian Merchants the Turky East and West Indy and Affrican trades not then or long after known or used Usury so horrid and damnable a Crime as it was a cause of Excommunication denyal
the words of thy mouth that of taking and casting into Prison for debt until the utmost Farthing was paid and such or the like coercions to compel men to appear in Courts of Justice and satisfie actions were long before the Incarnation of our blessed Saviour in use amongst the Athenians in their Laws And the Romans those great Masters of Libertie who having their Lictores Serjeants carrying their Rods and Axes before their Magistrates expresly ordained that if a man would not or could not come before the Judge he should give Bail to answer the action Metellus one of the Tribunes of the People at Rome arrested one of the Consuls for taking away his Horse The great Scipio Africanus being called to accompt for moneys received and refusing to come to his answer the Tribunes of the People those great protectors of their supposed Liberties urged very hard to have him Arrested and fetched out of his house in the Country and made to appear Julius Caesar was inforced to give Bail to his Creditors who were about to stay him when he went Praetor to Spain Urgulania a great favorite of Augusta mother of Tiberius the Emperour being summoned by Piso in an action of Debt which she disobeying was Arrested but rescued and conveyed to Caesars house whereupon a great stir and tumult happening and Augusta her self complaining that she was injured by it the mony notwithstanding was afterwards sent and paid by her nor was such arresting of persons condemned by our Blessed Saviour when he advised Defendants to agree with their adversaries before they were by them delivered to the Judge and the Judge deliver them to the officer and they be cast into Prison Those Roman Laws and Customes being to be allowed for an inducement to our Common Laws to do the like which never refused to take in and borrow from other Nations any thing that might add to its own perfections and excellencies and could be no strangers unto the Civil and Caesarean Laws brought into England about 50 years after Christ when the Emperor Severus Raigned seven years together at York and that great Lawyer Papinian as Praetor or Lord Chief Justice governed the Civil affairs and Justice of this Nation under him and those Laws continued as a Seminary of many of our Laws Customs as may be demonstrated for more than three hundred years after By the Laws of Ina a Saxon King Raigning here in England betwixt the years 712 and 727. made suasu instituto of Cenred his Father Hedda and Erkenwald his Bishops omnium Senatorum natu majorum sapientum populi sui in magna servorum Dei frequentia if the Plaintiff demanded right to be done unto him by the Judge and could not obtain it and the Defendant shew no cause why he should not give him a Pledge or Sureties the Judg was to be fined thirty shillings and to do him right notwithstanding within a Week after And then there could be no doubt but that he had power to compel him to appear and to Punish his contumacy for otherwise the Judge could not be justly fined that had no power to enforce the Defendant to appear before him And if a Pledge were required of him that was accused which as to the giving of a Pledge or Bail was no less then the awarding of a Capias and he had not wherewithal to do it before the Suit be determined another might lay down a Pledge for him upon condition that he remained with him or in his Power which is a most antient and cleare example saith that great AntiAntiquary Sr. Henry Spelman of being Bailed out of Prison or giving Bail to answer the Action By the Laws of King Edgar who Raigned Anno Dom. 971. made Frequenti senatu every man was to have sureties who might have him forth coming to do right By the Laws of Canutus made Sapientum consilio who Reigned in Anno Dom. 1031. no man was to compel another by distraining or taking away Pledges to a Suit in another Liberty unless he had thrice required right to be done him within the hundred If any one be destitute of Friends and cannot find Pledges let him be put into Prison In the Hundred Courts County Courts Courts Leet Baron which saith our Learned Selden have a resemblance of the Customs of the old Germans brought hither by the Saxons the Process are for the most part by Summons Attachment and distress or if upon the Summons a nihil habet be returned that is to say hath nothing whereby he may be Summoned then a Capias By the Laws of King Edward the Confessor who Reigned in Anno Dom. 1044. which were of so high esteem with the English that after a commission to find them out by the oaths of twelve men in every County of England elected and chosen they with much a do Precibus fletibus obtained of William the Conqueror to have them confirmed and were after so exceeding careful not to loose them as the observation of those Laws were by an oath afterwards taken by the succeeding Kings of England at the Coronation more espetially recommended unto them Every man that would be accounted a Freeman ought to be in Pledge that the Pledges might bring him to Justice if he should offend and if he escape such Pledges should pay what he was Sued for which saith our Sr. Henry Spelman in his Glossary resembles our Frank Pledge and let the Hundred and County say those Laws be demanded for him as our Ancestors have ordained For say the same King Edwards Laws it is the greatest and highest security by which all men and their Estates are strongly upheld By the Laws of William the Conquerour who confirmed the Laws of King Edward the Confessor omnis homo qui voluerit se teneri pro liberâ— sit in plegio ut plegius eum habeat ad Justitiam si quid offenderit si quisquam talium videant plegii solvant quod Calumpinatum est every man who would live or be accounted as a free holder is to live in frank Pledge so as his Neighbour or Pledge may bring him to Justice if he shall offend and his Pledges or Neighbour in the Tithing are to look unto it and pay that which shall be demanded of him and he shall be adjudged to Pay By the Laws of Henry the 1 made Concilio Baronum he which is summon'd to the Hundred Court and without any just necessity refuseth to come if he be able let thirty Pence be taken from him for the first and second time which seemeth to be a forfeit and let him be distreined by the Hundred but let him be put to Pledges till the day of Pleading And he which was brought or compelled by Process before the Judge for so the word Pulsatus in that Law of H. 1. was by the
then what should be just and shew as much mercy if there should be occasion for it as the Debtor should have need of and that every man would be as willing to do right one unto another as it should be asked or demanded of him But that being not to be found in too many of the Sons of men or the smallest Societies nor was alwayes or is likely to be in the sublunaâ—y and lapsed condition of mankind some kind of compulsion was necessary and a lesser then what is now or hath been most anciently practised could not be to any purpose unless we could content our selves and take that to be a happiness which would certainly never prove to be any to have Justice which next to the Creation and the mercy of all mercies the Redemption of mankind and the Divine Protection and Providence is one of the greatest blessings which was ever imparted by God unto it and as to the continual guard and preservation of our lives liberties and estates is more necessary and less to be wanted then our food apparel houses or places of rest and is the great support of the being and well being of all humane Societies to be a meer speculation or empty word for Schollars only to dispute of in the Schools of Ethiques Or sit like Old Ely in a Chair with Why do you so my Sons and permit every man to deceive mischief one another and render the Justice of the Nation to be nugatory for the restraint now used of the Body of a Defendant refusing to appear voluntarily or upon a Summons or Citation is not in vinculis or Cippis in Chains or Fetters not ad poenam but ad Cautionem and in so moderate and gentle a manner and lessening of their liberty as it is but temporary and when so done is but after many delayes threatnings warnings and forbearings and most commonly occasioned by their own default or some long abuse of the Plaintiffs patience and such a remedy or course taken is no more if rightly interpreted then what common and right reason necessity and endeavour of right to be done did require And when it is but Majoris mali vitandi causa to avoid greater evils is so little in derogation of publick liberty as although it may for a time be something prejudicial to some particular man it proves many times to be a special help unto many men to recover their Debts or Money due unto them the want whereof might otherwise be a cause of their own imprisonment And so long as any man is a Member of a Common-wealth his liberty is to attend or depend upon the good of that Common-wealth otherwise he may claim a liberty as a Free-man but not as an