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
or not so necessary convenient or useful as was intended or expected or like unto some of the Laws of the Medes and Persians which were said to be irrevocable but the People had by the grace and favour of the Soveraign a remedy by Parliament to abrogate repeal explain or amend them by substracting of some clause or adding some other unto it for liberties are both by Civil and Common Law defined to be of things not forbidden otherwise vaga liberâ—â— as may quickly come to be misera servitus and bring those that would use an unbounded liberty where it shall meet either with Laws or a greater force into a most miserable slavery And therefore just liberties do by our Common Laws saith Sir Edward Coke signifie the Laws of the Land And that which is the Law cannot be called Tyranny nor that which is against the Law liberty And that ancient manner of Trial for those who were criminally accused called Fire ordeal which ordained the Partie suspected to walk blindfold over certain Plow-shares of Iron heated red hot laid at a distance one from another and if the Party did not touch any of them or treading upon them received no harm he was declared to be innocent coming into this Land with the Eazons and the Law of Trial of Titles by Battle or Duel continuing here long after the Norman Conquest and to this day in force in certain doubtful cases though they had very much of blood and cruelty in them could be suffered to wear out into better Laws and yet be obeyed as Laws whilst they were such the Law of torturing or pressing such men to death in case of Felony as will not pleadâ— or do refuse to be tryed by a Jury to be so many houres in dying and have no other drink but Kennel-water hath enough of horror in it to be found fault with if it were not the Law and the only means to preserve the Authority of Laws and Judicature and there were not toom enough for men to avoid that direful way of punishment For there was never since the blessing of Laws Magistracy and Government came into the World any legal liberty not to appear in Judgment or not to be compelled to do right one unto another by Judges and those that were in Authority commissionated by their Superiours And if ever there had been such a liberty it may be renounced or released by our own Acts as in the entring into Bonds and Contracts one with another wherein we oblige our selves to the performance of any thing which the Laws of God and Nature do demand of us the Obligees may dispense with it And if the Law of Nature could have given us such a vast liberty as some would pretend a right unto the same Law of Nature doth in civil Conversation and Society give us a power sufficient to restrain it and make that which at the first was merae voluntatis in our own wills to be postea necessitatis a necessity and out of any supposed freedom of our own wills or the power thereof Neither can any man by any rule of Law charge our Laws with oppression because positive or made in terror or binding to strict rules to avoid arbitrarines or oppression in the Judges or rigour and severity as in some particular mans case they may happen to be by an abuse of them but the fault is rather to be laid at the doors of those who do violate and break them For an unlimited or absolute liberty and the liberty of the Subject are each unto other contradictory and there are no Laws but do retrench or take away some liberty which People had or took to do ill or might be inconvenient to the publick good For God the greatest and wisest of all Legislative Powers did put the Jews who were as he saith himself as the Bracelet upon his arm and the signet upon his right hand under a Law of fourty stripes and of death if they disobeyed the Sentence of the Judge And yet we do find them in their Generations above two rhousand years after in such an opinion of their freedom as they thought nothing could be added unto it saying they were of the Seed of Abraham and under no Bondage and are yet above sixteen hundred years since bragging of those their Laws When David had slain Goliah and might justly have expected the reward of having his Fathers House to be made free in Israel as some of the promised rewards he did not when he durst not lift up his hand against the Lords Anointed believe it to have been such a freedom as might exempt him from the duty of a Subject When our King Athelstan by his Charter gave Lands to St. Wilfrid and the Church of Rippon in Yorkshire in the words Al 's frelich as I may and in all things be al 's free as Hert may think or eych may se. And King William the Conquerour granted the Earldom of Chester to his Nephew Hugh Lupus Tenendum sibi haeredibus ita libere ad gladium sicut ipse totam tenebat Angliam ad Coronam to him and his Heirs to be holden as freely by the Sword as he did himself hold England and the Crown thereof Those very large Grants did neither free the Lands so given to St. Wilfrid and the Church of Rippon and that Earldom to the Earl of Chester unsubject the Owners or give either of them as our Records and Law-Books in the course of the after Ages will testifie any liberty not to appear upon any Summons to the Courts of Justice of our Kings and Princes For legalis liber homo saith Sir Henry Spelman hath in our Laws no other signification then Qui stat rectus in Curia non exlex seu utlagatus non excommunicatus vel infamis c. sed qui in lege postulet vel postuletur who standeth right in the Kings Court is not outlawed excommunicated or infamous but may at Law sue and be sued And it cannot be denyed but that in order to Justice a Summons or citation only might be sufficient and would certainly be most consonant to the ease and liberty of the People if they were or could be so of one mind or inclination to Justice as to obey the first Summons either of the Parties complaining or the Courts of Justice commanding or not make excuses or delayes hide themselves or run away or be loath to come to it be so of one kind of affaires and business as never or seldom to be absent so alwayes provided of their Councel Witnesses and Evidences as not to need any further time to make their necessary deffences and to be of so much sufficiency of estate as to have wherewithal to make a speedy answer or satisfaction And that there were no such pravity or incertainty in the wills and actions of men as that the Creditor would be alwayes sure to demand no more
