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
by the Reverend Judges of the Land and Councel in Law of our Kings and Princes before they were passed and ratified and that so many of our Fore-fathers who for so many years and Ages have in every year been arrested or voluntarily put in Bail to appear and avoid it should be so senseless as not to understand the said Act of Parliament of 2â— E. 3. ca. 17. to have been repealed if any such thing had been or deem it to be a grievance to be compelled to appear in a Court of Justice or that all the Plaintiffs in those kind of Actions should be so wicked as to continue that course and kind of Proces If they could have understood it to have been a grievance the Dean and Chapter of Lincoln would not have prescribed for a Liberty in their Court to Arrest in all personal Actions and the Lievtenant of the Tower of London the like nor the Judges have allowed those prescriptions and all Cities Burroughs and Corporations where they have connusance of Pleas would not upon a nihil habet returned for that is so alwayes done of course in Cities and Corporations to warrant their Arrests have claimed and exercised a power to Arrest as well Inhabitants as Forreigners coming thither or that the Judges of the Admiralty in Sea-faring and Maritime Causes would have permitted as they have anciently done Arrests to be made upon Debts Contracts Charter parties or the like or have been allowed to do it if it had deserved to have been called a grievance or that it ought not to have been done by the aforesaid supposed Acts of Repeal And that none of so many thousand or more then ten hundred thousand Defendants should by Pleas Demurrers or otherwise signifie so much or so many Advocates and so many learned Judges Serjeants and Sages of the Law which have been since the making of that Statute of 25 E. 3. for the giving of Proces of Outlawry in Actions of Debt should not of themselves have found out or have sought it from our Kings and their Parliaments some remedies or would not have forborn the granting or acting by such kind of Process if they had conceived that the Act of Parliament of 25 E. 3. ca. 17. had been replealed or that such kind of Process had been a grievance And that more then one hundred thirty and seven Parliaments which have been since the making of that Statute And so many Parliaments and Assemblies of Wise Men before and at the making of that Statute which met only to be wise and find out fit helps and remedies for grievances and things amiss should not foresee it to be a grievance or be so careless as not after to procure some Law or Act of Parliament to give the People ease in it or a fuller notice of the repeal thereof When in the Parliament of the 38th year of the Reign of King Edward 3. the Commons did pray that the King would not grant Protections whereby Men could not recover their Debts which was as they alledged A thing to the destruction of the People and against Common right Or that in so many Petitions in all those so many Parliaments for the redress of Grievances made and committed by Sheriffs Under-Sheriffs and their Bailiffs and that all Estates might enjoy their Liberties if no Law be to the contrary saving to all Men their rights and the justly denyed Petitions against the payment of Fines upon original Writs issuing out of the Chancery nor in that of the Commons in Parliament in the 46th year of the Reign of that King that Writs of Trespas in the Court of Common Pleas although long before then used might be made as well by that Court as by the Court of King Bench for that the Court of Kings Bench was removeable at the Kings pleasure and that the Great Charter and the Charter of the Forrest and all other Statutes made by the King and his Progenitors for the amendment of the Realm and tranquillity and ease of his People might be kept and duly put in Execution in all points Or in the Petitions of the Commons of the County of Kent to that King in the Parliament in the 50th year of his Reign against his Officers of the Castle of Dover for arresting by their Catchpoles out of their Jurisdiction or in the before mentioned great Complaint of the Clergy made in Parliament upon the death of Robert de Hauley in the 2d year of the Reign of King Richard the 2d slain at the High Altar in the Church of Westminster Abby when he being arrested and pursued by Bailiffs had taken Sanctuary there and the great debate thereupon before the King or at the making of the Act of Parliament in the Seventh year of the Reign of King Henry the Fourth that impotent persons outlawed might make their Attorneys and the Acts of Parliament made in the 10th and 18th years of the Reign of Henry the 6th upon complaints That Men were outlawed and could not know where to find either the Plaintiffs or their Attorneys and remedies ordained Or in the Petition in the Parliament in the 33th year of the Reign of King Henry the Sixth against the multitude of Attorneys in the City of Norwich and Counties of Norfolk and Suffolk for their inciting