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
Civil Law and the Laws of the Longobards commonly rendred might appeal if he suspected his Judges and appealing might not be detained in Custody Ranulphus de Glanvil who recorded much of what was the practice of the Courts of Justice in England in his time and was Lord Cheif Justice in the Reign of King Henry the 2 when as he saith in his proaemio or Epistle to that Book the Laws then in use were founded upon reason and antient Customs the King willing to be advised the Judges men of great Wisdom and Knowledge in the Laws and Customs of the Kingdom and Justice so faithfully administred as the great men could not oppress the Poor Writeth that if the Defendant appeared not in an Action of Dâ—bt after he was Summoned an Attachment was awarded and a Distringas as in other Pleas. And it was in those times held to be Common Law that where a fine was Levied and that after 3 Essoynes either of the Parties refused perâ—ormance tunc remanet in misericordia Regis salvo attachiabitur quous que securitatem in veniret bonam In the Reign of King Henry the 3. as appeareth by Bracton a Judge and learned Lawyer of those times in his book delegibus consuetudinibus Angliae compiled as he saith ex veteribus Judiciis Justorum out of ancient records and memorials if upon the 4th day of the return of the Summons in an Action of Covenant or Trespass the Defendant appeared not whether the Summons were returned or not an Attachment was awarded If he came not then a second Attachment was awarded to put the Defendant to better Pledges or securities And if he had not Land which might be taken into the Kings hands or by which he might be distrained the Sheriff should be commanded to take his Body or bring him and the Pledges were to be in misericordia quia ulterius non sunt summonendi and if he came not at the day appointed sed maliciose se subtraxerit latitaverit quod Corpus inveniri non possit vel forte se transtulerit extra Comitatum potestatem vicecomitis vicecomes mandavit quod non fuit in ventus in balliva sua then in default of his appearance three Writs of Distringas shall be made out one after another the first by all his Lands and Chattels second by all his Lands and Chattels ita quod nec ipse nec aliquis pro eo nec per ipsum manum apponat ita quod habeat Corpus ejus ad alium diem si tunc non veniret precipiatur vicecomiti quod distringat eum per omnes terras Catalla quod Capiat omnes terras omnia Catalla sua in manum domini Regis Capta in manus domini Regis detineat quousque dominus Rex aliud inde preceperit quod de exitibus eorundem domino Regi respondeat And for this kind of proceedings cited a Record in Michaelmas Term in the Third year of that Kings reign which in its use and nature carried along with it a restraint of the Body of the Defendant for the Sheriff was by the Writ to distrain the defendant Ita quod haberet corpus and it would be in vain to distrain him who perhaps had a small Estate or profit of his Lands to be destrained betwixt the Teste and return of the Writ if the Sheriff did not at the same time restrain or secure his Body to appear before the Justices at the time prefixt to answer the contempt as well as the Action But saith Bracton if the Plaintiff post tot tantas dilationes justiciam non fuerit consecutus should not after so many delays obtain Justice what shall be done for durum est enim quod placitum suum deserat infecto negotio desperatus recedat domum it would be hard that the Plaintiff should go home in despair and be able to do nothing and therefore concludes that if it be a civil or personal action for mony or upon any contract it would be good to put the Plaintiff in possession of the Defendants goods and Chattels according to the quantity of his demand and summon the Defendant at a time limited to appear and answer the Action at which time if he do appear he shall have his goods and Chattels restored unto him so as he answer the Action otherwise he shall never more be heard concerning his goods and Chattels sed querens extunc verus possessor efficiretur but the Plaintiffs shall from thence be reckoned the true owner and possessor thereof si autem cum corpus non Inveniatur nec terras habuerit nec Catalla ille de quo quaeritur iniquum esset si Justicia remaneret vel malitia esset Impunita But if his Body cannot be found and he hath not any goods or Chattels it would be unjust that Justice should be at a stand and not go forward and that the evil actions of men should remain unpunished and therefore whether the Action was pecuniaria vel injuriarum was in Debt or for mony or Trespass the Court was to proceed against him by Process of Utlary propter contumaciam inobedientiam factam domino Regi quia nullum majus Crimen quam Contemptus inobedientia omnes enim qui in Regno sunt obedientes esse debent domino Regi ad pacem suam cum vocati vel summoniti per Regem venire contempserint faciunt se ipsos Exleges for their contempt and disobedience to the King because there is no greater Crime then contempt and disobedience for all that are in his Kingdom are to be obedient to the King and observe the peace and Justice thereof and being called or Summoned by him shall contemn it or refuse an obedience thereunto do make themselves Outlaws Et ideo Utlagari deberent non tamen ad mortem vel membrorum truncationem si postea redierent vel intercepti fuerint cum causa utlagationis criminalis non existat sed ad perpetuam prisonam vel Regni abjurationem a communione omnium aliorum qui sunt ad pacem domini Regis and therefore he ought to be Outlawed but is not if he return or should be taken to be punished by Death Mutulation or cutting off his Members in regard that the cause of the Utlarie was not Criminal but he is to be commited to perpetual Prison or to abjure the Kingdom be Banished and forbid the society of all the Kings Subjects And in those days where a man by Lease had taken an house rendring a certain Rent quid saith Bracton what shall be done when the Tenant doth not pay his Rent nihil in domibus locatis conductis inveniatur and hath no goods and Chattels yet howsoever resolves the question recurrendum erit ad corpus conductoris si autem Corpusnon inveniatur hoc poterit locator suae imputare negligentiae vel imperitiae quod sibi Cautius
or not so necessary convenient or useful as was intended or expected or like unto some of the Laws of the Medes and Persians which were said to be irrevocable but the People had by the grace and favour of the Soveraign a remedy by Parliament to abrogate repeal explain or amend them by substracting of some clause or adding some other unto it for liberties are both by Civil and Common Law defined to be of things not forbidden otherwise vaga liberâ—â— as may quickly come to be misera servitus and bring those that would use an unbounded liberty where it shall meet either with Laws or a greater force into a most miserable slavery And therefore just liberties do by our Common Laws saith Sir Edward Coke signifie the Laws of the Land And that which is the Law cannot be called Tyranny nor that which is against the Law liberty And that ancient manner of Trial for those who were criminally accused called Fire ordeal which ordained the Partie suspected to walk blindfold over certain Plow-shares of Iron heated red hot laid at a distance one from another and if the Party did not touch any of them or treading upon them received no harm he was declared to be innocent coming into this Land with the Eazons and the Law of Trial of Titles by Battle or Duel continuing here long after the Norman Conquest and to this day in force in certain doubtful cases though they had very much of blood and cruelty in them could be suffered to wear out into better Laws and yet be obeyed as Laws whilst they were such the Law of torturing or pressing such men to death in case of Felony as will not pleadâ— or do refuse to be tryed by a Jury to be so many houres in dying and have no other drink but Kennel-water hath enough of horror in it to be found fault with if it were not the Law and the only means to preserve the Authority of Laws and Judicature and there were not toom enough for men to avoid that direful way of punishment For there was never since the blessing of Laws Magistracy and Government came into the World any legal liberty not to appear in Judgment or not to be compelled to do right one unto another by Judges and those that were in Authority commissionated by their Superiours And if ever there had been such a liberty it may be renounced or released by our own Acts as in the entring into Bonds and Contracts one with another wherein we oblige our selves to the performance of any thing which the Laws of God and Nature do demand of us the Obligees may dispense with it And if the Law of Nature could have given us such a vast liberty as some would pretend a right unto the same Law of Nature doth in civil Conversation and Society give us a power sufficient to restrain it and make that which at the first was merae voluntatis in our own wills to be postea necessitatis a necessity and out of any supposed freedom of our own wills or the power thereof Neither can any man by any rule of Law charge our Laws with oppression because positive or made in terror or binding to strict rules to avoid arbitrarines or oppression in the Judges or rigour and severity as in some particular mans case they may happen to be by an abuse of them but the fault is rather to be laid at the doors of those who do violate and break them For an unlimited or absolute liberty and the liberty of the Subject are each unto other contradictory and there are no Laws but do retrench or take away some liberty which People had or took to do ill or might be inconvenient to the publick good For God the greatest and wisest of all Legislative Powers did put the Jews who were as he saith himself as the Bracelet upon his arm and the signet upon his right hand under a Law of fourty stripes and of death if they disobeyed the Sentence of the Judge And yet we do find them in their Generations above two rhousand years after in such an opinion of their freedom as they thought nothing could be added unto it saying they were of the Seed of Abraham and under no Bondage and are yet above sixteen hundred years since bragging of those their Laws When David had slain Goliah and might justly have expected the reward of having his Fathers House to be made free in Israel as some of the promised rewards he did not when he durst not lift up his hand against the Lords Anointed believe it to have been such a freedom as might exempt him from the duty of a Subject When our King Athelstan by his Charter gave Lands to St. Wilfrid and the Church of Rippon in Yorkshire in the words Al 's frelich as I may and in all things be al 's free as Hert may think or eych may se. And King William the Conquerour granted the Earldom of Chester to his Nephew Hugh Lupus Tenendum sibi haeredibus ita libere ad gladium sicut ipse totam tenebat Angliam ad Coronam to him and his Heirs to be holden as freely by the Sword as he did himself hold England and the Crown thereof Those very large Grants did neither free the Lands so given to St. Wilfrid and the Church of Rippon and that Earldom to the Earl of Chester unsubject the Owners or give either of them as our Records and Law-Books in the course of the after Ages will testifie any liberty not to appear upon any Summons to the Courts of Justice of our Kings and Princes For legalis liber homo saith Sir Henry Spelman hath in our Laws no other signification then Qui stat rectus in Curia non exlex seu utlagatus non excommunicatus vel infamis c. sed qui in lege postulet vel postuletur who standeth right in the Kings Court is not outlawed excommunicated or infamous but may at Law sue and be sued And it cannot be denyed but that in order to Justice a Summons or citation only might be sufficient and would certainly be most consonant to the ease and liberty of the People if they were or could be so of one mind or inclination to Justice as to obey the first Summons either of the Parties complaining or the Courts of Justice commanding or not make excuses or delayes hide themselves or run away or be loath to come to it be so of one kind of affaires and business as never or seldom to be absent so alwayes provided of their Councel Witnesses and Evidences as not to need any further time to make their necessary deffences and to be of so much sufficiency of estate as to have wherewithal to make a speedy answer or satisfaction And that there were no such pravity or incertainty in the wills and actions of men as that the Creditor would be alwayes sure to demand no more
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
thereof then to be put out of their places And the names of those Judges which were said to have been hanged do if there were any such very much favour of later times or if any of them were Earles for so most of the provincial Judges then used to be should if guilty by the custome of this and other Nations unto which this of ours may in that and many other things be found not to have been altogether a stranger not in all likeilhood have been subjected to so vile and vulgar a punishment and the offences for which those imaginary Judges are by that Author said to have been hanged were such of which there were then for ought appears no Laws in being to make them guilty of the breach thereof For all the Laws of King Ina which have come unto us who reigned here in the year of our Lord 712. and next preceeded King Alfred and most of the Laws of King Alfred and the Saxon and Danish Laws of their several Kings which reigned after him did ordain and inflict their punishments by pecuniary mulcts with relation to their Capitis estimationes valuation of their Qualities and Estates and there were certain known and appointed Rates for the redemption of Lahshlite or Manbote for Manslaughter or the death of a man he which killed a Stranger forfeited 2. partes of esiimationis Capitis to the King and the 3. part to the Children or kindred of the party slain Theft was punished by the Laws of King Alured who reigned in the year 871. ratione 60. hidarum so as if the offender had been the owner of 60. hides of Land he which stole any thing out of the Church was to pay the value of the thing and to have his hand cut off and there was a Capitis estimatio for a Nun taken by force out of a Nunnery or Killing a woman great with Child a man having for some Criminal offence forfeited his liberty or being adjudged to be a Slave for Felony was not to be hanged untill the 2. offence and it was in the accusers option or choice to have him only beaten of which book compiled out of many fragments the Author doth not seem to be well pleased with our Magna Charta and appears to be a great fault finder and complainer of the abuses of too many things in the Laws of the time wherein he lived and doth not well agree with himself in some of his own positions as where he saith it was forbidden that none should be distrained by their move able Goods but by their Bodies or Fees In another place concludeth that the Imprisonment of the Body of a man is an offence if not for tortious Judgments That no man is imprisonable for Debt and none to be utlawed if not for mortal Felony and menmentioneth the use of Justices in Eire when Sir Henry Spelman saith the Justices Itinerant or in Eire were not here instituted untill the reign of our King Henry the 2. And might have remembred if he had been so conversant as he pretended with King Alfreds Laws that Imprisonment of the body in Civil actions was not unusual in the time of his reign For that by one of his Laws if a man had given a pledge upon oath and promised which was not then infrequent quod juste legitime praestare potuisset neque prestiterit arma fortunasquae suas omnia amicorum fidei concredito ipse in custodiam Regiam per 40. dies mittitor subiturus supplicii quod ei Episcopus pro meritis imposuerit sin spatio haud plene confecto fugam agitarit fugientem que ante verterunt per 40 dies in Carcerem ut quidem antea fieri oportuit conjicitor verum si fuga elapsus fuerit ab omni legis patrocinio destitutus habetor atque in omnibus Christi Ecclesiis Anathema esto Quod si quisquam alius pro se fidem dederit penas fide jussonis violatae dato imperatum subito That which he might justly perform and did neglect and not do it his armes and all his Estate and Fortunes should be sequestred into the hands of his friends and himself imprisoned in the Kings Prison by the space of 40. dayes there to undergo such punishment as the Bishop according to his desert shall impose upon him but if before that time elapsed he shall escape and be taken again let him be imprisoned for 40. dayes as he should before And if he shall again escape then let him be out of the protection of the Law and excommunicate but if any have been his surety let him pay the forfeiture CHAP. XVI That the late incessant needless complaints against our Laws and the proceedings in our Courts of Justice had in the bottom of it a design of overturning Monarchy and Government and to create offices places and employments and profits to the contrivers thereof and their Party BUt there must be somthing else that hath made all this stirre and inquietude in the minds of those Causeless kind of Murmurers and hath so far transported themselves out of themselves as to forsake the reason of mankind for otherwise it cannot easily get admittance into any mans apprehension and belief That Land-Souldiers Seamen Mariners Merchants Mechanicks and some Tradesmen for of some of every of those sorts were too many of our late Church and State and Law reformers composed should if they would not be at leasure to consider that publique utility and neeessity do in many Cases both by the Laws of God Nature and Nations sometimes Curbe restrain lessen or take away the free use of properties so patiently and willingly without any mutining endure the rigorous penalties forfeitures and severities of the Laws of War and Navigation and the arbitrary exactions and impositions of their Companies and Governours of Trade And not at all reare the cry of Oppression and Invasion of their Liberties and yet so kick and wince at the legal and far more easie Rules of Justice and may therefore require some search to be made for the fountain and rise of that popular Frenzy and distemper and that so much mistaken late outcry against the Writts and Process of Arrest and Outlawry when the arguments which are framed and brought by that vulgar and leveling race of people do abundantly declare that they have not much troubled themselves with the reading and true understanding of those Laws which they do so labour to scandelize and the Records of the nation who do bear witness of them In the Inquest whereof the late pious Martyr King Charles hath pointed out the way unto a more full discovery of their designes when he did foresee it as in a Declaration published for the better satisfaction of his people in December 1641. After that the house of Commons had made their aforesaid unhappy Remonstrance he did not omit to give them to understand that he feared that a malignant party in that house did go about
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
Officina Justitiae place and work-house of Justice Lex Terrae as it was in the year 1641. alleaged to have been by the then House of Commons in Parliament Take away a considerable part of the rights and priviledges of Parliaments Nobility Peerage and Parliament Men. And the Liberties not only of them but many of the Gentry and men of great Estates in the Kingdom some of them very largely extended in the Executing of Process and returna brevium by the Charters of our Kings and Princes or a long prescription have been granted or permitted and vested in them and their Ancestors and Predecessors and in 52 counties of England and Wales may after an account but of 20 in a county one with another amount to no less than one Thousand and of the Lords also of Mannors in their court Barons which according to the computation but of three hundred Mannors and court Barons in every of the said Counties one with another will in all probability make a total of fifteen Thousand and six Hundred if not a great many more which the Commons in Parliament in the 33. year of the Raign of King Henry the VI. were so unwilling to have invaded by the then undue practise of Attournys as they did Petition the King for the Love of God and in the way of Charity to forbid it under great Penalties which the King granted If it be thought to the Judges reasonable who being thereupon consulted an Allocatur of that Petition was entered in the Margent of the Parliament Roll. Overthrow or put into a Chaos or confusion all or much of the long used course and order of Process and Justice in the large and ancient Jurisdictions of the courts of Marshal-sea Principality of Wales Dutchy of Lancaster and country Palatines of Chester and Durham And do the like to those great Jurisdictions of the Cinque-ports and the Admiralty whose business and the ancient course and manage thereof cannot conform to the designs of such an unpracticable way of getting in of Debts Lame and discourage the very ancient and useful if something better ordered Offices of Sheriffs Under-Sheriffs and their Bayliffs in the Execution of Justice and the Proces of the courts thereof by turning much of their business into a worse condition Change and inconvenience the Government of the City of London and Borough of Southwark and of all the Cities Boroughs and Towns corporate of England and Wales in their several administrations of Justice And like a Hurricano whirling and passed through the Nation at once spoil or confound all the Courts of Justice great and little therein and abridge or take from them their antient and hitherto justly allowed Rights and Jurisdictions which to them and their predecessors have with our incomparable Magna Charta been no seldomer than 30 times confirmed by Acts of Parliament VVill be directly repugnant unto and against Magna Charta and the Statute of 42. E. 3. a branch or limb thereof which at the request of the Commons and for the good governance of them ordained that none be put to answer without presentment before Justices or matter of Record or by due Process of Law and Writ Original according to the Old Law of the Land And if any thing should from thenceforth be done to the contrary it should be void in the Law and holden for Error Be a great loss and damage to the King in his Fines and Seals of Original VVrits the Seals of the VVrits and Process Issuing out of his Courts of Kings Bench Common Pleas Exchecquer Principality of Wales Dutchy of Lancaster and County Palatine of Chester and the amercements and Issues forfeited or returned upon Caepi Corpus Writs of Habeas Corpus and Distringasses all which were intended by Law to be assistant to the defraying of his great charges in the Salaries and supports of the Lord Keeper Master of the Rolls Judges and Officers imployed in the Administration of Justice which taken away will render him to be in that particular less considered and in a worse case then Oliver Cromwel was who by his miscalled Parliaments and Instrument of an Arbitrary Protectorship was besides his charge of the Navy and Horse and Foot Guards allowed two hundred thousand pounds per Annum for the charge of the Government and Administration of Justice Take away from the King much of the Law Tax upon the writs and process which a late Act of Parliament consented unto for supply of his urgent occasions and bereave him of his never denied Prerogative and benefit of Utlaries Extirpate the Antiently and legally allowed Essoynes de malo lecti or veniendo de ultra mare or in servitio Regio or any hinderance which might happen to excuse their non-appearance after a lawful Summons in Debt which by the Laws of Nature and Nations have been in cases of necessity Inundation of waters or imployment for the publick never denied Turne all or the most of the proceedings upon Actions of Debt into Surprizes and Defaults and disturbe the more deliberate satisfactory and safe way of Tryals by Juries Make a default which no Law ever did to have the force and effect of a Verdict by Jury when there was none And debar the helps of Writs of Error when all Mankind as well Judges as Juries and the parties and their Councel on both sides may erre and can have no assurance to be Infallible Deprive the People of that part of our Magna Charta which would have no man amerced for a small fault but after the manner of the fault and for a great fault after the quantity thereof saving to him his Contenement and to a Merchant his Merchandise and that none be amerced but by the Oath of good and lawful Men of the vicinage which did not certainly intend a Debtor to be ruined for a small default or to be debarred of his Tryal by his Peers And obliterate the equity of the Act of Parliament of 13. E. 1. which providing that he that recovereth a Debt may Sue Execution by writ of Fieri facias or Elegit excepteth the Oxen and Beasts of the Plow and cannot be rationally supposed to favour such a Ruine upon a Debtor when for want of evidence and witnesses he shall not be able to escape the fury of such a default And likewise that part of Magna Charta which granted that the City of London should have and enjoy all the old Liberties and Customes which it hath been used to have and that all other Cities Boroughs and Towns and the Barons of the five Ports and all other Ports should have all their Liberties and free Customs and did not take it as it may be conjectured to be any reason that a surprize in Actions or Suits for Debts should by Malice or Tricks without pleading or reasonable time given for Defence destroy them and their Trade and Families and all their endeavors before and after VVhich the prudent Romans held