English-man Nor could our Fore-fathers in the necessity of bringing or compelling men to appear in Judgment as well as of the preservation of the alwayes very necessary Power Authority and Jurisdiction of Courts of Justice which do order and direct it ever tell how to imagine that it should be understood to be a Tyranny to arrest attach or imprison such as should refuse to appear upon the Summons or Proces of a Court of Justice or be fugitive or like to run away or that it ever was or can be deemed to be an oppression to enforce such Persons in a legal and orderly way to pay their Debts and do that which God commandeth them to do and hath no less Justice or conscience in it then to be constrained to do right one unto another perform Covenants and Promises and obey Magistrates and Laws in force when the Book and Dictates of God himself do accompt a Man wicked that borroweth and payeth not and the wilful deceiving of Men in the not paying of Money due unto them or not performing of Promises is by good Divines and Expositors conceived to be a kind of theft and reckoned to be within the meaning of the Eight Commandment and to be numbred amongst the breaches and transgressions of it and it is no Tyranny by the Law of Nature for a Man to stay or lay hold of one who is running away with his Money or Goods or for a Judge by the Common Law of England to commit such as misbehave themselves by word or gesture in their presence or a Court of Justice or for a Creditor by the Civil Law to Arrest or stay his Debtor if he be running away before he can get a Warrant or Proces from a Judge To punish Souldiers with death by the Law Military for running away from their Colours stragling in their March or going above a Mile from the Army without licence to Arrest or Imprison such as resort to unlawful Games until they shall find Sureties no longer to use or haunt any place where such unlawful Games are used or to imprison Collectors for the Poor refusing to accompt And Sir Edward Coke in his Commentaries upon that part of Magna Charta saith that a Watchmans arresting a Night-walker or one that hath dangerously wounded another or that keepeth Company with a notorious Thief whereby he comes to be suspected is lawful and no breach of Magna Charta although it be done without the Warrant of a Writ By what rule of right reason then shall so gentle and necessary a course or way of compelling Men by Proces of Arrest to appear in a Court of Justice in order to a Sentence or Judgment when he may be bailed be styled a Tyranny or Oppression When it shall not be so called or esteemed to take a Man in Execution for not obeying or performing a Judgement where he cannot be bailed or shall it be Tyranny to Arrest a Defendant to oblige him to appear in a Cause or Action Civil and none at all in a Criminal An Oppression or Tyranny to Arrest a Defendant to constrain him to appear in an Action of Debt and none at all in an Action of Trespas Nay rather is it not an Oppression to endeavour to defraud and injure Men detain their Estates and Livelyhoods withhold from the Poor and needy their right and undo the Widdows and Fatherless by keeping away the Money which should feed or keep them from starving without making satisfaction or shall it be no Tyranny to do the wrong but a Tyranny in a legal and ordinary manner or way to seek to be relievâ—d against it Or how can it be justly accompted to be a Tyranny when no whereelse it hath been so esteemed but was so little believed to be a Tyranny or Oppression by other Nations or any thing less then right reason as they have not only made use of the Proces of Arrest and Imprisonment of the Body in Actions of Debt and other the like Personal Actions in these later Ages but long before the Incarnation of our blessed Saviour The Athenians had their Bailiffs Serjeants and Apparitors to bring Defendants into their Courts of Justice and the Plaintiff might
deliriums are likewise to be added those giddy Assertions that the People are unsecure in their Estates and that their good and welfare depends upon their being manumitted and enfranchised in their persons and made Noble and free by Abolishing of the Process of Arrest and Outlary And that such an Act of Grace will be accompted by all goodmen and their posterities a sufficient recompence for all the Subjects past sufferings and be the greatest mercy that ever any King of England extended to his Subjects since they were a Nation Which should it take effect may be as little successful to the pretended Advocat and his Party and the Trade and Interest of the Kingdom as the Eagles carrying in another Case the burning Cole in the Apologue to her Nest And until they could have been sure of a better which they are never like to be might have forborne their Snarling and Barking at our Laws of which that Act of Parliament of 25. E. 3. ca. 17. Was accompted to be a part which until the Distemper which seized upon a seditious part of the people in the unhappy year of 1641. were so well beloved and deservedly commended as Thirning Chief Justice of the Court of Common Pleas publickly declared in the 12th year of the Reign of King Henry the 4th that the Laws of England were in the Reign of King Edward the 3d. In the greatest perfection that ever they were the Judges Sage and learneds and the pleading the greatest Honour and Ornament of the Law were in that Kings Reigne of that excellency as those of former times were but feeble unto them Sir John Fortescue Knight Lord Chief Justice of the Court of Kings Bench in the Reign of King Henry the sixth by comparing of our Laws and Government with the Laws and Government of France and other Nations hath in his learned Book Written on that Subject proved and demonstrated that our Laws of England Do deserve the Preheminence over all other Laws and do more secure the People in their Estates Liberties and Properties then those of France or any other Nation Queen Elizabeth who made it her constant and usual Charge to her Judges to do Justice and not to disturbe or delay it Governed her people by her Laws in Plenty Peace and Prosperity to the Worlds admiration Terror of her Enemies and the Comfort and Support of her Friends and Allies did so after her death Reign and live in her peoples hearts as they in or about London have to this time from the Coronation or beginning of her happy Reign now above one hundred and sixteen years ago in a grateful acknowledgment of it never omitted to Celebrate that day with the Ringing of Bells some legacies having been given in some places also for the perpetuating thereof King James had a great care of the expedition and execution of the Laws in whose peaceable and plentiful Reign ten years have passed without any Tax or Assessment of the people And King Charles his Son made a great part of his Coyn to wear the Inscription that he fought against a Rebellious part of his Subjects to maintain the Laws priviledges of Parliament and liberties of the people and dyed a Martyr because he would not betray or deliver them up to a Lawless unlimited and ever to be dreaded Arbitrary power So as that seducing Author might have found a better imployment then to throw dirt at our Laws before he understands them and might have been able to have given a better accompt of his time if he had followed the advice of Sir Edward Coke Who was so much a welwiller to the Proces of Arrest and Utlary as whilst he was Chief Justice of the Court of Comon Pleas he did never dislike or refuse the putting his name and Teste to such kind of Writs under the Kings Seal entrusted to his custody and being afterwards made Lord Chief Justice of the Court of Kings Bench had so good an opinion of the Process of Arrest and the necessity and usefulness thereof as that to maintain and support the Writs of Latitat and Bills of Midlesex in Actions of Debt and other personal Actions then too often made by that Court which had no Jurisdiction or Conusans thereof but in Case of a Defendants present imprisonment or of priviledge of some of their Members to hold Pleas in such kind of actions he feigned a prescription to be made and used in the declarations thereupon that the Defendant was in Custodia Marr ' Marescalli Curiae and actually a Prisoner when he neither was so at the time of the making of the said Writs or the time of the Defendants giving Bond for his appearance to the Sheriff or at the time of the Plaintiffs declaring against him as he did publiquely declare in Print That every man ought next to his duty to God and his King to yield a due reverence and obedience to the Common Laws of England for that of all Laws humane they were most equal most certain of great antiquity least delay most beneficial and easie to be observed And That he could defend them against any Man that is not malicious without understanding and make it manifest to any Man of judgment and indifferency by proofs pregnant and demonstrations and by Records and testimonies luculent and irrefragable Which just and due value and estimation of our Laws may well be credited when if a Jury of the Subjects of our Neighbour Nations Kings