and stirring up the People to suites in Law there should be no mention of that supposed grievance by the Writs of Capias and Proces of Outlawry if it had then been thought or believed to have been one And that in the thirty times petitioning in several Parliaments of our Kings and Princes for the Confirmation of Magna Carta which as to that part of it in the Chapter or Article twenty-nine is the most excellent and the best of all our Laws The People of England should not understand the aforesaid Act of Parliament made in the 25th year of the Reign of King Edward the 3. for giving Proces of Arrest and exigent in Actions of Debts and other Actions therein mentioned if it could be interpreted to be any violation of it or that in all their Petitions for redress of grievances and procuring of good Laws to be made there appears nothing at all to have been alledged That by the Common Law the Person of a Debtor was not arrestable or that there is no positive Statute Law in force for the continuing of the Capias and Exigent against Persons in Debt and meerly Civil causes since the fancied repeal of the said Act of Parliament of 25 E. 3. ca. 17. by the said Statute of 28 and 42 E. 3. But they who are so loath to part with their causeless affrights or are so unwilling to loose the content of being the Founders of a change or alteration in the Body politique be it never so dangerous or of most certain evil consequences and are willing enough that their Fellow Subjects of whom they pretend to take so much care should
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
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
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
non prospexit recourse is to be had to the Body of the Tenant and if he be not to befound the Landlord is to impute it to his own negligence that he did not look better to it Cum quis ad warrantum vocatus fuerit Christianus vel Judaus qui terram non tenuerit in feodo quae capi possit in manum domini Regis per quam distringi possint pracipiatur vicecomiti quod habeat corpora eorum when any man is vouched to warranty be he Christian or Jew and hath not Land which may be taken into the Kings hands or by which he may be distrained the Sheriff shall be commanded to take his Body or bring him And a Bishop being Summond in a quare non admisit cum non venit nec se excusat per nun-nec per Essoniatorem attachietur when he neither comes nor sends his excuse nor essoins shall be attached Upon a writ awarded to a Bishop to command him to bring before the Kings Justices a Clark or Minister in holy Orders refusing to find Pledges because he was in holy Orders and had no lay Fee whereby he might be distrained if the Bishop did not after a Summons pone Distringas awarded against himself cause him to come the Court did proceed against the Clark upon the contempt and cause him to be arrested nor could the Sheriff or his Bayliffs incur any punishment for doing of it for the execution of the Law saith Bracton wrongeth no man By the Statute of Marlebridg made in the 52 year of the Reign of that King if any shall not obey or suffer Summons attachments or executions of the same according to the Law and customs of the Kingdom they were to be punished The word Attachment being saith the learned Vossius derived from a French word to apprehend or detain An Attachment is to arrest force or compel a man denying to come to judgement saith Sir Henry Spelman And by Skene a learned Scotch Lawyer is defined to be a certain Bond or Constraint of the Law whereby a Defendant is unwillingly compelled to answer in Judgment to the Party complaining In the Statute of 52 Henry the third where a Capias is given against accomptants it is said they shall be Attached by their bodies An Attachment made for disobeying a Writ of prohibition is in the very form of a pone the awarding and entry of a pone is that the defendant should be Attached And saith Bracton the course or solemnity of Attachments to compel the Defendant to come to the Court to answer his contempt was not so always observ'd but in trespas for the greatness of the offence or in favour of Soldiers that were going to the Wars or of Merchants or such as required haste in Actions of Debt and it is probable that the Actions or Suits of Merchants were most commonly of that nature the Judges granted an Habeas Corpus which to that purpose was in effect as much as a Capias whereby the Sheriff was commanded all delays set apart in regard of such haste and priviledge to bring the Body of the Defendant to answer the Plaintiff in an Action of Debt or Trespas as the case required with a Clause in the Later end or perclose of the Writ that the Sheriff should be grievously amerced if he refuse to do it By an Act of Parliament made in the 52 year of the Reign of the aforesaid King in a Plea of Common custody or guard by reason of ward if the deforcers came not at the great distress the Writ was to be renewed twice or thrice within the half year following and if after the Writ read and proclaimed in