which Statutes will be best expounded by Sir Edward Coke who in his Exposition and Comment upon Magna Carta ca. 29. and all the other parts thereof for out of that most commendable Law those two Acts of Parliament of 28 E. 3. ca. 3. and 42 E. 3. ca. 3. do seem to have been drawn and are but as Confirmations of it saith that by the Law of the Land is to be understood the Common Law Statute Law and Customes of England which though they be in the Negative have no reference or contrary matter unto that of 25 E. 3. ca. 17. and do not prohibit the former allowed and due Proces of the Law or declare them to be contrary to Magna Carta or any Article or point thereof nor have any express words or so much as any preamble which may signfie any purpose that they had to repeal it for all that is forbidden by those two Statutes of supposed repeal is to prevent the mischiefs complained of by suggestions to the King and his Councel and that no man be disinherited put to death or out of his Land taken imprisoned or brought to answer but by due Proces â—f the Law according to the old Law of the Land And the Statute of 37 E. 3. ca. 18. giving an order of pursuing a Suggestion made unto the King doth mention the great Charter and the words therein contained That no Man be taken nor imprisoned nor put out of his Free-hold without Proces of the Law For if our Records and Law-books and the reason thereof and all that hath been learned and believed hitherto do not fail us those Statutes or either of them cannot be interpreted to intend to take away any lawful and necessary Arrests and Imprisonments in Actions of Trespas which were in use long before the making of Magna Carta or the arresting or restraining of the persons liberties of Defendants in Actions of Debt and the like or for a Contempt of the King or his Courts of Justice in not appearing when they were summoned or cited or when they had no visible Estate to satisfie or were likely to fly or run away the true intent and meaning of those Statutes of 28 E. 3. and 42 E. 3. tending rather to confirm and establish that Act of 25 E. 3. ca. 17. then to repeal or take it away the main scope or purpose of them being only to restrain any arbitrary Government or any Lawless proceedings of the People one against the other for it is impossible by any sense or reasonable Construction of those Statutes to conclude any the least design in them or either of them to take away or alter a Law or Custom of the Nation which was not then at all so much as complained of when by forbidding to do that which was against the Law they must of necessity be understood to allow of that which was the Law or consistent with it For it hath been said and never denyed to be a rule in our Common Law as well as in the Civil Law that Exceptio firmat regulam in Casubus non exceptis The exception or saving doth preserve and allow of that to be the Law which is excepted otherwise if the exception should be as certainly it is not nugatory and serves for nothing the meaning of our Magna Carta it self and all those very many Statutes of Confirmation afterwards enacted must be as they can never be rightly taken to be that be the matter or cause Civil or Criminal Treason Murder or Felony no Man is at all to be disseised or put out of his Lands arrested imprisoned or compelled to answer and the King who is sworn to administer Justice to his Subjects must by Magna Carta it self be denyed and debarred the use of means to do it and the People thereby put into a condition not to be able to obtain Justice one against another And if no Laws concerning Proces in Debt or other personal Actions which have been enacted or allowed by Acts of Parliament subsequent to those before mentioned and supposed repealing Acts of Parliament made in the 28. and 42 E. 3. or derived by necessary deduction from reason which ought to be the Soul and Constituting part of all Laws shall not be allowed or taken for Laws the Parliaments of England wherein all manner of grievances and many times very small and inconsiderable were seldom omitted to be complained of or petitioned against have by making of the Statute of 7 H. 5. for giving Proces of Arrest and Capias in Actions of forging of Charters of 9 H. 7. in Actions of the Case and 23 H. 8. in Actions of Annuity not only not remedied but enacted grievances and all our other Laws which have been since made concerning the taking or imprisoning of Mens Bodies in Actions of Debt or other Civil and personal Actions or been put in Execution have been no other then abuses and transgressions of the Law and all that so many learned conscientious and Reverend Judges of the Law and sworn to judge according to it have since those times done or permitted to be done in pursuance of those latter Laws have been but as so many great mistakings to the oppression of the People And the Parliament of 3 Car. primi whereof the very learned Selden and that great Lawyer Sir Edward Coke and many very worthy Men and Lovers of our English Laws and Liberties were Members some of which had not long before made themselves Prisoners to secure a pretended Liberty would have been guilty of a great oversight and inadvertency in not getting better Provisions in the Act of Parliament made upon that which was called the Petition of Right wherein that aforesaid part of Magna Carta ca. 29. and the Statutes of 37 E. 3. ca. 9. 