to be so unjust as where they gave a Plaintiff but three hours to Plead they allowed the Defendant nine And it is not yet gone out of the memory of Man that in the year 1642 or 1643 the course of stealing or hurrying of Judgments now unhappily borrowed from the Innovation of the late wicked times of Usurpation in Actions of Ejectment was believed by Justice Bacon in the Court of Kings Bench and Justice Reeve in the Court of Common Pleas to be such a vioviolation of our Laws as they Publickly declaimed against it and threatned to imprison any Attorney that should practice in such a manner And with great authority and warrant of our Lawes and right reason for that as it was justly and truely said by the Judges in the Reign of King Edward the first that non summonitus nec attachiatus per Legem terre prejudiciari non potest and Fleta an approved Lawyer in the Reign of that King and King Edward the second his Son hath published it to be a great and known Truth that the Court of Common Pleas cannot hold Plea in real and personal Actions without the Commission or Authority of a Writ original out of the Chancery and that without it nec Warrantum nec Jurisdictionem neque Coercionem habent and our Laws did then and long after not proceed upon such warrant or commission until the Plaintiff had actually given sureties to prosecute and maintain his action and the Sheriff to whom such original Writ was directed for to summon or attach the debtor to appear before the said justices had returned that he was summoned or attached as the nature of the Action required or had nothing whereby to be summoned or attached When but a few years preceding that well deserved indignation of those two worthy Judges that excellent most just lawdable and rational course of justice had been endeavoured to have been subverted by one Elsliot of a degree betwixt an Attorney and a Barrister and a man very bold able enough to make and contrive tricks and abuses in Law proceedings who having about the middle of the reign of King Charles the Martyr as a Reprobate and Cast away in the Law shifted himself from England into Ireland and from thence after some bad prancks there played returning back again with as much poverty as impudence attending upon him and having a desire to get some money by a contrivance to gain a sudaine possession of some Lands or houses for one as bad as himself upon a judgment by default against the Landlord or his Tenant who were to know nothing of it caused a declaration to be prepared in an action of Ejectment against a feigned Def t. or ejector in the name of a feigned Lessee upon a short Lease pretended to be made by his naughty Clyent and left at the house of the Tenant who not well apprehending the force and extent of the project a judgment by default was entred possession surprized and taken for which upon complaint made to the Judges of the Court of Kings Bench in which Court the action was supposed to have been laid and examination of the fact the judgment was made void possession restored and Master Elsliot the contriver committed and told by Justice Barkley that it was a shame that ever he should come or shew his face in a Court of justice Howsoever getting himself afterwards enlarged and the confusion and troubles of the late civil Warrs disturbing and breaking in upon the Law and all the Courts of Justice Mr. Elsliot began again to appear to be somebody engages in another exploit which was to gain by the like device accompanied with force some other naughty ways possession of an house and a very considerable estate in Lands in the County of Essex of Sir Adam Littletons the Father of Sir Thomas Littleton Knight now a member of the house of Commons in Parliament who to his great cost and trouble endeavouring to extricate and free himself and his Fathers Estate from the peril and danger of such a villany may well remember that a counterfeit record was in that pretended suit privatly layd in the office of the Records in the Tower of London sworn unto and offered to be justified but was at length taken as it ought to be for a Roguish piece of Forgery and Sir Adam Littleton and his Estate freed from any further disturbance Whilst that no smal parcel of Knavery being in great respect with the Agitators of the then called Parliament Army Levellers other State moulders and stiling himself the Esquire at armes being somtimes a Prisoner in New-gate and somtimes out wanted not a Liberal maintenance from his Patrons and great Masters until death shortly after unexpectedly rid the world of him From which reasonless and ungodly formula or way of proceeding rather to be exploded then embraced in actions of Ejectment and so utterly against the Law evil examples being oftner followed then good by some of his proselites and the connivance or want of courage in some of the Judges in the time of the Cromwelian usurpation dum sui non fuerunt knowing better but doing worse the same came again to be revived and creep into an allowance with a note indorced by the Attorney in the name of the incognito or casual ejector directed to the Tenant or Landlord requiring them to appeare and look to the action and confess Lease Ouster and Entry otherwise he must and would confess a judgment or let it pass by default As if such a judgment acknowledged by practice and confederacy could not with a great deal of ease have been reversed by a court that should not be so abused and the parties contrivant severely punished Of which kind of irregularity in the Law and wandring out of the old Paths never to be justified the Justices of the court of Kings-bench have been so sensible as they have for some years last past caused a Writ of Latitat which antiently was used to be warranted by a VVrit Original of the Chancery to be awarded and sued out against the feigned ejector And it is not half a yeare agoe since the Pillory of Westminster proclaimed a Brewer to be more Crafty then wise or honest when to gain an indirect possession of some houses by Judgments upon defaults having fudled the Tenants with Drink and Tobacco And giving them peices of the declarations as waste paper when they knew not what had been written therein to give fire to their tobacco thought he had snapt them with judgments upon defaults when he made oath that he had left declarations at their houses where they were in that manner made drunk and could neither say or sware to the contrary But unde or from whence soever it came or if this new manner of Law proceedings could have derived its pedegree from any more Noble an Ancestor It will if every Client and his Attorney who is no member of the court but only
against any other And by another Statute of the same year no exigend was to be granted in trespass but where it was for breach of the Peace and at this day notwithstanding the Statute of 25. E. 3. ca. 17. no Writ of Capias can be made without a nihil habet returned nor could a Capias in accompt be otherwise made before the making of that Statute nor can be since without a nihil habet returned by the Sheriffe unless the Coâ—â—t should by their coercive power of punishing contempts and contumacy think fit to do it as is now done by Attachment in Chancery upon a Defendants not appearing and was long before that Statute done by the Judges of our Courts of Common Law for not obeying prohibitions or VVrits Commanding the not Impanâ—lling of one above the age of 70 years to be of a Jury a VVrit to replevin or Bayl a man which was Imprisoned upon a moderata misericordia against a Steward or Bayliffe of a Manour for amercing too much against a Sheriffe for not Summoning or misreturning a Jury and the like they being as well enabled to cause a Defendant to be attached or arrested for a default or contempt in refusing to appear before them as they did usually before that statute and do yet award a grand Cape against the Lands of a Tenant for not appearing in a real Action make out a Capias pro fine Imprison a Defendant for Pleading non est factum to a Bond or other deed after it is found against him and a Capias to arrest such as shall make a Rescue as they did before that statute and do yet make a Capias upon a nihil habet returned upon an original in accompt when the Statute of Marlbridge 52. H. 3. cap. 23. only gives it upon a Distringas when the Defendant hath nothing to be distrained and as they did before the statute of 25. E. 3. cap. 17 and yet do in actions of Trespass make a Capias upon a nihil habet returned instead of a Distringas when the original Writ out of the Chancery is a Pone or attachment Otherwise they cannot do Justice to those that complain and their jurisdiction will be useless and to no purpose saith Mr. Selden and therefore where ever there is the one of necessity there must be the other and the Judges saith Glanvil in H. 2. time had power to Punish contempts and such as should absent themselves And had no less in the Reign of King Henry 3 when it was said by Bracton ex quo eis commissa est causa simpliciter extenditur eorum Jurisdictio ad omnia sine quibus causa terminari non potest quantum ad judicium executionem judicii when they are commissionated to hear a cause their jurisdiction is to be extended unto that without which the cause as to the judgement and execution thereof cannot be determined and did not want a coercive power in the Reign of King Edward the 1. when a man could not have a VVrit de homine replegiando when he is taken by the commandment of the chief Justice and upon all contempts made to any Courts of Record in disobeying the commandment of the King under his great Seal the offender is to be fined and imprisoned for jurisdictions saith the civil Law are maintained and upheld by such kind of coercions and is no more either as to the point of contumacy or when the defendants have not goods sufficient then is now usually done in the collecting the excise or monthly assessements when the collectors where no distress can be found are impowered to take and imprison the Body and even the System maker in the time of the late rebellion when the inclosures of the Law and all that supported or savoured of Monarchy were endeavoured to be thrown down and every discontented or foolish fancy would be a Legislator and busie it self in the alteration and spoiling of our Laws could not tell how to avoid the allowing of an arrest or Capias where the defendant had no visible and certain Estate whereby to be Summoned And with much more which might be alledg'd for the antiquity legality rationality long approbation and usefulness of the Writs and Process of arrest and Utlary which have been and are a great part of the power and ancient rights and customs of our Courts of Justice without which they can neither subsist exercise maintain or Keep their authorities or accomplish the design and ends of justice and their constitution may inform all those that would not bind or make themselves more than apprentices to those inconsiderate clamours which since that fatal and unhappy year 1641 have been raised by the mobile scelestum vulgus ignorant and plundering part of the People and their new Fangled devices and designs for the banishment or alteration of our Laws which they but a little before had cryed up and publickly professed to be their birth-right And by the Extirpation of Monarchy Kingly and Church government plow up the Kingdom to their own ungodly advantages and profits and render it to be in a worse and more barbarous condition then Wat Tiler Jack Cade or Ket could have brought it unto if their several Rebellions and Clounery had gained their expected success That there is nothing to uphold those their reasonless desires of Innovation And that our Fore-fathers were so well content with the benefit of that Act of Parliament of 25. E. 3. for the proceedings by Writ of Capias and by Process of Exigend to the Utlary in Actions of Debt detinue of Chattels and taking of Beasts for that may appear to be the only design and purpose of that Statute And did so little believe the Process by way of Capias and Arrest to be any invasion of their liberties and rights of Freemen as they did in the said Parliament Petition for and obtain an Act of Parliament that no man might be taken but by Indictment or Presentment or by Proces made by Writ origynal at the common Law or to be prejudicial unto them or their posterities and in the 38 year of the Reign of that Kiâ—g Although great mischiefes did as was complained to that King in a Parliament holden in the seven and thirtieth year of his Reign often happen and dayly come because that Escheators Sheriffs and other the Kings Ministers did seise the Lands Goods and Chattels of many surmising that they were Out-Lawed where they were not because they did beare such names as those that were Outlawed the benefits of the aforesaid Statute of 25 E. 3 for Process of Utlary by VVrits of Capias and Exigend which was made but two years before did so over ballancâ— that or other inconveniences as might happen in some mens particulars as the VVisdom of that King and Parliament could not think it fit to repeal that Statute or forbid or discourage the right use of it but did only ordain that if any complained he
demand in the Writ specified be under 20. pounds are by the Rules and Custom of the Court of Common Pleas not to be insisted upon or if above not at all in the Case of Defendants being Executors or Administrators and if the Defendant for want of Bail for his appearance do continue in Prison three terms and no habeas Corpus be brought or declaration given or further prosecution made he is to be delivered by a Writ of Supersedeas made of course upon the apparance to the action only without any special Bail put in before a Judge or Bond given to the Sheriff and where special Bail is very seldom given it is but that if Judgment be obtained against the Defendant he shall render his body to Prison or satisfie the condemnation Our Writs of Arrest ad respondendum being ad Cautionem custodiam non ad poenam but to enforce a gage or pledge or to detain or put a Debtor or Defendant into the Custody of the Law to the end he may give Bail Judicatum solvere to abide the Judgment of the Court or if no Bail be required to appear to the Action And the Proces of Utlary which although they were not ordinarily used in Actions of debt before the making of the Statute of 25 E. 3. was notwithstanding in cases of trespas for breach of the Peace and for Contumacy and Contempts in not appearing warranted by the Laws of King Edgar Canutus Edward the Confessor and the practise of our Saxon Ancestors borrowed and deduced from the Ancient Customs of other Nations is not now so dreadful as it was in former Ages when as Bracton and Stamford do agree the Partie outlawed did forfeit Patriam Amicos omnia terras tenementa bona Catalla sua all that he could entitle himself unto was out of the protection of the King and his Laws and could not bring any action until he had rendered himself to Prison obtained his Charter of Pardon brought his Writ of Error and given Bail to answer the Action but may now without Bail unless specially required be admitted to reverse the Utlary before Judgment upon defect of Proclamation only or some small Error without a Writ of Error or the Record certified into the Court of Kings Bench or Errors assigned with other the many troubles and charges which that way produced The Plaintifs for fear of obstructing or narrowing the wayes of Justice are not put as they were anciently to find real Sureties to prosecute and make good their actions or to pay a Fine to the King if they do not as our Laws do intend they should or to make Oath of their debts or de non calumniando that the Action is not prosecuted in malice or upon sinister ends as the Civil Law enjoyned And the Statute of Westminster the second doth in Writs of Execution against the Goods and Chattels of a Defendant except Boves Affros de Caruca sua Oxen and Horses of Husbandry and the Writ imports as much in the tenor of it the Judges do without any Inquisition or proof that there were not other goods sufficient to satisfie the Execution permit for the Creditors more speedy attaining to his satisfaction all the goods to be taken in Execution which in more Ancient times was so unusual as a Defendant hath brought his Action against the Sheriff and the Plaintif for taking them in Execution when there was other personal Estate sufficient And do also suffer the Plaintiff to prosecute the Sureties upon a Bond when the Principal hath not been sued and was sufficient to pay the Debt or dammage which by the former course and practise of the Law was not allowed And our Writs of Exigent and Outlary were truly and properly only to be made use of where the Defendant refuseth to appear in contempt of a Court of Justice and the Proces thereof is fugitive or incertain where to be found taken or arrested hath no visible or certain Estate or lurketh in some Liberty of which there are many in England and Wales where the Kings ordinary Writs and Proces do not run or have any power or force and a Capias utlegatum carrieth with it in the same Writ a Non omittas propter aliquam libertatem and impowereth the Sheriff to enter into any Liberty and arrest the Defendant and by a special Capias utlegatum to seize and take at the same time all the Defendants Lands Goods Chattels and Estate into the Kings hands as forfeited for his Contempt and that seisure transferred into the Court of Exchequer bringeth the Plaintif an advantage to take a Lease of the King of the Lands so seised at a very low rent until the Defendant purge himself of the Contempt reverse the Outlary give Bail and appear unto the Action which being so consonant to the Outlawries Bannes and proscriptions of Germany and other Nations Kings and Princes in the like Cases to preserve their own Authority in that of their Courts of Justice and requiring some severity and a more then ordinary Proces hath been all the means which without force and violence and a greater disturbance of the People our Laws and a long Custom and usage of time have hitherto prescribed can contrive to bring unwilling Men to Judgment CHAP. VI. The delayes and inconveniences of the Proces of Summons Pone and Distringas were a great if not the only cause of the disuse thereof FOr the way and Course of Summons Pone and Distringas so much in use before that Statute of 25 E. 3. was unto Plaintifs as full of delayes as they were of increase of Charges and trouble which a view of the old Records of the Court of Common-Pleas before the making of that Statute by the many Writs of Alias and Pluries Distringas with issues forfeited and returned upon them occasioning a great proâ—it to the King and less to the Subjects and the many Writs of testatum Distringas made into other Countries where the Plaintifs averred that the Defendants had Lands and Estate suffiâ—ient and Writs of Averment and Enquiry made out upon too small issues returned directed unto the Justices of Assize to certifie if there might not be more issues returned and such a Writ of Enquiry to be executed in the Lent or Summer Vacations could not but cause a more long chargeable and troublesome delay to get better issues to be returned may help to attest the more necessary and better use of the Proces of Capias and Arrest and that Writs of Exigent and Outlawry will in the Cases aforesaid propter inevitabilem necessitatem be everlastingly necessary especially when in the same Parliament of 25 E 3. wherein Proces of Outlawry in Actions of Debt were granted a great complaint was made that the Steward and Marshal of the Kings House or their Deputies did upon Actions attach and distrain men by ten Marks of their Goods one day and by as much the next