open County the deforceant absent himself and the sheriff cannot take his Body to bring before the Justice then as a Rebeâ—â—e shall loose the Seisin of his ward By the Statute made in the third year of the Reign of King Edward the first if any under Sheriff or other do withhold Prisoners replevishable after they have offerd sufficient security he shall pay a grievous amerciament to the King in which act of Parliament men committed by the King or his Justices are excepted and declared to be not replevishable By a Statute of the aforesaid King made in the same year the title of it being against the arresting of men in Liberties great men and their Bayliffs the Kings Officers only excepted to whom special authority sayeth the Statute is given were not to attach men passing thorough their Jurisdictions with their goods compelling men to answer before them upon contracts and covenants c. And the writ of prohibition in the Register awarded upon that Statute is for attaching a man to answer upon contracts and covenants Britton who wrote his Book by the command of King Edward the first saith if any man will complain of a debt under forty shillings let him find Pledges to prosecute his debtor and if he that is sued in Trespas maketh default let him be distrained And that in an action of debt if there be not a sufficient distress the Difendants might be taken by their Bodies be they Clarks or Laymen Fleta or whosoever was the Author of the Book so called reciting the then manner of proceedings at law as an old and accustomed course saith they were by Summons Attachments and distress in personal actions the entries and awarding thereof upon record being the very same with little difference as they are now used If a debtor had bound himself to be in default of payment distrained by the Steward and marshal of the Kings house then upon security given by the Creditor to prosecute a distringas was awarded against the debtor until he found Pledges so as he were within the virge and if he were personally to be found was to be Attached by his body until he should by Pledges acquit himself and if he had not Pledges was to be held in Custody until that he answered the Creditor non tamen in vinculis or if he found Pledges and after made default the Pledges were to be amerced and the Defendant arrested and detained and not be bailed or let loose by Pledges before he had answered And that not only Marescallus sub suo periculo omnes captos infra virgam custodire debet sed de eis coram Senescallo respondere de Judicatis plenam facere executionem the Marshal should at his Peril keep all that were taken within the virge but answer for them before the Steward and ought to take in execution those against whom Judgment should be given and the Steward did of course command the Clark that keepeth the placita Aulae pro Rege Rolls and Records of the Kings Court to direct his writ Marescallo quod ipsum de quo fit sine dilatione attachiari faciat to the Marshal that he do without delay attach him of whom any complaint should
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
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
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
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
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
and divers other Commissioners therein named to call before them such Prisoners and their Creditors in and upon Actions of Debt Gase Trespasses Trover Detinue or other Personal Actions Judgements and Executions whatsoever thereupon and to treat for Compositions and Agreements some of the Judges of the Court out of which such prisoners have been committed to be privy to such Compositions and Agreements to the end that the said Prisoners night be relieved and have such reasonable years dayes and times of payment for such debts and damages as they shall not be presently able to satisfie and with such Security for payment thereof as in equity and good Conscience having respect to the ability of the Prisoners and charge of Wife and Children and other incidents to pious Cases considered And if any Creditor should refuse to appear before them the Commissioners were impowred to punish them and take such Order for their Appearance as they should think meet and to use all lawful wayes to make them take such reasonable Compositions as to any Three or more of them should be thought meet And his Majesty therein Declared that his meaning was to be aiding and assisting with his Grace and Faâ—vour to the misery and calamity of such as be truly poor and distressed and not unto such as lye in Prison rather of wilfulness and obstinacy and out of a resolution to retain large and ample Estates to themselves and therefore straightly charged the said Commissioners to be very vigilant and circumspect therein and did in the said Commission mention that Queen Elizabeth did upon the supplication of the Prisoners in the Prisons of the Fleet and Kings Bench in the Eight and twentieth Year of her Reigne Authorize certain Commissioners under