17 R. 2. ca. 6. and the very Act of 28 E. 3. ca. 3. now so much insisted upon are confirmed And the Acts of Parliament of 37 E. 3. ca. 18. 38 E 3. ca. 9. 42 E. 3. ca. 3. and quoted in the margent of the said Act are declared to be good Laws and Statutes of the Realm and it was ordained That no Offender of what kind soever be exempted from the proceedings to be used and punishments to be inflicted by the Laws and Statutes of the Realm All those Acts of Parliament being then expounded and understood to be only intended against the Imprisonment of Men by the King or his Councel without cause shewn and the same Parliament did then procure diverse Acts of Parliament to be repealed but not that of 25 E. 3. ca. 17. which neither was repealed in that nor any other Parliament in Terms or words intelligible or by implication or otherwise and did never yet deserve to be so since the making thereof Nor would that Parliament labouring so much for liberty have at the same time allowed of that Act of Parliament of 25 E. 3. ca. 17. for the Proces of Capias and Exigent or Outlawry in Actions
incertain of the success which none but mad Men and such as the Turks and Men of Mecha do usually adore can believe to be answerable to the end of publick good as he may sooner adventure to make an Affidavit if any credit could be given unto it of the possession infallible of the imaginary Elixir or Philosophers Stone the only Essay of the gaining whereof hath undone and emptied the Purses and Estates of many more learned then ever he will be then that the People of England have either lived in Slavery since the making of that Statute of 25. E. 3. ca. 17. or that there will such an happiness and mercy arrive or redound as he pretends unto them by the abolishing of the Process of Arrest and Outlawry when seven parts of eight the whole to be divided into no more shall be ruined in their present Estate and future hopes of a better for want of credit and trust And all the Men of Money lent out and trusted which are the smaller number shall be in danger enough of loosing it And the Free-holders of Lands which comparatively are far the smaller part of the Nation shall be only the Men and perhaps not half or a quarter of them that may be trusted or compelled to appear to any Actions of Debt or for Money which shall be commenced or brought against them And the Trade of the Nation which is now not so much outward as it either should or ought to be shall be very little stocked or driven with ready Money for want of trust or such a Process as may with any certainty or expedition compel the performance of it Or that His late or now Majesty when our Kings and Princes were wont in many of their Writs and Rescripts to acknowledge that they were Debitores Justitiae Debtors to their people in matters of Justice Astricti bound and obliged unto it by their Coronation Oaths could ever think it to be agreeable to their interests or correspondent to their Oaths and other obligations to God and Man to throw the Justice of the Land with which they have been by God intrusted into a Chaos and confusion to gratifie the humors of a smali or inconsiderable number of his Subjects the quondam Rebells and most factious and ignorant part of them and ruine the multitude who are as much committed to their cares as the other Ne cum parti alicui placeant reliquas deserant Least when they seek to please a few they do forsake and abandon those who are much the major part and greater number Howsoever let Sir Edward Coke say and write all that he can in the never to be denyed just praises and commendations of our Laws those that without any cause or knowledge do too much maligne and hate them adore a resolved infatuation and believe their Fort of Phansies to be impregnable and out of the danger of any Assaults or being taken will by their good wills rather then forsake their designs and the hopes they have of some new employments oblige and tye him to his former mistaken opinions delivered in the aforesaid Sir William Herberts Case and likewise in his Comment upon Magna Carta ca. 29. That the Imprisonment of the body for Debt unless in the King Case was not by the Common Law before the making of the Statute of 25 E. 3. ca. 17. although in all his Reports and Comments and other his learned Writings he hath not at all inveighed against the Process of Arrest and Outlawry in Actions of Debt or other personal Actions or declared or made any mention that they were either illegal or a grievance And when he said That Imprisonment of the body for Debt unless in the Kings Case was not before the making of the aforesaid Act of Parliament did no where say that it was not before that time upon Contempts of Courts of Justice or the Writs or Mandates thereof or upon a probability of a Defendants running away and are the more pertinatious in it by Sir Edward Coke's being so much enamored on a Manuscript called the Mirror of Justice which as to the Copie which he follows and cites in his aforesaid Comments upon Magna Carta and that so called Mirror of Justice which was afterwards printed and published in the year one thousand six hundred forty-six by William Hughs of Grayes-Inn Esquire Flagranti bello when the Laws and Liberties of the People were by a wicked Rebellion under a pretence of Reformation of Religion for some years before endeavoured to have been destroyed and said to be translated out of an old French Copy which hath been justly suspected in many important matters proved to be fictitious to Men of Learning and those that have traced the paths