Man took a Free-man as a Pledge by force and shut him up as a Prisoner he was to pay forty Shillings penalty If the time for the Pawn was expired and it was not within that time redeemed he was to bring it before the Judge whereupon an Apprisement made by three honest Men he was to be licensed to sell it restoring to the Owner the over-plus If Men or Maids were taken in pledge and being kept in the Custody of the Creditor had stolen any thing he was to endure the dammage If Oxen Horses Minuta Animalia or smaller Cattle Vestments Jewels and Vtensils of Husbandry remained as pawns with the Creditor by the space of twelve nights and they were not redeemed he might make use of them as his own And if he that owed the Pawn or Pledge complained that they were misused he could have nothing but the Creditors Oath concerning it If any did pawn a Man or Maid-servant of another Man 's by a mistake he was to procure them to be released And if the Creditor was questioned for it by their Master he was to take his Oath that he thought the Debtor had pawned them If any Debtor did against the Law give any Man in pawn or pledge without Licence he was to pay fourty Shillings penalty And if the Creditor took Hogs in pledge without order both he and the Driver were to undergo severe penalties And the grievances and inconveniences did by pawning and pledging grow so high and burdensom as by Theodorico King of the Gothes and Italy the pawning of the Children by their Parents was forbidden And Charles the Great or Charlemaine added to his Lombardy Laws concerning pledging that he Et ille cujus est causa the Emperor and the Creditor Would as they please shew mercy and ordained that No Judge should cause Men to pawn any thing contrary to Law especially their Oxen Quia audivimus muâ—â—a damna afflictiones propter hoc Populum nostrum sustinuisse For that he understood that his People had lain under many losses and afflictions by it And the borrowing of Money by Pawns and Pledges and securing of it thoâ—gh with less usury and Brocage then now was in the former Ages so very difficult and upon hard terms as upon the putting in a Fidejussor or Surety For a Debt or Money amongst the Burgundians he That became the Surety carried home to his house the Debtor there to remain as his pledge for performance And where the Surety had not so secured himself he was Before Witnesses to have three times more than the Debt secured or gaged unto him And if the Debt were not paid within three Moneths was to retain it to his own use And the Old Bavarians did use To take the Bodies of Men for Pledges or Security and shut them up as Prisoners in their houses Nor was the borrowing of Money in the Kingdom of Pegu or Brama very pleasant where the Wife Children and Slaves of the Borrowers are bound to the Creditors who may carry them to their Houses and there shut them up or sell them And was not with us in the times of greater Charity which was then believed to be a Scala Caelorum very meritorious and the most ready way to blessedness so easie as it is now when in the Reign of our King Henry the Second and long before and sometimes after the Lenders of Money if they were any thing suspicious of the return and payment thereof did not seldom take an Oath of the Borrower besides his Bond or Pledges which gave the Ecclesiastical Courts an occasion or pretence of taking cognisance of Debts and incroaching upon the Jurisdiction of the Kings Temporal Courts of Justice as may be seen in many Plea Rolls in our Kings Courts of Justice in the Reigns of King Henry the 3d. Edward the 1 2d and 3d. where Prohibitions were sent into the Spiritual Courts by our Kings and their Temporal Courts of Justice and Actions were brought upon the disobeying of them by the Parties grieved as well against the Ecclesiastical Judges as the Parties therein prosecuting Quare traxerunt eos in placitum in Curia Christianitatis in placito debiti contra prohibitionem Domini Regis And then there was no doubt but that a Sentence being given for the payment of the Debt an Excommunication was upon the non prrformance denounced and a Writ de Excommunicatum Capiendo often granted by the Secular Power to arrest and take the Body of the Defendant which kind of Writ and Proces was as early as the Constitutions or Parliament of Clarendon in the tenth year of the Reign of King Henry the Second Insomuch as King Edward the First to preserve the Priviledge of his Menial Household Servants and prevent their Arrests and Imprisonments upon Excommunications held it necessary to make and issue out his Writ De promulgatoribus Sententiam Excommunicationis in Ministros Regis capiendis imprisonandis to take and imprison such as excommunicated any of them CHAP. IX The difference betwixt borrowing of Money upon Lands and real Estate and the procuring of it upon personal security and that without trust and personal security Trade cannot well or at all subsist ANd the difference betwixt the borrowing of Money upon Lands and real Estate and the procuring of it upon personal security may by the Borrowers sadly be evidenced When security by Lands is now most commonly by way of Leafe and Release being a dark way of assurance and within the memory of man at first only purposely concontrived by Serjeant Francis Moore at the Request of the Lord Norris to the end that some of his Kindred or near Relations should not take notice by any search of publick Records what conveyance or setlement he should make of his Estate and by the sad experience of sometimes double or treble Mort-gages hath not appeared to have been so safe as the former which was more publick and of Record And when for a Security of two thousand Pounds the Borrower must upon strange scrutinies and almost a Spanish Inquisition the torture of the Body only excepted have his Estate Evidences and Credit put upon the Rack and be bound with an abundance of over-jealous hard-hearted thorney Covenants and unmerciful provisoes and conditions too near of Kin to the Scottish moveable Bonds mort-gage Lands worth four or five thousand Pounds or more give his answer upon Oath to a Bill in Chancery what Judgments Statutes or Incumbrances are upon it and so embroil that and the residue of his Lands and Estate with Statutes Judgments and Recognizances of great penalties for the performance of those Covenants as he shall hardly be able to have any more Credit by it or Money lent upon it or if the Creditor who to be sure to keep him in the Chaines or thraldom of his power and threatning will seldom give him time for above one year or two for the repayment
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
by discountenancing the present Laws to loosen the bonds of government to the end that all disorder and confusion might breake in upon him And in his answer to the above mentioned 19. propositions sent unto him by both houses of Parliament the 2. of June 1642. Declared unto them that those that had the conduct of that affair thought fit to remove a troublesome rub out of their way viz. the Law to the end they might undermine the very foundation of it Which every day after grew more and more visible when they being called together to council and advise him could not by their Votes which they would make as binding and obligatory as if they were Laws made and established by their Soveraign wrest and take from him the Militia or Sword wherewith he should protect and defend his people took it to be not a little advantagious to their purposes to ravel and dislocate the method and proceedings of his Laws and Justice By which his Throne was established that by overturning the long approved Laws and Customs of the Kingdom upon which the best Monarchy in the World was built they might open a passage to let in that gain and Anarchy which they aimed at which being once made known to their Emissaries and so much encouragement given by their members of that which was then untruly called a Parliament who rather then fail of Petitions unto them from the sons of Zerviah and Shimei out of every Countrey City Corporation and Market Town caused Printed Bills to be affixed upon the Posts and Corners of the Streets in London whose multitudes of Inhabitants in Masters Apprentizes Tapsters and other Illiterate and Vulgar kind of people could readily afford them good store of such as had been borne or lived in every County City and Corporation of England and Wales to give a meeting at a place appointed to some Members of Parliament for the framing of Petitions unto it And thus the Hounds being uncoupled and let loose to chase the Royal Hart and the Presbyterian Ministers like Huntsmen busied in the ha loo lo ho ha loo loo so ho. Whooping and following to cheer and set them on and busying themselves to remove all things that might hinder the pursuit of their Petitions for the presenting whereof Pulpit Granado men were employed to procure them to be brought with 100 or 200 or more of the factious on Horseback with the Petitions ready printed or Tackt to their Hats or Hatbands with Swords by their sides The London Porterswere set on to Petition against the Militia when they were only told it was against the Watermen for carrying Trunks and other Burdens by Water And a Schoolmaster at Stamford was so wickedly Ingenious as to make his Boyes subscribe a Petition to that Parliament against Episcopacy as if their Parents had actually done it In the mean time the Diurnals News Books and seditious Pamphlets the Stationers Arrowes and Artillery were day by day shot to wound him and incense the people against him and some of the Parliament men were heard to say That they could not do their work without them And the design was carried on so prosperously as too many thought their time best of all bestowed to pull down or take in pieces either all our old Laws or such a part of them as might not only undermine the frame and constitution of the Monarchy but innovate and introduce so much of their own Modells and Inventions as might either directly lead to a republique or some new devices of Anarchy A Book called the pollution of University Learning printed in 1642. Marched in the van together with another Book called the Observator and his Jesuitical principles Quod efficit tale est magis tale and that the King was singulis Major but universis Minor and those kind of Engines were greatly incouraged in their attempts by a Book of Junius Brutus his vindiciae contra Tirannos translated out of Latine into English to infect the people with Treasonable Doctrines And a Book intituled Maxims Vnfolded That the Election of the Kings of England ought to be by the consent of the people The Royal and politique power in all Causes and over all persons is properly the Parliament The Oath of Supremacy binds not in Conscience to the King against the Parliament but the Pope And another book written by Mr. William Prynn an utter Barrister of Lincolnes Inne Entituled the Soveraigne power of Parliaments and Kingdoms Printed at London in the year 1643. Wherein with heaped quotations and much Learning and reading the wrong way he was willing to invite his Readers to believe that the Court of Parliament had a lawful power to question the Kings Patents Charters Commissions Proclamations Grants Warrants Writts and Commandments whether they be legal and to Cancell and repeale them that be illegal or mischievous and onerous to the subject not only without but against his consent It is lawful for the people submitting themselves to prescribe the King and his successors what Laws they please the Sheriffs of every County were antiently elected by the Freeholders and had power to raise the Militia that the Navy Ammunition Armes and Revenue of the King though they be in his possession are the Kingdoms That Kings and their great Officers Counsellors and Justices were at the first created and elected by the people that the King hath an absolute Negative voice in the passing of Bills of common right and Justice for the publique good that the Parliaments present necessary defensive war is just and lawfull both in point of Law Divinity and Conscience and no Treason or Rebellion the Parliament hath a right and Jurisdiction to impose Taxes and Contributions upon the subjects for defence of the King in case of the King his wilfull absence or Arming against them Seconded by a Book entituled Lex Rex written as believed by one Rutherford a Scottish Divine Printed at London by John Field and published in the year 1644. By the then usurped authority wherein he falsly endeavoured to maintaine against all the grounds and fundamentals of Law and Religion That Kings and their Families have no calling to the Crown but only by the people Royalty is not transmitted from Father to Son if the people may limit the King they give him the power who is the servant of the people both objectively and subjectively and is inferiour unto them who cannot make away their power but do retain the fountain power of making a King that to swear non self preservation and to swear self Murther is all one The King is a Fiduciary Life-Renter not a Lord or Heritor the conscience of the people is immediately subordinate to God not to the King mediatly or immediately the Judges are the immediate Vicars of God not of the King The Parliament hath more power then the King The Crown is the Patrimony of the Kingdom not of him who is King or of his Father The Parliament
THE Ancient Legal Fundamental and Necessary Rights OF Courts of Justice In their Writs of Capias Arrests and Process of Outlary And the Illegality many mischiefs and Inconveniences which may arrive to the People of England by the Proposals tendred to His Majesty and the High Court of Parliament for the abolishing of that old and better way and method of Justice and the establishing of a new by peremptory Summons and Citations in Actions of Debt By Fabian Philipps Esq Antonius Matheus in Praefat ad Lib de Auctâ—onibus Arduum est vetustis novitatem dare novis Autoritatem Dira per incantum Serpunt Contagia vulgus LONDON Printed for Christopher Wilkinson and are to be sold at his Shop at the Sign of the Black Boy in Fleet-street over against St. Dunstans Church 1676. The Contents of the Chapters Chap. 1. THe many mischiefs and inconveniences which may happen by an Act of Parliament if obtained for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired Chap. 2. That the most part of that desired Innovation was borrowed from Mr. Elsliot's wicked Invention and a wild Systeme not long after framed and from some also now much disused part of the Civil Laws Chap. 3. The reason and necessity of the more frequent use of Writs of Arrest and Vtlary then was before the Statute of 25 E. 3. cap. 17. Chap. 4. The Ancient use as well as necessity of the Process of Arrest and Outlawry in this and other Nations Chap. 5. The Process of Arrest and Vtlary are a more gentle way of compelling men to pay their Debts or appear in Courts of Justice then that which was formerly used Chap. 6. The delays and inconveniences of the Process of Summons Pone distringas were a great if not the only cause of the disuse thereof Chap. 7. The Writs and Process of Arrest and Outlawry have increased preserved and encouraged Trade better secured the Creditors Debts and made the borrowing of Money more easie then it was before Chap. 8. The pawn and ingagement of the Body is most commonly a better security then Lands or personal Estate upon which the borrowing of Money was not only very troublesome but difficult Chap. 9. The difference betwixt borrowing of Money upon Lands and real Estate and the procuring of it upon personal security and that without trust and personal security Trade cannot well or at all subsist Chap. 10. The way of Capias and Arrest is no oppression or tyranny exercised upon the people since the making of the Statute of 25 E. 3. cap. 17. or hath been hitherto or may be destructive to their Liberties Chap. 11. That the wisest of the Grecian Commonwealths Athens and Sparta those great contenders for Liberty and preservers of it did in their establishments and methods of Justice neither understand or suspect any Tyranny or oppression to be in the necessary and modâ—rate use of the Process of Arrest Chap. 12. The troubles and seditions of the people of Rome concerning the whippings scourging selling for Bond-slaves and other cruelties used by Creditors in the suing and prosecution for their Debts and the troubles and endeavours of the Magistrates and Senators to appease them Chap. 13. That their Order made to pacifie a tumult was not perpetual or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restraints of their persons until they appeared in Courts of Justice or gave bayl to do it Chap. 14. That the Statute of 25 E. 3. cap. 17. which giveth Process of Capias and Exigent in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliament of 28 E. 3. or 42 E. 3. cap. 1. there being no inconvenience or prejudice to the Publique good in those kind of Law proceedings which might deserve a repeal by those or any other Acts of Parliament Chap. 15. That the Nation hath not been base or slavish ever since the making of the said Act of Parliament of 25 E. 3. cap. 17. Chap. 16. An examination of the Opinions of Sir Edward Coke in his report of Sir William Herberts Case touching the Process of Arrest used in our Laws and the many Errors appearing in that Book or Manuscript called the Mirrour of Justice and the fictitious matters and relations mentioned therein Chap. 17. That the late incessant needless complaints against our Laws and the proceedings in our Courts of Justice had in the bottom of it a design of overturning Monarchy and Government and to create Offices places imployments and profits to the contrivers thereof and their party Chap. 18. That neither Oliver Cromwell or his Son Richard the second Mock-Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever-changing kind of Reformations Chap. 19. What occasioned the contrivance of the former Projects and groundless Complaints against our Laws since his Majesties happy Restauration Chap. 20. That the Proceedings at the Common Law desired by the new way of a peremptory Summons or the old by Writs of Summons Pone Distringas or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable one with the other and that Laws being to be binding are to be certain and positive not arbitrary Chap. 21. That it will not be for the Interest of the King and his people to give way to that Design which may open a passage to other Innovations and Contrivances as much if not more inconvenient and prejudicial CHAP. I. The many mischiefs and inconveniences which may happen by an Act of Parliament to be made for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired THe Suggestions and that which should be the Causes or inducements to such an Act of Parliament are greatly mistaken or if there happen any such Evils as are pretended they are Raro Contingentia and do but seldom happen And when they do arise have their originals from other Causes but not from Arrests in Actions of Debt which by the shortest account are and have been of 374. years continuance by order and approbation of many Acts of Parliament but may be demonstrated to have been of a far greater Age and equal to that of the Eldest Court or Method of Justice in this or any other civilized Nation in the world The mischances happening by two or three Bailiffs in 20. or 30 jears killed most commonly upon the score of their own provocation rudeness and misdemeanors are when they do so happen in the unruly Suburbs of London towards Westminster for in the other too vast extent of them an Age or Century is scarce able to furnish out one of those evil accidents And within the City of London where Credit seems to be the Life and
Soul of Trade and their growing and already gained Riches there may be reckoned in their two Sheriffs Courts twice every week in the Year holden no less than two hundred Actions and Arrests weekly entered and made upon Debts which makes no more disturbance than a quiet putting in of Bail which secures the Debt more than it was before And in all the Counties Cities and Corporations of England and Wales as well as in the City of London the death of a Bailiff Serjeant at Mace or Catchpole is not to be found in the remembrance of the most aged persons And the Writs and Records of the Courts of Westminster from which very many Writs and Proces do Issue and are to be returned into cannot shew any frequency of Writs of Rescues or any assaults made upon the Sheriffs or their Bayliffs in the Execution of them And if the Proposers of this Bill and great Alteration of the Laws will not think themselves to be prejudiced if they should speak according to the Truth and what every man upon the visible evidence of demonstration and Records may rationally believe It cannot be denied but if there be in one County or City two Thousand Writs or Actions of Debt made out in a year to Arrest not above five hundred of them do proceed or come to Appearance and that of that five hundred unagreed there are scarce half of them that are declared against or make any defence and not half of that half ever come to be tryed and that those do also most commonly come to an end or determination Where there is no Demurrers or matters of difficulty in Law or peevishness in some of the parties to occasion the contrary within less than a third Term that many thousands of Actions are both in the Superior courts at Westminster and the Country and hundred court Barons and the inferior Courts determined within a few days weeks or months very many in a quarter of a year and those that remain uncompounded and undispatched do not survive the contention or trouble of half a year after the Suit commenced or begun So that all things considered if the Laws and Praxis in Scotland France Spain Germany Italy Holland Brabant and all the other Kingdoms and Provinces of the Christian world civil and municipal shall be rightly compared with our more happy less troublesome and chargable they will not be found to afford to their people such a quick dispatch of Justice adaequate and ready way unto it as ours have done and will always do if they be not turned out of their old course and channel By an Invention now proposed which will be as illegal as unparallel'd and hath no other precedent or pattern then that late way of proceeding in Actions of Ejectment hatched in the leveling or Oliverian times and hath then and ever since amongst knowing and good men gained no better an esteem then that of a publick grievance and a monstrum horrendum informe ingens cui lumen ademptum spawned and bred up in a Rebellion when Monarchy was Banished and the word of God and Laws of the Land were shamefully and as much as they could be misused For that there is an absurdity confusion and Hysteron Proteron in it putting the Cart before the Horse and making a Declaration which should be after a summons Executed and Appearance entred to precede the Appearance and at the same time go along with the Summons with a prefixion but from one Terme to the next which betwixt Easter and Trinity Terme being but with an Interval of seventeen days Sundays not excepted will be too short peremptory and prejudicial to Defendants and in the Lent Vacation which is commonly three Months and the Summer Vacation which is never less than 15 weeks and sometimes longer may be as inconvenient to Plaintiffs who by the ancient and more legal prefixions with the small distance of time of 15 days from return to return in the Term time might sooner have recovered their Debts appoints no Tryal by Juries nor declares by what certain Authority or Court the Summons shall be made whether by the Parties Plaintiffs or otherwise and gives a promiscuous Conusance of Pleas to all the Courts of Law at Westminster when as all but the court of Common Pleas some cases of priviledge excepted have by our ancient Laws and Magna Charta no jurisdiction or right therein Makes the Summons for a time to come to falsifie the Declaration if at the same time deliver'd with it to suppose it to be already made and the Declaration which supposeth it to be already made and is and ought to be a copy of the Record in the Court wherein the Action is pretended to be laid and intended to be Tryed to say he was Summoned when he was not the Fieri to be a Factum and the future to be a past or present and will create some contradictions when the injured defendant shall come to wage his law make Affidavit of a non Summons or bring his action for damages sustained by a false Affidavit or returne And will be sure enough to produce as necessary effects of causes very many not easie to be altogether foreseen or enumerated mischeifs and inconveniences Overturn and mutilate all our fundamental Laws upon which the Monarchy of England the best of Governments and less arbitrary in the world and the Justice of our Nation have for above one Thousand years been built and established and cut and canton both it and our well tempered Monarchy into little pieces and bring them as near as may be to an unhappy Republique which will neither fit or be for the good of the Nation Deform or almost annihilate our long approved Courts of Justice at Westminster by taking away a great part of the Process and excellent Formes and Proceedings thereof as Adonizebek is said to have done to his Captive Kings when he did cut off their Thumbs and great Toes destroy a great part of the Kings Prerogative which limited and bounded by our Laws and our Kings and Princes Concessions is no more than his just and necessary means of Government and in and by his High court of Chancery superintends over all the Courts of Justice in the Kingdom And as to the Law and Latine part of it and granting out of Writs remedial under his Teste meipso will appear to be a Court as antient as the reason and civility of the Nation from which all the other Courts of Westminster-Hall Country-courts Sheriffs Turns Court-Leets and Baron and all other Courts inferior in the Realm may truly be said to have their beginning the Matrix or Womb of all our Fundamental Laws either before or since Magna Charta which had its birth and being from it the Repository under the King in the absence of Parliaments of Justice in all cases where an appeal to the King or Parliament or the helps of Parliament shall be necessary the Custome of the Nation