the Great Seal of England for the ordering and compounding of the Controversies and Causes between the distressed Prisoners and their Creditors and such others by whom tbey were detained Prisoners or in Execution and contined the said Commission nntil her Decease And that King James being informed that certain Clauses in the said Commission were Derogatory to the Common Laws of England and that by colour of the said Commission which was intended for the Charitable relief of poor miserable and distressed Prisoners certain refractory and obstinate Debtors which rather wanted will then meanes to satisfie their just Debes took occasion to molest and trouble their Creditors did to prevent all occasions of Inconveniencies to his loving Subjects especially such as tended to the breach of his Laws forbear for many years to renew the said Commission and finding that his forbearance had wrought a good effect by discouraging obstinate and wilful Debtors that sought nothing more then Evasions to avoid the payment of their just Debts so also that for want of that or some other charitable course for the relief of such as were truly and indeed poor distressed and miserable and wanted meanes to satisfie their Creditors it had been occasion to pester and fill his Prisons with the bodies of such persons whose punishment could no way avaâ—l their Creditors but rather was an hindrance to the satisfaction of their Debts for that during the time of their restraint they were no wayes able to go about or attend their lawful business but must of force consume themselves and that little that they had miserably and in Prison did by his Commission under the Great Seal of England in the Sixteenth Year of his Reigne by the advice of the then Lord Chanâ—cellor of England and also of divers of his principal Judges of his Courts at Westminster authorize the Commissioners therein named to proceed according to the Tenor of the said Commission for the relief of the said poor Prisoners in the said Prisons and afterwards being informed that his said Commission had not taken that good Effect which was expected renewed the said Commission and thereby prescribed and directed such a moderate course as that neither the Insolence of wilful and obstinate Debtors should be thereby incouraged to the derogation of his Laws nor yet his Grace and Clemency be wanting unto such to whom it should be meet to Extend the same did upon the humble suite of the distressed Prisoners in the Prisons of the Marshalsea and other Prisons in and about the Cities of London and Westminster and the places near adjoyning to the same whose Cases were as much to be commiserated and lamented as the said Prisoners in the said Prisons of the Kings Bench and the Fleet by another Commission under the Great Seal of England in the Two and twentieth Year of his Reigne authorize certain Commissioners therein named for the Ordering and Compounding of the Causes of the distressed Prisoners in the Prisons within the places aforesaid and that his Majesties Royal Father did by Two several Commissions under the Great Seal of England the one bearing Date in the Fourth Year of his Reigne and the other in the Sixth impower divers Persons therein named to the same or the like purpose Nevertheless the Good Old Cause as they are pleased to misâ—name it with all its hypocritical tricks of State must not by any meanes be abandoned but they which did so much adore that Empusa or Witch called the Publique Faith which like the Golden Calf made by the Idolatrous children of Israel helped them to great store of money plate and Rings to furnish out and maintain a Rebellion could not now forbear to be as violent as they could to pull Down the ever to be reâ—spected and honoured better Publiqe Faith and Justice of the Nation and Disturb his Majesty his subordinate Judges Magistrates in the administration thereof and therefore some Synon or Trojan horse was of necessity to be made use of or introduced under a colour of publique Good or some stratagem or mine prepared to accomplish that by cunning and circumvention which by suit or force of Law reason and arguments they could not before be able to obtain and for that had as they thought a pattern or way cut or chalked out by the before-mentioned S. D. and some of his levelling Clerks and Attornies associating with him in their aforesaid proposals presented to the Committee for Regulation of the Laws in the year 1650 wherein they alledged that what they had proposed was not that the Writ of Capias should be taken away first but humbly conceived that it would be better by finding out nearer and cheaper wayes to bring the old road to be neglected then to deprive the suitors of the Old before they can have experience of the new and it was only proposed by way of supplement not to take away the antient course of proceedingâ— by way of Capias and â—â—igent if the case shall require it CHAP. XIX That the Proceedings at the Common Law desired by the new way of a peremptory Summons or the old by Writs of Summons Pone and Distringas or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable
