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
ends of Justice and those that seek it as it verifies and gives us the benefit and right use of that moderation and care of our Laws in that rule and maxime of it to threaten more then execute ut metus ad omnes poena ad pauco◠that the punishment of a few may operate as much as if all did partake thereof the affright being most commonly that which makes the suffering to be so disproportionate and less then what was necessarily or otherwise threatned For if four thousand Writs of Exigent be awarded and issued out of the Court of Common Pleas in the year 1674. which is very near an exact accompt taken thereof not much above one thousand of them do come to be returned filed or outlawed But the residue and those very many which are not are either stayed by Agreements or Retraxits and Complyance betwixt the Attorneys or in order to appearances upon new Originals without returning and filing the Writs of Exigent And may be taken to be no fancied Calculation when the number of all the Capias utlegatums special or general made by the Clark of the Outlaries in the year 1674. were no more then 1034. the Outlaries reversed no more then 27. And the Outlaries certified into the Exchequer no more then sixteen And all the Prisoners that were for Debt and other actions not Criminal in the Prison of the Kings Bench being the greatest in England and Wales either in the Prison or the Rules or abroad by Writs of Habeas Corpus the third day of May 1653. were under the hand of Sir John Lenthal Knight Marshal of the Court of Kings Bench with the several times of their Commitments certified upon the special order and command of the then miscalled Parliament to be no more then three hundred ninety one of which there appears to have been committed in the year 1616 but one In the year 1631-one In the year 1633 one In the year 1636 one In the year 1637-one In the year 1638-one In the year 1639-one In the year 1640 nine In the year 1641 five In the year 1642 two In the year 1643 three In the year 1644 four In the year 1645 seven In the year 1646 fourteen In the year 1647 fiveteen In the year 1648 twelve In the year 1649 fourty-six In the year 1650 thirty-two In the year 1651-fourty-one In the year 1652 one hundred thirty And in the year 1653 fourteen And it must needs then be a wonder and none of the smaller sort or size of wonders how or upon what ground cause or reason that so very ancient rational legal necessary and useful way of Capias Proces and Outlary derived and deduced from the Laws of God Nature and Nations should either deserve or come into so ill an opinion with some of the People or that it should be called or understood to be an Illegal Iron sharp and cruel Law a Tyranny thraldom mischief slavery lamentable bondage terror and sorrow of heart and utter ruin◠of the free born People of this Nation founded upon a misconstruction and inadvertency of the genuine sense of the Common Law it self and contrary to thirty Acts of Parliament made in Confirmation of Magna Charta or should be repealed by the Act of Parliament made in the 28th year of the Reign of King E. 3. ca. 3. and by the Statute of 42. E. 3. 〈◊〉 3. Or should now in its old age have no better a title then a grievance and those unjust Rabsheka railing reproaches when it hath been helpful to multitudes of men in several Ages cast upon it CHAP. X. The way of Capias and Arrest is no oppression or Tyranny exercised upon the People since the making of the Statute of 25 E. 3. ca. 17. or hath been hitherto or may be destructive to their liberties WHen as Tyranny in the known and general definition and understanding of it is a cruelty or power executed by one or more at pleasure contrary to Laws Divine and Humane and inconsistent with the Laws of that Place or Country wherein it is exercised For Laws do or at the least should intend to prohibit things unjust and to order things good and useful for that People and Nation unto which they are applied The intent of a virtuous and good Lawmaker being as Aristotle saith To make the People good and conduct them to virtue Or how it can be called Tyranny when it is no less then right reason which should be the Parent and Director of all Justice when as God himself the most just and rational Law-giver the Watch-man of Israel and the Keeper of the liberties thereof that gave unto Mankind a reasonable Soul and that great blessing of reason which is the Divini luminis radius A beam or ray of his own Excellency did in the Laws which he gave to Moses when he talked with him enact and ordain That if a man shall deliver unto his Neighbour money or stuff to keep and it be stoln and the Thief be not found the Master of the house shall be brought unto the Judges to see whether he hath put his hands upon his Neighbours Goods which was nothing less then an Arrest The Law of Nature that giveth every man leave and enjoyneth them to work rather then to be idle and want allows them not to hinder publick good or disturb the Rules of Civil Society and work within the City of London or the Liberties thereof if they be not thereunto authorized as Free-men of the said City or was it an oppression by an Act of Parliament as King Edward the 3. did in the 25th year of his Reign to limit Artificers Labourers and Servants wages or as Queen Elizabeth did by an Act of Parliament yet in force and unrepealed made in the 5th year of her Reign or when King Henry the 8th did limit the price of Victuals and Houshold Provisions by an Act of Parliament made in the 25th year of his Reign or an oppression of the People by Sumptuary Laws for Apparel made in his Reign and of his Daughter Queen Mary's which otherwise in a private man according to the bent and rules of Nature giving every one a liberty In rebus licitis non prohibitis in thing lawful not sinful and consistent with the Laws of publick good and Civil Society would have been within the freedom and dispose of his own will Neither do the People of Spain and Italy in their submission to a Banda or Rate imposed upon the Sellers of Victuals and Houshold Provisions or the Natives of France Spain and the elective Kingdom of Sweden think themselves to be too much or any thing at all abridged of their natural liberty by yielding for publick good a just obedience to their Sumptuary Laws lately made and ordained For there is no Law extant of this Nation so made but the Subjects might chuse to incur the penalty or hardship of it or if they should happen to be too severe or unfit
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
be at the trouble hazard and charge of the experiments may do better to understand or if they cannot give leave to others to help them to understand That the purport intent and true proper and genuine signification of the words of our Magna Carta ca. 29th was to secure the People that the King might not take or imprison any Man Nisi per legale judicium parium suorum vel per legem terrae which if extended to the People in their affaires one with another and made to be as obligatory and binding unto them as it is and ought to be to the King can have no other just interpretation then what Sir Edward Coke hath given us in his Comment thereupon published after his death in the later end of March 1641. or the beginning of the year 1642. Which is saith he as the Statute of 37 E. 3. ca. 18. expoundeth it by due Proces of Law and what that kind of Process was hath been already determined and proved to be as well by Writs and Process of Arrest as by Summons Pone and Distress though the latter as the condition and course of the affairs of the Nation then stood was much more frequent and usual and it appeareth by that part of Magna Carta ca. 29. and the Exception therein that there was a Process or proceeding in Law besides the Legale Judicium or Trial by Peers or Jury and the Process where Defendants were not willing to come to Judgement and have their Controversies determined which but in very seldom Cases never was or is likely to be otherwise there was and will ever be a necessity of compelling them by Proces to appear in Judgment when they delayed or refused it For as the great and learned Grotius hath said upon another occasion The Liberties claimed from a Prince ought to be such as competere possint subditis might accord with his Superiority and their duty of Subjects for our so eager clamours of Liberty cannot certainly be so nayled to any of their extravagant opinions and desires as to induce them to think it either to be lawful rational or consistent with the Great Charter to deny the King or his subordinate Courts of Justice a power to Imprison any that shall be guilty of Contempt against His Person or Authority and to constrain them to appear in Judgment For the way which the Judges and Interpreters of our Laws have hitherto used in the Construction and understanding of Parliaments nothing appearing to the contrary hath been an Inquiry into the occasion and purport of them commonly expressed in the preambles and reason thereof and into the sense as well as the words of them for the preamble of an Act of Parliament saith Dyer sometimes Lord Chief Justice of the Court of Common Pleas is the Key to open the minds of the Makers of the Act and of the mischiefs which they did intend to remedy and a Man ought not to dwell upon the letter nor to think that when he hath the letter on his part that he hath the Law on his part say the Judges in the Resolution of the Case between Easton and Studde in regard that the rule in the expounding of Statutes is to search out the mind of the Law-makers what Construction they would have made of it if they were living And that Acts of Parliament ought to be understood by a reasonable Construction to be collected out of the words thereof according to the true intention and meaning of the Makers of the Act that Statutes in the affirmative do not regularly take away Statutes precedent in the affirmative unless in some special Cases and Statutes referring to other Statutes do not make any alteration in Law but unto the points unto which they do Refer nor doth a latter Act with Negative words say our Laws take away a former if it be not contrary in matter And the Parliaments of this Nation have alwayes taken care to use express and clear words of repealing any Statutes which they intended to Repeal by plain and certain mention thereof with the times wherein they were made sometimes repealed but a part of some former Acts by a new Act of Parliament and enlarged and proceeded further then the former Acts did extend unto as in the Act of Parliament concerning Servants and Artificers wages made in the fifth year of the Reign of Queen Elizabeth The words and meaning of the Statute 28 E. 3. ca. 3. being no more then That no man of what Estate or Condition that he be shall be put out of Land or Tenement nor taken nor imprisoned nor dis inherited nor put to death without being brought to answer by due Proces of the Law And in that of 42 E 3 ca. 1. It is assented and accorded that the great Charter and the Charter of the Forrest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none And being a confirmation in general of all the thirty-seven Points Articles or Chapters of Magna Carta granted in the Ninth year of the Reign of King Henry the Third some of which did concern the King in his profits did neither only intend that particular Chapter of Magna Carta ca. 29. to be made void or repealed or declare that what was done or to be done by lawful Judgment of Men by their Peers which could not be without some kind of Proces or proceedings then in use or that what was done or to be done by the Law of the Land should be repealed as contrary thereunto but did so not at all then intend to do it or to affirm the due Proces of the Law to be contrary unto Magna Carta either as to that twenty-nineth Chapter or to any other the Points Articles or Chapters of Magna Carta As that some of the People being at the time of the making of the said Act of Parliament of 42 E. 3. ca. 3. or not long before too busie in Arresting Imprisoning and vexing one another by false Accusations made to the King and his Councel that Chapter or Branch of 42 E. 3. ca. 3. was made for the redress thereof and for the good Government of the Commons as that Act doth import having these words To eschew the mischiefs and damage done by false Accusers which oftentimes have made their Accusations more for revenge and singular benefit then for the profit of the King or his People of which accused Persons some have been taken and sometimes caused to come before the Kings Councel by Writ and otherwise upon grievous pain against the Law It is assented and accorded That no Man be put to answer without presentment before the Justices or matter of Record or by due Proces or Writ original according to the old Law of the Land and if any thing from henceforth be done to the contrary it shall be void in the Law and holden for error Both of