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
Arrest do put a period to many suits before the persons be attached and before apparance for that as a man will give all for his Life so he will do much for his Liberty and when men will either not regard a Summons or delay to give satisfaction or an apparance they will make a great deal more hast to prevent an arrest Debtors are several times or often called upon by their Creditors which is asmuch as a Summons made without a Legal Officer but yet neither that nor a VVrit of summons doth drive the most of them to any care of payment until the Process of Arrest do issue forth which is more compulsory and will be sure to prove a more speedy remedy for the Creditors then the way of Summons And a large and long experience consensu rectae rationis totius antiquitatis and many ages will evidence that the benefit of the process of arrest hath been very great to this Nation and that the care and wisdom of several Statutes and acts of Parliament who have always provided for the publick before the private universals before particulars believed certainties before incertainties and long and never failing experiences before remote probabilities and have from time to time given a larger extent unto it then before it had may tell us that for many ages past it hath been the best remedie for the people to recover their debts and to compose other differences that our forefathers in some hundreds of years last past could devise And that to give the force of an Utlary after Judgment in a few days upon such a peremptory summons betwixt the tearmes of Easter and Trinity and in the longer intervals betwixt the other termes doth scarcly allow half the time which our Laws thought reasonable and fit to the bringing of a man to be outlawed which for its rigour and severity was not by Law as Bracton saith to be over hastened but to be after three Writs of Capias returned non est inventus and eight several contempts more Will settle upon the plaintiff a libertie appropriated only to a special Capias utlagatum to take both body and goods at one time which the Law where the body is first taken although the Lands and Goods of the Debtors unless in cases of extents upon Statute Merchant or of the staple and Utlary be otherwise sufficient to answer the debts will not condiscend unto When unless it could be probable possible or Imaginable which a large proportion of melancholy can hardly do that a personal estate in goods money or Chattels in the debtors house or shop could be allways ready and enough to pay that and all other his debts and the King were no Creditor for his debts are to be first satisfied there must where a Man owes one thousand Pounds to ten several Creditors of one hundred pounds a piece and hath but one hundred pounds in estate towards the satisfaction of those several debts and one of the ten Creditors hath out run the other seiz'd it be a necessity of a nihil habet to be returned the severest Plaintiffs must against their wills be constrained to forsake the By-ways of this new kind of summons and make what hast they can with some repentance into the bargain to return out of them into the plain roads and high-way of arresting the Body or where there is a haste of the getting in the mony or there is a suspitio fugae or his insufficiency or a necessity which may often be the case to outlaw a fugitive or invisible debtor not easy to be taken or come at Bonds given to the Sheriffs or spetial Bayle before Judges so many times necessary according to the old usage and customs of our Laws Courts of Justice fortifying many a debt will by this new course of proceeding be no more to be hoped for or insisted upon by the Creditor or Plaintiff who will be put in a worse condition then they were before and where upon some doubt or mistrust of the debtor or his Estate he might have had two more sureties or Strings to his Bow then he had before that the Deft should answer the Action or yield his body to Prison must now be content with what he did not like when by an arrest he might have had a better security Instruct or give warning in a Lent or Summer Vacation to an insolvent or suspected debtor to convey away himself goods or estate and by such an unmerciful way of Process and proceedings will not seldom incumber and ruine their debts and debtors as many cruel creditors in the times of a more gentle and Christian way of process have done to the great loss of themselves as well as others for want of a competent prudence and patience Occasion multiply and increase perjuries which are already too frequent and in fashion And therefore when all is done and some scores of good Acts of Parliament without repeal or any mention of them and many a lawful reasonable and useful custom and course of the Courts of Justice of this Kingdom shall be run over to prepare a way for this innovation which if it be well inspected and considered and put in the Ballance of Law and right Reason against the old and that he or his posterity that is now a Plaintiff may be hereafter defendants will certainly appeare to be much lighter than the old which is the better and more experimented and not only to be very destructive to the design held forth and benefits expected by it but very disproportionable to the publick good the Laws Liberties of the people CHAP. II. That the most part of that desired Innovation was borrowed from the said Mr. Elsliots wicked invention and a wild System not long after framed and from some also now much disused part of the Civil Law ANd the promoters of the petarre invention to blow up the Estates and better part of the People for Usurers Brokers oppressors and such as grind and devour the languishing and wanting part of them are not like to be malignant to such a profitable engine for their purposes when they shall have made their accompt with God and Man for bringing such a desolation upon their fellow-subjects for some selfended intrests Will bring themselves and all to this conclusion that the most part of it was taken from Mr. Elsliots wicked invention and another part of it framed out of a wild System not long after thrown amongst a disaffected party of the People to infect those who were mad enough before and that the little colour and glimmering of reason that seems to keep them company was borrowed from a now much disused part of the Civil Law that in cases of contumacy the Judge after a citation served and disobeyed did mitteâ—e Actorem in possessionem bonorum And that even in that Custom of the Civil Law these Innovators did not consider as they might that such a citation publick
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
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
should in such a case have a Writ de ldempuitate nominis as had been in time past And in the 38th year of that Kings Reign whereas many People were grieved and Attached by their body in the City of London at the Suit of the People of the same City surmising to them that they be Debtors and that they Prove by their Papers whereas they have no Deed or Tally It was assented that men may wage their Law upon Debts due upon such Papers And the Right use of that Act of Parliament of 25. F. 3. cap 17. did from time to time receive its Allowance and Approbation by several Acts of Parliament made by our Kings and Princes from the makeing of that Act until that never to be enough deplored infatuation and unruly Giddiness of a rebellious part of the Nation betwixt the year 1641 and his Majesties happy return in the year 1660. As by an Act of Parliament made in the first year of the Reign of King Richard the 2 it was enacted that Prisoner upon judgments given in any of the Kings Courtss of Justice should not be suffered to go at large that a fained confession of a Debt due to the King should not delay anothers Execution And that Priests should not be arrested doing Divine service And in the second year of that Kings Reign being but about 27 years after the making of that Statute of 25 E. the 3. to proceed to Utlary by way of Capias in Actions of Debt Robert de Hauley Esquire being Arrested upon an Action of Debt and upon his Escape pursued into Westminstar Abby Church where he took Sanctuary was in a Tumult in the Church Slain at the High Altar when the Priest was Singing high Mass and the offence and breach of Priviledg as it was then pretended to be complained of in Parliament by the Arch Bishop of Canterbury and the rest of the Prelates and Clergy who prayed that due Satisfaction and amends might be made of so Horrible a fact It was opposed by the Lords and Commons who Vouched records and called to witness the Justices and others that were Learned in the Laws of the Land that in the Church of England It hath not been accustomed that the offenders flying to a Church ought to have Immunity for Debt or Trespas or other cause whatsoever except for crime only and certain Doctors of Divinity Canon and Civil Laws being thereupon examined and sworn before the King himself to speak the plain truth said upon mature and sound deliberation that in case of Debt account or Trespass where a man is not to loose Life or Member no man ought to have Immunity in holy Church and said further in very high expressions that God saving his perfection and the Pope saving his holiness nor any King or Prince can grant such a Priveledge and that if the King should grant such a one the Church which is and ought to be favoured and nourished ought not to accept of it whereof offence or occasion of offence may arise for it is a Sin and occasion of offence saith the Record to delay a man willingly from his Debt or the just recovery of the same And so little did that great affray complaint of a then Powerful Clergy for that breach of Priveledge the trouble of the King and Parliament therein perswade our forefathers to any dislike of the way of proceedings by way of arrest by Capias or Utlary thereupon as at another Parliament holden in the same year for the avoiding of debtors withdrawing themselves and Flying into Places of Churches Priviledged It was ordained by the King upon the Petition of the Commons in Parliament that in such cases after the Creditor had brought an Action of debt and procured a Capias to be thereupon awarded and the Sheriff returned that he could not take the defendant because of places of Priviledge another Writ should be made with Proclamation to be made at the gate of such Priviledged place by five Weeks continually every Week once that such person render himself And the Succeeding Kings were so careful not to suffer particular grievances to disappoint the effects of good Laws made for the generality of the People As by a Statute made in the first year of the Reign of King Henry the fifth it was ordained that in every original Writ of Actions personal upon which an Exigend shall be awarded the names of the defendants and their additions shall be mentioned And by another made in the 7th year of the said Kings Reign upon the Petition of the Commons as the Statute witnesseth like process for the common profit of the Realm saith the preamble of that Statute shall be had in Writs of forging of Charters or evidences by Capias and Exigend as in Trespass By a Statute made in the 23 year of the Reign of King Henry the sixth Sheriffs shall take Bonds securities or sureties for the appearance of such as be Arrested except upon Writs of Execution Capias utlegatum or excommunicatum By a Statute made in the 19th Year of the Reign of King Henry the 7th because there have been great delays saith the Preamble of that Act like Process is given in Actions of the Case as in Actions of Trespas or debt By an Act of Parliament made in the sixth year of the Reign of King Henry the eighth Proclamation shall be awarded to give notice unto him that dwelling in one County shall be sued to an Exigend in another By a Statute or Act of Parliament made in the three and twentith year of his Reign because there are many delays in Actions of Annuity for that Process of Utlary saith that Act doth not lie like Process was granted by the King in Writs of Annuity as was formerly used in accompt Writs of Capias Exigent and Outlawry were allowed in Wales by a Statute made in the 34th year of the Reign of the aforesaid King And two several Statutes the one made in the 1. year and the other in the 5th year of King Edward the 6th taking notice that for want of such Proclamations many of the persons Inhabiting in Wales Lancashire Cheshire or Chester were without knowledg or cause of Suit wrongfully and unjustly Outlawed to their utter undoing did without abrogating the Right use of the proces of Utlary ordain that upon every Writ of Exigend against any Persons Inhabiting in every of the said Counties or Places Proclamations shall be made and awarded directed to the Sheriffs of the several Counties where the defendants inhabit do give notice thereof By an Act of Parliament made in the fifth year of the Reign of Queen Elizabeth three several VVrits of of Capias with Proclamations with the Penaltie of 20l a time shall be awarded against an Excommunicate person that cannot be taken by the Sheriff upon the Writ of Capias excommunicatum granted out of the Chancery By a Statute
made in the eighth year of her Reign for that many of their malicious minds and without any just cause did procure divers of the Queens Subjects to be Arrested it was enacted that the defendants should recover their costs and damages where the Plaintiffs doe delay discontinue their Suits or be non Suited And by an Act of Parliament made in the one and thirtieth year of her Reign it was for the avoiding of secret outlawries in Actions personal ordained that upon every Writ of exigend awarded against any person three several Proclamations shall be made by the Sheriff of the County or place where such defendant inhabiteth first at the County Court the second at the Quarter Sessions and the third at the Church dore of the Parish where such Person inhabiteth And the like to be done in the County Palatine of Durham where as the Statute saith many men have without knowledge been outlawed to their utter undoings if some speedy remedy be the sooner provided but those misdoings were not not then accompted to be sufficient to bereave a Multitude or far greater number of the people of the good which they received by the process of Utlary By an Act of Parliament made in the three and fortieth year of Her Reign the procurers or makers of any Warrant to Summon Arrest or Attach any Person by his or their Body or Goods to appear in any of her Majesties Courts of Justice not having before an original Writ or Process to warrant the same shall be Imprisoned without Bail or mainprise and not be delivered until he shall have paid 10l to the Partie grieved besides his Costs and Damages and 20l. a peice for their offences to her Majestie her Heirs and Successors By an Act of Parliament made in the 21th year of the Reign of King James the Lands of him which Dieth in Execution shall be Chargeable with the Debt By an Act of Parliament made in the 13th year of his now Majesties reign reciting that by the antient and fundamental Laws of this Realm where any Person is Sued Impleaded or Arrested by any Writ Bill or Proces Issuing out of any his Majesties Courts of Record at Westminster at the Suit of any Common Person the true cause of Action ought to be set forth and particularly expressed It was ordained that where the true cause or certainty of Action is not expressed in any such VVrit Bill or Process the Sheriff shall take no greater Bond for any Defendants Appearance thereunto then of the Penalty of Forty Pounds Which in such a length of time and approbation of many Statutes and Acts of Parliament and of our Judges in Courts of Justice in the awarding and allowance of such kind of Writs and Process which as the Rolls and Records of the Court of Common Pleas in the 17th year of the Reign of Edw. the 2 and of former Kings Reigns do declare were not granted of Course as for the ease of the People they have been in later times by sworn and experienced officers but upon grave and deliberate advice upon Petitions or motions to the Judges and the names sometimes of the Chief Justice and at other times of the particular puisne Judge that granted them mentioned in the latter ends of the Entries thereof might if there had been no Vestigia or track of the necessary Process of Arrest to compel men to appear in Courts of Justice to be found a multis retro seculis ex longissima experientia observata in almost all the foregoing ages and wisdom of the Auntients abundantly serve to recal that humour or desire of novel experiments or imposing or practising upon our Laws and Liberties and conduct those Sons of Innovation to a better obedience and veneration of our Laws rules of right reason and necessity of maintaining the indispensable Antient Legal power and Authority of Justice in the blessings of that which we have already received and may hereafter receive by its due administration if we do not give entertainment unto the wild proposalls of those who in their plenty of Ignorance Obstinacy and Interest would have they know not what And bring upon the Nation and themselves and posterities the many sad effects and consequences it will produce and may give them to understand that having such a small assureance of an Infallibility they may do better to stop the Carrere of their so causeless prejudice against the Process of Capias and Arrest and observe what their Neighbour and other Nations have adjudged to be very necessary and unavoidable in their proceedings in Courts of Justice upon personal Actions Who have not so lost or forsaken the Antient Customes and Pathes of their Fore-Fathers but that the same or very like what is and hath been so long in use amongst us may be seen amongst many of the most civilized of them and was so early in the World as it seemes saith John Oldendorpius to be deduced from the Laws of God and Nature Right reason and necessity By an Edict or Law of Theodorico King or Emperour of the Gothes made in the year of our Lord God 497 Arrests of the Bodies of Defendants were allowed to be made By a Constitution of Charlemaigne whose dominion extended over the greatest part of Europe made about the year of our Lord God 780. the houses of those that with-held their Tythes were to be seized and if they opposed and presumed to enter again of their own authority the Ministers of the Common-wealth were to put them in Custody In the Empire of Germany more especially in famous Mart Towns and Imperial Cities as Frankford upon the Mayn Lipsich Norinberg c. saith John Koppen in Rangensdorff Chief Councellor to the Elector of Brandenburgh Arrests for Debt are frequently made and the Debtors Imprisoned and this saith he a vetustissimis Romanorum legibus originem sumpsit had it's begining from the most Antient Roman Laws a Clark in holy Orders and likely to run away a Debtor that hath no Land or is likely to remove away his Goods is a Prodigal or contumatious refuseth to appear and cannot give Sureties may by the Laws and practice of those Countries Jure Saxonico be Arrested and taken In Poland he that will not or cannot give Bayl to answer the Action is arrested In Russia when any of the officers of the Courts of justice do come to a Defendant if he give not Bayl he is to be detained in Custody In Geneva upon a return or Certificate that the Defendant hath nothing he is arrested The like course of Arrest and compelling of men to appear in Judgment is and hath been long ago practised in the Kingdomes of France Spain Hungary Scotland and in the Dukedom of Savoy and many other Places who do think that they have a great deal of Liberty as the Common-wealths of Venice Holland and the united Provinces the Hanse Towns Switzerland and Genoa