or fields of Learning and Manuscripts and observed the contrariety omissions additions transcriptions mistakings interpolations annotations impostures and words therein creeping out of the margent into the Text and those many counterfeit Books and Manuscripts which even in the primitive times of the Church and after Ages have been imposed upon Posterity and too often are and may be seen will administer no matter of wonder They therefore who do so cherish and delight in the novelty of opinions and are most pleased with those which are likeliest to answer their expectations of gain and profit or may serve to engage the protection and favour of some hopeful and prevailing Partie and Faction may do an Act of Justice to themselves and others to pause a while and look a little more into the aforesaid opinions of Sir Edward Coke although he must be acknowledged to have been a very great Rabbi in our Laws and consider well the Grounds Authorities and Reasons upon which he hath founded them before they do Jurare in verba Magistri and espouse or build upon them CHAP. XV. An Examination of the opinions of Sir Edward Coke in his Report of the said Sir William Herberts Case touching the Process of Arrest used in our Laws and the many Errours appearing in the Book or Manuscript called the Mirror of Justice and the fictitious matters and relations mentioned therein FOr although in Criminalibus Capitalibus causis in Criminal and Capital causes an Arrest or real Citation as the Civil Lawyers call it is and hath ever been used by the Laws of God Nature and Nations There shall not be such gentle Process or Proceedings by way of Attachment as is usual in other Cases but such Malefactors are presently to be arrested and the Goal or Prison is to be their Sureties until they defend or clear themselves yet those kind of necessary proceedings can have no other original or ground to support or warrant them but what proceeds from the before recited grounds or causes or some of them because until the Fact be tryed it is but an accusation and not alwayes so much as a probability but a change or suspition that it was done by him that is accused and there will be alwayes
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
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
our Laws enforced to dwell in the Tents of Mesech and Kedar and lying amongst the Pots and the Wolves made the Guardians of the Sheep and Lambs the Tenth Commandment in the Decalogue was bid to stand off and not trouble it self with their business until they could be at more leisure to talk with it or understand it every one was rooting up the foundations and like those that are too busie in breaking bulk or taking the spoil of a distressed wreckt Ship the wild Boar brake into the Vineyard and the Swine into the Garden and Bed of Spices unto whom the Rose of Sharon and the Lilly of the Vallys the charming Hyacinth and Tulips and gloriously adorned other flowers and the filth of a Dunghill were in their grunting capricious sense of an equal if so much value and estimation And Mr. John Dury a Scotish Minister who had before in the reign of King Charles the Martyr by good approbation of divers of our Bishops and Learned men of this Nation and many learned and worthy of the Reformed Churches beyond the Seas endeavoured a better agreement betwixt the Lutheran and Calvinists had no time or labour spare to bring his Countrymen and their mad Brethren of England into their wits again but for some Preferment had or promised was so well contented to ring the Changes with them as he could not let such things pass without some blessing or Grace said unto them or a box of what he took to be a more special Balm of Gilead bestowed upon them for the ease and comfort of such a small number as should be troubled with tender and puling Consciences as he did in his Re-proposals licensed by Mr. Joseph Caryl declare that God by an extraordinary way of providence had shaken the foundations of this Kingdom and turned in into a Commonwealth believed that the just Judgment of God had brought it upon those who without any respect to tender Consciences did press the ensnaring former Oaths of Allegiance and Supremacy and the Covenant and laid them as stumbling-blocks before their Brethren conceived that the requiring a general promise from Subjects to perform an undeniable and unquestionable duty to the Commonwealth wherein they live by those that have the power of affording or refusing Civil protection is not in the same nature with those former Oaths and Subscriptions And that he should pray and intercede for such as are under the trouble of their own Spirits and fear of sinning that the many years experience of their quiet behaviour and faithfull services may be accepted towards aâ— just degree of security and assurance for future peaceableness In the same year Mr. 〈◊〉 Gray a prisoner in the Compter of Woodstreet in London for the not payment of Tithes would perswade as many as would be so foolish as to believe him that Tithes were a curse to all Nations but Canaâ—n and a vexation to all people but the Hebrews In the year 1654. Mr. John Rogers once a Minister of the Church of England but afterwards a fiery zealot of Rebellion by his Book fuller of railing then truth or reason entituled Sagrir or Doomsday drawing nigh with Thunder and Lightning in an Alarm for New Laws and the Peoples Liberties from the Norman and Babylonian yokes wherein he calling the Lawyers Tyrants and Locusts saith that it is high time and more then time for the people to know their Rights Priviledges and Freedom that all that are past Children and Fools should call for them and that it concerns all to write print publish and declare against the Norman Tyranny of Laws and Lawyers and that he doth it with as