which Statutes will be best expounded by Sir Edward Coke who in his Exposition and Comment upon Magna Carta ca. 29. and all the other parts thereof for out of that most commendable Law those two Acts of Parliament of 28 E. 3. ca. 3. and 42 E. 3. ca. 3. do seem to have been drawn and are but as Confirmations of it saith that by the Law of the Land is to be understood the Common Law Statute Law and Customes of England which though they be in the Negative have no reference or contrary matter unto that of 25 E. 3. ca. 17. and do not prohibit the former allowed and due Proces of the Law or declare them to be contrary to Magna Carta or any Article or point thereof nor have any express words or so much as any preamble which may signfie any purpose that they had to repeal it for all that is forbidden by those two Statutes of supposed repeal is to prevent the mischiefs complained of by suggestions to the King and his Councel and that no man be disinherited put to death or out of his Land taken imprisoned or brought to answer but by due Proces â—f the Law according to the old Law of the Land And the Statute of 37 E. 3. ca. 18. giving an order of pursuing a Suggestion made unto the King doth mention the great Charter and the words therein contained That no Man be taken nor imprisoned nor put out of his Free-hold without Proces of the Law For if our Records and Law-books and the reason thereof and all that hath been learned and believed hitherto do not fail us those Statutes or either of them cannot be interpreted to intend to take away any lawful and necessary Arrests and Imprisonments in Actions of Trespas which were in use long before the making of Magna Carta or the arresting or restraining of the persons liberties of Defendants in Actions of Debt and the like or for a Contempt of the King or his Courts of Justice in not appearing when they were summoned or cited or when they had no visible Estate to satisfie or were likely to fly or run away the true intent and meaning of those Statutes of 28 E. 3. and 42 E. 3. tending rather to confirm and establish that Act of 25 E. 3. ca. 17. then to repeal or take it away the main scope or purpose of them being only to restrain any arbitrary Government or any Lawless proceedings of the People one against the other for it is impossible by any sense or reasonable Construction of those Statutes to conclude any the least design in them or either of them to take away or alter a Law or Custom of the Nation which was not then at all so much as complained of when by forbidding to do that which was against the Law they must of necessity be understood to allow of that which was the Law or consistent with it For it hath been said and never denyed to be a rule in our Common Law as well as in the Civil Law that Exceptio firmat regulam in Casubus non exceptis The exception or saving doth preserve and allow of that to be the Law which is excepted otherwise if the exception should be as certainly it is not nugatory and serves for nothing the meaning of our Magna Carta it self and all those very many Statutes of Confirmation afterwards enacted must be as they can never be rightly taken to be that be the matter or cause Civil or Criminal Treason Murder or Felony no Man is at all to be disseised or put out of his Lands arrested imprisoned or compelled to answer and the King who is sworn to administer Justice to his Subjects must by Magna Carta it self be denyed and debarred the use of means to do it and the People thereby put into a condition not to be able to obtain Justice one against another And if no Laws concerning Proces in Debt or other personal Actions which have been enacted or allowed by Acts of Parliament subsequent to those before mentioned and supposed repealing Acts of Parliament made in the 28. and 42 E. 3. or derived by necessary deduction from reason which ought to be the Soul and Constituting part of all Laws shall not be allowed or taken for Laws the Parliaments of England wherein all manner of grievances and many times very small and inconsiderable were seldom omitted to be complained of or petitioned against have by making of the Statute of 7 H. 5. for giving Proces of Arrest and Capias in Actions of forging of Charters of 9 H. 7. in Actions of the Case and 23 H. 8. in Actions of Annuity not only not remedied but enacted grievances and all our other Laws which have been since made concerning the taking or imprisoning of Mens Bodies in Actions of Debt or other Civil and personal Actions or been put in Execution have been no other then abuses and transgressions of the Law and all that so many learned conscientious and Reverend Judges of the Law and sworn to judge according to it have since those times done or permitted to be done in pursuance of those latter Laws have been but as so many great mistakings to the oppression of the People And the Parliament of 3 Car. primi whereof the very learned Selden and that great Lawyer Sir Edward Coke and many very worthy Men and Lovers of our English Laws and Liberties were Members some of which had not long before made themselves Prisoners to secure a pretended Liberty would have been guilty of a great oversight and inadvertency in not getting better Provisions in the Act of Parliament made upon that which was called the Petition of Right wherein that aforesaid part of Magna Carta ca. 29. and the Statutes of 37 E. 3. ca. 9. 17 R. 2. ca. 6. and the very Act of 28 E. 3. ca. 3. now so much insisted upon are confirmed And the Acts of Parliament of 37 E. 3. ca. 18. 38 E 3. ca. 9. 42 E. 3. ca. 3. and quoted in the margent of the said Act are declared to be good Laws and Statutes of the Realm and it was ordained That no Offender of what kind soever be exempted from the proceedings to be used and punishments to be inflicted by the Laws and Statutes of the Realm All those Acts of Parliament being then expounded and understood to be only intended against the Imprisonment of Men by the King or his Councel without cause shewn and the same Parliament did then procure diverse Acts of Parliament to be repealed but not that of 25 E. 3. ca. 17. which neither was repealed in that nor any other Parliament in Terms or words intelligible or by implication or otherwise and did never yet deserve to be so since the making thereof Nor would that Parliament labouring so much for liberty have at the same time allowed of that Act of Parliament of 25 E. 3. ca. 17. for the Proces of Capias and Exigent or Outlawry in Actions
should in such a case have a Writ de ldempuitate nominis as had been in time past And in the 38th year of that Kings Reign whereas many People were grieved and Attached by their body in the City of London at the Suit of the People of the same City surmising to them that they be Debtors and that they Prove by their Papers whereas they have no Deed or Tally It was assented that men may wage their Law upon Debts due upon such Papers And the Right use of that Act of Parliament of 25. F. 3. cap 17. did from time to time receive its Allowance and Approbation by several Acts of Parliament made by our Kings and Princes from the makeing of that Act until that never to be enough deplored infatuation and unruly Giddiness of a rebellious part of the Nation betwixt the year 1641 and his Majesties happy return in the year 1660. As by an Act of Parliament made in the first year of the Reign of King Richard the 2 it was enacted that Prisoner upon judgments given in any of the Kings Courtss of Justice should not be suffered to go at large that a fained confession of a Debt due to the King should not delay anothers Execution And that Priests should not be arrested doing Divine service And in the second year of that Kings Reign being but about 27 years after the making of that Statute of 25 E. the 3. to proceed to Utlary by way of Capias in Actions of Debt Robert de Hauley Esquire being Arrested upon an Action of Debt and upon his Escape pursued into Westminstar Abby Church where he took Sanctuary was in a Tumult in the Church Slain at the High Altar when the Priest was Singing high Mass and the offence and breach of Priviledg as it was then pretended to be complained of in Parliament by the Arch Bishop of Canterbury and the rest of the Prelates and Clergy who prayed that due Satisfaction and amends might be made of so Horrible a fact It was opposed by the Lords and Commons who Vouched records and called to witness the Justices and others that were Learned in the Laws of the Land that in the Church of England It hath not been accustomed that the offenders flying to a Church ought to have Immunity for Debt or Trespas or other cause whatsoever except for crime only and certain Doctors of Divinity Canon and Civil Laws being thereupon examined and sworn before the King himself to speak the plain truth said upon mature and sound deliberation that in case of Debt account or Trespass where a man is not to loose Life or Member no man ought to have Immunity in holy Church and said further in very high expressions that God saving his perfection and the Pope saving his holiness nor any King or Prince can grant such a Priveledge and that if the King should grant such a one the Church which is and ought to be favoured and nourished ought not to accept of it whereof offence or occasion of offence may arise for it is a Sin and occasion of offence saith the Record to delay a man willingly from his Debt or the just recovery of the same And so little did that great affray complaint of a then Powerful Clergy for that breach of Priveledge the trouble of the King and Parliament therein perswade our forefathers to any dislike of the way of proceedings by way of arrest by Capias or Utlary thereupon as at another Parliament holden in the same year for the avoiding of debtors withdrawing themselves and Flying into Places of Churches Priviledged It was ordained by the King upon the Petition of the Commons in Parliament that in such cases after the Creditor had brought an Action of debt and procured a Capias to be thereupon awarded and the Sheriff returned that he could not take the defendant because of places of Priviledge another Writ should be made with