c. And in New England whether the ignorant and mistaken consciences of many having carried diverse of our People where they would make their own Laws and be independent of the government of this Kingdom from whence they came they do notwithstanding Not want it where for the better expedition and execution of Justice as the words of their Laws are they do ordain that every Court of Justice shall have Ministers of Justice to attach and fetch and set Persons before the Magistrates And is likewise in practice in some Nations that are more remote and have only the light of Nature and some information of Reason to direct them as namely in the Region of Mallabor where if the Debtor do break his Day with his Creditor and often disappointed him he went to the principal of the Bramenes of whom receiving a Rod he goeth to the Debtor and making a Circle about him chargeth him in the name of the King and the Bramene not to depart from thence until he hath satisfied the Debt and if he do not he must Starve in the place for if he Depart the King will cause him to be executed And when that which hath been here so truly and Irrefragably asserted will never deserve to be thought a Postulatum conclusion or principle begged but is de facto apud multos de Jure apud omnes so done and practised by very many Nations and of right ought to be by all CHAP. V. The Process of Arrest and Vtlary are a more gentle way of compelling Men to pay their Debts or to appear in Courts of Justice then that which was formerly used EVery man that would entitle himself to any reason or not wilfully divorce or separate himself from the company thereof and shut out that light which the wisdom and practice of former Ages have tendred unto him may give way to so many cogent Arguments and acknowledge the course and way of our process of Arrest and Utlaries to be a more gentle way of proceeding in the doing and Execution of Justice then that of the forty stripes which in the most righteous Laws of God were in cases of controversie betwixt men ordered in none of the greatest sort of offences to be given to him who was condemned by the Judges then the taking away of the two Sons of the Widdow of one of the Sons of the Prophets by a Creditor to be Bondmen for their Fathers Debt the selling of a Debtor and his Wife and Children and all that he had by the Creditor in use amongst the Jews or taking them by the Throat saying Pay me what thou owest and Haling him to the Judge who cast him into Prison mentioned by our Saviour Christ the cutting of Insolvent Debtors in pieces after a Sentence and small limitation of time and giving every Creditor a piece learnt by the Romans from the Athenian and Grecian Laws but never put in practice for the cruelty thereof the Nexus and taking of Debtors prisoners by the Creditors own authority until they had by some good Laws been taught a less fierce and cruel way of recovering their Debts and keeping them bound in Chaines in their own houses the making the Children Slaves for their Fathers Debts by the People of Asia that large Quarter or fourth Part of the World and the like Customes used by the Athenians and Romans or the usage of the Longobards who if the Debt were not payed after the third time demanded did suffer the Creditor to pawn the Debtors Body or take by order of the King or Judge his Men or Maid-servants Prisoners or that of the Wisigothes the Spaniards Ancestors whose Laws ordained a penalty of three pounds of Gold to be payed by the Offendor or such as contemned the Kings Commaâ—d and Authority and if he were not able to pay it was to endure Quinquaginta Ictus Flagellorum Fifty lashes with a whip or of the Russians beating with Cudgels their Insolvent Debtors upon the Calves of their legs and bottoms of their feet or if the Debtor be poor set him under a Crucifix and cause the Plaintif to take his Oath over his head that his Debt is true which being done the Duke causeth the Defendant to be brought home to his house putteth him to labour or letteth him to hire until he be redeemed Or of the Aegyptians in not permitting the bodies of the Debtors to be buried but to be left as a pawn to their Creditors Donec Haeredes Aes alienum integrè solverent Until their Heirs or Executors paid the Debt and was so imitated by the Athenians the wisest Nation of the learned Greece as the brave Cimon was constrained to yield himself a Prisoner in Chains as the manner then was to the end that his glorious Father Miltiades who had deserved better of them dying a Prisoner for a Debt owing to the Publicque might be buried And by the Gothes and some other Nations under their large Dominions until by a Constitution of Theodorico King of the Gothes and some other Princes Tanquam inhumanum erudelitati proximum It was prohibited under severe penalties which in these times used to be more then threatned as Inhumane and too near bordering upon cruelty and is notwithstanding yet at this day used in some parts of the Lower Germany as Holstein Brunswich and Holland that great Monopoly as they think of Liberty when they do but dream of it for Debts or Money owing to private Persons Or not so rigid or uncompassionate as the way of prosecution for Debts is in the vast Empire of the Great Mogul where if the Debtor do not pay his Creditor according to the time limited by the Judge he is severely whipped and his Wife and Children sold for Slaves by the Creditor or the Merciles manner of poinding Horning or Outlary and Caption for Debts upon short and almost impossible prefixions used in Scotland When our Writs of Pone or Attachment by the favor and unwillingness of Sheriffs to execute the extremities and rigour of Writs and Proces of Law or their kindness procured by some other perswasions of rewards or power were in the moderation of our Laws and Courts of Justice which Canutus by his Laws desired to be ad Divinam Clementiam temperata not so exactly executed or the Defendant enforced to put in real Pledges and Security as formerly And the Distringasses have only small or little issues returned upon them nothing near amounting to the Rents and Proffits of the Lands Goods and Chattels of the Partie prosecuted betwixt the teste and return of the Writ And the Writs of Capias when made out are very often easily satisfied by an Attorneys undertaking to appear to the Action or if Bond be given to the Sheriffs by two Sureties for the Defendants appearance are not one in many hundreds enforced to give special Bail afterwards and if the
ends of Justice and those that seek it as it verifies and gives us the benefit and right use of that moderation and care of our Laws in that rule and maxime of it to threaten more then execute ut metus ad omnes poena ad pauco◠that the punishment of a few may operate as much as if all did partake thereof the affright being most commonly that which makes the suffering to be so disproportionate and less then what was necessarily or otherwise threatned For if four thousand Writs of Exigent be awarded and issued out of the Court of Common Pleas in the year 1674. which is very near an exact accompt taken thereof not much above one thousand of them do come to be returned filed or outlawed But the residue and those very many which are not are either stayed by Agreements or Retraxits and Complyance betwixt the Attorneys or in order to appearances upon new Originals without returning and filing the Writs of Exigent And may be taken to be no fancied Calculation when the number of all the Capias utlegatums special or general made by the Clark of the Outlaries in the year 1674. were no more then 1034. the Outlaries reversed no more then 27. And the Outlaries certified into the Exchequer no more then sixteen And all the Prisoners that were for Debt and other actions not Criminal in the Prison of the Kings Bench being the greatest in England and Wales either in the Prison or the Rules or abroad by Writs of Habeas Corpus the third day of May 1653. were under the hand of Sir John Lenthal Knight Marshal of the Court of Kings Bench with the several times of their Commitments certified upon the special order and command of the then miscalled Parliament to be no more then three hundred ninety one of which there appears to have been committed in the year 1616 but one In the year 1631-one In the year 1633 one In the year 1636 one In the year 1637-one In the year 1638-one In the year 1639-one In the year 1640 nine In the year 1641 five In the year 1642 two In the year 1643 three In the year 1644 four In the year 1645 seven In the year 1646 fourteen In the year 1647 fiveteen In the year 1648 twelve In the year 1649 fourty-six In the year 1650 thirty-two In the year 1651-fourty-one In the year 1652 one hundred thirty And in the year 1653 fourteen And it must needs then be a wonder and none of the smaller sort or size of wonders how or upon what ground cause or reason that so very ancient rational legal necessary and useful way of Capias Proces and Outlary derived and deduced from the Laws of God Nature and Nations should either deserve or come into so ill an opinion with some of the People or that it should be called or understood to be an Illegal Iron sharp and cruel Law a Tyranny thraldom mischief slavery lamentable bondage terror and sorrow of heart and utter ruin◠of the free born People of this Nation founded upon a misconstruction and inadvertency of the genuine sense of the Common Law it self and contrary to thirty Acts of Parliament made in Confirmation of Magna Charta or should be repealed by the Act of Parliament made in the 28th year of the Reign of King E. 3. ca. 3. and by the Statute of 42. E. 3. 〈◊〉 3. Or should now in its old age have no better a title then a grievance and those unjust Rabsheka railing reproaches when it hath been helpful to multitudes of men in several Ages cast upon it CHAP. X. The way of Capias and Arrest is no oppression or Tyranny exercised upon the People since the making of the Statute of 25 E. 3. ca. 17. or hath been hitherto or may be destructive to their liberties WHen as Tyranny in the known and general definition and understanding of it is a cruelty or power executed by one or more at pleasure contrary to Laws Divine and Humane and inconsistent with the Laws of that Place or Country wherein it is exercised For Laws do or at the least should intend to prohibit things unjust and to order things good and useful for that People and Nation unto which they are applied The intent of a virtuous and good Lawmaker being as Aristotle saith To make the People good and conduct them to virtue Or how it can be called Tyranny when it is no less then right reason which should be the Parent and Director of all Justice when as God himself the most just and rational Law-giver the Watch-man of Israel and the Keeper of the liberties thereof that gave unto Mankind a reasonable Soul and that great blessing of reason which is the Divini luminis radius A beam or ray of his own Excellency did in the Laws which he gave to Moses when he talked with him enact and ordain That if a man shall deliver unto his Neighbour money or stuff to keep and it be stoln and the Thief be not found the Master of the house shall be brought unto the Judges to see whether he hath put his hands upon his Neighbours Goods which was nothing less then an Arrest The Law of Nature that giveth every man leave and enjoyneth them to work rather then to be idle and want allows them not to hinder publick good or disturb the Rules of Civil Society and work within the City of London or the Liberties thereof if they be not thereunto authorized as Free-men of the said City or was it an oppression by an Act of Parliament as King Edward the 3. did in the 25th year of his Reign to limit Artificers Labourers and Servants wages or as Queen Elizabeth did by an Act of Parliament yet in force and unrepealed made in the 5th year of her Reign or when King Henry the 8th did limit the price of Victuals and Houshold Provisions by an Act of Parliament made in the 25th year of his Reign or an oppression of the People by Sumptuary Laws for Apparel made in his Reign and of his Daughter Queen Mary's which otherwise in a private man according to the bent and rules of Nature giving every one a liberty In rebus licitis non prohibitis in thing lawful not sinful and consistent with the Laws of publick good and Civil Society would have been within the freedom and dispose of his own will Neither do the People of Spain and Italy in their submission to a Banda or Rate imposed upon the Sellers of Victuals and Houshold Provisions or the Natives of France Spain and the elective Kingdom of Sweden think themselves to be too much or any thing at all abridged of their natural liberty by yielding for publick good a just obedience to their Sumptuary Laws lately made and ordained For there is no Law extant of this Nation so made but the Subjects might chuse to incur the penalty or hardship of it or if they should happen to be too severe or unfit
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
Terminer in causes within the City which being by the Dictator published to the People they were so joyful as they brought Camillus home to his house with great shouts of joy and clapping of hands and being the next morning assembled in the Town-house or Market-place decreed that the Temple of Concord should be built at the Common-wealth's charge that some Festival dayes should be solemnized and Sacrifices made unto the Gods in every Temple of the City to give them thanks and that the People should in token of joy wear Garlands upon their heads for this reconciliation About nine years after upon a new Sedition of choosing of Magistrates and for want of them an Interregnum happening the Commons lost their Consulship again and two of the Patricii began to govern who thinking to continue it as formerly in the Nobility had the trouble of another Sedition wherein the People after many stirs and meetings not prevailing two other Confuls of the Nobility were elected And though the Usury or rate of Interest was much abated yet the poorer sort of the People being over-charged with the payment of the principal became bound and thrall to their Creditors in so much as the Commons in regard of their private streights which they were driven unto never troubled their heads at all any more with the making of Consuls In the end of the next year after the contention betwixt the Senate and the Common People brake forth concerning the Election of the Consuls whereupon the Tribunes of the People stifly denyed to suffer any Assembly to be holden unless they might have one of the Consuls to be chosen out of the Commons according to the Law Licinian And the Dictator as stoutly bent to denye it the Election was adjourned and the Dictator leaving his Office the matter grew again to an Interregnum and the Interregents finding the Commons to be alwayes maliciously set against the Senators succeeded one after another until the Eleventh Interregnum when the discord and variance still continuing the Tribunes called on hard for the Law Licinia the Commons had an inward grief that struck nearer to them upon the excessive Usury that still increased and each mans private care and grievance brake out in their publick contentions and debates the Senate thereupon weary of such Troubles commanded L. Scipio the Interregent for the time being for concord and unity sake to observe the Law Licinia in the Election of the Confuls so as P. Valerius Publicola had joyned with him in fellowship of Government Cajus Martius Rutilius one of the Commons Who labouring to ease the matter of Usury being that which hindred the general agreement set a course to do it so as the long or old debts which were more intangled rather in regard of the Debtors slackness and negligence then want of ability the City out of the common Stock crossed them out of the Book by setting up certain Counters or Tables with ready coin in the publick Hall provided that good Security were given to the City by Sureties put in beforehand or else the Goods of Men valued at indifferent and reasonable prices were to discharge the Debts so as a great number of Debts without the complaint of either Party was satisfied and paid Two years after the Ancient possession saith Livy of the Consulship was restored to the Senators and about two years after that the Usury coming but to half so much as it was formerly the payment of Debts were dispenced and ordered to be paid in three years by even portions so as a fourth part were paid beforehand some of the Commons being for all that pinched therewith for that the Senate had more care to see Credit kept with the Chamber of the City then of the difficulties of private Persons which was the better born in regard of the forbearance to muster Souldiers and call for Tribute About seven years after that upon a mutiny of the Souldiers in the Camp a Law was published by a Tribune of the Commons that Usury should be made altogether unlawful and after many nnreasonable demands saith Livy the insurrection of the Souldiers who compelled their Commanders to march against the City was upon a Capitulation made as once before saith that learned Historian the Commons and a second time the Army had done with the Senate that their mutiny and insurrection should not be made use of to their danger or dishonour it was appeased About sixteen years after being three hundred and thirteen years before the Incarnation or coming of Christ Papirius Publius being bound for his Fathers Debt having consigned himself a Prisoner to the Creditor who supposing that he might abuse the young mans Body for Interest of his Money began to tempt him with fair words and promises afterwards to threaten him and when that would not serve commanded him to be stript naked and whipt whereupon the young man all wounded and torn ran forth into the Street and complained to all he met of the filthy lust and cruelty of the Creditor and thereupon a great company of People moved with the injury of the Usurer and pity of the young Man as also in regard of their own case and their Children gathered themselves into the Market-place or Town-hall and from thence towards the Senate-house and the Consuls being upon this suddain uproar Coacti saith Livy compelled to assemble the Senate the People as the Senators entred in the Senate-house lay prostrate at their feet as they passed by shewed the young mans back and sides whereupon the Consuls were commanded to propose to the People that from hence forward no person whatsoever unless guilty of matters Criminal or Trespas for noxa the word used there by Livy and Noxales actiones are by the Roman and Civil Laws and our Bracton also interpreted to be matters and actions of Trespas as well as greater crimes until he were condemned to punishment should be bound in Fetters or Chains and that the Goods of the Debtors not the Body should be obnoxious to the payment of the Money borrowed which might better be ordained there than with us or many other Nations for that the Romans by their Censors did keep publick Registers of every mans Lands Estate and Lands so they that were in Bondage became released and enlarged and order war taken for the time to come ne necterentur saith Livy that the Debtors should not hereafter be bound or chained in Prison Which if any shall misinterpret to be an absolute freedom of the Persons of the Debtors from Arrest the Roman Records and Histories will be againsâ— them CHAP. XIII That this Order made to pacifie a Tumult was not perpetual or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restrainte of their Persons till they appeared in Courts of Justice or gave Bail to do it FOr a Plebiscite or Law of the People it could not be for they were not
that the Praetor might execute his Office and Authority all the favour which Gracchus one of the Tribunes thought fit to do him was to decree that as touching the Sum wherein L. Scipio was condemned he would not be against it nor hinder the Praetor but that he might use his power according to his place and take it out of his Goods as far as they would stretch but would never consent that he who had subdued the mightiest Monarch of the world and extended the bounds of the Roman Empire as far as the utmost ends of the Earth should lye in Prison and Irons Besides how little that pretended Law gained by a Tumult prevailed against the Imprisonment of Men in Chains or Irons after Judgment in Debt or other Civil Actions or a bare Imprisonment without them plainly enough appears in the Customes and Usages of those times held forth in the Oration made by Publius Scipio Naâ—ica another of those famous Brothers made to the Tribuns of the People in the behalf of L. Scipio his Brother to keep him from going to Prison clearing up unto us the usage of those times notwithstanding that pretended Law for there we may find him saying That which cannot be made of the substance and Goods of L. Scipio they will make good on his Body So that it will be abundantly evident that all the before recited Tosses Commotions and Troubles of that grand Common-wealth of Rome and that People's humors and ignorance in that Popular Government which made them to be restless as the Waves of the Sea tormenting and inquieting themselves and their Magistracy which continued until that Republique had as Tacitus saith tired it self Civilibus discordiis and gained a rest from those publick disturbances in the Government and Monarchy of Augustus Caesar were more in regard of an horrid Usury their Debts and being constrained at the same time to pay Tributes Muster and fight for their Countrey then of their being imprisoned and more for the chains and cruel manner of Usage then for the Imprisonment it self or restraint of their liberty upon actions of Debt which without a renouncing of Justice and all the hopes and benefits thereof could not be forsaken And were therefore without the former severities of Bondage Chains and Fetters to be reckoned amongst the most necessary excellent rules of Justice void of all Tyranny And was so liked and approved by that conquering and great Nation as Hermodurus an Ephesian who had been Assistant to the Decem viri in the Interpretation of Solon's Laws had his Statue erected in the Forum or Place of Justice and were so continued commended to after Ages as in Tully's time which was almost four hundred years after the publick and universal consent of the People and their Magistrates gained and likewise after the pacification of the People's complaints of their burdens of Usury the merciless usage of the Creditors those Laws were had in so great a reputation veneration as that part of them de in Jus vocando constraining Men to appear in Courts of Justice was as he saith a Parvis learnt and sung by him and other Children and after that he came to be that great Orator and Lawyer whose just praises and commendation the many Ages since and a long course of time have taken a delight to remember could have no other opinion of those Laws then that if all the learning and Libraries of the World were searched those of the Twelve Tables Si quis legum fontes capita viderit auctoritatis pondere utilitatis ubertate superarent If any would enquire into their reason and original their authority and benefit considered they would appear to be the best of all Laws And were so generally by after Ages well liked as Ammianus Marcellinus long after speaking of them saith That Solon adjutus Aegypti Sacerdotum satis justo modetamine legibus Romano quoque Juri maximum addidit firmamentum By the just and equal Laws which he had made by the assistance of the Egyptian Priests was a great means of the establishing of the Roman Laws And if they could have been truly charged with any Tyranny or Oppression or so much as a Suspition of either of them that Law de in Jus vocando being a part of the Twelve Tables could not as well as the rest have gained as it did the constant approbation and good liking of the World and come as it hath done from generation to generation unto these our present Times And it is a thing not unworthy of observation and pertinent enough to be here remembred that the Romans abhorring the cruelty of the Diaco or Athenian Laws ordaining the Debtor after a Sentence or Judgment given against him and a certain number of dayes limited and a failer of payment to be cut in pieces and distributed to the Creditors which cruel Law saith Quintilian Mos publicus repudiâ—vit The kindness of Mankind one unto another could not endure to be put in Execution did in lieu thereof appoint a seisure or Execution against the Goods of the Debtors and that in the course and Process of Arrest It was by a Constitution of the Praetor or Lord Chief Justice ordained which unless in Cases of Writs of Outlary and where the Dores are not open is to this day observed in our Laws Ne quis ex domo sua in Jus vocari vel pertrahi posset That no man should be arrested or forcibly taken out of his House And the Civil or Caesarean Law when according to the Custom of some Countries in Towns or Places of Trade as in Holland and the Vnited Provinces Arrests in Actions of Debt were at the first not much accustomed where the Debtor hath a Domicilium or fixed Habitation doth not withstanding in the notion or interpretation of a Suspectus de fuga warranting a present incarcâ—rstion or Arrest of a Debtor if he be not a Free-holder or Man of a very visible Estate appear to be so willing at this day to gratifie and secure the fears and jealousies of Creditors avoid those Circulations Inconveniences Delayes which would otherwise happen if they should tarry as they do sometimes under that Law to receive the debate before a Judge whether the Debtor was a Free-holder likely to run away deserving to be arrested or to have his Body to be secured as it hath allowed no less then 20. Exceptions against a Debtors not being to be exempted from it viz. First That he hath no Free-hold or ability to pay the Debt 2. Is a Forreigner Incerti Laris or a Vagabond 3. Hath made his Estate to be notoriously worse then it was formerly 4. Accepit Pecunias sub gravibus Vsuris gave too great Interest or brocage to borrow Money 5. Keeps ill Company 6. Hath met with some great misfortune since his Debt contracted 7. Is a great Liar and Deceiver and suspected to be a Bankrupt 8.