much assurance and confidence as if he had a halter about his neck and were to endure the penalty of the Locrian Laws for failing in what he should alledge against them that the Lawyers are Antichrists State Army of Locusts and that the people have been robbed of their Rights to this day by the Income of corrupt Laws and Lawyers the true rise of their interest Innes of Court and trades by Sin that none are suffered to plead but Lawyers or such as are brought up in their Courts and Innes in their trade cheats and tricks to sell the Law at a large rate to Chapmen called their Clients and would make it to be no small grievance that men are imprisoned for Debt every man may not plead his own cause and that there are not County Judicatories to hinder the great charges put upon the Nation to prosecute their Suits at London and Westminster Mr Boone an Attorney or something of a Lawyer with his name wrapt up in an Anagram in his Book entituled Examen Legum Angliae published in the year 1656. whose reading of good Authors mentioned in his Quotations might have better informed him and made him of another opinion will not allow of any of our Laws that do not agree with the Mosaical or were not derived from them or of any which were made or allowed of in the times of Popery but saith that the Law of England as it is now in use is a departure from the Law of God and a taking of a Law from Heathens and Idolaters that the whole body of Popery is in a manner comprehended in Littletons Book so much commended by Sir Edward Coke and that the old Statutes made in the affirmance of the Common Law and the Books and Entries whereof he makes mention are stuffed with all manner of impieties errors that Magna Charta Charta Forestae do not appear to be any Acts of Parliament although they be so called that chiefly therein was intended the advancement of the Romish power in a Tyrannical Government that the Statutes of Marlebridge Westminster the first and the rest of the old Statutes said to be declaratory of the Common Law do savour of the power of Antichrist and do contain in them manifold impieties and superstitions that the Statute of 24 E. 1. concerning Ecclesiastical Judges and the Statute made in 9 E. 2. concerning Prohibitions Clarks convict Prelates Spiritual Courts Excommunications Abjurations power of the ordinary Fees of the Church Superstitious Houses Monasteries Parsons Parsonages containing sixteen Chapters are nothing else but Popery and the advancement thereof and the like may be said of 25 E. 3. ca. 3 4 5 7 8 9. concerning lapses of Benefices Clarks convict Ordinaries c. that such causes as do chiefly require remedy in a Court of Equity may easily be determined by Judges in Courts of Law Common Recoveries for assurance of Lands are nothing but a pack of lies that the Theory of the Common Law and some of the Statutes now in force do contain matters repugnant to the Law of God that most of the old Statutes as well such as are said to be in affirmance of the Common Law as others introductory to new Laws do contain in them great oppressions and wrong to the people and ought to be amended that the
THE Ancient Legal Fundamental and Necessary Rights OF Courts of Justice In their Writs of Capias Arrests and Process of Outlary And the Illegality many mischiefs and Inconveniences which may arrive to the People of England by the Proposals tendred to His Majesty and the High Court of Parliament for the abolishing of that old and better way and method of Justice and the establishing of a new by peremptory Summons and Citations in Actions of Debt By Fabian Philipps Esq Antonius Matheus in Praefat ad Lib de Auctâ—onibus Arduum est vetustis novitatem dare novis Autoritatem Dira per incantum Serpunt Contagia vulgus LONDON Printed for Christopher Wilkinson and are to be sold at his Shop at the Sign of the Black Boy in Fleet-street over against St. Dunstans Church 1676. The Contents of the Chapters Chap. 1. THe many mischiefs and inconveniences which may happen by an Act of Parliament if obtained for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired Chap. 2. That the most part of that desired Innovation was borrowed from Mr. Elsliot's wicked Invention and a wild Systeme not long after framed and from some also now much disused part of the Civil Laws Chap. 3. The reason and necessity of the more frequent use of Writs of Arrest and Vtlary then was before the Statute of 25 E. 3. cap. 17. Chap. 4. The Ancient use as well as necessity of the Process of Arrest and Outlawry in this and other Nations Chap. 5. The Process of Arrest and Vtlary are a more gentle way of compelling men to pay their Debts or appear in Courts of Justice then that which was formerly used Chap. 6. The delays and inconveniences of the Process of Summons Pone distringas were a great if not the only cause of the disuse thereof Chap. 7. The Writs and Process of Arrest and Outlawry have increased preserved and encouraged Trade better secured the Creditors Debts and made the borrowing of Money more easie then it was before Chap. 8. The pawn and ingagement of the Body is most commonly a better security then Lands or personal Estate upon which the borrowing of Money was not only very troublesome but difficult Chap. 9. The difference betwixt borrowing of Money upon Lands and real Estate and the procuring of it upon personal security and that without trust and personal security Trade cannot well or at all subsist Chap. 10. The way of Capias and Arrest is no oppression or tyranny exercised upon the people since the making of the Statute of 25 E. 3. cap. 17. or hath been hitherto or may be destructive to their Liberties Chap. 11. That the wisest of the Grecian Commonwealths Athens and Sparta those great contenders for Liberty and preservers of it did in their