Proclamation to be made at the gate of such Priviledged place by five Weeks continually every Week once that such person render himself And the Succeeding Kings were so careful not to suffer particular grievances to disappoint the effects of good Laws made for the generality of the People As by a Statute made in the first year of the Reign of King Henry the fifth it was ordained that in every original Writ of Actions personal upon which an Exigend shall be awarded the names of the defendants and their additions shall be mentioned And by another made in the 7th year of the said Kings Reign upon the Petition of the Commons as the Statute witnesseth like process for the common profit of the Realm saith the preamble of that Statute shall be had in Writs of forging of Charters or evidences by Capias and Exigend as in Trespass By a Statute made in the 23 year of the Reign of King Henry the sixth Sheriffs shall take Bonds securities or sureties for the appearance of such as be Arrested except upon Writs of Execution Capias utlegatum or excommunicatum By a Statute made in the 19th Year of the Reign of King Henry the 7th because there have been great delays saith the Preamble of that Act like Process is given in Actions of the Case as in Actions of Trespas or debt By an Act of Parliament made in the sixth year of the Reign of King Henry the eighth Proclamation shall be awarded to give notice unto him that dwelling in one County shall be sued to an Exigend in another By a Statute or Act of Parliament made in the three and twentith year of his Reign because there are many delays in Actions of Annuity for that Process of Utlary saith that Act doth not lie like Process was granted by the King in Writs of Annuity as was formerly used in accompt Writs of Capias Exigent and Outlawry were allowed in Wales by a Statute made in the 34th year of the Reign of the aforesaid King And two several Statutes the one made in the 1. year and the other in the 5th year of King Edward the 6th taking notice that for want of such Proclamations many of the persons Inhabiting in Wales Lancashire Cheshire or Chester were without knowledg or cause of Suit wrongfully and unjustly Outlawed to their utter undoing did without abrogating the Right use of the proces of Utlary ordain that upon every Writ of Exigend against any Persons Inhabiting in every of the said Counties or Places Proclamations shall be made and awarded directed to the Sheriffs of the several Counties where the defendants inhabit do give notice thereof By an Act of Parliament made in the fifth year of the Reign of Queen Elizabeth three several VVrits of of Capias with Proclamations with the Penaltie of 20l a time shall be awarded against an Excommunicate person that cannot be taken by the Sheriff upon the Writ of Capias excommunicatum granted out of the Chancery By a Statute
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
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
general execution of the Laws as it is now practised is an oppression to the whole Nation that trivial and impertinent Suits are brought out of the Countries to Westminster and thereby all inferiour Courts are destroyed and proposed a publick Registry to be in every County of all Entails Mortgages and Statutes that before any cause or Action â—e entred in any Court or come before the Judges peace he offered by the Plaintiffs and that wise men be appointed to take up Controversies that all the Tithes and Glebe Lands with other things called Church-duties may be sold and a competent means provided for the Ministers of the Gospel In a Book entituled Englands safety in the Laws Supremacy and published in the year 1659 it was amongst other things required as a Law including the peopleâ— Liberties that no man be imprisoned for Debt but that all Estates real and personal be liable for discharge of Debts In the same year in a Pamphlet entituled the humble desires of a Free Subject it was desired that not any of the free people of the three Nations and Territories thereunto belonging should not be molested or imprisoned or have any violence offered to their persons but shall have full power and liberty to seek for their redress unto the Law and the Courts of Justice according to the ancient constitutions of the Laws of the three Nations In another owned by one Mr. James Freez entituled the outcry and just Appeal of the enslaved people of England to be delivered from the insupportable oppression of lawless yokes of misery it complains that thousands of people are ruined and robbed in their Estates Liberties and Lives by Arrests and Outlaries and prayeth that the Writs of Capias may be abolished and the imprisoned set free which would work the total downfall of Satans throne of Injustice cruelty and oppression even of the four Fairs kept in Westminster-hall by the ingrossers of pretended Justice where and by whom men are daily bought and sold in their Estates Rights and Liberties Some of the Inhabitants of Hull did petition that the Laws by which the Common-wealth is to be governed may be those holy just and righteous Laws of the great and wise God and declaring that the Nobility are the Pillars and Buttresses of Monarchy and Citadels of Pride and Tyranny ought to be only during life that the Divines the Lawyers and hereditary Nobility are irreconcilable Antagonists to a Free-State adviseth an Agrarian Law that the proportion of Lands be stinted and a rotation of all Offices and imployments that those which are capable may tast of rule as well as subjection In a Book called A Rod for the Lawyers they are called the grand robbers and deceivers of the Nation greedily devouring many millions of the peoples money and it alledgeth that there are in England Wales of Judges Lawyers Officers Clarks Attorneys and Solicitors above 30000 a quarter of that number at the largest reckoning being not to be found of them which admitting that each of them do get 250 l. per annum very many of them not getting 100 l. per annum many not 50 l. per annum and many not 10 l. per annum or so much as the Rag-gatherers in London-streets do who take it to be an ill week that yields them not 10 s. it will saith that Calculator amount unto seven millions and an half per annum besides the charges of riding to and from London whereas if ever there were such a number to be proved there are greater numbers of Carpenters and Smiths who do yearly gain as much as the smaller sort of the Law Profession do by their as necessary labours In a Declaration and Proclamation of the Army as they called themselves of God published in the same year they did declare and resolve by the help of God that there should be liberty of Conscience but not of Sin Godly Laws to be enthroned but not the Jews Judges to be in every City but not imposed Prison doors should be set open to let out Debtors to labour towards the payment of their Debts and look'd upon it as the voice of God calling upon them and giving them an opportunity and therefore desiring assistance in so great an enterprize by as many persons of note and ability as God hath made willing and able together with themselves to put in sufficient security for the performance thereof did intreat them to send in their names to Mr. Livewell Chapman Book-seller in Popes-head-alley by the Exchange who hath promised to keep them secret untill by sober and frequent meetings the matters may be digested fit to be presented to the Parliament and chief Officers of the Army Where if the Propositions do prove acceptable there will be a sum of 500000 l. ready towards performance of the same And in the Plea called the Armies Plea it is alledged that the peoples safety is the chief Soveraignty of all Laws Statutes Acts and Ordinances Covenants Engagements Promises Subscriptions Vows Oaths and all manner of obligations and expressions thereof and are only binding to the Publique safety and not to the persons of the Governours or forms of Government but with reference thereunto and as principles of truth and right reason brought to light by the late Parliament And one being willing to come on as fast as he could and keep company with those goodly assertions saith that it is not lopping the branches or cutting off the Top branch of Monarchy that will deliver a Nation from bondage unless the Axe be laid to the root thereof to the evil root of bitterness whence springs all our misery to the root of every usurping and domineering Interest whether in things Civil or Divine The number of Freeholders being much increased hath had a natural and strong tendency towards a Commonwealth no Government can be fix'd in this Nation but according to the Ballance of Land that Prince that is not able neither by his own or the publique Revenue in some measure to counterpoise if not over-ballance the greater part of the people must necessarily be Tenant at will Another in his Arguments and fancied Reasons against the office and title of Kingship published in the year aforesaid saith that the Office of a King makes way for an Act of resumption and the unsetling of mens Estates that the abolishing of Episcopacy and Peerage and the establishing of Liberty for Tender consciences were not the ground of the Wars for nothing appeared at the first but the Militia the Negative voice and the removing of Evil Counsel the other things were brought into the quarrel in the progress of the contest by an higher hand of providence then mans purpose One of the same company and School of contrivances desired publickly that no man should be imprisoned for Debt except such as are doubted to be running away and then not above three days and to be maintained by the Plaintiff at 3 s. a day in the mean time In a
Officina Justitiae place and work-house of Justice Lex Terrae as it was in the year 1641. alleaged to have been by the then House of Commons in Parliament Take away a considerable part of the rights and priviledges of Parliaments Nobility Peerage and Parliament Men. And the Liberties not only of them but many of the Gentry and men of great Estates in the Kingdom some of them very largely extended in the Executing of Process and returna brevium by the Charters of our Kings and Princes or a long prescription have been granted or permitted and vested in them and their Ancestors and Predecessors and in 52 counties of England and Wales may after an account but of 20 in a county one with another amount to no less than one Thousand and of the Lords also of Mannors in their court Barons which according to the computation but of three hundred Mannors and court Barons in every of the said Counties one with another will in all probability make a total of fifteen Thousand and six Hundred if not a great many more which the Commons in Parliament in the 33. year of the Raign of King Henry the VI. were so unwilling to have invaded by the then undue practise of Attournys as they did Petition the King for the Love of God and in the way of Charity to forbid it under great Penalties which the King granted If it be thought to the Judges reasonable who being thereupon consulted an Allocatur of that Petition was entered in the Margent of the Parliament Roll. Overthrow or put into a Chaos or confusion all or much of the long used course and order of Process and Justice in the large and ancient Jurisdictions of the courts of Marshal-sea Principality of Wales Dutchy of Lancaster and country Palatines of Chester and Durham And do the like to those great Jurisdictions of the Cinque-ports and the Admiralty whose business and the ancient course and manage thereof