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
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
trusted them to Trade withal as there would be a necessity of Suites in Chancery to discover the right Owners Many or some of which inconveniences being before the making of that Act of Parliament of 25 of E 3. experimented or well understood or foreseen might cause our Forefathers to forsake and disuse the former way of Summons Pone and Distringas and betake themselves to the more useful and expedite way of Proces of Arrest or Outlary which hath been since evidenced to be much more accommodate to Trade and the good and benefit in general of the Nation And was not denyed to be truth and reason by Mr. Charles George Cock who being something of a Common Lawyer but nothing at all of a Civil and advanced in the times of Usurpation to be one of the Judges in the then so called Court for probate of Wills and granting Administrations could in his Book printed in the year 1651 entituled the Houshold of God upon Earth or an Essay of Christian Government dedicated to the Family of God over the whole Earth but more especially to them of the Houshold of Faith in the Common-wealth of England after a Rhapsody of Whymsical Propositions for Reformation and Invectives with ill will enough against the proceedings in the Courts of Justice Arrests and Outlaries delivered his opinion concerning the Writs of Capias and Arrest in these words That anciently first Goods then Lands then liberty was to be seised for Debts c. Vpon a just and proportionate rule necessity found wayes to evade Quaere the Goods and they were others Quaere the Lands and they were aliened and to run through the difficulties of all those Trials the burden was found too great and therefore the Law of Imprisonment at first by Arrest was brought in CHAP. VII The Writs and Proces of Arrest and Outlary have increased preserved and encouraged Trade better secured the Creditors Debts and made the borrowing of Money more easie then it was before ANd therefore the Proces and Writs of Capias Arrest and Exigent the latter not being able to subsist without the former having been both of them in their several kinds so very beneficial and avantagious to the Lawful increase of Trade now almost every mans desire and concernment and in that and all other matters as well concerning Debtors as Creditors should not be turned away when they have so long and faithfully officiated in our Gates of Justice and assisted in the Execution thereof and although they are now Gray and hoary-headed and full of years are not grown Impotent or feeble but having a perpetual youth and spring attending upon their endeavours have made the borrowing of Money more easie and the Creditors better secured then they were before the making of that Statute of 25 E. 3. and the more general use of arresting of the Body or relying upon it as the better security and not only in the reason but the long experimented good effects and use thereof made good and verified the design and expectation of the Act of Parliament for the increase and continuance of Trade made by King Edward the 1. at Acton Burnel in the 13th year of his Reign which to prevent the loss of Forreign Merchants Debts which did greatly impoverish them and caused them to withdraw themselves for want of a speedy way of recovering their Debts did ordain the taking of Recognizances before the Major of the Staple for the security of their Debts and that upon failer of payment if a Writ of Execution had been sued forth and the moveabâ—es and personal Estate should not be sufficient to satisfie the Debt the Debtors body should be taken put and kept in Prison until he had made agreement or his Friends for him And time and experience have in the change and vicissitude of the Manners Customs and affairs of the Nation and the inundations of necessities upon the lower and poorer ranks of the People brought them to a very great Assurance CHAP. VIII The pawn and engagement of the Body is most commonly a better security then Lands or personal Estate upon which the borrowing of Money was not only very troublesom but difficult THat the pawn of the Body and liberty of a Debtor being so dear and precious to which the real and personal Estate if they have any or shall have any being as it were annexed and concomitant are most commonly the Essentialia consecutiva and the Collaterales sequelae appendices to the Person of the Debtor and as to what is in his immediate possession or are other wayes in his dispose or power are as incorporate and consocate with it as the Contenta are in or with the Continens the Goods and Chattels being as it were ipsa vita hominis tanquam alter sanguis as the life and life blood was the Instar omnium the most easie most certain convenient and obligatory kind of security And must needs be so when the taking of Pledges or Pawns had such a restraint laid upon it by Gods own most righteous Laws given to his chosen