and Princes or of the Republique of Holland that Corporation of Kings were impannelled and fitted with the knowledge and understanding of the excellency of them they could not either as to the imposing or payment of Taxes or to any other particulars refuse to give a Verdict upon Oath that our Laws and Customes do in their perfection and right reason generally far excel those by which they are governed aud that the Subjects of England and Wales are by the happiness of a well tempered Monarchy and our Laws as secure from any danger of arbitrary power as any people under Heaven And he would find it to be a difficulty insuperable to ptocure our Merchants of England or any of those who do undertake to insure the hazardous adventures of those that do go or send to Sea and see the wonders of the deep and adventure their personal Estates upon the cholerick waves thereof not seldom accompanied with humerous and raging winds to give him an assurance and certainty that the people shall not be ruined by that his goodly indigested project which in its folly and inconveniencies as to the credit reputation and Justice of the Nation exceeds that of Jack Cade that great Master of Ignorance who had perswaded his Rable-rout to believe that it would be an excellent piece of Reformation and much for the good of the people to suppress all learning and dispatch all business and affaires by the help only of the Score and the Tally And will howsoever be as
a magis and minus and variatioe of Circumstances in such kind of Offences which may either lessen or heighten them Nor do those Rules which are given by Bracton for the reason of Arrests or Restraints of liberty in personal Actions before judgment that a Habeas Corpus which amounteth in effect to a Capias or Restraint of the person or his liberty is presently to be granted propter privilegium eruce signatorum mercatorum in respect or favour of those that were to go to the Holy War or were Merchants or propter causam sive necessitatem for some urgent cause or necessity of dispatch or in Trespas propter atrecitatem injuriae the horridness or evil of the Offence or propter personam contra quem injuriatum est ut si injuriatus sit Domino Regi vel Reginae vel eorum liberis vel Fratribus vel Sororibus vel eorum Parentibus Propinquis in respect of the Person against whom the wrong is done as the King Queen their Children Brothers Sisters or their Parents or Kindred come up to the Rules of Justice for urgency of Affairs necessities or occesions considerations or respect of Persons can of themselves be no cause of making Justice which is not to be a respecter of Persons to be Eccentrick or go a step out of her way or to do any thing in one case which should not or ought not to be done in other Cases having the like ground of reason and justice attended with the same circumstances neither can atrocitas facti vel injuriae the grandeur and oughliness of the offence be the sole cause or ground of Arrest in common or petty actions of Trespas or for words if there could properly be any atrocitas or hainousness in them or where it is done involuntarily as in Cases of Trespass or damage done by a mans Cattle for Trespass may be greater or lesser and if every Trespass could be understood to be of the greater size or magnitnde and so horrid and enormous yet there can be no reason to make the Caption or Arrest to be in part of Corporal punishment before the Judge or Magistrate be ascertained of the guilt of the Party or instructed how to keep the order which the Laws of God Nature and Nations and our Magna Carta have enjoyned that is to say to punish only secundum quantitatem delicti according to the nature of the offence And that supposed ground or reason given by Sir Edward Coke will be as deficient that the Common Law of England abhorring all force as the capital Enemy to it subjects the body to imprisonment until it hath made agreement with the Party and fined to the King bring any better reason with it For if the King shall as he conceiveth punish force by a Capias to Arrest the body before the party be permitted to defend him-or a Tryal had by Jury whether he be guilty or not that would be more against Magna Carta then any Process of Capias or Arrest in Debt can be dreamed or fancied to be and a Capias pro fine after a Tryal and finding guilty will either shew that it was not the arresting of the body in Trespass which was intended or inflicted for the punishment but the Capias pro fine and if both the Capias in Trespass before Judgement and the Capias pro fine after Judgement should be inflicted for one and the same offence They would not be secundum modum sive quantitatem delicti proportionate to the offence and the Capias to Arrest would be before the King or his Courts of Justice could be ascertained that there was an offence Nor will that other cause or ground given by him in the Report of the said Sir William Herberts Case that the King may by the Common Law arrest the body of the Debtor for that Thesaurus Regis est vinoulum bellorum nervus The Money and Treasure of the King is the Bond of Peace and Sinuwes of War obtain the conclusion which he aims at For that were to make a King or supream Magistrate which ought to be Lex viva and Justice it self to destroy that which he was sworn to protect and give him licence to break Laws who is not in ordinary Cases against the Rules of Justice and right reason to give such a liberty to himself or any others or to do an act for an advantage or necessity which the even and adequate Rules of Justice common right or right reason cannot allow So as by the favour of so great an authoâ—â—ty in our Laws as Sir Edward Coke is and with as much reverence as is or can be due to so great a lover of the Laws of England and the veneration which he justly merits I must of necessity by what appears in the Cabinet and Treasury of time and Antiquity and what is clearly to be perceived in those pure streams which the Fountains of Justice and right reason have imparted unto Mankind assert what I have done and conclude that he was a man and hath as the best Authors may in their Books sometimes do which are not Scripture and Canonical erred in averring that there was no Process of arresting the body of a Debtor either before or after judgment until the Statute of 25 Ed. 3. which gave Process of Outlawry in Actions of Debt When in allowing Process of Arrest in debt in the Kings Case as he doth in Actions of Trespass he must acknowledge the same reason and necessity which is a just and rational coertion to appear before the Tribunals of Justice and of caution to be given to abide their judgments to be in Actions of Debt and other personal Actions And he himself in many of his Books and Writings hath as well as the Civil Law and our Common Law and the Law of Nations affirmed that the same Reason may claim the like Law For the reason that Joseph would have imprisoned his Brethren upon a suspition that they were come to espie the Land and kept Simeon a Prisoner until their words and denials were proved gives us the reason necessity and justice of arresting in personal Actions and Debt as well as Trespass until cause or caution be given of appearing in Courts of Justice and performing the judgments And that learned Judge could if he were now living very well remember that he hath often said as well as found that many of our Acts of Parliament are but declaratory of the Common Law and that which was long before used and understood to be as it was reasonable That the matter or thing excepted in an Act of Parliament is not included in any purvieu or provision of it but is out of the reach and gun-shot thereof and that when in the Statute of Magna Carta made in 9 H. 3. ca. 29. it is said That no Freeman shall be taken and imprisoned or be disseised of his Freehold or Liberties or free Customes or be outlawed or exiled