cannot conform to the designs of such an unpracticable way of getting in of Debts Lame and discourage the very ancient and useful if something better ordered Offices of Sheriffs Under-Sheriffs and their Bayliffs in the Execution of Justice and the Proces of the courts thereof by turning much of their business into a worse condition Change and inconvenience the Government of the City of London and Borough of Southwark and of all the Cities Boroughs and Towns corporate of England and Wales in their several administrations of Justice And like a Hurricano whirling and passed through the Nation at once spoil or confound all the Courts of Justice great and little therein and abridge or take from them their antient and hitherto justly allowed Rights and Jurisdictions which to them and their predecessors have with our incomparable Magna Charta been no seldomer than 30 times confirmed by Acts of Parliament VVill be directly repugnant unto and against Magna Charta and the Statute of 42. E. 3. a branch or limb thereof which at the request of the Commons and for the good governance of them ordained that none be put to answer without presentment before Justices or matter of Record or by due Process of Law and Writ Original according to the Old Law of the Land And if any thing should from thenceforth be done to the contrary it should be void in the Law and holden for Error Be a great loss and damage to the King in his Fines and Seals of Original VVrits the Seals of the VVrits and Process Issuing out of his Courts of Kings Bench Common Pleas Exchecquer Principality of Wales Dutchy of Lancaster and County Palatine of Chester and the amercements and Issues forfeited or returned upon Caepi Corpus Writs of Habeas Corpus and Distringasses all which were intended by Law to be assistant to the defraying of his great charges in the Salaries and supports of the Lord Keeper Master of the Rolls Judges and Officers imployed in the Administration of Justice which taken away will render him to be in that particular less considered and in a worse case then Oliver Cromwel was who by his miscalled Parliaments and Instrument of an Arbitrary Protectorship was besides his charge of the Navy and Horse and Foot Guards allowed two hundred thousand pounds per Annum for the charge of the Government and Administration of Justice Take away from the King much of the Law Tax upon the writs and process which a late Act of Parliament consented unto for supply of his urgent occasions and bereave him of his never denied Prerogative and benefit of Utlaries Extirpate the Antiently and legally allowed Essoynes de malo lecti or veniendo de ultra mare or in servitio Regio or any hinderance which might happen to excuse their non-appearance after a lawful Summons in Debt which by the Laws of Nature and Nations have been in cases of necessity Inundation of waters or imployment for the publick never denied Turne all or the most of the proceedings upon Actions of Debt into Surprizes and Defaults and disturbe the more deliberate satisfactory and safe way of Tryals by Juries Make a default which no Law ever did to have the force and effect of a Verdict by Jury when there was none And debar the helps of Writs of Error when all Mankind as well Judges as Juries and the parties and their Councel on both sides may erre and can have no assurance to be Infallible Deprive the People of that part of our Magna Charta which would have no man amerced for a small fault but after the manner of the fault and for a great fault after the quantity thereof saving to him his Contenement and to a Merchant his Merchandise and that none be amerced but by the Oath of good and lawful Men of the vicinage which did not certainly intend a Debtor to be ruined for a small default or to be debarred of his Tryal by his Peers And obliterate the equity of the Act of Parliament of 13. E. 1. which providing that he that recovereth a Debt may Sue Execution by writ of Fieri facias or Elegit excepteth the Oxen and Beasts of the Plow and cannot be rationally supposed to favour such a Ruine upon a Debtor when for want of evidence and witnesses he shall not be able to escape the fury of such a default And likewise that part of Magna Charta which granted that the City of London should have and enjoy all the old Liberties and Customes which it hath been used to have and that all other Cities Boroughs and Towns and the Barons of the five Ports and all other Ports should have all their Liberties and free Customs and did not take it as it may be conjectured to be any reason that a surprize in Actions or Suits for Debts should by Malice or Tricks without pleading or reasonable time given for Defence destroy them and their Trade and Families and all their endeavors before and after VVhich the prudent Romans held
represents his Client shall be suffered to make the summons or Citations and to be both Party Judge and Sheriff without an authentication of hand seal or stamp of any Court or their subordinate officers which no Court of Justice Christian or Heathen hath yet adventured to allow be hugely opposit to the rules and maximes as well of the Civil as the Comon Law used for more then one thousand years that nemo privatus Citare potest and bereave the high court of Chancery of those Rights which do truly and justly belong unto it and the Judges of all other the Courts and circuits of England and Wales who by an act of Parliament made in the thirteenth year of the Reign of King E. 1. and by ancient custom long before used are to have their Clericos Irrotulantes sworn and intelligent officers to record and make their writs and process Frustrate the Antiently well approved power of the court of Chancery in their process upon contempts when there shall be as there will always happen to be matters of Equity in cases of Fraud Combinations Hardships or Rigours of Law fit to be releived by the said court and a great deale more then were formerly if the Creditors shall by this new Model of common Law proceedings be let loose to act their own will and furies upon their insolvent or not punctually performing debtors and that high court shall upon contempts or disobedience of its process of Attachments or commissions of Rebellion have no power to punish them by arrest or imprisonment being the only meanes tueri Jurisdictionem to maintain and uphold its Authority and Jurisdictions The hands of Justice and coercive power authority of it will be paralitique manacled less in the laying by of the Sheriffs and their very necessary under Officers by whom the Law received its Execution which is as the life of it and might as well be made use of in the Summons Attachment or Process before Judgment as they are to be afterwards where there are and may be dangers of killing of men if ever there were so many as is informed by how much an execution after Judgment of Body or goods being unbaylable is more terrible and to be avoided by the debtor then that which is baylable and in many cases to be discharged by an appearance only to the action and if the Plantiffs or their servants the Attornies Clarks Constables or Porters must be the Sheriffs or their Bailiffs there may be more danger of resistance killing tumults and commotions then ever there was of Bayliffs and of more extortion and tricks in those that are not sworn then in those that are sworne and bound up by many Statutes and Acts of Parliament and the penalties thereof Or if arrests and the execution of Justice by the Sheriffs and their subordinate officers could be any primary or never failing efficient causes of the slâ—ughters seldom happening upon arrests or that to prevent it there will be any such necessity of laying aside or disuseing that necessary office of Sheriffs in the execution of Justice as well after judgment as before that of the raising the posse comitatus in cases of a forcible resistance of their taking possessions or levying the Kings debts is to be put under the same fate and neither Sheriff or Constable may arrest a felon but obey the like method of Summoning him at his house or Lodging to know if he be willing to be indicted come to his Trial and adventure a Hanging But no well built or grounded reason being likely to be found to support such reasonless and lawless opinions the Adorers of such Imagination may assure their disciples that Elias is to bring the reason and that until then they must expect it and may in the mean time do much better to give them leave to believe that Such a System of Infamy and Cruelty and an unmerciful credit tearing course of summoning publickly by papers left at the debtors Houses or Lodgings or which is worse fastned upon the outward doores which the malitious contrivances or tricks of ill affected or violent Plaintiffs if not prohibited by some severe penalties will too often prompt them unto and in the consequence bring an Inundation of ruins upon this Nation who do now more than half of them live upon credit and are so generally indebted as they will not be much wide or from the Mark who do believe that half the Lands and Estates real and Personal of the Kingdom sold to the utmost will not be enough to pay the debts thereof And by Suing out as it were Commissions of Bankrupt against all the Nation write Lord have mercy upon us upon too many mens doors and now there is so little money left them take a way the Credit that should help to support them Add affliction to affliction to all the Loyal nobility Gentry and Citizens that had impoverished themselves by their Loyalty and taking part with their King and his Laws and the Church of England and leave them to the invisible mercy of those that did help to Rob Plunder and Sequester them Bankrupt and undo most of the Tradesmen and be a meanes to help the over-hasty Creditors to a composition of four Shillings in the Pound or a great deal less when as otherwise with a little patience they might have had their whole debts pay'd unto them and make the unbridled fury of one Creditor to be a cause of the never payment of other Creditors debts When plaintiffs are many times as unreasonable as they are unmerciful insolent and unperswadable where they can either find or keep advantages and that many an Action as well as many a Plaintiff may be Malitious Oppressive Unjust and Vexatious and such a fancied speedy way of geting in debts may be very instrumental for the advance of evil purposes and knavish designs No Inhabitant of Wales where their Laws do already allow them an Iterum summons nor in the Cincque ports or any of the Counties palatine of Chester Lancaster or Durham will be able to borrow any money in London or out of their own Countries upon the best security when that those who shall be imployed to serve the Summons being not the Sheriffs officers may be in danger to be beaten and cannot be outlawed without several Writs of Capias Many Tradesmen do only subsist by their credits and take up great sums of money upon an opinion of their present abilities or future gain by which they do commonly give no other security then their Persons and by the advantages therof do many times by their industry attain unto great Estates but if the process of arrest be taken away they can hope no more to be so easily entrusted for that an Attachment of the person doth secure the plaintiffs debt either by present payment or causing other satisfaction which the proceedings by summons in this manner will never attain unto The fear and disgrace of a Process of