People of Israel Not to keep the poor mans Rayment or Covering after the Sun was gone down for that it was to be his covering And he that was to take it was not to go into his house to fetch it but stand abroad and the man was to bring the pledge unto him And by the necessity of the making of several Laws by diverse Kings and Princes in other Nations did appear to have been very troublesom and inconvenient both to the Borrowers and Lenders when Horses Oxen Swine Sheep Men Servants Maid Servants and Children were either voluntarily given as Pledges by the Borrower or violently taken by the Lender and were the causes of making many a Law or Constitution for the taking away of grievances or abuses happening by it As when a Man gave an Horse or a Servant for a pledge he was to pay any dammage which it did in that time if Gold Silver or any other Ornaments were pledged and happened to be burnt the Creditor was to purge himself by his Oath that he was no cause of the dammage If a Pledge was given and a Surety with it upon the Debtors Oath and the Oaths of the Neighbourhood where he was born the Party pledging desiring to have it again was to allow the Creditor the curiosity of his choice of one two or three Sureties none were to take Pawns or Pledges without licence of the Judge and they which assigned it over unto others whereby to exact more then was due were to loose their Debts and if the Creditor did take more then was pledged he was to pay four times the value if he were sued for it within a year If a Creditor took it against the Law and a Man taken in pledge were killed or any other dammage were done the Creditor and not the Owner of the Pledge was to pay it If any
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
and Christian World to raise five Millions Sterling at home upon no more then as many Weeks short warning and to manage at a vast expence a long and lasting War with the greatest Kings and Princes of Christendom It being certain that Securities or Cautions for money or Credit cannot in the general be so safe possible or ready at hand to be had as personal Security which as our Bracton and Fleta in their Divisions of Actions into real personal and mixt have informed us do inducere Actionem in personam make an Action to be personal for that the individual and very same money is not nor can by the Plaintiff be expected to be restored but the value of it or dammages and it doth oblige the Person but not at the first the Lands Goods or Chattels as our Statutes Merchant or of the Staple or Recognizances in Chancery or elsewhere taken do when they do carry in them a condition upon default of payment to leavy the money upon Lands Goods and Chattels and upon the Body if the Lands Goods and Chattels be not sufficient to satisfie and in a Bond the words obliging are Obligo me Haeredes Executores Administratores meos the Land being chargeable in respect of the Person but not the Person in respect of the Land and the Goods and Lands if any or the properties thereof are many times more invisible then the Persons of men for Bonds or Contracts do bind and engage the Person as much as if he did thereby undertake to pawn his Body and subject it to an Arrest or Compulsion to appear in Judgment if he should fail in the performance for all Contracts and Promises saith Fleta have in them Vinculum Juris such a Bond or Obligation as ties us to the performance of them and is so personal and inseparable as it doth sequi personam obligati go along saith Bronkhorst with him that made it like the shadow with the Body And generaliter saith Bracton Jus gentium se habet ad omnes Contractus The Law of Nations binds us to the performance of them For saith Grotius he to whom the promise is made hath by the dictates of natural reason a right to compel it by lawful means For a man may be known where to be found when his Money Goods or Estate cannot or what Estate he hath at home or abroad in his own or other mens hands in trust for him or otherwise And the Pawn or Pledge of the Body must needs be the greatest tye upon a Debtor for if a Pedler travelling with a pack of Pedlery upon his Horse hath his Horse distrained and taken away and he be put to carry his pack upon his back or if the Debt be so much as to lay hold on both that cannot so disturb or trouble him as an Arrest will do of his Person Or if a poor man shall have his only Cow and the Instruments and tools of his daily labour taken from him that will not so much affright or beggar him and his Wife and Children if he do not take care to prevent it as an imprisonment of his Body will do And our Bonds are not so rigourous severe or jealous as the moveable Bonds in Scotland as they there term them are which even for small Sums of money with us but great with them can be so distrustful as to enforce the obligor to renounce beforehand All manner of exceptions to the Law which may be proponed to the contrary and all Priviledges and Jurisdictions with a clause and consent inserted of Registration Horning and Outlary and to