or otherwise destroyed but by lawful judgment of his Peers or by the Law of the Land And by 25 Ed. 3. ca. 4. That no Man shall be taken by Petition or suggestion but by Indictment or Presentment or by Process made by Writ original at the Common Law He is in his Comment upon Magna Carta and that Statute of 9 H. 3. of opinion that the words Per legem terrae do refer to all the procedent matters in that Chapter or Statute that that Statute was but declaratory of the old Law of England That a Commitment by Lawfull warrant either indeed or in Law is accounted in Law a due process or proceeding of Law and by the Law of the Land as well as by force of the Kings writ and that if a man be suspected and he flyeth or hideth himself it is a good cause to arrest him that in many cases a man may be by the Law of the Land taken and imprisoned by force of the Kings writ upon a suggestion made and that against those that attempt to subvert and enervate the Kings Laws there lyeth a writ to the Sheriffe in nature of a Commission ad capiendum impugnatores juris Regis ad ducendum eos ad Gaolam de Newgate to arrest the Impugners of the Kings Laws and to bring them to the Gaole of Newgate and if he had not been of that opinion the words of Magna Charta in that Statute of 9. H. 3. can if they were put upon the rack and tortured bear no other genuine sense or interpretation then that no man shall be taken or imprisoned but by lawfull judgment of his Peers or by the law of the land And those words of the Statute of 25. Ed. 3. ca. 4. that no man shall be taken by petition or suggestion but by indictment or presentment or by process made by writ original at the Common Law can receive no other construction but that a man may be taken by process made by writ original at the Common Law of which nature are the process or writs of Capias in the Court of Common Pleas at Westminster which are made upon original writs issuing out of the Chancery have been in use upon occasion and are matters of record before the Justices in this Kingdom long before the making of those Statutes And such an universal approved Ancient long and continued Praxis founded and fixt upon the Laws of God Nature and Nations in order to the preservation of Faith and Justice those grand Supporters of humane Societies should need no Advocate to plead and justifie the necessary use thereof but be sufficient to perswade the opponents to acquiesce in the reason and legality of it And that great Lawyer Sir Edward Coke might have had more lawrels to have encompassed and grown up by his urne and had not so much Eclipsed that great reputation which he had gained in his Studies and Profession of the Laws as he hath if he had not without a due and serious examination so much taken upon trust Caressed Magnified and recommended to posterity that Manuscript called the Mirror of Justice and some other Manuscripts so often by him appealed unto and vouched in his 2. part of the Institutis or Comment upon Magna Charta In which Consarcination called the Mirror of Justice that Mirror of Justice Maker or Deviser dreameth truly to have recited some exemplary Judgmeets or direful punishments inflicted by King Alured or Alfred upon 44. Judges of his times for supposed Errors and Misdemeanors by them committed And hanged them who with great probability may be believed not yet to have been hanged by that King or any other for that if any such remarkable things or Examples of Justice had ever been done by him they could not in all likelihood have escaped our old Historians Symeon Dunelmensis Ailredus Abbas Rievalensis John Brompton William Malmesbury Henry Huntington Roger Hoveden Henry Knighton Matthew of Westminster Ingulphus and all our other Ancient times Remenbrances nor would have been unrecorded by Asser Menvensis who for the fame of his Learning being sent for out of Wales to come and live with him was preferred by him and made a Bishop and residing in his Court Wrote his life and recommended to Posterity his most memorable Actions excellent Qualities and Endowments but was so far from the Registring of any such Severeties as on the contrary he doth make mention of the extraordinary clemency and lenity of that Virtuous Prince who although he was a most diligent inquisitor of any male administration of Justice by his Judges yet saith Asser Menevensis Leniter Advocatos aut per scipsum aut per alios suos fideles quoslibet Interrogabat quare Ita nequiter Judicassent utrum per ignorantiam aut propter aliam malevolentiam id est utrum pro aliquorum amore vel Timore aut aliquorum odio aut etiam pro alicujus pecuniae cupiditate Gently calling them to him he did by himself or others whom he might trust demand of them Wherefore they had given such Judgments whether ignorantly or for any ill will or for love fear hatred covetousness or love of Money Denique si illi Judices profiterentur propterea se talia Ita Judicasse eo quod nihil rectius de his rebus scire poterint tunc ille discrete moderanter illorum imperitiam insipientiam redarguens aiebat Ita inquiens nimirum admiror vestram hanc insolentiam eo quod dei dono meo sapientium gradus usurpati sapientiae autem studium operam neglexistis But if those Judges did confess that they had so Judged or done because they knew no better then he did discreetly and moderately shew them their ignorance and say unto them truly I do very much wonder at your folly for that by Gods guist and mine you have taken upon you the degree of my wise men and Judges but the study of the Laws you have neglected Qua propter aut terrenarum potestatum ministeria quae habetis illico dimittetis aut sapientiae studiis multo devotius docere studiatis impero Wherefore I command you either suddainly to leave your places or give your minds more unto study Quibus auditis verbis perterriti veluti pro maxima vindicta Correcti Comites praepositi ad aequitatis discendae studium totis viribus se vertere nitebautur ita ut mirum in modum illiterati ab infantia Comites pene omnes prepositi ministri litteratoriae arti studerent malentes insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere Whereupon they viz. His Earles and subordinate Judges being as much terrified as if they had been actually punished did wholly addict themselves to the study of the Laws so as to a wonder the Earles and Judges aforesaid many of whom from their youth were ignorant and illiterate did by study endeavour to make themselves more able choosing rather the hardship
are not Judges by derivation from the King Who cannot make or unmake Judges Inferior Judges are more necessary than a King Parliaments may conveen and Judge without a King Are co-ordinate Judges with him not advisers only Subordination of the King to the Parliament and Co-ordination are both consistent The King transgressing in a hainous manner is under the coaction of Law Defensive Wars are lawful And there may be a distinction betwixt the Kings person and his Royal power The Physical act of taking away the life of offending persons when commanded by the Law of self-defence is no Murther Wars raised by the Subjects and Estates for their own just defence against the Kings bloody Emissaries are lawfull Parliament power is a fountain power above the King Who is but a noble Vassal of the Kingdom Is not head of the Church The people in some Cases may convene without the King Subsidies are the Kingdoms due rather then the Kings And thus provided and the scaling ladders made ready to storm the Laws which were the Forts and Bulwarks of the King and Government and heretofore made it their business to give help or shelter to the King the Deformers rather then Reformers do hasten one another to be up and doing And therefore in a Pamphlet entituled Liberty vindicated against Slavery Printed in the year 1645. the Author declared that Imprisonment for Debts is against the foundamental Laws of England Propositions were shortly after made unto that company of Monarchy underminers called the Parliament for the laying aside the six Clarks in Chancery and the imploying their under Clarks at Cheaper Rates In the year 1646. Mr. John Cooke of Grayes Inne who sufficiently deserved to be hanged drawn and quartered as he was afterwards as a Traytor in a Book dedicated to the most high and most honourable Court of Parliament the supreme as he calls it Judicatory of the Kingdom saith that the alteration of fundamental Laws as Sir Edward Coke saith produces many inconveniencies as in that statute of imprisoning mens bodies for Debt And there must needs be good work in that their sport of pulling down and setting up when it hath been as truly said as verified that the Kings Parliament began in 1640. and continued with some freedom of Votes untill December 1641. From thence it was governed by the City of London and their Tumults Propositions and Petitions unto December 1643. And from thence by the Scots and their rebellious League and Covenant unto the Month of June 1647. When the Presbyterians had the ascendant and predominancy and that was not unjustly called the Apprentises Parliament And after that Sir Thomas Fairfax his Parliament which was governed by his Army and their Addresses Declarations and Proposals wherein the Independant party were Superior and ought to be called the Agitators Parliament The King in the mean time in his great desire of peace with those whose wicked designes never intended it not making that right use which he otherwise might have done of the successes which God had given him in the just defence of himself and his Loyal Subjects and the Laws Liberties and Religion of his People tired with the treachery of those that too often betrayed and sold his just advantages and overpowered with an Army of Covenanting Scots who came to assist their brother Rebells of England and believing himself to be somthing safe in their Oaths and Promises and flying to them for Succour was by a party of them contrary to the Laws of God and Nations sold to the English Rebells for two hundred thousand Pounds Sterling Too great a summe of Money to be restored again as Judas did the thirty pence the wages of his sin for the betraying of our Lord and Saviour and by tricks and devices carried Prisoner from place to place untill he was barbarously Murthered And the Heire and Royal Issue driven out of their Inheritance and then every Mechanick