of Debt if it had been a grievance or not understood as it ought to be a legal and necessary part of the Laws of the Land or have omitted so often and daily happening Concernments of themselves and their Posterity if they could have thought that way of Procesâ— and proceedings at Law either was or could have been a grievance when as they did then so much believe all the grievances of the Nation to be by that abundantly satisfactory Act of Parliament made upon that Petition of Right to be banished and their fears quieted as they caused publick rejoycings and Bon-fires to be made for it And if it had not been so understood by the Reverend and Learned Judges and Sages of the Law who were then in being and have been since entrusted with the Administration of Justice such Proces and proceedings would never certainly have been made when the Petition of Right prayed That in the things aforesaid all his Majesties Officers should serve him according to the Laws and Statutes of this Realm as they would tender the honour of His Majesty and prosperity of the Kingdom and the King in his answer thereunto and giving it the life and power of a Law did will that right should be done according to the Laws and Customes of the Realm and that the Statutes be put in Execution that His Subjects may have no cause to complain of any Wrong or Oppression contrary to their just Rights and Liberties For it must be a more then an ordinary Hypochondriacal Melancholy that can perswade any Man to think that if the Process of Arrest or Outlawry could by any foresight or prospect have been believed to have been either a grievance or illegal or any Seminary of ill Consequences that ever to be lamented unhappy Parliament begun in November 1640. would in that fatal Remonstrance of theirs published to the People the 15th day of December following wherein they were so willing to amass every thing that might but look like a grievance of the People and were so effascinated in their evil purposes as they crowded in amongst them many essentials and necessaries of Government have omitted such an important and often happening grievance if any could with any colour of Law or reason have believed it or that in the nineteen high and mighty Propositions sent by them unto him in June 1642. or in the Message or Committe of the Lords and Commons then remaining at Westminster sent unto him at Oxford in Anno 1643. by the Earl of Northumberland William Peirpont Esquire and others or in the Treaty and Propositions at Vxbridge for Peace betwixt the King and that misnamed Parliament in the year 1644. such a necessary if it had been thought to have been one should have been neglected or in the Message of the Lords and Commons in the then so called Parliament sent unto him when he was a Prisoner at Holimby in the year 1647. with propositions for Peace nothing should have been desired to prohibit Arrests but on the contrary an Act of Parliament was required for confirmation of all Customs Charters Liberties and Franchises of the City of London which for many hundred of years before had been approved Or that in the Bills and Propositions sent unto Him in the same year to the Isle of Wight when he was there a close Prisoner Or in an Act or Ordinance made by the Lord Major and Common Councel of London in the year 1660. for the better regulating of that Cities Courts at Guild-hall in which notice was taken of their ancient Customs and diverse abuses committed by Serjeants at Mace and their Yeomen in arresting of Men there should be no mention made of any original Grievances or Illegality by or in the Proces of Arrest nor any orders made or desired to be made against it Until therefore this invisible and untelligible repealing Act of the Statute of 25 E 3. ca. 17. shall be pleased to appear and shew it self the Founders of that fancy may do well to build no further upon it but silence their causeless out-cries against it And when such or the like imaginations shall offer themselves think rather that Acts of Parliament according to the advice and opinion of the Judges in Doctor Foster's case which have been established with so much solemnity wisdom gravity and universal consent for the good of the Weal publick ought not by any strained construction or ambiguous words if there had any been in any subsequent Act to be laid aside disused or abrogated and that doubtful aequivocal words if there had been any ought according to the rule in Gregories Case to be interpreted in the better and more likely sence And not trouble themselves as they have lately done for before the year 1640 and 1641. when Liberty ran mad and the Factious part of the People did too much read the Books of Plunder and Sequestration and admired the Models and Contrivances of Hugh Peters Huson the Cobler Pride the Drayman and every Mechanick and Tradesman and every Mercenary Red-coat Rebel-Souldier who would by his indigested conceptions be a Solon or Licurgus they did not to subvert as they endeavour'd to do our long experimented approved Laws Customs to make room for their own ungodly advantages and sordidly ignorant alterations and at the same time allow the Caption and Horning of that by them Conquered and once illegally Covenanting Scotland to be lawful Nor vex themselves and others as they have done with the Chymeras and phancies of that never to be found repealed Statute of 25 E. 3. cap. 17. and their so much mistaken Gorgons head and affrights of their Liberties being likely to be lost by that or other our Laws when our Laws and the due Execution thereof are and have been by our Kings and Princes and their just authority the only means under God to preserve them Or be so over-lavish in shooting their Bolts in undertaking to assert That England is impoverished more then a Million of Money Sterling every year by Sheriffs Bailiffs Serjeants Marshals-men Proces-makers Habeas Corpus Rules Writers c. As a late Anonimous Champion of those kind of Liberty mongers terms them for which he would decoy as many inconsiderate People as he could into an opinion and belief that the Creditor is not the better one Peny for it which is as impossible to be proved or be lieved as that Bears are enabled by Nature to fly and usually do it or that the Mountains of Mountains the Alpes those highest Hills of the Christian World do usually at every Jubile leap to Rome to obtain an Indulgence or Pardon from that Holy Father for being so high-minded And what ever far lesser Sum of Money those Officers Fees which as to the Process-makers are very small and dearly enough earned do amount unto yearly it will be very difficult for that Man of confidence whosoever he be to prove that none or very many of the Creditors did
not receive satisfaction of their Debts and charges or more then a Peny or were not the better for it for the Defendant where there is any ability to answer and pay them do most commonly bear the burden of them and that the Defendants Charges in a year do amount to a Million of Money Sterling or any such vast Sums of Money as his monstrous and incredibile guess bewixt sleeping and waking hath calculated it and will be as wide of any truth or probability as if he had said That he had in a Forreign Country seen two Phaenixes rosted and brought to eat in a dish and had been in a colder Climat where the extremity of cold was so great as the words spoken over night did freeze and were legibly to be read in the Air the next Morning And those Sons of Rapine who are so given to change and doe make it their business to hunt our Laws like the Ermyns for the booty of their skins may better employ their time in a sad and serious repentance of that dirt and many scandals which they have most injuriously flung upon them in throwing amongst the People those though foolish yet infectious tales and opinions that There are now ten thousand Men in Prison for Debt and that the Proces of Outlawry have done more mischief to the People of England then the Writs of Capias which neither he nor any other can ever prove to have been primarily or causally and per se guilty of it or then the Bills of Middlesex or Writs of latitat which must either be done in his humour or natural of telling rampant or impossible tales or on purpose to cast those legal Process and proceedings into an Odium or hatred and will appear to be as much misled by his ignorance as he was before in his overhasty Arithmeticque when he adventures to say that a noble Man by being outlawed is made incapable to sit in the house of Peers a Clergy-man may forfeit his Benefice or a Lawyer be made incapable of pleading at the Bar when our Laws do remember no such matters and a Noble man and Peer of Parliament cannot in any Civil action or ordinary Trespas by our Laws be outlawed and although some other Persons may by abuse or error happen to be outlawed when they should not be outlawed and by some evil accident never be able to find the Plaintiff or his Attorney whereby to recover his damages yet it is so seldom as it is very rare and our Laws as they did never undertake to prophesie or to have a prescience or certain knowledge of things to come so they never provided against raro contingentia things seldom happening or of little consequence neither can our or any other Laws be able at all times to prevent all the tricks and evil actions which the deceitfulness of mens hearts do too often put in practise And that nameless Author may upon his better acquaintance with our Laws inform himself and those for whom he so much busieth himself that if an Outlawry should as he surmiseth be indirectly gained the Court out of which it proceedeth do when discovered never fail severely to punish such an Offender and give what remedies they can unto those that do suffer by it and that there is a Statute which was made in the Tenth year of the Reign of King Henry the Sixth and renewed in the 18th year of the said Kings Reign yet unrepealed to prevent and remedy it And is as much out of the way when he saith That Tenures in Villenage were repealed by Act of Parliament when in the Parliament of the fifth year of the Reign of King Richard the Second the Manumissions of Villaines which had been extorted from that Kingby Wat Tiler and his rout of Rebels were declared to be void and the wearing out of that Tenure in the many Intestine Wars and Troubles of the Nation and the favour and indulgence of our later Kings and Princes and the Nobility and Gentry of this Kingdom is to be ascribed more thereunto and a desuetude length of time then unto any thing else which hath so washed many a jolly Gentleman that would be and Men of great Estates whose Extractions and Originals were at the first lodged in those Tenures in the Waters of Lethe and Oblivion as there are now very few or none to be found of them And is as little to be excused when he saith That the Mortmaines of Abbies were taken away by Acts of Parliament unless that he means by the total dissolution of them which hapned long after those Mortmaines and is as wide from the mark in his impertinent Accompt of the Money or profits of the Bishops Courts as he is of any proof or certainty that they are a burden and can hardly instance any one Attorney but certainly not many that hath in one Writ of Priviledge named or sued one hundred Defendants and held them to special Bail whereas such a vexation would have been remedied by an Appeal unto any Judge of the Court out of which such Writ issued who had by the Law a power in his discretion to order whether any special Bail should be given as the case required CHAP. XIV That the Nation hath not been base or slavish ever since the making of the said Act of Parliament of 25 E. 3. ca. 17. ANd is to prove when he can that many Men have languished to death for fear of an imprisonment for some one or few melancholick Persons may in their retirements sad apprehensions or multiplied fears have indangered their healths which makes not the Justice or Laws of the Nation to be any more guilty or cause of it or deserve to be abrogated Then the sacred Scripture is to be blamed for that some Persons have by the reading of it or hearing of it preached been so disturbed with an affright of conscience as they have been distracted or laid violent hands upon themselves Or that His late Majesty of glorious Memory if not mis-informed by the concealed Author of such frivolous feigned and false complaints or by some of his Proselites had so deep a sense of his Subjects sufferings by such Writs and Process as he intended the inlargement of Prisoners for Debt and the abolishing of all Arrests and Outlawries for the future by the then Parliament if he could have received any recompence for the remitting of all forfeitures and other profits arising to His Crown nor doth give us any evidence for such wild imaginations nor ever will be able to do it or that the Nation hath been base and slavish since the said Act of Parliament of 25 E. 3. ca. 17. and other Acts of Parliament since made which our Laws Records and Histories will abundantly confute and our Neighbour Nations envying our Glory Freedom Peace and Plenty may decry as an ingrateful and horrid falsity deserving to be had in everlasting detestation Unto which bundle of untruths and feaverish