be at the trouble hazard and charge of the experiments may do better to understand or if they cannot give leave to others to help them to understand That the purport intent and true proper and genuine signification of the words of our Magna Carta ca. 29th was to secure the People that the King might not take or imprison any Man Nisi per legale judicium parium suorum vel per legem terrae which if extended to the People in their affaires one with another and made to be as obligatory and binding unto them as it is and ought to be to the King can have no other just interpretation then what Sir Edward Coke hath given us in his Comment thereupon published after his death in the later end of March 1641. or the beginning of the year 1642. Which is saith he as the Statute of 37 E. 3. ca. 18. expoundeth it by due Proces of Law and what that kind of Process was hath been already determined and proved to be as well by Writs and Process of Arrest as by Summons Pone and Distress though the latter as the condition and course of the affairs of the Nation then stood was much more frequent and usual and it appeareth by that part of Magna Carta ca. 29. and the Exception therein that there was a Process or proceeding in Law besides the Legale Judicium or Trial by Peers or Jury and the Process where Defendants were not willing to come to Judgement and have their Controversies determined which but in very seldom Cases never was or is likely to be otherwise there was and will ever be a necessity of compelling them by Proces to appear in Judgment when they delayed or refused it For as the great and learned Grotius hath said upon another occasion The Liberties claimed from a Prince ought to be such as competere possint subditis might accord with his Superiority and their duty of Subjects for our so eager clamours of Liberty cannot certainly be so nayled to any of their extravagant opinions and desires as to induce them to think it either to be lawful rational or consistent with the Great Charter to deny the King or his subordinate Courts of Justice a power to Imprison any that shall be guilty of Contempt against His Person or Authority and to constrain them to appear in Judgment For the way which the Judges and Interpreters of our Laws have hitherto used in the Construction and understanding of Parliaments nothing appearing to the contrary hath been an Inquiry into the occasion and purport of them commonly expressed in the preambles and reason thereof and into the sense as well as the words of them for the preamble of an Act of Parliament saith Dyer sometimes Lord Chief Justice of the Court of Common Pleas is the Key to open the minds of the Makers of the Act and of the mischiefs which they did intend to remedy and a Man ought not to dwell upon the letter nor to think that when he hath the letter on his part that he hath the Law on his part say the Judges in the Resolution of the Case between Easton and Studde in regard that the rule in the expounding of Statutes is to search out the mind of the Law-makers what Construction they would have made of it if they were living And that Acts of Parliament ought to be understood by a reasonable Construction to be collected out of the words thereof according to the true intention and meaning of the Makers of the Act that Statutes in the affirmative do not regularly take away Statutes precedent in the affirmative unless in some special Cases and Statutes referring to other Statutes do not make any alteration in Law but unto the points unto which they do Refer nor doth a latter Act with Negative words say our Laws take away a former if it be not contrary in matter And the Parliaments of this Nation have alwayes taken care to use express and clear words of repealing any Statutes which they intended to Repeal by plain and certain mention thereof with the times wherein they were made sometimes repealed but a part of some former Acts by a new Act of Parliament and enlarged and proceeded further then the former Acts did extend unto as in the Act of Parliament concerning Servants and Artificers wages made in the fifth year of the Reign of Queen Elizabeth The words and meaning of the Statute 28 E. 3. ca. 3. being no more then That no man of what Estate or Condition that he be shall be put out of Land or Tenement nor taken nor imprisoned nor dis inherited nor put to death without being brought to answer by due Proces of the Law And in that of 42 E 3 ca. 1. It is assented and accorded that the great Charter and the Charter of the Forrest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none And being a confirmation in general of all the thirty-seven Points Articles or Chapters of Magna Carta granted in the Ninth year of the Reign of King Henry the Third some of which did concern the King in his profits did neither only intend that particular Chapter of Magna Carta ca. 29. to be made void or repealed or declare that what was done or to be done by lawful Judgment of Men by their Peers which could not be without some kind of Proces or proceedings then in use or that what was done or to be done by the Law of the Land should be repealed as contrary thereunto but did so not at all then intend to do it or to affirm the due Proces of the Law to be contrary unto Magna Carta either as to that twenty-nineth Chapter or to any other the Points Articles or Chapters of Magna Carta As that some of the People being at the time of the making of the said Act of Parliament of 42 E. 3. ca. 3. or not long before too busie in Arresting Imprisoning and vexing one another by false Accusations made to the King and his Councel that Chapter or Branch of 42 E. 3. ca. 3. was made for the redress thereof and for the good Government of the Commons as that Act doth import having these words To eschew the mischiefs and damage done by false Accusers which oftentimes have made their Accusations more for revenge and singular benefit then for the profit of the King or his People of which accused Persons some have been taken and sometimes caused to come before the Kings Councel by Writ and otherwise upon grievous pain against the Law It is assented and accorded That no Man be put to answer without presentment before the Justices or matter of Record or by due Proces or Writ original according to the old Law of the Land and if any thing from henceforth be done to the contrary it shall be void in the Law and holden for error Both of
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
of Debt if it had been a grievance or not understood as it ought to be a legal and necessary part of the Laws of the Land or have omitted so often and daily happening Concernments of themselves and their Posterity if they could have thought that way of Procesâ— and proceedings at Law either was or could have been a grievance when as they did then so much believe all the grievances of the Nation to be by that abundantly satisfactory Act of Parliament made upon that Petition of Right to be banished and their fears quieted as they caused publick rejoycings and Bon-fires to be made for it And if it had not been so understood by the Reverend and Learned Judges and Sages of the Law who were then in being and have been since entrusted with the Administration of Justice such Proces and proceedings would never certainly have been made when the Petition of Right prayed That in the things aforesaid all his Majesties Officers should serve him according to the Laws and Statutes of this Realm as they would tender the honour of His Majesty and prosperity of the Kingdom and the King in his answer thereunto and giving it the life and power of a Law did will that right should be done according to the Laws and Customes of the Realm and that the Statutes be put in Execution that His Subjects may have no cause to complain of any Wrong or Oppression contrary to their just Rights and Liberties For it must be a more then an ordinary Hypochondriacal Melancholy that can perswade any Man to think that if the Process of Arrest or Outlawry could by any foresight or prospect have been believed to have been either a grievance or illegal or any Seminary of ill Consequences that ever to be lamented unhappy Parliament begun in November 1640. would in that fatal Remonstrance of theirs published to the People the 15th day of December following wherein they were so willing to amass every thing that might but look like a grievance of the People and were so effascinated in their evil purposes as they crowded in amongst them many essentials and necessaries of Government have omitted such an important and often happening grievance if any could with any colour of Law or reason have believed it or that in the nineteen high and mighty Propositions sent by them unto him in June 1642. or in the Message or Committe of the Lords and Commons then remaining at Westminster sent unto him at Oxford in Anno 1643. by the Earl of Northumberland William Peirpont Esquire and others or in the Treaty and Propositions at Vxbridge for Peace betwixt the King and that misnamed Parliament in the year 1644. such a necessary if it had been thought to have been one should have been neglected or in the Message of the Lords and Commons in the then so called Parliament sent unto him when he was a Prisoner at Holimby in the year 1647. with propositions for Peace nothing should have been desired to prohibit Arrests but on the contrary an Act of Parliament was required for confirmation of all Customs Charters Liberties and Franchises of the City of London which for many hundred of years before had been approved Or that in the Bills and Propositions sent unto Him in the same year to the Isle of Wight when he was there a close Prisoner Or in an Act or Ordinance made by the Lord Major and Common Councel of London in the year 1660. for the better regulating of that Cities Courts at Guild-hall in which notice was taken of their ancient Customs and diverse abuses committed by Serjeants at Mace and their Yeomen in arresting of Men there should be no mention made of any original Grievances or Illegality by or in the Proces of Arrest nor any orders made or desired to be made against it Until therefore this invisible and untelligible repealing Act of the Statute of 25 E 3. ca. 17. shall be pleased to appear and shew it self the Founders of that fancy may do well to build no further upon it but silence their causeless out-cries against it And when such or the like imaginations shall offer themselves think rather that Acts of Parliament according to the advice and opinion of the Judges in Doctor Foster's case which have been established with so much solemnity wisdom gravity and universal consent for the good of the Weal publick ought not by any strained construction or ambiguous words if there had any been in any subsequent Act to be laid aside disused or abrogated and that doubtful aequivocal words if there had been any ought according to the rule in Gregories Case to be interpreted in the better and more likely sence And not trouble themselves as they have lately done for before the year 1640 and 1641. when Liberty ran mad and the Factious part of the People did too much read the Books of Plunder and Sequestration and admired the Models and Contrivances of Hugh Peters Huson the Cobler Pride the Drayman and every Mechanick and Tradesman and every Mercenary Red-coat Rebel-Souldier who would by his indigested conceptions be a Solon or Licurgus they did not to subvert as they endeavour'd to do our long experimented approved Laws Customs to make room for their own ungodly advantages and sordidly ignorant alterations and at the same time allow the Caption and Horning of that by them Conquered and once illegally Covenanting Scotland to be lawful Nor vex themselves and others as they have done with the Chymeras and phancies of that never to be found repealed Statute of 25 E. 3. cap. 17. and their so much mistaken Gorgons head and affrights of their Liberties being likely to be lost by that or other our Laws when our Laws and the due Execution thereof are and have been by our Kings and Princes and their just authority the only means under God to preserve them Or be so over-lavish in shooting their Bolts in undertaking to assert That England is impoverished more then a Million of Money Sterling every year by Sheriffs Bailiffs Serjeants Marshals-men Proces-makers Habeas Corpus Rules Writers c. As a late Anonimous Champion of those kind of Liberty mongers terms them for which he would decoy as many inconsiderate People as he could into an opinion and belief that the Creditor is not the better one Peny for it which is as impossible to be proved or be lieved as that Bears are enabled by Nature to fly and usually do it or that the Mountains of Mountains the Alpes those highest Hills of the Christian World do usually at every Jubile leap to Rome to obtain an Indulgence or Pardon from that Holy Father for being so high-minded And what ever far lesser Sum of Money those Officers Fees which as to the Process-makers are very small and dearly enough earned do amount unto yearly it will be very difficult for that Man of confidence whosoever he be to prove that none or very many of the Creditors did
not receive satisfaction of their Debts and charges or more then a Peny or were not the better for it for the Defendant where there is any ability to answer and pay them do most commonly bear the burden of them and that the Defendants Charges in a year do amount to a Million of Money Sterling or any such vast Sums of Money as his monstrous and incredibile guess bewixt sleeping and waking hath calculated it and will be as wide of any truth or probability as if he had said That he had in a Forreign Country seen two Phaenixes rosted and brought to eat in a dish and had been in a colder Climat where the extremity of cold was so great as the words spoken over night did freeze and were legibly to be read in the Air the next Morning And those Sons of Rapine who are so given to change and doe make it their business to hunt our Laws like the Ermyns for the booty of their skins may better employ their time in a sad and serious repentance of that dirt and many scandals which they have most injuriously flung upon them in throwing amongst the People those though foolish yet infectious tales and opinions that There are now ten thousand Men in Prison for Debt and that the Proces of Outlawry have done more mischief to the People of England then the Writs of Capias which neither he nor any other can ever prove to have been primarily or causally and per se guilty of it or then the Bills of Middlesex or Writs of latitat which must either be done in his humour or natural of telling rampant or impossible tales or on purpose to cast those legal Process and proceedings into an Odium or hatred and will appear to be as much misled by his ignorance as he was before in his overhasty Arithmeticque when he adventures to say that a noble Man by being outlawed is made incapable to sit in the house of Peers a Clergy-man may forfeit his Benefice or a Lawyer be made incapable of pleading at the Bar when our Laws do remember no such matters and a Noble man and Peer of Parliament cannot in any Civil action or ordinary Trespas by our Laws be outlawed and although some other Persons may by abuse or error happen to be outlawed when they should not be outlawed and by some evil accident never be able to find the Plaintiff or his Attorney whereby to recover his damages yet it is so seldom as it is very rare and our Laws as they did never undertake to prophesie or to have a prescience or certain knowledge of things to come so they never provided against raro contingentia things seldom happening or of little consequence neither can our or any other Laws be able at all times to prevent all the tricks and evil actions which the deceitfulness of mens hearts do too often put in practise And that nameless Author may upon his better acquaintance with our Laws inform himself and those for whom he so much busieth himself that if an Outlawry should as he surmiseth be indirectly gained the Court out of which it proceedeth do when discovered never fail severely to punish such an Offender and give what remedies they can unto those that do suffer by it and that there is a Statute which was made in the Tenth year of the Reign of King Henry the Sixth and renewed in the 18th year of the said Kings Reign yet unrepealed to prevent and remedy it And is as much out of the way when he saith That Tenures in Villenage were repealed by Act of Parliament when in the Parliament of the fifth year of the Reign of King Richard the Second the Manumissions of Villaines which had been extorted from that Kingby Wat Tiler and his rout of Rebels were declared to be void and the wearing out of that Tenure in the many Intestine Wars and Troubles of the Nation and the favour and indulgence of our later Kings and Princes and the Nobility and Gentry of this Kingdom is to be ascribed more thereunto and a desuetude length of time then unto any thing else which hath so washed many a jolly Gentleman that would be and Men of great Estates whose Extractions and Originals were at the first lodged in those Tenures in the Waters of Lethe and Oblivion as there are now very few or none to be found of them And is as little to be excused when he saith That the Mortmaines of Abbies were taken away by Acts of Parliament unless that he means by the total dissolution of them which hapned long after those Mortmaines and is as wide from the mark in his impertinent Accompt of the Money or profits of the Bishops Courts as he is of any proof or certainty that they are a burden and can hardly instance any one Attorney but certainly not many that hath in one Writ of Priviledge named or sued one hundred Defendants and held them to special Bail whereas such a vexation would have been remedied by an Appeal unto any Judge of the Court out of which such Writ issued who had by the Law a power in his discretion to order whether any special Bail should be given as the case required CHAP. XIV That the Nation hath not been base or slavish ever since the making of the said Act of Parliament of 25 E. 3. ca. 17. ANd is to prove when he can that many Men have languished to death for fear of an imprisonment for some one or few melancholick Persons may in their retirements sad apprehensions or multiplied fears have indangered their healths which makes not the Justice or Laws of the Nation to be any more guilty or cause of it or deserve to be abrogated Then the sacred Scripture is to be blamed for that some Persons have by the reading of it or hearing of it preached been so disturbed with an affright of conscience as they have been distracted or laid violent hands upon themselves Or that His late Majesty of glorious Memory if not mis-informed by the concealed Author of such frivolous feigned and false complaints or by some of his Proselites had so deep a sense of his Subjects sufferings by such Writs and Process as he intended the inlargement of Prisoners for Debt and the abolishing of all Arrests and Outlawries for the future by the then Parliament if he could have received any recompence for the remitting of all forfeitures and other profits arising to His Crown nor doth give us any evidence for such wild imaginations nor ever will be able to do it or that the Nation hath been base and slavish since the said Act of Parliament of 25 E. 3. ca. 17. and other Acts of Parliament since made which our Laws Records and Histories will abundantly confute and our Neighbour Nations envying our Glory Freedom Peace and Plenty may decry as an ingrateful and horrid falsity deserving to be had in everlasting detestation Unto which bundle of untruths and feaverish
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
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
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
general execution of the Laws as it is now practised is an oppression to the whole Nation that trivial and impertinent Suits are brought out of the Countries to Westminster and thereby all inferiour Courts are destroyed and proposed a publick Registry to be in every County of all Entails Mortgages and Statutes that before any cause or Action â—e entred in any Court or come before the Judges peace he offered by the Plaintiffs and that wise men be appointed to take up Controversies that all the Tithes and Glebe Lands with other things called Church-duties may be sold and a competent means provided for the Ministers of the Gospel In a Book entituled Englands safety in the Laws Supremacy and published in the year 1659 it was amongst other things required as a Law including the peopleâ— Liberties that no man be imprisoned for Debt but that all Estates real and personal be liable for discharge of Debts In the same year in a Pamphlet entituled the humble desires of a Free Subject it was desired that not any of the free people of the three Nations and Territories thereunto belonging should not be molested or imprisoned or have any violence offered to their persons but shall have full power and liberty to seek for their redress unto the Law and the Courts of Justice according to the ancient constitutions of the Laws of the three Nations In another owned by one Mr. James Freez entituled the outcry and just Appeal of the enslaved people of England to be delivered from the insupportable oppression of lawless yokes of misery it complains that thousands of people are ruined and robbed in their Estates Liberties and Lives by Arrests and Outlaries and prayeth that the Writs of Capias may be abolished and the imprisoned set free which would work the total downfall of Satans throne of Injustice cruelty and oppression even of the four Fairs kept in Westminster-hall by the ingrossers of pretended Justice where and by whom men are daily bought and sold in their Estates Rights and Liberties Some of the Inhabitants of Hull did petition that the Laws by which the Common-wealth is to be governed may be those holy just and righteous Laws of the great and wise God and declaring that the Nobility are the Pillars and Buttresses of Monarchy and Citadels of Pride and Tyranny ought to be only during life that the Divines the Lawyers and hereditary Nobility are irreconcilable Antagonists to a Free-State adviseth an Agrarian Law that the proportion of Lands be stinted and a rotation of all Offices and imployments that those which are capable may tast of rule as well as subjection In a Book called A Rod for the Lawyers they are called the grand robbers and deceivers of the Nation greedily devouring many millions of the peoples money and it alledgeth that there are in England Wales of Judges Lawyers Officers Clarks Attorneys and Solicitors above 30000 a quarter of that number at the largest reckoning being not to be found of them which admitting that each of them do get 250 l. per annum very many of them not getting 100 l. per annum many not 50 l. per annum and many not 10 l. per annum or so much as the Rag-gatherers in London-streets do who take it to be an ill week that yields them not 10 s. it will saith that Calculator amount unto seven millions and an half per annum besides the charges of riding to and from London whereas if ever there were such a number to be proved there are greater numbers of Carpenters and Smiths who do yearly gain as much as the smaller sort of the Law Profession do by their as necessary labours In a Declaration and Proclamation of the Army as they called themselves of God published in the same year they did declare and resolve by the help of God that there should be liberty of Conscience but not of Sin Godly Laws to be enthroned but not the Jews Judges to be in every City but not imposed Prison doors should be set open to let out Debtors to labour towards the payment of their Debts and look'd upon it as the voice of God calling upon them and giving them an opportunity and therefore desiring assistance in so great an enterprize by as many persons of note and ability as God hath made willing and able together with themselves to put in sufficient security for the performance thereof did intreat them to send in their names to Mr. Livewell Chapman Book-seller in Popes-head-alley by the Exchange who hath promised to keep them secret untill by sober and frequent meetings the matters may be digested fit to be presented to the Parliament and chief Officers of the Army Where if the Propositions do prove acceptable there will be a sum of 500000 l. ready towards performance of the same And in the Plea called the Armies Plea it is alledged that the peoples safety is the chief Soveraignty of all Laws Statutes Acts and Ordinances Covenants Engagements Promises Subscriptions Vows Oaths and all manner of obligations and expressions thereof and are only binding to the Publique safety and not to the persons of the Governours or forms of Government but with reference thereunto and as principles of truth and right reason brought to light by the late Parliament And one being willing to come on as fast as he could and keep company with those goodly assertions saith that it is not lopping the branches or cutting off the Top branch of Monarchy that will deliver a Nation from bondage unless the Axe be laid to the root thereof to the evil root of bitterness whence springs all our misery to the root of every usurping and domineering Interest whether in things Civil or Divine The number of Freeholders being much increased hath had a natural and strong tendency towards a Commonwealth no Government can be fix'd in this Nation but according to the Ballance of Land that Prince that is not able neither by his own or the publique Revenue in some measure to counterpoise if not over-ballance the greater part of the people must necessarily be Tenant at will Another in his Arguments and fancied Reasons against the office and title of Kingship published in the year aforesaid saith that the Office of a King makes way for an Act of resumption and the unsetling of mens Estates that the abolishing of Episcopacy and Peerage and the establishing of Liberty for Tender consciences were not the ground of the Wars for nothing appeared at the first but the Militia the Negative voice and the removing of Evil Counsel the other things were brought into the quarrel in the progress of the contest by an higher hand of providence then mans purpose One of the same company and School of contrivances desired publickly that no man should be imprisoned for Debt except such as are doubted to be running away and then not above three days and to be maintained by the Plaintiff at 3 s. a day in the mean time In a