establishments and methods of Justice neither understand or suspect any Tyranny or oppression to be in the necessary and modâ—rate use of the Process of Arrest Chap. 12. The troubles and seditions of the people of Rome concerning the whippings scourging selling for Bond-slaves and other cruelties used by Creditors in the suing and prosecution for their Debts and the troubles and endeavours of the Magistrates and Senators to appease them Chap. 13. That their Order made to pacifie a tumult was not perpetual or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restraints of their persons until they appeared in Courts of Justice or gave bayl to do it Chap. 14. That the Statute of 25 E. 3. cap. 17. which giveth Process of Capias and Exigent in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliament of 28 E. 3. or 42 E. 3. cap. 1. there being no inconvenience or prejudice to the Publique good in those kind of Law proceedings which might deserve a repeal by those or any other Acts of Parliament Chap. 15. That the Nation hath not been base or slavish ever since the making of the said Act of Parliament of 25 E. 3. cap. 17. Chap. 16. An examination of the Opinions of Sir Edward Coke in his report of Sir William Herberts Case touching the Process of Arrest used in our Laws and the many Errors appearing in that Book or Manuscript called the Mirrour of Justice and the fictitious matters and relations mentioned therein Chap. 17. That the late incessant needless complaints against our Laws and the proceedings in our Courts of Justice had in the bottom of it a design of overturning Monarchy and Government and to create Offices places imployments and profits to the contrivers thereof and their party Chap. 18. That neither Oliver Cromwell or his Son Richard the second Mock-Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever-changing kind of Reformations Chap. 19. What occasioned the contrivance of the former Projects and groundless Complaints against our Laws since his Majesties happy Restauration Chap. 20. That the Proceedings at the Common Law desired by the new way of a peremptory Summons or the old by Writs of Summons Pone Distringas or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable one with the other and that Laws being to be binding are to be certain and positive not arbitrary Chap. 21. That it will not be for the Interest of the King and his people to give way to that Design which may open a passage to other Innovations and Contrivances as much if not more inconvenient and prejudicial CHAP. I. The many mischiefs and inconveniences which may happen by an Act of Parliament to be made for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired THe Suggestions and that which should be the Causes or inducements to such an Act of Parliament are greatly mistaken or if there happen any such Evils as are pretended they are Raro Contingentia and do but seldom happen And when they do arise have their originals from other Causes but not from Arrests in Actions of Debt which by the shortest account are and have been of 374. years continuance by order and approbation of many Acts of Parliament but may be demonstrated to have been of a far greater Age and equal to that of the Eldest Court or Method of Justice in this or any other civilized Nation in the world The mischances happening by two or three Bailiffs in 20. or 30 jears killed most commonly upon the score of their own provocation rudeness and misdemeanors are when they do so happen in the unruly Suburbs of London towards Westminster for in the other too vast extent of them an Age or Century is scarce able to furnish out one of those evil accidents And within the City of London where Credit seems to be the Life and
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
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
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
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
or otherwise destroyed but by lawful judgment of his Peers or by the Law of the Land And by 25 Ed. 3. ca. 4. That no Man shall be taken by Petition or suggestion but by Indictment or Presentment or by Process made by Writ original at the Common Law He is in his Comment upon Magna Carta and that Statute of 9 H. 3. of opinion that the words Per legem terrae do refer to all the procedent matters in that Chapter or Statute that that Statute was but declaratory of the old Law of England That a Commitment by Lawfull warrant either indeed or in Law is accounted in Law a due process or proceeding of Law and by the Law of the Land as well as by force of the Kings writ and that if a man be suspected and he flyeth or hideth himself it is a good cause to arrest him that in many cases a man may be by the Law of the Land taken and imprisoned by force of the Kings writ upon a suggestion made and that against those that attempt to subvert and enervate the Kings Laws there lyeth a writ to the Sheriffe in nature of a Commission ad capiendum impugnatores juris Regis ad ducendum eos ad Gaolam de Newgate to arrest the Impugners of the Kings Laws and to bring them to the Gaole of Newgate and if he had not been of that opinion the words of Magna Charta in that Statute of 9. H. 3. can if they were put upon the rack and tortured bear no other genuine sense or interpretation then that no man shall be taken or imprisoned but by lawfull judgment of his Peers or by the law of the land And those words of the Statute of 25. Ed. 3. ca. 4. that no man shall be taken by petition or suggestion but by indictment or presentment or by process made by writ original at the Common Law can receive no other construction but that a man may be taken by process made by writ original at the Common Law of which nature are the process or writs of Capias in the Court of Common