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
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
happen consequences hunted to death upon a supposition of subverting the Laws when if it had been either possible or true it could upon an Accumulation of all â—his pretended Crimes have extended no farther then an endeavour to subvert one of our Fundamental Laws may be their own Judges convict and justly condemn themselves for unpardonable faults in seeking to subvert so many of our Fundamental Laws uno Ictu with one stroke and at once which they themselves â—ave sworn to maintain and defend Notwithstanding all which Oliver Cromwell did so well understaâ—d his own interest and single-personship CHAP. XVII That neither Oliver Cromwell or his Son Richard the second mock Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever changing kind of Refermations ANd that the administration of Justice was a great end and one of the principal parts of Government and remembred that the men of Westminster of which he was too great a member and director calling themselves after the murther of the King a Parliament did the 9th day of February 1648 declare that they were fully resolved to maintain and should and would uphold preserve and keep the Fundamental Laws of this Nation for and concerning the preservation of the lives properties and liberties of the people with all things incident thereunto and required all Judges Justices Sheriffs Officers and Ministers of Justice to proceed in their respective places and offices accordingly and did the 17th day of Marâ—h then next following declare That our Laws being duly executed are the most just free and equal of any other Laws in the world and that they were very sensible of the excellency great antiquity and equality of them and that the liberty property and peace of the Subjects were fully preserved by them did so little believe it to be for the good and honor of the Nation to hearken or yeild unto the product of those wind-mil giddy and vertiginous brains or by the perswasion of some idle and ridiculous Pamphlets written and contrived by such as would for their own advantages plow up the Laws and reasonable customes of the Kingdom to settle and set up a Weather-cock Government ridiculous to all other Nations as he did in his Speech to that which he called his Parliament upon his Dissolution of them the 12th day of September 1654. declare that in every Government there must be somewhat fundamental somewhat like a Magna Charta that should be unalterable that some things are Fundamentals which he should deal plainly with them may not be parted with but were to be delivered over to posterity else every succeeding Parliament would be disputing to change and alter the Government and we shall be as often brought into Confusion as we have Parliaments and he and his Parliaments in the time of his hypocritical Government did so little relish the taking away of the process of Arrest and Utlary as they ordered only prisoners to be discharged out of prison if they made Oath that they were not worth five pounds after their Debts paid and undertake to pay their Debts when they should be better enabled which to procure their liberty made many lustily to Forswear themselves and had no great cause to be in love with their pretended Reformations when the fiery Mr. John Jones of Nayoth was after his abusing and rayling upon our Laws found guilty of deceits and committed by them a prisoner to the Fleet. And when in the year 1653. or beginning of the next ensuing by an Act of Parliament had for the relief of Creditors constituted a Committee for London and the Suburbs thereof to sit at Salters-Hall and several other Committees in all the Counties of England and Wales and impowred them to be the only Judges though not Sworn to hear and determine matters of Debt and escape to fine for breach of trust and concealments imprison set at liberty remaund to prison adjudge to the Pillory or house of Correction grant lease or sell the Estates of the prisoners were to admit of no legal forms but proceed in a summary way and to be responsible to none but the Parliament and sell dead prisoners Estates as well as if they were living whether the Lands were Entailed or not It was upon complaint of some prisoners of Note and Worth alledged and offered to be proved that one of those kind of Judges at Salters-Hall having two Brothers practising before that Committee the one as a Solicitor and the other as a Councellor at Law would bring his party with him whisper unto his Fellow-Judges arise from the Bench and go and sit by the Clark and make the Orders as he pleased and liked those his doings so well as he was heard to say he did not doubt but to make his place worth 1000 l. per Annum unto him before he had done with it and might be in good hopes of it when besides those his ungodly Extraordinaries large Salaries were allowed to him and his Brethren of that Committee for their Sons and Agents and the gain which they and their Confederates might have by the sale or indirect purchase thereof in other mens names that Committee were to have distributed amongst them two pence in the pound upon the sale of any prisoners Lands or Estates The pretending Gospel-Improvers in South-wales had shut up most of the Churches and gathered in the mean time one hundred fifty thousand pounds into their private purses and therefore both Oliver and Richard Cromwel their Councel Parliaments did only receive those unquiet Innovators Petitions and as they did in the determining of what should be Incumbrances fit to be put into a publick Registry or the taking away of Tythes make a shew of intending great matters when they only hung them upon long delay 's and an everlasting deliberation never to be brought to any conclusion And our Laws having thus long fought with Beasts like St. Paul at Ephesus might by his Majesties happy Restauration have given them no small assurance that they should have deserved some rest and tranquility but it seems as the wrongs done unto them were unrepented so were their patience and sufferings to be prolonged And the professors of our or any other good Laws should not be so contemptible when that blessed Apostle could be no less than a Lawyer when he sate and had been Educated at the feet of Gamaliel and was afterwards by his Apostolical Office and great Endowments in all manner of Learning such a darling and beloved of God Almighty as he had in his life-time the inexpressible joyes and wonders of the Third Heaven communicated unto him when they were before and that time and long after in better Ages of such an esteem and usefulness amongst the wiser and better sort of man-kind as they were justly called Sacerdotes Justitiae Ministers that sacrificed for the
one with the other and that Laws being to be binding are to be certain and positive not Arbitrary BUt such a State Essay Bill of Comprehension or rather Contradiction whether the antient legal and rational usage and custome of proceedings in the Law by Writs of Summons pone and Distress to be legaly executed by Sheriffs where the Defendant hath a visible and certain Estate which for Expedition of Justice have by alteration of Times Increase of Trade and a necessity of Law and Reason not been so much used as heretofore it was and is not yet forbidden by any Act of Parliament or Rule of Law and the process of Capias and Arrest which for many Ages past have not only been allowed and approved by this Nation but the greatest if not all of the civilized part of Mankind as a principal incident essential and necessary sine quaâ— non in the distribution of Justice where the Defendant hath not a visible Estate to secure him from the Sheriffs Return of a Nihil habet is a Fugitive or likely to be such a one or is not to be found and hath nothing but his body to be a pledg or security that he will Judicio sisâ—i judicatum solvere or that the process of Exigent in order to an Uâ—â—ary which without 〈…〉 causing the Uâ—â—ary it self do offer a lesser violence to the person of a Defendant then the Writ of Capias doth can by any rule of 〈◊〉 reason be exchanged for peremptory Summons and seiâ—ures or can be for the good of the people to cause them to tear and tire one another 〈◊〉 abundance of charges delayes and 〈◊〉 in a Cirque or Circle of Law contentions who will certainly when they shall find the sad effects or event of it not think themselves well used to be decayed or inticed to abandon their own good Laws for such new and troublesom devices which may be to as little avail as to renounce skilful able and honest physitians to drive a trade with ignorant Empericks and Mountebanks when they are not sick or need them and may time enough believe that such a Novel way of peremptory Summons hath so many symptomes or markes of Evil upon it and so easily discernable as their gaine by it will be no more then to receive a Scorpion instead of a Fish or to have Coâ—quintidâ— put into their pottage pot and they that are so fond of it and willing to proâ—uce such a mischief rather then a blessing for their fellow-subjects might have forecasted that evils are most commonly according to corrupt Nature better welcom and more likely to receive entertainment then good and do by their novelty or correspondence with bad humors designes our interests too often seize upon or inveagle the greatest and less prudential part of the people when cheapness or a pretence of expedition shall be some of the perswaders unto that which can arrive to no better a construction or event then to make the Law-maker and Soveraigne advising with his Two Houses of Parliament so incertain of the â—equel or product hereof as to make one part of the Law repâ—al another at the pleasure of every particular man and to Enact it as Adiaphorous or indifferent this way or that way wheâ— a very long course of time and experienceâ— and the approbation of so many Laws and Ages past do record and witness the excellency of that which