happen consequences hunted to death upon a supposition of subverting the Laws when if it had been either possible or true it could upon an Accumulation of all â—his pretended Crimes have extended no farther then an endeavour to subvert one of our Fundamental Laws may be their own Judges convict and justly condemn themselves for unpardonable faults in seeking to subvert so many of our Fundamental Laws uno Ictu with one stroke and at once which they themselves â—ave sworn to maintain and defend Notwithstanding all which Oliver Cromwell did so well understaâ—d his own interest and single-personship CHAP. XVII That neither Oliver Cromwell or his Son Richard the second mock Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever changing kind of Refermations ANd that the administration of Justice was a great end and one of the principal parts of Government and remembred that the men of Westminster of which he was too great a member and director calling themselves after the murther of the King a Parliament did the 9th day of February 1648 declare that they were fully resolved to maintain and should and would uphold preserve and keep the Fundamental Laws of this Nation for and concerning the preservation of the lives properties and liberties of the people with all things incident thereunto and required all Judges Justices Sheriffs Officers and Ministers of Justice to proceed in their respective places and offices accordingly and did the 17th day of Marâ—h then next following declare That our Laws being duly executed are the most just free and equal of any other Laws in the world and that they were very sensible of the excellency great antiquity and equality of them and that the liberty property and peace of the Subjects were fully preserved by them did so little believe it to be for the good and honor of the Nation to hearken or yeild unto the product of those wind-mil giddy and vertiginous brains or by the perswasion of some idle and ridiculous Pamphlets written and contrived by such as would for their own advantages plow up the Laws and reasonable customes of the Kingdom to settle and set up a Weather-cock Government ridiculous to all other Nations as he did in his Speech to that which he called his Parliament upon his Dissolution of them the 12th day of September 1654. declare that in every Government there must be somewhat fundamental somewhat like a Magna Charta that should be unalterable that some things are Fundamentals which he should deal plainly with them may not be parted with but were to be delivered over to posterity else every succeeding Parliament would be disputing to change and alter the Government and we shall be as often brought into Confusion as we have Parliaments and he and his Parliaments in the time of his hypocritical Government did so little relish the taking away of the process of Arrest and Utlary as they ordered only prisoners to be discharged out of prison if they made Oath that they were not worth five pounds after their Debts paid and undertake to pay their Debts when they should be better enabled which to procure their liberty made many lustily to Forswear themselves and had no great cause to be in love with their pretended Reformations when the fiery Mr. John Jones of Nayoth was after his abusing and rayling upon our Laws found guilty of deceits and committed by them a prisoner to the Fleet. And when in the year 1653. or beginning of the next ensuing by an Act of Parliament had for the relief of Creditors constituted a Committee for London and the Suburbs thereof to sit at Salters-Hall and several other Committees in all the Counties of England and Wales and impowred them to be the only Judges though not Sworn to hear and determine matters of Debt and escape to fine for breach of trust and concealments imprison set at liberty remaund to prison adjudge to the Pillory or house of Correction grant lease or sell the Estates of the prisoners were to admit of no legal forms but proceed in a summary way and to be responsible to none but the Parliament and sell dead prisoners Estates as well as if they were living whether the Lands were Entailed or not It was upon complaint of some prisoners of Note and Worth alledged and offered to be proved that one of those kind of Judges at Salters-Hall having two Brothers practising before that Committee the one as a Solicitor and the other as a Councellor at Law would bring his party with him whisper unto his Fellow-Judges arise from the Bench and go and sit by the Clark and make the Orders as he pleased and liked those his doings so well as he was heard to say he did not doubt but to make his place worth 1000 l. per Annum unto him before he had done with it and might be in good hopes of it when besides those his ungodly Extraordinaries large Salaries were allowed to him and his Brethren of that Committee for their Sons and Agents and the gain which they and their Confederates might have by the sale or indirect purchase thereof in other mens names that Committee were to have distributed amongst them two pence in the pound upon the sale of any prisoners Lands or Estates The pretending Gospel-Improvers in South-wales had shut up most of the Churches and gathered in the mean time one hundred fifty thousand pounds into their private purses and therefore both Oliver and Richard Cromwel their Councel Parliaments did only receive those unquiet Innovators Petitions and as they did in the determining of what should be Incumbrances fit to be put into a publick Registry or the taking away of Tythes make a shew of intending great matters when they only hung them upon long delay 's and an everlasting deliberation never to be brought to any conclusion And our Laws having thus long fought with Beasts like St. Paul at Ephesus might by his Majesties happy Restauration have given them no small assurance that they should have deserved some rest and tranquility but it seems as the wrongs done unto them were unrepented so were their patience and sufferings to be prolonged And the professors of our or any other good Laws should not be so contemptible when that blessed Apostle could be no less than a Lawyer when he sate and had been Educated at the feet of Gamaliel and was afterwards by his Apostolical Office and great Endowments in all manner of Learning such a darling and beloved of God Almighty as he had in his life-time the inexpressible joyes and wonders of the Third Heaven communicated unto him when they were before and that time and long after in better Ages of such an esteem and usefulness amongst the wiser and better sort of man-kind as they were justly called Sacerdotes Justitiae Ministers that sacrificed for the
people at the Altars of Justice their Houses were as Oracles to which they came for councel and advice and were accounted to be Laudabile genus hominum a praise-worthy kind of men and being secular men did in Campo Justitiae tanquam Athletae militare as their Champions labour to obtain Justice for their Clients but those abusers of our Laws and Lawyers were too much in love with their projects to forsake them and like CHAP. XVIII What occasioned the continuance of the former Projects and groundless Complaints against our Laws since his Majesties happy Restauration THe Snakes had but cast their skins either for that the Fancies which had brooded in the heads of these troublers of our Israel had as lesae Imagiâ—nationes usually do in men opprest with Melancholly stuck so fast and brought them to such a habit or custom as they could not easily remove them or had a desire to maintain and uphold an heretofore contracted or espoused error or to add wrongs to wrongs least they whom they had so much abused should after seek to bring them under the censure and justice of those Laws which they had so much injured or were vexed that they had so unexpectedly lost their prey and the opportunities of building up again their Bethel where their Calves were well fed worshipped for their seditious bleatings and were the more emboldned by his Majesties over-easie pardoning the wickedest Rebellion that ever was hatched in Hell and permitting all but some few not only to enjoy all their former real Estates and all their personal Estates which had been gotten by Blood and the Rapine and Depraedation of all the honest people in his Three Kingdoms but to creep into most of the profitable Employments of the Kingdoms of England and Ireland which would better have been managed by his more honest and loyal Subjects eat the Childrens bread and get all that could be any wayes gained or cozened from them And too many of them have grown so impudent as to offer to palliate their wickedness by a base and senceless Equivocation to cover their Woolvish doings by the putting on of sheeps cloathing and make as many as could be so mad to believe it that they were always for the late King the Martyr and loved and honoured him as if those their great Armies that fought against him in the bloudy Battels at Edge-hill Marston-moor and Naseby took his Towns Castles and Garrisons Imprisoned and Murdered him were some invisible Fairies phantasms or spectres and became so much Elated in the success which they met with by getting as much or more by counterfeiting of Loyalty after their Rebellion as they did before in their acting and height of it as they hoped that they had now an opportunity put into their hands of accomplishing their wickedly designed works of Reformation preparative to a Republique some of their party being at this time so more then they should be confident of it as they keep in the expectation of their Good Old-Cause as they do dreamingly call it the Conveyances and Grants which they lately had of the Usurpers of the Kings Queens Bishops Deans and Chapters Nobility and Loyal Gentries Lands as any other Evidences of their Estates and do think it to be no bad exchange or bargain too give double or treble the value of some of Oliver Cromwell's gold or silver-Coyn as precious Reliques to put them in mind of that great Stork who if he had lived longer would have taught the Frogs what they were to expect of him too many of that Tribe or silly perswasions have lately been emboldned publickly to offer to maintain the lawfulness of those their ungodliest of all Wars and might suppose themselves to be in no bad condition when they were not like the Gibeonites after they had deceived Joshua with their mouldy bread rent and tottered garments with old shooes put to be hoâ—ers of Wood and drawers of Water for the House of God but whilst they were inwardly in their hearts and endeavours the greatest Enemies of it did eat of the â—at of the Flock and enrich themselves with the most profitable Offices and Preferments of the Kingdom and not only deceive the Kings loyal Subjects of their Blessing due to the Birth-right of their Allegiance and a priviledge inheritable to prosecute their actions and suites at the Common Law but of the benefit of their antient good and equitable Laws which is another part of their Inheritance and did therein worse then Jacob did by his Elder Brother Esau who did not loose all but had a Mess of Pottage for it Or did in the pursuance of the former evil designes of themselves or their phantastical well-willers think it necessary to persecute our Laws by false suggestions out-cries scandals and clamours as Boyes have used to do in their hunting of Squirrels by noise and shoutings and to speed as well therein as they or many of the Rebellious rout did in their designes against Episcopacy the Militia and to pull in pieces the Royal and ever to be approved Monarchical Government Or some of the Stationers having some of those Pamphlet projects and squibs against Monarchy and Regal Government lying upon their hands unsold did to put them off in some approaching or sitting Parliaments of his Majesty cause a new date or Year of our Lord to be instead of that which was before some of that society or company being so egregiously wicked as many Books have been sent abroad in a Masquerade in six or seven several Disguizes or new Dresses and Titles to abuse the people and cozen them of their money and a Primerhinder a Stationer may be named if an undertaken to be proved Information do not prove to be otherwise that have caused the Pamphlet that carried the Device of Summons and banishing Arrests and Out-laries which had been long before published to be re-published or printed which like some Paper-kite with a lanthorn candle in the taile or end of it had not long before made the men of Novelty and Ignorance stand at a gaze at it And it hath since his Majesties happy Restauration been often observed that too many of that Trade and Faction have been very dull in the preferring as they câ—ll it or offering to sale any Books which concerned the vindication of any of his Majesties Rights or the real good of his Subjects but have been nimble enough to promote the vent or putting off any Books which tended to Faction or the unhinging of the Government Or the Witchcraft of their Rebellion had with their Ignorance so captivated their understandings if ever they were Masters of any that tended to good as to make them to be like too many of the Laplanders who are said to bequeath their Devils or evil Spirits to their Children or any who should succeed them more willing then they should be to transmit their sins and unquietness of Spirit unto all that would make any
Title to their rude and indigested Opinions Howsoever from some or all of these Causes not a few of the former wicked and never to be justified Principles ignorant and unwarrantable endeavours and complaints have since Monarchical Government and our Laws and Liberties were so happily restored sprung up again and no sooner was our David brought back over Jordan but many a railing cursing and rebellious Shimei that had done more then cast stones against him and his Royal Father made haste and came with the men of Juda and Loyal party to meet him and as if they had not remembred all the mischiefs which they had done unto him his Brethren Royal Father Family and good people pretended that they had been greatly instrumental in it and having gain'd a very large and extensive Act of general Pardon and Oblivion which as to treason murder felony faction and rebellion the Loyal party needed not an Act of Parliament for confirmation of what their abusive Courts of Justice had done in matters of Judicature betwixt party and party in the inter regnum and times of Usurpation and another Act of Parliament to make honest free many Parents on earth from Adultery or Fornication and legitimate and un-bastar'd many of their Children begotten in a wrong way of Marriage solemnized in despite of the Laws and our Church of England before a Justice of Peace not in a Church but an Hall Parler or Chamber where that kind of Magistrate was a Knight or Gentleman or many times in a Shop when he was a Trades-man which the Kings faithful Subjects abhorred and some of them having warmed themselves by the Farming of the Kings Revenue and those grand and ever to be detested Artifices of Advance and defalcation which have so much cankred decayed and ruined it and others that liâ—ed their consciences with plundrings and sequestrations and Committee ungodly Emoluments did fall again to their former Trade and Engines of subverting our Laws and turning the Justice of the Kingdom into their Abortive projects and new-found Politiques and hoped in the end to recompence the loss of their possesion of the Lands of the King Queen Prince Nobility Gentry Bishops Dean and Chapters which they having purchased at an easie rate were taken from them and enforced to be restored and their hopes of gaining the Lands and Endowments of the Universities and Colledges which by a failing of Providers and some mistakes as they wickedly thought of Divine Dispensations or some Errors of their new lights they had unexpectedly lost And therefore summoned got together their mis-apprehensions and Invectives against that antient very legal rational custom of Fines to be Pay'd upon Original Writs where the Debt or Damage exceeded Forty Pounds which from the Year 1651. unto his Majesties happy Return unto his Throne had by their Rebellions and ungrounded clamors against the payment of them to make a misâ—lead people the more willing and able to continue and contribute to a War against their consciences and eternal happiness been taken away or laid to sleep In order whereunto in a Book Entituled the Wants of England Printed in the year 1667. it was among other things offered to the consideration of both Houses of Parliament that according to the law of God and other Christian States Christian clemency gentleness and mercy and the antient Laws and Customes of this Kingdom no person be for any new debt cast in prison but be left at liberty to work out his Debt by industry In the year 1669. a Petition was exhibited to the King and both Houses of Parliament that in Actions of Debt there may be no Arrest or Imprisonment of the Debtors Body but a Summons made at his House or hung at his door and for want of an Appearance his Goods and real Estate to be seized and the like in the year 1671. And in the same Year a Bill for an Act of Parliament was with great Importunity desired for the Registring of all Incumbrances of Land and of all Debts and Ingagements then which nothing could have more undone the greatest part of an Impoverished Nobility and Gentry by the late Wars and Taxes nor any thing more have Bankrupted Citizens and Trades-men whose Estates do consist in a great deal more in Credit and Opinion than in reality and substance But the promoters of those Innovations who endeavoured to pull in pieces our wellestablished Laws concerning Arrests and Outlaries did in those their Attempts speed no better then Balaak the King of Moab did by sending for Balaam to curse the children of Israel when notwithstanding his Erecting of several Altars and all his solicitations and promisses of Rewards he could not hinder him from blessing instead of cursing them for the wisdom of the King and Parliament and his Privy Councel did think it to be more for the good of the people to suspend their desires and Devises until the King might understand that there could be any reason cause or ground to alter or forsake the old Fundamental Laws so for many Ages well approved to comply with their humors ill designes but being willing to give what reasonable content he could to that small complaining part of the people without preâ—judice damage to the universality greater number of his Subjects did as the fittest expedient and all that the Law could permit and his reason and Soveraignty perswade him to do for the allaying that distemper which had seised upon a sort of ignorant seditious unquiet spirited people whom no reason can satisfie but would set up their new devices which are never like to perform their Promises and Intendments And needed not as touching the taking away of the Process of Arrest Utlary to have troubled his Majesty and Parliament and themselves and others with such unwholsom and improbable Remedies for that which their Ignorance and Vain Imaginations only told them were Grievances but should rather have acquiesced in a due consideration that his Majesty did not hold it to be agreeable to Justice to abolish the Process of Arrest or Outlary or to change or take away the Fundamental Lawes which established or allowed of those Antient and legal kindes of Law proccedings as grant in the Year of our Lord 1664. by the advice of his Privy Councel his Commission for the relief of Poor and Distressed Prisoners under the Great Seal of England to the Arch-Bishop of Canterbury Bishops of London Winchester Rochester Lord Mayor of London for the time being Judges and Justices of the Courts of Kings Bench Master of the Rolls Judges of the Court of Common Pleas Barons of the Exchequer Chancellor of the Dutchy of Lancaster Masters of Requests and Chancery Attorney and Sollicitor-General and Attorney of the Dutchy of Lancaster Deans of St. Paul Westminster Lieutenant of the Tower of London Bishops Chancellors with the Advocats of the Court of the Arch Bishops of Canterbury and Bishop of London for thâ— time being c.