head was set on worke to frame a new Government in which there were as many diversities of opinions as there were Ignorances and Sinister ends to advance their particular ambitions or advantages and a mart being kept of Whimsies some being much in love with the Balletting box used at Venice others with the Rota and Mr. Harringtons Oceana and all or too many thus busied Sedition and Ignorance sat in their Triumphal Chariots with the Laws Learning and Religion of the Nation like so many Captive Kings in Chains attending all which did not fully correspond with the Votes and expectation of the Presbyterians when as Cromwell the gâ—â—at Encourager of the Independents or Fanatick party then the more numerous feeling his own strength and having a prospect of a better design of establishing himself did so delay and trifle with the Parliament his Masters in their desires of disbanding the Armies as the Presbyterian Souldiers in the mean time selling their Debenturs the wages of their Rebellion and wickedness at 16 d. or 18 d. a pound with a long Interest to the Independents who were thereby easily enabled to buy King Queen and Princes the Bishops and Dean and Chapters Nobility and Delinquents Lands as they mis-called them and that party being so well gratified were not afterwards unwilling to Lacquey after his hypocrisie and permit him to frame and make his own Instrument and method of a more arbitrary Government then our Laws permitted or any of our Kings or Princes exercised and to be as a single person Protector of all the Knaves and Fools in England Scotland Ireland and Wales withall their fancied and supposed Liberties which as they used them were but to hunt and chase all that were loyal and honest and thought they might do any thing to the Amorites Moab and Amalek and that all the Scripture was contained in Gain being as they supposed Sanctified into a pretence and outward semblance of Godliness In the later end of the year 1648. some thousands of Well-affected as their Sedition perswaded them inhabiting the Cities of London and Westminster Borough of Southwark and Hamlets supposing the Time to smile upon their purposes did Petition that which when the King was murthered was no Parliament that they would consider the many thousands that were ruined by perpetual imprisonment for Debt and provide for their enlargement In the year 1649. one Thomas Faldoe of Grays-Inne Esq was so loth to have his Conceipts and Opinions lag behind as in a Pamphlet entituled Reformation of Proceedings at Law published on the behalf of himself and the Commonwealth of England he complained That the Law of Property was depressed and useless by the colour of the Statute of Imprisonment and sacrificed to all the Birds of prey even to Covetousness the mother of Cruelty in the several Offices and Instruments of Justice And in the same year came out a Representation of divers as they called themselves Well-affected persons in or about the City of London petitioning the Parliament That all tenures in Capite and all inferiour
in his Comment upon Magna Charta cap. 29. that the Custom of England declared by Magna Charta doth not extend to the imprisonment of any Debtors but the Kings And assisted those his wicked and false Rabshakesmes with another little Book called the Cry of Bloud dedicated to Oliver Cromwell General as he stiled him of the puissant Army of the Parliament of England wherein charging the crime of Murder and of the bloud of the righteous Abel as he is almost frantickly pleased to fancy it upon the Process of Arrest and Outlawry and that innocent and most necessary way of compelling men to Justice he stileth them a course of Sin and the Offices of those who do make them the gift of the Devil and the Lawyers liars although Mr. John Cooke of Grays-Inne before the Devil had entred into him and ingaged him to be a prosecutor of his Soveraign even to the Murder of him did in his Book printed in the year 1646. entituled A Vindication of the Professors and Profession of the Law dedicated to the then Parliament declare that he was confident that the Common Lawyers of England are as understanding rational men as any Practisers of any Profession whatsoever in the world and he durst say that there are more Godly religious Lawyers Attorneys and Sollicitors in England then in all that habitable part of the world called Christendom Mr. William Leach of the Middle-Temple proposed that no Defendant should be enforced to appear unto any Action before a Poenal Summons and a Declaration first filed unless in case of likelihood to depart the Land or to make away his Goods and in such case upon an affidavit to be made before a Justice of Peace by any Officer to be arrested Isaac Pennington the younger the Son of that man of Faction his Father offered in a Pamphlet to assert that the Rights Liberties and safety of the people were in themselves and derivatively in the Parliament their Substitutes and Representatives and that the people ought well to look to their rectifying right that it may have its free current Mr. Henry Robinson in his publick Proposals for a cheap and easie distribution of Justice would have a publick Country Registry for Lands and another for Debts and that in every City Corporation and Division in each County Judges may be appointed with an yearly Salary By a Petition of many calling themselves a Free-people promoted by John Wildman and John Lilburne Gent. they do require that all the Laws Process and Inrolments of England be written in English and a Roman or Secretary hand Hugh Peters a Prompter at a Play-house long before he was a my mick Preacher and the abuse of the Pulpit having made many a Renegado Voyage from England to Holland thence to New-England and from thence in the company of other Birds of Prey pearching here again in England was so unwilling not to be as busie in the ruine of his Country as other men of the Trinkets and new Fangles were as in his Book entituled Endeavours as he saith aiming at the Glory of God that Peace and Truth may meet together undertaketh to prove that Government by succession from Father to Son was none of Gods institution in the first and purest Times that Custom hath worn out Truth but we were to enquire for the old and good ways and Christ saith it was not so in the beginning And in June 1651. in his Book entituled Good Work for a Good Magistrate would have Registers to be setled in every Parish of all Mortgages Alienations c. and from thence transmitted to the County or Shire-Town that in every County every Hundred do choose three men to be Peace-makers for a year to determine all common controversies without Appeal Wills and Testaments to be acknowledged before two next Justices and entred in the Parochial Registries five or seven in every Town or Hundred to be yearly chosen to determine all Debts or Strifes whereof three to give sentence without Appeal that Summons instead of Arrests may be left at mens houses none to distrain for Taxes or Debts but the Debtors outward doors to be taken away and carried to the Town-house and as many other new doors as shall be set in the place every man plead his own cause and if he think himself too weak let him have liberty to take a Friend or Neighbour to plead for him but no Advocates or Seriveners to plead for any man if any Lawyers be continued let them be allowed and paid by the State all Suits in London and great Cities to be determined in a week Which being done it was very advisable to burn all the old Records even those in the Tower the monuments of Tyranny And had so in a short time after haled on his design of destroying all the Records and memorials of the Laws of England to make way for his new contrivances as a Serjeant at Arms of the then miscalled Parliament or one of their Mock-Majesty Mace-bearers had an express order happily diverted by some other affair when it was ready to be put in execution to throw all the Records remaining in the Treasuries at Westminster into the River of Thames And the Law that it might the better be baited and abused as if no Foreigners could ever have occasion to read understand or make use of them must with its Writs Records Process and Proceedings for the time to come be written in English many of the Law-books being in order thereunto by the factious and greedy avarice of many of the Book-sellers and Stationers procured to be mercenarily translated into English and exposed to the rude eyes and hands of the ignorant and the little reason that the Owners of it do use to have whereby to make it a Ludibrium and the wonder of their lesser Intellect which might easily happen where they wanted the keys and assistance of other Learnings and every thing their shallow apprehensions could not reach or fathom was by them supposed to be Norman slavery Antichristian or Idolatry the Records must no more be written in the long-lasting and durable Court and Chancery hands or manner of writing made out of the old Saxon Gothick and Reunick Characters as they were wont to be and had been for many ages before but in a Secretary hand not that strong and legible hand heretofore used but a kind of Jack-an-Apes hand composed of Antick frisking undistinguishable letters so written with the side of a Pen and small slit as that scratching rather then writing hath been often seen not to be able to keep company with the Parchment it was wrote upon the small period of Oliver Cromwells wickedly usurped Dominion Which needless change and novelty with other the doings of the Factious and Rebellious so wrought upon the minds of the ruder sort of the people to the joy and comfort of those who thought themselves to be specially Godly as the Lawyers could not pass in the Streets without many