have the strength of a decreit to pay principal Interest and Charges according to the Obligees own modification declaration of conscience or discretion and ten Pound Scotch money for Ilke shilling Scotish Money which shall be unpaid of the Principal nor so fierce as in some Parts of Germany where the Creditor if he suspected the Debtor to be poor will take Juratoriam Cautionem make him swear that he would pay the money again amongst whom and the Italians there were Ostagia or Undertakings to give entertainments to the Creditors with Men and Horses at the Sureties or Debtors charges till the Debt were satisfied And the Civil Law was upon Contracts and Bonds for money lent or trusted so well furnished with renunciations before-hand of the benefits of Law in general and particular as there is by Butrigarius reckoned up no less then fifty three several sorts of Renunciations which the cruelty or diffidence of Creditors did in their Contracts and Bargains usually and as they pleased put upon those that had occasion to borrow or deal with them But our Nation keeping it self constantly to its own more gentle and yet binding enough constant form of Bonds and Obligations for money used here in England for some Centuries of years last past hath with its Proces of Arrest attending and guarding it perswaded the People thereof justly to believe that that kind of Proces hath produced such a better more sure and easie Credit in the Nation then was formerly as it hath not only greatly encreased encouraged and facilitated the Trade and reputation thereof but it hath been its greatest prop and support in the for many years long and bloody Wars betwixt the two great contending Houses of York and Lancaster when Estates in Land were little worth and where they were of any value or enjoyed any quiet from the furies of War or disturbance of Seisures Attainders or Confiscations were until the 27th year of the Reign of King Henry the 8th and the 27th year of the Reign of Queen Elizabeth covered and protected with secret and undiscernable uses many of which were fraudulent and in the many other also tosses and troubles of our present and former Ages which may appear to be more then a conjecture to any who shall but consult their own reason and observations of the difficulties and inconveniences which would daily and hourly happen in the borrowing procuring or securing of money if nothing but Pawns or Pledges at as hard a rate to private Brokers many times as twenty per Cent or mortgages of Land would be taken for security for money or moneys worth or the value of it which in matters of Trade would so quickly turn all into Exchange and Barter as a Tradesman could not be able to furnish or stock himself or his Shop without either ready money which many Tradesmen and not one in every twenty are alwayes or often able to do or disfurnish or unstock themselves and carry as much out as they endeavour to take in and how quickly and easie upon the stock of Credit Reputation and Opinion one or more hundred Pounds may be borrowed upon a Bond with one or two Sureties and how readily and without any more ado one or more Counter-bonds of the Principal doth serve to counter-secure them And where Citizens do take Apprentices without whom they cannot
Doth wast his Estate and intendeth to defraud his Creditors 9. Is a Gamester 10. Hath all the signs of a suspitious Person 11. Makes use of many Men to be bound or ingaged for him 12. Engageth himself in many business 13. Is looking out or providing for another Habitation 14. Is turned Informer 15. Keeps his Shop shut up 16. Is a Man of ill life or conversation 17. Or hath been so formerly 18. Hath been an Offender in Criminal matters 19. Lodgeth his Goods in some secret place 20. And is packing up to be gone But they that can dream of Tyranny and Oppression in our Proces of Arrest and Outlawry and know not how to prove it will rather then miscarry in their design of Metamorphosing our Laws and putting them into as many new fashions as the variety 〈◊〉 vanity of their Cloths and Habits wâ—ll if those accusations must vanish and never be able to make them any good return seek out some other way to alter or abrogate those kind of Law proceedings and therefore to pretend that the Statute of 25 E. 3. ca. 〈◊〉 giving Proces of Capias and Outlawry in Actions of Debt is either by the Act of Parliament of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. repealed CHAP. XIV That the Statute of 25 E. 3 ca. 17. which giveth Proces of Capias and Bxigenâ— in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliaments of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. there being no indâ—â—venimâ—â— or prejudice to the publick good in those kind of Law proceedings which might deserve a repeal by those or any other Acts of Parliament WHen it cannot come within the virge of any probability that the said Statute of 25 E. 3. ca. 17. should in the same Parliament those grand Assemblies being then long before usually shout and of no long continuance be made when the