one with the other and that Laws being to be binding are to be certain and positive not Arbitrary BUt such a State Essay Bill of Comprehension or rather Contradiction whether the antient legal and rational usage and custome of proceedings in the Law by Writs of Summons pone and Distress to be legaly executed by Sheriffs where the Defendant hath a visible and certain Estate which for Expedition of Justice have by alteration of Times Increase of Trade and a necessity of Law and Reason not been so much used as heretofore it was and is not yet forbidden by any Act of Parliament or Rule of Law and the process of Capias and Arrest which for many Ages past have not only been allowed and approved by this Nation but the greatest if not all of the civilized part of Mankind as a principal incident essential and necessary sine quaâ— non in the distribution of Justice where the Defendant hath not a visible Estate to secure him from the Sheriffs Return of a Nihil habet is a Fugitive or likely to be such a one or is not to be found and hath nothing but his body to be a pledg or security that he will Judicio sisâ—i judicatum solvere or that the process of Exigent in order to an Uâ—â—ary which without 〈…〉 causing the Uâ—â—ary it self do offer a lesser violence to the person of a Defendant then the Writ of Capias doth can by any rule of 〈◊〉 reason be exchanged for peremptory Summons and seiâ—ures or can be for the good of the people to cause them to tear and tire one another 〈◊〉 abundance of charges delayes and 〈◊〉 in a Cirque or Circle of Law contentions who will certainly when they shall find the sad effects or event of it not think themselves well used to be decayed or inticed to abandon their own good Laws for such new and troublesom devices which may be to as little avail as to renounce skilful able and honest physitians to drive a trade with ignorant Empericks and Mountebanks when they are not sick or need them and may time enough believe that such a Novel way of peremptory Summons hath so many symptomes or markes of Evil upon it and so easily discernable as their gaine by it will be no more then to receive a Scorpion instead of a Fish or to have Coâ—quintidâ— put into their pottage pot and they that are so fond of it and willing to proâ—uce such a mischief rather then a blessing for their fellow-subjects might have forecasted that evils are most commonly according to corrupt Nature better welcom and more likely to receive entertainment then good and do by their novelty or correspondence with bad humors designes our interests too often seize upon or inveagle the greatest and less prudential part of the people when cheapness or a pretence of expedition shall be some of the perswaders unto that which can arrive to no better a construction or event then to make the Law-maker and Soveraigne advising with his Two Houses of Parliament so incertain of the â—equel or product hereof as to make one part of the Law repâ—al another at the pleasure of every particular man and to Enact it as Adiaphorous or indifferent this way or that way wheâ— a very long course of time and experienceâ— and the approbation of so many Laws and Ages past do record and witness the excellency of that which some busie 〈◊〉 would have to be exchanged for 〈…〉 and seminary of not to be expressed Inconveniences and Mischiefs and such a device or fancied alteration cannot with our a Prophenity 〈…〉 it perswade the most sanguine and easily credulous that it can be equally and fully as good as the other or render it to be indifferent or give any absolute or infallible assurance that those likely hopes will ever bring them to their promised success and if it be not to be ranked amongst the indifferents must be either better then the former antient courses which none have yet experimented or worse and then not at all to be Imposed upon the people For Laws being Râ—cti praeceptiones prâ—â—i depulsiones alwayes intended by God and good men to advance that which is good and suppress that which is bad Aequum ab iniquo licitum ab illicito separare and to discern and divide betwixt good and evil and said to be Laws a ligando and to be properly no Laws if not Obligatory and binding are to be certain and positive not Arbitrary as unto those which ought to obey them and as much as right reason will permit Immutable especially if deduced from the dictates of nature as that of the preserving the Authority of Courts of Justice and their administration of it are to those that seek for help in the maintaining or recovery of just rights and Properties but not to be ambiguous in certain latitudinarian or indifferent for although there may be many who would be well enough content to be Judges of their own Causes and the Executioners of their own Decrees or if that would not be allowed would be 〈…〉 to hale men to Justice or by open clamours cry harow as the People of Normandy were antiently said to have done to their Duke Rollo when they cryed to him for Justice who was wont never to fail them which after a long process of Time gave us the Original of the word Hue and Cry yet much in use amongst us in matters of Felony And the like was in the early days of the world not unusual amongst other Nations in their seeking to their Kings and Princes for redress of Wrongs before the more happy way of Establishing a fixed rule and course by Courts of Justice Yet those their unfitting desires for such an Arbitrary Act and Indifferent Law ought to be allayed and the more safe and sure paths of Justice kept according to the patterns and direction of the best of Presidents for that God himself the wisest greatest and best of Legislators when he gave his righteous Laws to his people of Israel and commanded that a Neighbours rayment taken for a pledge should be restored unto him before the Sun go down for his covering to sleep in or the Command not to 〈…〉 the sentence of the Judge under no less penalty then the loss of life from whence the reason and equity for every man to be obedient to the Authority of Courts of Justice in their legal Process may deduce its Original was not left as a matter indifferent but absolute and positive Where the Statute of Westminster 〈…〉 which giveth a Plaintiff his Election to â—ake his Execution upon a Recovery of a Debt by Writ of Fieri Facias or Elegit the plaintiff taking out his Elegit 〈…〉 enter it as he ought upon Record for that 〈◊〉 should be then debarred of any other remedy against the person of the Defendant by Capias 〈◊〉 aâ—ienduâ—â— a man cannot by Law have Two Writs of Scire 〈◊〉
at once in a Common persons case whereby to have Damages twice recovered against him After an Elegit although the Sheriff return that he hath neither Lands or Goods the plaintiff shall not have an Execution against the Body a Capias ad satisfaciendum doth not lie after a Fieri Facias until a Nulla bona returned nor a Fieri Facias or Elegit after Imprisonment of the Defendants body A Writ of Annuity purchased pending another was abated where two brought Writs of Quare Impedit one against the other returnable at one and the same day the one was discontinued and they pleaded upon the other in the Case between Bery and Heard in the Seventh Year of the Reign of King Charles the Martyr it was in the Court of Kings Bench adjudged that where a man had his Election to seek his Remedy by the Commou Law or by the Statute of Glocester that gave an Action of Wastâ— he could not do it by the one way and the other for our Laws and Courts of Justice would never allow a Plaintiff to have two Actions or Remedies for one and the same thing at the same time but were so careful to hinder it as they suffered discontinuance of Process and Pleas in Abatements where one Action was brought depending another for the same matter And Bracton saith that where a man hath an Action depending and bringeth another for the same thing Cadit breve posterius the later is to be quashed agreeable whereunto at this day in Chancery where a man hath an Action depending at the Common Law and seeks relief in Chancery upon the same Account he is put to make his Election in which Court he will proceed And therefore if such an Arbitrary Act of Parliament should be made to give the Plaintiffs their Election to proceed by the way of the new contrived way of peremptory Summons the former wayes of Summons Pone and Distrainings or Capias not being prohibited the proceeding by process of peremptory Summons ought to be entred in a Court of Record and entred may be more prejudicial to the Plaintiffs then they expected for if they cannot resort or return again to the former better wayes of proceedings they may find cause enough to repent of their being so fond of a new way when the old will appear to have been much better which to reverse or discontinue cannot be for the Interest of the King or his people when it shall have no better reason or foundation for it For if the Proposers could give unto themselves or any of their fellow Subjects any assurance that it will be probably for their good and benefit yet if the King who is supreme and superiour to all the Judges in his Dominions were but a subordinate Judge he would as the Civil Law declareth transgress the rules of Justice and Right reason if he should follow opinionem probabilem relicta rejecta probabiliori an opinion that is but probable when there is an opinion to the contrary more probable and S. D. and his then Confederates might have considered that a Process against the Goods and Chattcls of a Defendant is of a different nature from that which is against his Body that duo contradictoria non sint nec possunt esse simul vera contradictions neither do or can at one and the same time agree and that Practica sunt speculativis praeferenda what is in speculation of a possibility not at all experimented is to give place to that which with an universal or major part of a consent hath been long practised CHAP. XXI That it will not be for the Interest of the King or his Subjects to give way to that Design which may open a passage to other Innovations and Designes as much if not more inconvenient and prejudicial FOr that all his good people by the sad and inexpressible calamities and miseries which they have lately endured by the Wars and Tumults unjustly raised against thc King and his Laws are not now to learn what a deep dyed hypocrisie and pretences for Reformation would have or to believe the evil consequences which have risen from a too much yielding to those popular humors which as that Royal Martyr hath in his Solitudes and Sufferings declared served to give life and strength to the almost infinite activity of those men who studied with all diligence and policy to improve their Innovating designes how dangerous the permitting of Innovations would be how careful all Princes and wise men have heretofore been to avoid them so that if there were nothing else to make the world out of love with them the never to be satisfied inquietude of many of that sort of people in the matter of Religion and Church-government and the swearing liking and shortly after disliking and hating the Solemn League and Covenant the by too many as it may be feared intended standing Rule of Rebellion and their unfixedness in every thing but their unwearied malice and ill designes against Monarchy and the present Government do and will abundantly proclaim that whatever hath been condiscended unto and by that a measure may be taken of the Future in giving them a liberty to play the Fools with the Sacred Scriptures hath but like the thirst and alwayes craving of an Hydropick sick person increased and provoked a desire of having more Wherefore they that built upon such wicked principles of overturning the State and Regal Government are if they had any reason or were ever likely to have any for their demands to be content to be denyed until they shall have renounced those pernicious ends and dangerous Tenents and positions they began their works and deeds of darkness withall and shall have proved that Justice ought to have no Sword to defend and protect her self and others that Courts of Justice can be to any purpose without a certain power constraining punishing Authority that the process of Arrest and Utlary are not incidents thereof and to be necessary Attendants thereupon that the Eternal and Almighty Law giver did not allow of that which the Greeks Romans those great Ingrossers of wisdom after the many very many commotions of their people for their more severe way of enforcing the paymcnt of Debts performance of Contracts preservation of the publick Faith and one man unto another which Tully held to be so very necessary as he was of opinion that nulla res vehementius rempublicam continet quam fides that nothing more concerns a Common-wealth then the keeping of Faith Credit therefore adviseth it by all meanes to be preserved and kept have acknowledged to be the best and most contenting Expedient for an obedience to Judges and Courts of Justice and the Civil Magistrates and that all the Essaies of an Indulgence to liberty made use of by some other Nations could never yet so far prevail as to make the most of the civilized Nations of the
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
reproaches and not always without the scorn of being asked if they had any Latin by those that did never understand it or were ever likely or in a capacity to do it And Pride the Drayman turned by an accursed Rebellion into a Colonel could say that he hoped shortly to see or it would never be well untill the Lawyers Gowns were like the Scottish Colours hung up in Westminster hall So great was his and his partisans malice and hatred to those Laws which once they seemed to be so much in love with professed and covenanted to maintain In the same year that so remarkable Thomas Elsliot calling himself a member of Jesus Christ and of the English Common-wealth a free-born person of the English Nation Esquire at Arms Conquerour of the Gentlemen of the Long Robe now or late the Satan of the Commonwealth in his Book entituled The true Mariner with his Metaphorical and Hieroglifical Ship demonstrating the way to Paradice dedicated to Oliver Cromwell saith the Prothonotaries and Registers in the Courts of Justice are immense Foxes the Attorneys and Clarks Kindle-coals the Bum-bailiffs Serjeants at Mace and Marshals-men Serpents Toads Rats and Mice James Stocall Colonel of a Regiment of fifteen hundred men in the Isle of Jersey proposed that if a man be overburdened with Debts and imprisoned and his Estate not able to pay he ought if he come into Court and affirm it upon his Oath to be freed of all his Creditors so as he do leave them what he hath whereby to satisfie every Creditor according to the priority of every mans Debt Shortly after followed Proposals by some Chancery Clarks aiming to hurt their Masters the Six Clarks in Chancery and make what benefit they could for themselves that twelve ancient practising Clarks to be chosen two out of every Office by the major votes of the Clarks and presented to the Lord Keeper Lord Chancellor or Lords Commissioners of the Great Seal and out of them to be chosen some Overseers or Superintendents and to have an Annual stipend the Subpoena Office to be nulled and those Writs to be made by the Chancery Clarks the Affidavit Office to be taken away Lawyers Fees to be ascertained and none to take any more Fee in that Term for any particular Cause and no matters to be referred to Masters of Chancery but Accompts Charles George Cock would have Vtlaries abolished and no Arrest and that there be only a Summons without a Writ or attaching the person and if twice summoned let him be proceeded against upon his Goods In the year 1652. Gerrard Winstanley published his opinion that the Kings old Laws cannot govern a free Commonwealth and it is not possible for a people to be too free and in a Book entituled The Law of Freedom or true Magistracy restored complaineth that Tolls in the Market are a burden that the Gentry do oppress the Common people live idly upon their labours and carry away all the comfort and livelihood of the Earth that the powers of Lords of Manors do remain still over their Brethren requiring Fines and Heriots beating them off the free use of their Commons the Commoners have cast out the King therefore they are in equity free from the slavery of that Lordly power and that it will blast the power of the Parliament and Army to see the Government of the Commonwealth to be built upon the Kingly Laws and Principles and that all slaveries and oppressions which have been brought upon mankind have been by Kings Lords of Manors Lawyers Landlords Divines who ought to be cast out and prayeth that there may be a Judge in every Shire Peace-makers in every Town Overseers and a band of Souldiers attending them Another proposeth that instead of an Arrest a Summons might be sufficient and if no Apparance Judgment and Execution to pass In the year 1653. in a Book entituled a supply to a draught of a Systeme proposed by a Committee for the Regulation of the Law it was desired that none be arrested attached molested or troubled by any Original or other Writ And thus whilst too many addle-headed Reformers were labouring to establish wickedness by a Law or Authority and the major part of the Members of the miscalled Parliament having as they thought rear'd their designs to that height and nearness of accomplishment that they took themselves to be Officers of Righteousness elected and chosen to do wonderfull things that Gods will might be done on earth as it was in heaven that every one might be holy and the Pots yea the Bells upon the Horses as they were pleased to phrase it might be holiness unto the Lord and that God might reign and be all in all they did in that hurry and fit of Zeal without any solid or rectified reason cause or consideration without the hearing of any defences to be made against their supposed to be infallible Judgments Vote that the High Court of Chancery and all the other Courts at Westminster-hall should be dissolved and no more made use of and a Member of that Society and a Burgess for the Town or University of Cambridge who might have done well to have disswaded his Election until he had learned more wit was so willing to have the Civil Laws here used to be destroyed or set packing with the Common Laws as he could not forbear crying out Mr. Speaker one word I beseech you for Jesus Christ let the Civil Law also be put down But that not well according with the sentiments and purposes of Cromwell their man of Sin who had designed to trepan them to deliver up their fancied Parliamentary Government and to bless God for the yoke and Instrument of his own making whereby he as a single person had with many curbing contrivances a future absolute lawless and unlimited power and Authority he did for the better preserving of the Justice of the Nation for the administration whereof he intended to make himself an allowance of Two hundred thousand Pound per annum and well understood to be as necessary in a Common-wealth as it had been in the best of Monarchies and some other his reasons of State whilst those Dreamers of Godly Reformations had upon his Summons and Command refused to dissolve or come out of their opinionated Senate or Parliament-house cause some of his Janisaries or Red-coat Souldiers to pull them out of the House and lock up the doors And their ungodly and particular interests having thus enticed the vulgar and less considerate part of the people too many of them made all the hast they could to pull in pieces the frame and the noble ever to be admired constitution of our Government where they could be sure of hopes of gain and losing nothing by it and joyning with some Lawyers of the smaller size that wanted Practice and expected imployments by a Renverse of our Old Laws and setting up New the finews and foundations of our Laws were endeavoured to be cut Monarchy Justice and
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