our Laws enforced to dwell in the Tents of Mesech and Kedar and lying amongst the Pots and the Wolves made the Guardians of the Sheep and Lambs the Tenth Commandment in the Decalogue was bid to stand off and not trouble it self with their business until they could be at more leisure to talk with it or understand it every one was rooting up the foundations and like those that are too busie in breaking bulk or taking the spoil of a distressed wreckt Ship the wild Boar brake into the Vineyard and the Swine into the Garden and Bed of Spices unto whom the Rose of Sharon and the Lilly of the Vallys the charming Hyacinth and Tulips and gloriously adorned other flowers and the filth of a Dunghill were in their grunting capricious sense of an equal if so much value and estimation And Mr. John Dury a Scotish Minister who had before in the reign of King Charles the Martyr by good approbation of divers of our Bishops and Learned men of this Nation and many learned and worthy of the Reformed Churches beyond the Seas endeavoured a better agreement betwixt the Lutheran and Calvinists had no time or labour spare to bring his Countrymen and their mad Brethren of England into their wits again but for some Preferment had or promised was so well contented to ring the Changes with them as he could not let such things pass without some blessing or Grace said unto them or a box of what he took to be a more special Balm of Gilead bestowed upon them for the ease and comfort of such a small number as should be troubled with tender and puling Consciences as he did in his Re-proposals licensed by Mr. Joseph Caryl declare that God by an extraordinary way of providence had shaken the foundations of this Kingdom and turned in into a Commonwealth believed that the just Judgment of God had brought it upon those who without any respect to tender Consciences did press the ensnaring former Oaths of Allegiance and Supremacy and the Covenant and laid them as stumbling-blocks before their Brethren conceived that the requiring a general promise from Subjects to perform an undeniable and unquestionable duty to the Commonwealth wherein they live by those that have the power of affording or refusing Civil protection is not in the same nature with those former Oaths and Subscriptions And that he should pray and intercede for such as are under the trouble of their own Spirits and fear of sinning that the many years experience of their quiet behaviour and faithfull services may be accepted towards aâ— just degree of security and assurance for future peaceableness In the same year Mr. 〈◊〉 Gray a prisoner in the Compter of Woodstreet in London for the not payment of Tithes would perswade as many as would be so foolish as to believe him that Tithes were a curse to all Nations but Canaâ—n and a vexation to all people but the Hebrews In the year 1654. Mr. John Rogers once a Minister of the Church of England but afterwards a fiery zealot of Rebellion by his Book fuller of railing then truth or reason entituled Sagrir or Doomsday drawing nigh with Thunder and Lightning in an Alarm for New Laws and the Peoples Liberties from the Norman and Babylonian yokes wherein he calling the Lawyers Tyrants and Locusts saith that it is high time and more then time for the people to know their Rights Priviledges and Freedom that all that are past Children and Fools should call for them and that it concerns all to write print publish and declare against the Norman Tyranny of Laws and Lawyers and that he doth it with as much assurance and confidence as if he had a halter about his neck and were to endure the penalty of the Locrian Laws for failing in what he should alledge against them that the Lawyers are Antichrists State Army of Locusts and that the people have been robbed of their Rights to this day by the Income of corrupt Laws and Lawyers the true rise of their interest Innes of Court and trades by Sin that none are suffered to plead but Lawyers or such as are brought up in their Courts and Innes in their trade cheats and tricks to sell the Law at a large rate to Chapmen called their Clients and would make it to be no small grievance that men are imprisoned for Debt every man may not plead his own cause and that there are not County Judicatories to hinder the great charges put upon the Nation to prosecute their Suits at London and Westminster Mr Boone an Attorney or something of a Lawyer with his name wrapt up in an Anagram in his Book entituled Examen Legum Angliae published in the year 1656. whose reading of good Authors mentioned in his Quotations might have better informed him and made him of another opinion will not allow of any of our Laws that do not agree with the Mosaical or were not derived from them or of any which were made or allowed of in the times of Popery but saith that the Law of England as it is now in use is a departure from the Law of God and a taking of a Law from Heathens and Idolaters that the whole body of Popery is in a manner comprehended in Littletons Book so much commended by Sir Edward Coke and that the old Statutes made in the affirmance of the Common Law and the Books and Entries whereof he makes mention are stuffed with all manner of impieties errors that Magna Charta Charta Forestae do not appear to be any Acts of Parliament although they be so called that chiefly therein was intended the advancement of the Romish power in a Tyrannical Government that the Statutes of Marlebridge Westminster the first and the rest of the old Statutes said to be declaratory of the Common Law do savour of the power of Antichrist and do contain in them manifold impieties and superstitions that the Statute of 24 E. 1. concerning Ecclesiastical Judges and the Statute made in 9 E. 2. concerning Prohibitions Clarks convict Prelates Spiritual Courts Excommunications Abjurations power of the ordinary Fees of the Church Superstitious Houses Monasteries Parsons Parsonages containing sixteen Chapters are nothing else but Popery and the advancement thereof and the like may be said of 25 E. 3. ca. 3 4 5 7 8 9. concerning lapses of Benefices Clarks convict Ordinaries c. that such causes as do chiefly require remedy in a Court of Equity may easily be determined by Judges in Courts of Law Common Recoveries for assurance of Lands are nothing but a pack of lies that the Theory of the Common Law and some of the Statutes now in force do contain matters repugnant to the Law of God that most of the old Statutes as well such as are said to be in affirmance of the Common Law as others introductory to new Laws do contain in them great oppressions and wrong to the people and ought to be amended that the
and divers other Commissioners therein named to call before them such Prisoners and their Creditors in and upon Actions of Debt Gase Trespasses Trover Detinue or other Personal Actions Judgements and Executions whatsoever thereupon and to treat for Compositions and Agreements some of the Judges of the Court out of which such prisoners have been committed to be privy to such Compositions and Agreements to the end that the said Prisoners night be relieved and have such reasonable years dayes and times of payment for such debts and damages as they shall not be presently able to satisfie and with such Security for payment thereof as in equity and good Conscience having respect to the ability of the Prisoners and charge of Wife and Children and other incidents to pious Cases considered And if any Creditor should refuse to appear before them the Commissioners were impowred to punish them and take such Order for their Appearance as they should think meet and to use all lawful wayes to make them take such reasonable Compositions as to any Three or more of them should be thought meet And his Majesty therein Declared that his meaning was to be aiding and assisting with his Grace and Faâ—vour to the misery and calamity of such as be truly poor and distressed and not unto such as lye in Prison rather of wilfulness and obstinacy and out of a resolution to retain large and ample Estates to themselves and therefore straightly charged the said Commissioners to be very vigilant and circumspect therein and did in the said Commission mention that Queen Elizabeth did upon the supplication of the Prisoners in the Prisons of the Fleet and Kings Bench in the Eight and twentieth Year of her Reigne Authorize certain Commissioners under the Great Seal of England for the ordering and compounding of the Controversies and Causes between the distressed