Statute of 25. E. 3. ca. 4. was made That none should be taken by Petition or Suggestion to the King or his Councel but by 〈◊〉 Indictment Presentment or Proces made by Writ original If it had not been believed to have been consistent with it or the meaning of our Magna Charta ca. 29. or if the Statute of 25 E. 3. ca. 17. had been repealed by the shortly after following Statutes of 28 E. 3. or 4â— E. 3. ca. 1. such a repeal should not be taken notice of by those that lived in those times or near unto them or that if there had been any grievance found or perceived in that Statute of 25 E. 3. ca. 17. or that the said Statute of 28 E. 3. had repealed it the Statute made by the aforesaid King E. 3. in the 36. year of his Reign would have ordained the Confirmation of the great Charler and the Charâ—er of the Forrest and commanded that the other Statutes mode in his time and in the time of his Progenitors be well and surely holden and kept in all points or that the Citizens of London who in their Courts of Justice in their City have for so many Centuries of years last past to their very great advantages made use of the Proces of Arrest as a lawful and beneficial Custom and constrained all that were to enjoy the largely comprehensive Freedom of that City to take an Oath to maintain the Franchises and Customs thereof would have made it their business to get many an Act of Parliament to confirm them if they had supposed it to have been prejudicial to them And that the People of England should in so many several Ages since those pretended Acts of repeal not only have petitioned for several Acts of Parliament for Proces of Arrest and Outlawry in several Actions but through so many past Ages and Generations Arrest and imprison one another in the way to Justice and not at all think themselves guilty of betraying their own Liberties and never complain of it Or that the Justice of the Nation should in all that long course of time be so sleepy or mistaken as to continue and put in Execution an Act of Parliament repealed and maintain and continue a grievance Oâ— that our Ancestors who were not all restrained by that Statute of 25 E. 3. ca. 17. from the former more usual course of proceedings in Actions of Debt by Writs of Summons Pone and Distringas for there were Writs of Summons Pone and Distress made use of in Debt and Accompt after the making of that Statute where there was such a visibility of Estate as the Sheriff could not safely return that the Defendant had nothing whereby he might be summoned it having been in Easter Term in the 22 year of the Reign of King Edward the 1. declared to be a constant rule in Law Quod nullus qui habet terras debet arrestari per Corpus ad reddendum compitum set per terras cum habeat sufficientiam No Man that had Lands sufficient was to be arrested by his Body in an Action of Accompt as there may be at this day if the Plaintiffs have a mind unto it and would rather procede by a longer way about then a shorter And should of themselves have made an Election of the way of Capias Arrest or Outlawry and continue it for above three hundred fifty years without any thing like a complaint against it if they could have believed that that Act of Parliament of 25 E. 3. ca. 17. had been repealed and a long and undeniable experience had not informed them that it was a much better and expedite way of bringing Men to Justice or that if the Writs of Pone and Distress had been the better way the Statute made in the Seventh year of the Reign of King Henry the Fifth which was sixty-nine years after to give Proces of Arrest and Outlawry in Actions or Writs for forging of Charters or Evidences would have esteemed it to be for the Common good of the People to have enacted it or if after the making of that Statute the course of Capias Arrest and Outlawry had not been believed to be the most beneficial the Statute made in the 19th year of the Reign of King Henry the Seventh for giving of Proces of Arrest and Outlawry in Actions of the Case which was made 84. years after would have declared the way of Pone and Distress to have been the Cause of great delays or that the Act of Parliament made in the 23th year of the Reign of King Henry the Eigth for giving Proces of Capias in Writs of Annuity which was made twenty-eight years after the making of that Statute would have said there were many delayes in Actions of Annuities because no Writ of Capias did lie in that Action Acts of Parliament in those dayes and long before after having by our Kings been granted upon the Petitions and Request of their Subjects and penned advised or carefully perused
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
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
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
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
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
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
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
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