some busie 〈◊〉 would have to be exchanged for 〈…〉 and seminary of not to be expressed Inconveniences and Mischiefs and such a device or fancied alteration cannot with our a Prophenity 〈…〉 it perswade the most sanguine and easily credulous that it can be equally and fully as good as the other or render it to be indifferent or give any absolute or infallible assurance that those likely hopes will ever bring them to their promised success and if it be not to be ranked amongst the indifferents must be either better then the former antient courses which none have yet experimented or worse and then not at all to be Imposed upon the people For Laws being Râ—cti praeceptiones prâ—â—i depulsiones alwayes intended by God and good men to advance that which is good and suppress that which is bad Aequum ab iniquo licitum ab illicito separare and to discern and divide betwixt good and evil and said to be Laws a ligando and to be properly no Laws if not Obligatory and binding are to be certain and positive not Arbitrary as unto those which ought to obey them and as much as right reason will permit Immutable especially if deduced from the dictates of nature as that of the preserving the Authority of Courts of Justice and their administration of it are to those that seek for help in the maintaining or recovery of just rights and Properties but not to be ambiguous in certain latitudinarian or indifferent for although there may be many who would be well enough content to be Judges of their own Causes and the Executioners of their own Decrees or if that would not be allowed would be 〈…〉 to hale men to Justice or by open clamours cry harow as the People of Normandy were antiently said to have done to their Duke Rollo when they cryed to him for Justice who was wont never to fail them which after a long process of Time gave us the Original of the word Hue and Cry yet much in use amongst us in matters of Felony And the like was in the early days of the world not unusual amongst other Nations in their seeking to their Kings and Princes for redress of Wrongs before the more happy way of Establishing a fixed rule and course by Courts of Justice Yet those their unfitting desires for such an Arbitrary Act and Indifferent Law ought to be allayed and the more safe and sure paths of Justice kept according to the patterns and direction of the best of Presidents for that God himself the wisest greatest and best of Legislators when he gave his righteous Laws to his people of Israel and commanded that a Neighbours rayment taken for a pledge should be restored unto him before the Sun go down for his covering to sleep in or the Command not to 〈…〉 the sentence of the Judge under no less penalty then the loss of life from whence the reason and equity for every man to be obedient to the Authority of Courts of Justice in their legal Process may deduce its Original was not left as a matter indifferent but absolute and positive Where the Statute of Westminster 〈…〉 which giveth a Plaintiff his Election to â—ake his Execution upon a Recovery of a Debt by Writ of Fieri Facias or Elegit the plaintiff taking out his Elegit 〈…〉 enter it as he ought upon Record for that 〈◊〉 should be then debarred of any other remedy against the person of the Defendant by Capias 〈◊〉 aâ—ienduâ—â— a man cannot by Law have Two Writs of Scire 〈◊〉
at once in a Common persons case whereby to have Damages twice recovered against him After an Elegit although the Sheriff return that he hath neither Lands or Goods the plaintiff shall not have an Execution against the Body a Capias ad satisfaciendum doth not lie after a Fieri Facias until a Nulla bona returned nor a Fieri Facias or Elegit after Imprisonment of the Defendants body A Writ of Annuity purchased pending another was abated where two brought Writs of Quare Impedit one against the other returnable at one and the same day the one was discontinued and they pleaded upon the other in the Case between Bery and Heard in the Seventh Year of the Reign of King Charles the Martyr it was in the Court of Kings Bench adjudged that where a man had his Election to seek his Remedy by the Commou Law or by the Statute of Glocester that gave an Action of Wastâ— he could not do it by the one way and the other for our Laws and Courts of Justice would never allow a Plaintiff to have two Actions or Remedies for one and the same thing at the same time but were so careful to hinder it as they suffered discontinuance of Process and Pleas in Abatements where one Action was brought depending another for the same matter And Bracton saith that where a man hath an Action depending and bringeth another for the same thing Cadit breve posterius the later is to be quashed agreeable whereunto at this day in Chancery where a man hath an Action depending at the Common Law and seeks relief in Chancery upon the same Account he is put to make his Election in which Court he will proceed And therefore if such an Arbitrary Act of Parliament should be made to give the Plaintiffs their Election to proceed by the way of the new contrived way of peremptory Summons the former wayes of Summons Pone and Distrainings or Capias not being prohibited the proceeding by process of peremptory Summons ought to be entred in a Court of Record and entred may be more prejudicial to the Plaintiffs then they expected for if they cannot resort or return again to the former better wayes of proceedings they may find cause enough to repent of their being so fond of a new way when the old will appear to have been much better which to reverse or discontinue cannot be for the Interest of the King or his people when it shall have no better reason or foundation for it For if the Proposers could give unto themselves or any of their fellow Subjects any assurance that it will be probably for their good and benefit yet if the King who is supreme and superiour to all the Judges in his Dominions were but a subordinate Judge he would as the Civil Law declareth transgress the rules of Justice and Right reason if he should follow opinionem probabilem relicta rejecta probabiliori an opinion that is but probable when there is an opinion to the contrary more probable and S. D. and his then Confederates might have considered that a Process against the Goods and Chattcls of a Defendant is of a different nature from that which is against his Body that duo contradictoria non sint nec possunt esse simul vera contradictions neither do or can at one and the same time agree and that Practica sunt speculativis praeferenda what is in speculation of a possibility not at all experimented is to give place to that which with an universal or major part of a consent hath been long practised CHAP. XXI That it will not be for the Interest of the King or his Subjects to give way to that Design which may open a passage to other Innovations and Designes as much if not more inconvenient and prejudicial FOr that all his good people by the sad and inexpressible calamities and miseries which they have lately endured by the Wars and Tumults unjustly raised against thc King and his Laws are not now to learn what a deep dyed hypocrisie and pretences for Reformation would have or to believe the evil consequences which have risen from a too much yielding to those popular humors which as that Royal Martyr hath in his Solitudes and Sufferings declared served to give life and strength to the almost infinite activity of those men who studied with all diligence and policy to improve their Innovating designes how dangerous the permitting of Innovations would be how careful all Princes and wise men have heretofore been to avoid them so that if there were nothing else to make the world out of love with them the never to be satisfied inquietude of many of that sort of people in the matter of Religion and Church-government and the swearing liking and shortly after disliking and hating the Solemn League and Covenant the by too many as it may be feared intended standing Rule of Rebellion and their unfixedness in every thing but their unwearied malice and ill designes against Monarchy and the present Government do and will abundantly proclaim that whatever hath been condiscended unto and by that a measure may be taken of the Future in giving them a liberty to play the Fools with the Sacred Scriptures hath but like the thirst and alwayes craving of an Hydropick sick person increased and provoked a desire of having more Wherefore they that built upon such wicked principles of overturning the State and Regal Government are if they had any reason or were ever likely to have any for their demands to be content to be denyed until they shall have renounced those pernicious ends and dangerous Tenents and positions they began their works and deeds of darkness withall and shall have proved that Justice ought to have no Sword to defend and protect her self and others that Courts of Justice can be to any purpose without a certain power constraining punishing Authority that the process of Arrest and Utlary are not incidents thereof and to be necessary Attendants thereupon that the Eternal and Almighty Law giver did not allow of that which the Greeks Romans those great Ingrossers of wisdom after the many very many commotions of their people for their more severe way of enforcing the paymcnt of Debts performance of Contracts preservation of the publick Faith and one man unto another which Tully held to be so very necessary as he was of opinion that nulla res vehementius rempublicam continet quam fides that nothing more concerns a Common-wealth then the keeping of Faith Credit therefore adviseth it by all meanes to be preserved and kept have acknowledged to be the best and most contenting Expedient for an obedience to Judges and Courts of Justice and the Civil Magistrates and that all the Essaies of an Indulgence to liberty made use of by some other Nations could never yet so far prevail as to make the most of the civilized Nations of the