Pleas at Westminster which are made upon original writs issuing out of the Chancery have been in use upon occasion and are matters of record before the Justices in this Kingdom long before the making of those Statutes And such an universal approved Ancient long and continued Praxis founded and fixt upon the Laws of God Nature and Nations in order to the preservation of Faith and Justice those grand Supporters of humane Societies should need no Advocate to plead and justifie the necessary use thereof but be sufficient to perswade the opponents to acquiesce in the reason and legality of it And that great Lawyer Sir Edward Coke might have had more lawrels to have encompassed and grown up by his urne and had not so much Eclipsed that great reputation which he had gained in his Studies and Profession of the Laws as he hath if he had not without a due and serious examination so much taken upon trust Caressed Magnified and recommended to posterity that Manuscript called the Mirror of Justice and some other Manuscripts so often by him appealed unto and vouched in his 2. part of the Institutis or Comment upon Magna Charta In which Consarcination called the Mirror of Justice that Mirror of Justice Maker or Deviser dreameth truly to have recited some exemplary Judgmeets or direful punishments inflicted by King Alured or Alfred upon 44. Judges of his times for supposed Errors and Misdemeanors by them committed And hanged them who with great probability may be believed not yet to have been hanged by that King or any other for that if any such remarkable things or Examples of Justice had ever been done by him they could not in all likelihood have escaped our old Historians Symeon Dunelmensis Ailredus Abbas Rievalensis John Brompton William Malmesbury Henry Huntington Roger Hoveden Henry Knighton Matthew of Westminster Ingulphus and all our other Ancient times Remenbrances nor would have been unrecorded by Asser Menvensis who for the fame of his Learning being sent for out of Wales to come and live with him was preferred by him and made a Bishop and residing in his Court Wrote his life and recommended to Posterity his most memorable Actions excellent Qualities and Endowments but was so far from the Registring of any such Severeties as on the contrary he doth make mention of the extraordinary clemency and lenity of that Virtuous Prince who although he was a most diligent inquisitor of any male administration of Justice by his Judges yet saith Asser Menevensis Leniter Advocatos aut per scipsum aut per alios suos fideles quoslibet Interrogabat quare Ita nequiter Judicassent utrum per ignorantiam aut propter aliam malevolentiam id est utrum pro aliquorum amore vel Timore aut aliquorum odio aut etiam pro alicujus pecuniae cupiditate Gently calling them to him he did by himself or others whom he might trust demand of them Wherefore they had given such Judgments whether ignorantly or for any ill will or for love fear hatred covetousness or love of Money Denique si illi Judices profiterentur propterea se talia Ita Judicasse eo quod nihil rectius de his rebus scire poterint tunc ille discrete moderanter illorum imperitiam insipientiam redarguens aiebat Ita inquiens nimirum admiror vestram hanc insolentiam eo quod dei dono meo sapientium gradus usurpati sapientiae autem studium operam neglexistis But if those Judges did confess that they had so Judged or done because they knew no better then he did discreetly and moderately shew them their ignorance and say unto them truly I do very much wonder at your folly for that by Gods guist and mine you have taken upon you the degree of my wise men and Judges but the study of the Laws you have neglected Qua propter aut terrenarum potestatum ministeria quae habetis illico dimittetis aut sapientiae studiis multo devotius docere studiatis impero Wherefore I command you either suddainly to leave your places or give your minds more unto study Quibus auditis verbis perterriti veluti pro maxima vindicta Correcti Comites praepositi ad aequitatis discendae studium totis viribus se vertere nitebautur ita ut mirum in modum illiterati ab infantia Comites pene omnes prepositi ministri litteratoriae arti studerent malentes insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere Whereupon they viz. His Earles and subordinate Judges being as much terrified as if they had been actually punished did wholly addict themselves to the study of the Laws so as to a wonder the Earles and Judges aforesaid many of whom from their youth were ignorant and illiterate did by study endeavour to make themselves more able choosing rather the hardship
are not Judges by derivation from the King Who cannot make or unmake Judges Inferior Judges are more necessary than a King Parliaments may conveen and Judge without a King Are co-ordinate Judges with him not advisers only Subordination of the King to the Parliament and Co-ordination are both consistent The King transgressing in a hainous manner is under the coaction of Law Defensive Wars are lawful And there may be a distinction betwixt the Kings person and his Royal power The Physical act of taking away the life of offending persons when commanded by the Law of self-defence is no Murther Wars raised by the Subjects and Estates for their own just defence against the Kings bloody Emissaries are lawfull Parliament power is a fountain power above the King Who is but a noble Vassal of the Kingdom Is not head of the Church The people in some Cases may convene without the King Subsidies are the Kingdoms due rather then the Kings And thus provided and the scaling ladders made ready to storm the Laws which were the Forts and Bulwarks of the King and Government and heretofore made it their business to give help or shelter to the King the Deformers rather then Reformers