Prisoners and their Creditors and such others by whom tbey were detained Prisoners or in Execution and contined the said Commission nntil her Decease And that King James being informed that certain Clauses in the said Commission were Derogatory to the Common Laws of England and that by colour of the said Commission which was intended for the Charitable relief of poor miserable and distressed Prisoners certain refractory and obstinate Debtors which rather wanted will then meanes to satisfie their just Debes took occasion to molest and trouble their Creditors did to prevent all occasions of Inconveniencies to his loving Subjects especially such as tended to the breach of his Laws forbear for many years to renew the said Commission and finding that his forbearance had wrought a good effect by discouraging obstinate and wilful Debtors that sought nothing more then Evasions to avoid the payment of their just Debts so also that for want of that or some other charitable course for the relief of such as were truly and indeed poor distressed and miserable and wanted meanes to satisfie their Creditors it had been occasion to pester and fill his Prisons with the bodies of such persons whose punishment could no way avaâ—l their Creditors but rather was an hindrance to the satisfaction of their Debts for that during the time of their restraint they were no wayes able to go about or attend their lawful business but must of force consume themselves and that little that they had miserably and in Prison did by his Commission under the Great Seal of England in the Sixteenth Year of his Reigne by the advice of the then Lord Chanâ—cellor of England and also of divers of his principal Judges of his Courts at Westminster authorize the Commissioners therein named to proceed according to the Tenor of the said Commission for the relief of the said poor Prisoners in the said Prisons and afterwards being informed that his said Commission had not taken that good Effect which was expected renewed the said Commission and thereby prescribed and directed such a moderate course as that neither the Insolence of wilful and obstinate Debtors should be thereby incouraged to the derogation of his Laws nor yet his Grace and Clemency be wanting unto such to whom it should be meet to Extend the same did upon the humble suite of the distressed Prisoners in the Prisons of the Marshalsea and other Prisons in and about the Cities of London and Westminster and the places near adjoyning to the same whose Cases were as much to be commiserated and lamented as the said Prisoners in the said Prisons of the Kings Bench and the Fleet by another Commission under the Great Seal of England in the Two and twentieth Year of his Reigne authorize certain Commissioners therein named for the Ordering and Compounding of the Causes of the distressed Prisoners in the Prisons within the places aforesaid and that his Majesties Royal Father did by Two several Commissions under the Great Seal of England the one bearing Date in the Fourth Year of his Reigne and the other in the Sixth impower divers Persons therein named to the same or the like purpose Nevertheless the Good Old Cause as they are pleased to misâ—name it with all its hypocritical tricks of State must not by any meanes be abandoned but they which did so much adore that Empusa or Witch called the Publique Faith which like the Golden Calf made by the Idolatrous children of Israel helped them to great store of money plate and Rings to furnish out and maintain a Rebellion could not now forbear to be as violent as they could to pull Down the ever to be reâ—spected and honoured better Publiqe Faith and Justice of the Nation and Disturb his Majesty his subordinate Judges Magistrates in the administration thereof and therefore some Synon or Trojan horse was of necessity to be made use of or introduced under a colour of publique Good or some stratagem or mine prepared to accomplish that by cunning and circumvention which by suit or force of Law reason and arguments they could not before be able to obtain and for that had as they thought a pattern or way cut or chalked out by the before-mentioned S. D. and some of his levelling Clerks and Attornies associating with him in their aforesaid proposals presented to the Committee for Regulation of the Laws in the year 1650 wherein they alledged that what they had proposed was not that the Writ of Capias should be taken away first but humbly conceived that it would be better by finding out nearer and cheaper wayes to bring the old road to be neglected then to deprive the suitors of the Old before they can have experience of the new and it was only proposed by way of supplement not to take away the antient course of proceedingâ— by way of Capias and â—â—igent if the case shall require it CHAP. XIX That the Proceedings at the Common Law desired by the new way of a peremptory Summons or the old by Writs of Summons Pone and Distringas or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable
manage their Trade and by taking too great and in former Ages unheard of Sums of money to teach them their Mystery of gain will find it to be as inconvenient to themselves in that their new way of Prentice Trade as troublesom to the Parents of the Apprentices if they were to be satisfied with nothing but a mortgage by Security of Lands or Pawns or Pledges to be given by them for their Childrens honesty many times dearly discharged when as now their single Bonds or Covenants will suffise And they ought not surely to be accompted too Sanguine or over credulous who shall give entertainment to an opinion that if all the money which hath been borrowed in the times of our English Troubles lately past or long ago or in the now times of our unparrelled pride prodigality and luxury had been to have been borrowed only upon Mortgages Pawns and Gages the vitious and foolish part of the People of this Kingdom which are the far greater number would have long ago suffered their follies to have brought them into the sad condition of the Egyptians in the time of the more thrifty and forecasting Joseph when in a famine only of Bread prognosticated to continue for seven years they were in the first year of it constrained when money failed them to take bread in Exchange for their Cattle Horses Asses and Flocks and after their Bodies offered as pledges upon the like occasion and necessity to give up their Lands for necessary but no wanton supplies And although the first pawn or pledge that is mentioned in the Book of God the most Ancient and best of Records to have been given in the Fore-noon of the World was that of Judah's Signet Bracelets and Staff to his disguised Daughter Tamar for a security of what his Amours and unlawful Contract had promised yet shortly after his Brother Simeon became a personal security to his Brother Joseph for the bringing unto him his youngest Brother Benjamin and was in the mean time bound and kept in Prison and Reuben upon his return to his Father Jacob to remove him from his unwillingness to send his beloved Benjamin into Egypt offered his own two Sons in pledge that he would safely return him unto him again And when that could not prevail Judah without being bound or kept in Prison the while by his Father became a Surety for him as it were body for body and that of his own hand he should require him And the after Ages have found so great a benefit as well as a necessity of personal security as here in England long before the Statute of 25 E. 3. the Bodies of men as well Nobility as others have to the great advantages of the Kingdom and upon great and weighty reasons and occasions of State been given and taken as Sureties and Hostages for and to diverse of our Kings and Princes And by our Laws agreeable in that and many other particulars not only to the Civil and Caesarean Laws but of the Law of Nations the Plaintiffs when by our Original Writs made out of the Chancery in Actions of Debt impowring the Justices of the Court of Common Pleas to make proces and hold plea thereupon the Sheriff to whom the Writ is directed when he doth summon the Defendant to appear before the said Justices being commanded to take Sureties of the Plaintif that he will prosecute and justifie the Action was to take it by personal security and not by any pawn or pledge So as if there were not so many irresistible Arguments Reasons Examples proofs and necessities for the ancient long continued use of the Writs of Capias and Outlary beyond a prescription and memory of man and many ages That which hath in all Ages been allowed as the best expedient to secure from doing or suffering wrong in case of lesser or greater Crimes as Trespas Felony Manslaughter Murder Treason or suspition of either where the less favours are to be shewed propter atrocitatem criminis for the horridues of the Fact until Offenders can be brought to Judgment For whom Plegii sint donec se defenderunt Carcer Gaola The Goal and the Prison were to be Securities saith our old and learned Bracton And that old rule of Law not used to be denyed kickt or spurned at eadem ratio eadem lex that a parity