Terminer in causes within the City which being by the Dictator published to the People they were so joyful as they brought Camillus home to his house with great shouts of joy and clapping of hands and being the next morning assembled in the Town-house or Market-place decreed that the Temple of Concord should be built at the Common-wealth's charge that some Festival dayes should be solemnized and Sacrifices made unto the Gods in every Temple of the City to give them thanks and that the People should in token of joy wear Garlands upon their heads for this reconciliation About nine years after upon a new Sedition of choosing of Magistrates and for want of them an Interregnum happening the Commons lost their Consulship again and two of the Patricii began to govern who thinking to continue it as formerly in the Nobility had the trouble of another Sedition wherein the People after many stirs and meetings not prevailing two other Confuls of the Nobility were elected And though the Usury or rate of Interest was much abated yet the poorer sort of the People being over-charged with the payment of the principal became bound and thrall to their Creditors in so much as the Commons in regard of their private streights which they were driven unto never troubled their heads at all any more with the making of Consuls In the end of the next year after the contention betwixt the Senate and the Common People brake forth concerning the Election of the Consuls whereupon the Tribunes of the People stifly denyed to suffer any Assembly to be holden unless they might have one of the Consuls to be chosen out of the Commons according to the Law Licinian And the Dictator as stoutly bent to denye it the Election was adjourned and the Dictator leaving his Office the matter grew again to an Interregnum and the Interregents finding the Commons to be alwayes maliciously set against the Senators succeeded one after another until the Eleventh Interregnum when the discord and variance still continuing the Tribunes called on hard for the Law Licinia the Commons had an inward grief that struck nearer to them upon the excessive Usury that still increased and each mans private care and grievance brake out in their publick contentions and debates the Senate thereupon weary of such Troubles commanded L. Scipio the Interregent for the time being for concord and unity sake to observe the Law Licinia in the Election of the Confuls so as P. Valerius Publicola had joyned with him in fellowship of Government Cajus Martius Rutilius one of the Commons Who labouring to ease the matter of Usury being that which hindred the general agreement set a course to do it so as the long or old debts which were more intangled rather in regard of the Debtors slackness and negligence then want of ability the City out of the common Stock crossed them out of the Book by setting up certain Counters or Tables with ready coin in the publick Hall provided that good Security were given to the City by Sureties put in beforehand or else the Goods of Men valued at indifferent and reasonable prices were to discharge the Debts so as a great number of Debts without the complaint of either Party was satisfied and paid Two years after the Ancient possession saith Livy of the Consulship was restored to the Senators and about two years after that the Usury coming but to half so much as it was formerly the payment of Debts were dispenced and ordered to be paid in three years by even portions so as a fourth part were paid beforehand some of the Commons being for all that pinched therewith for that the Senate had more care to see Credit kept with the Chamber of the City then of the difficulties of private Persons which was the better born in regard of the forbearance to muster Souldiers and call for Tribute About seven years after that upon a mutiny of the Souldiers in the Camp a Law was published by a Tribune of the Commons that Usury should be made altogether unlawful and after many nnreasonable demands saith Livy the insurrection of the Souldiers who compelled their Commanders to march against the City was upon a Capitulation made as once before saith that learned Historian the Commons and a second time the Army had done with the Senate that their mutiny and insurrection should not be made use of to their danger or dishonour it was appeased About sixteen years after being three hundred and thirteen years before the Incarnation or coming of Christ Papirius Publius being bound for his Fathers Debt having consigned himself a Prisoner to the Creditor who supposing that he might abuse the young mans Body for Interest of his Money began to tempt him with fair words and promises afterwards to threaten him and when that would not serve commanded him to be stript naked and whipt whereupon the young man all wounded and torn ran forth into the Street and complained to all he met of the filthy lust and cruelty of the Creditor and thereupon a great company of People moved with the injury of the Usurer and pity of the young Man as also in regard of their own case and their Children gathered themselves into the Market-place or Town-hall and from thence towards the Senate-house and the Consuls being upon this suddain uproar Coacti saith Livy compelled to assemble the Senate the People as the Senators entred in the Senate-house lay prostrate at their feet as they passed by shewed the young mans back and sides whereupon the Consuls were commanded to propose to the People that from hence forward no person whatsoever unless guilty of matters Criminal or Trespas for noxa the word used there by Livy and Noxales actiones are by the Roman and Civil Laws and our Bracton also interpreted to be matters and actions of Trespas as well as greater crimes until he were condemned to punishment should be bound in Fetters or Chains and that the Goods of the Debtors not the Body should be obnoxious to the payment of the Money borrowed which might better be ordained there than with us or many other Nations for that the Romans by their Censors did keep publick Registers of every mans Lands Estate and Lands so they that were in Bondage became released and enlarged and order war taken for the time to come ne necterentur saith Livy that the Debtors should not hereafter be bound or chained in Prison Which if any shall misinterpret to be an absolute freedom of the Persons of the Debtors from Arrest the Roman Records and Histories will be againsâ— them CHAP. XIII That this Order made to pacifie a Tumult was not perpetual or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restrainte of their Persons till they appeared in Courts of Justice or gave Bail to do it FOr a Plebiscite or Law of the People it could not be for they were not
called together by Tribes or Wards under the Authority of the Tribunes or if they had so many Usurers and all that were either Rich men or Creditors were likely to have been against it And an Act of the Senate it could not be for they were forced or affrighted to it and it wanted the consent of all the Peoples deliberation and the just solemnities of it For ab exactis Regibus from the time of putting down Monarchy till the Reign of Tiberius Caesar saith Bodin the Senate alone had no power to make Laws but only Annual Decrees or Ordinances Which bound not the Common People Ordinances or Decrees of the Senate saith Dionisius Halicarnasseus a most diligent Inquirer into the Roman Customes having Nullam vim legis nisi Populus probaret No force or effect of Law unless the People approved of it Et ea quae Populus probaverat annua tantum erant nisi rogatione ad Populum vel ad plebem vim legis adipiscerentur And those also which the People did approve were but Annual if by rogation or asking the People's consent being called together by their Wards it obtained the force of a Law and without a rogation or demanding the Suffrage of the People was as Bodin saith ineffectual so as a Law it was not because all the People were not duly called nor had agreed to it and being no Law could be no more then an Edict of the Consuls or an Ordinance of the Senate or if a Law because we fiud it by Paulus Manutius reckoned for no less was but temporary and to pacifie and bring to their wits again the inraged multitude But whatsoever it was it extended not nor was so much as intended to take away that necessary power of the Praetor or Magistrat of coercing or compelling men to appear before them in Judgment but was abrogated or continued but for that time or a little after or not put in execution a fate which many other enforced Acts or Orders of that Common-wealth came under as that of the Law Licinia or choosing of one of the Consuls out of the Commons that of lessening of Usury at one time or taking it quite away at another which had their intermissions the latter of which was so impossible to be kept as by custom and mens necessities it came to be to no purpose which the many Seditions of the People which happened afterwards concerning Usury and the more ease then abatement of it may be enough to perswade us unto For besides what may be observed concerning the enforcing of that Law and the course taken to pacifie the People the meaning of Bona Debitoris pecuniae oreditae non Corpus obnoxium esset That the Goods of the Debtor not his Body should be obnoxidus or liable to the Debts might probably be understood to be that the Goods of the Debtor should be sold or taken in Execution for the satisfaction of the Creditor as far as they would go and that his Body howsoever should not be bound or lye in chains for it and that those that were bound in Fetters or Chains were released from that kind of imprisonment as may appear by the Body of that Law or the perclose and conclusion of it which only saith Ita nexi soluti so those that were bound in Fetters or Chains were released which must be understood to be by the Sale of their Goods And for the time to come singly relating to the matter of binding in Chains or Fetters not as to the Sale or taking of Goods hath only these words Cantumque in posterum ne necterentur And for the future it was enacted that for Money borrowed the Debtors should not be bound in Chains which needed not have been if their Goods and not their Persons had only been liable to Debts the way of Distringas or attaching Men by their Goods where they were not Fugitives or had a certain or visible Estate being not then unusual as may appear by what was done in the Case of the Senators who had their Goods taken and distrained for not coming upon Summons unto the Senate-house Which Law or whatsoever it is to be called got so little allowance in the opinion of Livy that most learned and ever approved Historian as he gives it no better opinion in the reporting of it but that upon occasion of an injury done to one Man A mighty bond or tye upon the People to keep their Credit was that day broken And it will howsoever be evident enough to any who shall but acknowledge that truth which will every where meet him in his enquiry through the Roman History or Customes that they did not by that Edict or Law abridge or take away the power of the Praetor or Judge who though he was at first appointed and set up at the Request of the Tribunes and People had two Lictors with Axes and bundels of Rods a more terrible kind of Officer then our Serjeants or Mace-bearers allowed to attend him in the necessary course of preserving that power was put into his hands to judge and determine of causes For we may find Sempronius a Tribune of the People about sixteen years after the pretended Law of prohibitting Men to be bound in Fetters for Money lent to command Appius the Censor to be attached or committed to Prison for no criminal or hainous fact That in the accusation and pleadiug of Scipio Africanus about one hundred twenty-two years after concerning an Accompt of the publick Treasures the Court was attended by Lictors or Serjeants and a common Cryer and that the Tribunes of the People themselves in the absence of Scipio Africanus when he sent his Brothers to appear for him but failed to appear in Person upon a longer day granted for the Process of the Law against him to cry out saying Dare we not now send Folk to fetch him being but a private Person out of his Farm and House in the Country and make him appear unto whom not seventeen years ago at which time he was General of an Army at Land and Admiral at Sea we were so bold as to send Tribunes of the Commons and an Aedile to Arrest and bring him away that L. Scipio his Brother being after his death accused and condemned for not bringing to accompt some Treasures taken in the Wars when some of Scipio's Friends had appealed to the Tribunes of the People for their help and remonstrated the many merits and services of him and his Family the Praetor or Lord Chief Justice opposed and said That for his part he could not do with all but if the Sum wherein he was condemned was not brought into the Common Treasury He knew no other remedy nor what else to do but command him as a condemned Person to be apprehended again and had away to Prison And when the Tribunes of the People all but Titus Gracchus pronounced alone that they would not interpose and