do hasten one another to be up and doing And therefore in a Pamphlet entituled Liberty vindicated against Slavery Printed in the year 1645. the Author declared that Imprisonment for Debts is against the foundamental Laws of England Propositions were shortly after made unto that company of Monarchy underminers called the Parliament for the laying aside the six Clarks in Chancery and the imploying their under Clarks at Cheaper Rates In the year 1646. Mr. John Cooke of Grayes Inne who sufficiently deserved to be hanged drawn and quartered as he was afterwards as a Traytor in a Book dedicated to the most high and most honourable Court of Parliament the supreme as he calls it Judicatory of the Kingdom saith that the alteration of fundamental Laws as Sir Edward Coke saith produces many inconveniencies as in that statute of imprisoning mens bodies for Debt And there must needs be good work in that their sport of pulling down and setting up when it hath been as truly said as verified that the Kings Parliament began in 1640. and continued with some freedom of Votes untill December 1641. From thence it was governed by the City of London and their Tumults Propositions and Petitions unto December 1643. And from thence by the Scots and their rebellious League and Covenant unto the Month of June 1647. When the Presbyterians had the ascendant and predominancy and that was not unjustly called the Apprentises Parliament And after that Sir Thomas Fairfax his Parliament which was governed by his Army and their Addresses Declarations and Proposals wherein the Independant party were Superior and ought to be called the Agitators Parliament The King in the mean time in his great desire of peace with those whose wicked designes never intended it not making that right use which he otherwise might have done of the successes which God had given him in the just defence of himself and his Loyal Subjects and the Laws Liberties and Religion of his People tired with the treachery of those that too often betrayed and sold his just advantages and overpowered with an Army of Covenanting Scots who came to assist their brother Rebells of England and believing himself to be somthing safe in their Oaths and Promises and flying to them for Succour was by a party of them contrary to the Laws of God and Nations sold to the English Rebells for two hundred thousand Pounds Sterling Too great a summe of Money to be restored again as Judas did the thirty pence the wages of his sin for the betraying of our Lord and Saviour and by tricks and devices carried Prisoner from place to place untill he was barbarously Murthered And the Heire and Royal Issue driven out of their Inheritance and then every Mechanick head was set on worke to frame a new Government in which there were as many diversities of opinions as there were Ignorances and Sinister ends to advance their particular ambitions or advantages and a mart being kept of Whimsies some being much in love with the Balletting box used at Venice others with the Rota and Mr. Harringtons Oceana and all or too many thus busied Sedition and Ignorance sat in their Triumphal Chariots with the Laws Learning and Religion of the Nation like so many Captive Kings in Chains attending all which did not fully correspond with the Votes and expectation of the Presbyterians when as Cromwell the gâ—â—at Encourager of the Independents or Fanatick party then the more numerous feeling his own strength and having a prospect of a better design of establishing himself did so delay and trifle with the Parliament his Masters in their desires of disbanding the Armies as the Presbyterian Souldiers in the mean time selling their Debenturs the wages of their Rebellion and wickedness at 16 d. or 18 d. a pound with a long Interest to the Independents who were thereby easily enabled to buy King Queen and Princes the Bishops and Dean and Chapters Nobility and Delinquents Lands as they mis-called them and that party being so well gratified were not afterwards unwilling to Lacquey after his hypocrisie and permit him to frame and make his own Instrument and method of a more arbitrary Government then our Laws permitted or any of our Kings or Princes exercised and to be as a single person Protector of all the Knaves and Fools in England Scotland Ireland and Wales withall their fancied and supposed Liberties which as they used them were but to hunt and chase all that were loyal and honest and thought they might do any thing to the Amorites Moab and Amalek and that all the Scripture was contained in Gain being as they supposed Sanctified into a pretence and outward semblance of Godliness In the later end of the year 1648. some thousands of Well-affected as their Sedition perswaded them inhabiting the Cities of London and Westminster Borough of Southwark and Hamlets supposing the Time to smile upon their purposes did Petition that which when the King was murthered was no Parliament that they would consider the many thousands that were ruined by perpetual imprisonment for Debt and provide for their enlargement In the year 1649. one Thomas Faldoe of Grays-Inne Esq was so loth to have his Conceipts and Opinions lag behind as in a Pamphlet entituled Reformation of Proceedings at Law published on the behalf of himself and the Commonwealth of England he complained That the Law of Property was depressed and useless by the colour of the Statute of Imprisonment and sacrificed to all the Birds of prey even to Covetousness the mother of Cruelty in the several Offices and Instruments of Justice And in the same year came out a Representation of divers as they called themselves Well-affected persons in or about the City of London petitioning the Parliament That all tenures in Capite and all inferiour
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