of reason in one Law or Case may be the foundation of a like Law in another and that other maxime of Law Qui non habet in Aere â—uat in corpore Where a man hath nothing in his purse to answer the Law he ought to suffer for it in his Body the punishment of Contempts of the authority of Courts of Justice and the securing of mens Debts where there is A suspitio fugae Any suspition likelyhood or signs of the Debtors running away which the old Almans were so careful to prevent as that rather then fail they suffered the Plaintiffs themselves to take and imprison them may be called in as Assistants to maintain the right reason and necessity of Writs of Capias and Outlary in matters of Debt and other the like personal Actions And those very good effects of our said English Law proceedings and the consequences thereof and benefits adâ—rewed thereby are and may be demonstrable by the less difficult way of borrowing money more safe lending of it and more speedy way of recovering and getting it in with little dammage and loss when in this last Century and present Age of about one hundred and fifty thousand Capias or Proces of Arrest and Outlary sued out or prosecuted in a year there are little more then one housand of them if so many so arrested or unbailable as to be carried to Prison or being destitute of Friends or Money do remain in Prison a quarter or half a year at the most or if any do continue any longer they are so very few in respect of the far greater number which were threatned or might have been there as if the Prisons of the Fleet Kings Bench Marchalsea Ludgate the Compters in London Newgate the Gatehouse at Westminster and the Counties and every other City Goals or Prisons belonging to Liberties in England and Wales shall be truly searched and examined either as to those who are actually in every of those Prisons or are out upon Writs of Habeas Corpus or how many new Prisoners are every year half year or quarter of a year brought in upon Actions of Debt Trespas or other Civil Actions And how long or little while they did or do there tarry the product of that accompt may truly testifie that the terrors and continual affrights and trouble of Arrests with the Tristis poenae expectatio paena molestior often sad apprehensions of the many inconveniences of imprisonment which do inevitably follow as to the Charges loss of Estate and Credit do so summon and call together all their cares and so gently and best of all conduce to the
incertain of the success which none but mad Men and such as the Turks and Men of Mecha do usually adore can believe to be answerable to the end of publick good as he may sooner adventure to make an Affidavit if any credit could be given unto it of the possession infallible of the imaginary Elixir or Philosophers Stone the only Essay of the gaining whereof hath undone and emptied the Purses and Estates of many more learned then ever he will be then that the People of England have either lived in Slavery since the making of that Statute of 25. E. 3. ca. 17. or that there will such an happiness and mercy arrive or redound as he pretends unto them by the abolishing of the Process of Arrest and Outlawry when seven parts of eight the whole to be divided into no more shall be ruined in their present Estate and future hopes of a better for want of credit and trust And all the Men of Money lent out and trusted which are the smaller number shall be in danger enough of loosing it And the Free-holders of Lands which comparatively are far the smaller part of the Nation shall be only the Men and perhaps not half or a quarter of them that may be trusted or compelled to appear to any Actions of Debt or for Money which shall be commenced or brought against them And the Trade of the Nation which is now not so much outward as it either should or ought to be shall be very little stocked or driven with ready Money for want of trust or such a Process as may with any certainty or expedition compel the performance of it Or that His late or now Majesty when our Kings and Princes were wont in many of their Writs and Rescripts to acknowledge that they were Debitores Justitiae Debtors to their people in matters of Justice Astricti bound and obliged unto it by their Coronation Oaths could ever think it to be agreeable to their interests or correspondent to their Oaths and other obligations to God and Man to throw the Justice of the Land with which they have been by God intrusted into a Chaos and confusion to gratifie the humors of a smali or inconsiderable number of his Subjects the quondam Rebells and most factious and ignorant part of them and ruine the multitude who are as much committed to their cares as the other Ne cum parti alicui placeant reliquas deserant Least when they seek to please a few they do forsake and abandon those who are much the major part and greater number Howsoever let Sir Edward Coke say and write all that he can in the never to be denyed just praises and commendations of our Laws those that without any cause or knowledge do too much maligne and hate them adore a resolved infatuation and believe their Fort of Phansies to be impregnable and out of the danger of any Assaults or being taken will by their good wills rather then forsake their designs and the hopes they have of some new employments oblige and tye him to his former mistaken opinions delivered in the aforesaid Sir William Herberts Case and likewise in his Comment upon Magna Carta ca. 29. That the Imprisonment of the body for Debt unless in the King Case was not by the Common Law before the making of the Statute of 25 E. 3. ca. 17. although in all his Reports and Comments and other his learned Writings he hath not at all inveighed against the Process of Arrest and Outlawry in Actions of Debt or other personal Actions or declared or made any mention that they were either illegal or a grievance And when he said That Imprisonment of the body for Debt unless in the Kings Case was not before the making of the aforesaid Act of Parliament did no where say that it was not before that time upon Contempts of Courts of Justice or the Writs or Mandates thereof or upon a probability of a Defendants running away and are the more pertinatious in it by Sir Edward Coke's being so much enamored on a Manuscript called the Mirror of Justice which as to the Copie which he follows and cites in his aforesaid Comments upon Magna Carta and that so called Mirror of Justice which was afterwards printed and published in the year one thousand six hundred forty-six by William Hughs of Grayes-Inn Esquire Flagranti bello when the Laws and Liberties of the People were by a wicked Rebellion under a pretence of Reformation of Religion for some years before endeavoured to have been destroyed and said to be translated out of an old French Copy which hath been justly suspected in many important matters proved to be fictitious to Men of Learning and those that have traced the paths or fields of Learning and Manuscripts and observed the contrariety omissions additions transcriptions mistakings interpolations annotations impostures and words therein creeping out of the margent into the Text and those many counterfeit Books and Manuscripts which even in the primitive times of the Church and after Ages have been imposed upon Posterity and too often are and may be seen will administer no matter of wonder They therefore who do so cherish and delight in the novelty of opinions and are most pleased with those which are likeliest to answer their expectations of gain and profit or may serve to engage the protection and favour of some hopeful and prevailing Partie and Faction may do an Act of Justice to themselves and others to pause a while and look a little more into the aforesaid opinions of Sir Edward Coke although he must be acknowledged to have been a very great Rabbi in our Laws and consider well the Grounds Authorities and Reasons upon which he hath founded them before they do Jurare in verba Magistri and espouse or build upon them CHAP. XV. An Examination of the opinions of Sir Edward Coke in his Report of the said Sir William Herberts Case touching the Process of Arrest used in our Laws and the many Errours appearing in the Book or Manuscript called the Mirror of Justice and the fictitious matters and relations mentioned therein FOr although in Criminalibus Capitalibus causis in Criminal and Capital causes an Arrest or real Citation as the Civil Lawyers call it is and hath ever been used by the Laws of God Nature and Nations There shall not be such gentle Process or Proceedings by way of Attachment as is usual in other Cases but such Malefactors are presently to be arrested and the Goal or Prison is to be their Sureties until they defend or clear themselves yet those kind of necessary proceedings can have no other original or ground to support or warrant them but what proceeds from the before recited grounds or causes or some of them because until the Fact be tryed it is but an accusation and not alwayes so much as a probability but a change or suspition that it was done by him that is accused and there will be alwayes