to be so unjust as where they gave a Plaintiff but three hours to Plead they allowed the Defendant nine And it is not yet gone out of the memory of Man that in the year 1642 or 1643 the course of stealing or hurrying of Judgments now unhappily borrowed from the Innovation of the late wicked times of Usurpation in Actions of Ejectment was believed by Justice Bacon in the Court of Kings Bench and Justice Reeve in the Court of Common Pleas to be such a vioviolation of our Laws as they Publickly declaimed against it and threatned to imprison any Attorney that should practice in such a manner And with great authority and warrant of our Lawes and right reason for that as it was justly and truely said by the Judges in the Reign of King Edward the first that non summonitus nec attachiatus per Legem terre prejudiciari non potest and Fleta an approved Lawyer in the Reign of that King and King Edward the second his Son hath published it to be a great and known Truth that the Court of Common Pleas cannot hold Plea in real and personal Actions without the Commission or Authority of a Writ original out of the Chancery and that without it nec Warrantum nec Jurisdictionem neque Coercionem habent and our Laws did then and long after not proceed upon such warrant or commission until the Plaintiff had actually given sureties to prosecute and maintain his action and the Sheriff to whom such original Writ was directed for to summon or attach the debtor to appear before the said justices had returned that he was summoned or attached as the nature of the Action required or had nothing whereby to be summoned or attached When but a few years preceding that well deserved indignation of those two worthy Judges that excellent most just lawdable and rational course of justice had been endeavoured to have been subverted by one Elsliot of a degree betwixt an Attorney and a Barrister and a man very bold able enough to make and contrive tricks and abuses in Law proceedings who having about the middle of the reign of King Charles the Martyr as a Reprobate and Cast away in the Law shifted himself from England into Ireland and from thence after some bad prancks there played returning back again with as much poverty as impudence attending upon him and having a desire to get some money by a contrivance to gain a sudaine possession of some Lands or houses for one as bad as himself upon a judgment by default against the Landlord or his Tenant who were to know nothing of it caused a declaration to be prepared in an action of Ejectment against a feigned Def t. or ejector in the name of a feigned Lessee upon a short Lease pretended to be made by his naughty Clyent and left at the house of the Tenant who not well apprehending the force and extent of the project a judgment by default was entred possession surprized and taken for which upon complaint made to the Judges of the Court of Kings Bench in which Court the action was supposed to have been laid and examination of the fact the judgment was made void possession restored and Master Elsliot the contriver committed and told by Justice Barkley that it was a shame that ever he should come or shew his face in a Court of justice Howsoever getting himself afterwards enlarged and the confusion and troubles of the late civil Warrs disturbing and breaking in upon the Law and all the Courts of Justice Mr. Elsliot began again to appear to be somebody engages in another exploit which was to gain by the like device accompanied with force some other naughty ways possession of an house and a very considerable estate in Lands in the County of Essex of Sir Adam Littletons the Father of Sir Thomas Littleton Knight now a member of the house of Commons in Parliament who to his great cost and trouble endeavouring to extricate and free himself and his Fathers Estate from the peril and danger of such a villany may well remember that a counterfeit record was in that pretended suit privatly layd in the office of the Records in the Tower of London sworn unto and offered to be justified but was at length taken as it ought to be for a Roguish piece of Forgery and Sir Adam Littleton and his Estate freed from any further disturbance Whilst that no smal parcel of Knavery being in great respect with the Agitators of the then called Parliament Army Levellers other State moulders and stiling himself the Esquire at armes being somtimes a Prisoner in New-gate and somtimes out wanted not a Liberal maintenance from his Patrons and great Masters until death shortly after unexpectedly rid the world of him From which reasonless and ungodly formula or way of proceeding rather to be exploded then embraced in actions of Ejectment and so utterly against the Law evil examples being oftner followed then good by some of his proselites and the connivance or want of courage in some of the Judges in the time of the Cromwelian usurpation dum sui non fuerunt knowing better but doing worse the same came again to be revived and creep into an allowance with a note indorced by the Attorney in the name of the incognito or casual ejector directed to the Tenant or Landlord requiring them to appeare and look to the action and confess Lease Ouster and Entry otherwise he must and would confess a judgment or let it pass by default As if such a judgment acknowledged by practice and confederacy could not with a great deal of ease have been reversed by a court that should not be so abused and the parties contrivant severely punished Of which kind of irregularity in the Law and wandring out of the old Paths never to be justified the Justices of the court of Kings-bench have been so sensible as they have for some years last past caused a Writ of Latitat which antiently was used to be warranted by a VVrit Original of the Chancery to be awarded and sued out against the feigned ejector And it is not half a yeare agoe since the Pillory of Westminster proclaimed a Brewer to be more Crafty then wise or honest when to gain an indirect possession of some houses by Judgments upon defaults having fudled the Tenants with Drink and Tobacco And giving them peices of the declarations as waste paper when they knew not what had been written therein to give fire to their tobacco thought he had snapt them with judgments upon defaults when he made oath that he had left declarations at their houses where they were in that manner made drunk and could neither say or sware to the contrary But unde or from whence soever it came or if this new manner of Law proceedings could have derived its pedegree from any more Noble an Ancestor It will if every Client and his Attorney who is no member of the court but only
c. And in New England whether the ignorant and mistaken consciences of many having carried diverse of our People where they would make their own Laws and be independent of the government of this Kingdom from whence they came they do notwithstanding Not want it where for the better expedition and execution of Justice as the words of their Laws are they do ordain that every Court of Justice shall have Ministers of Justice to attach and fetch and set Persons before the Magistrates And is likewise in practice in some Nations that are more remote and have only the light of Nature and some information of Reason to direct them as namely in the Region of Mallabor where if the Debtor do break his Day with his Creditor and often disappointed him he went to the principal of the Bramenes of whom receiving a Rod he goeth to the Debtor and making a Circle about him chargeth him in the name of the King and the Bramene not to depart from thence until he hath satisfied the Debt and if he do not he must Starve in the place for if he Depart the King will cause him to be executed And when that which hath been here so truly and Irrefragably asserted will never deserve to be thought a Postulatum conclusion or principle begged but is de facto apud multos de Jure apud omnes so done and practised by very many Nations and of right ought to be by all CHAP. V. The Process of Arrest and Vtlary are a more gentle way of compelling Men to pay their Debts or to appear in Courts of Justice then that which was formerly used EVery man that would entitle himself to any reason or not wilfully divorce or separate himself from the company thereof and shut out that light which the wisdom and practice of former Ages have tendred unto him may give way to so many cogent Arguments and acknowledge the course and way of our process of Arrest and Utlaries to be a more gentle way of proceeding in the doing and Execution of Justice then that of the forty stripes which in the most righteous Laws of God were in cases of controversie betwixt men ordered in none of the greatest sort of offences to be given to him who was condemned by the Judges then the taking away of the two Sons of the Widdow of one of the Sons of the Prophets by a Creditor to be Bondmen for their Fathers Debt the selling of a Debtor and his Wife and Children and all that he had by the Creditor in use amongst the Jews or taking them by the Throat saying Pay me what thou owest and Haling him to the Judge who cast him into Prison mentioned by our Saviour Christ the cutting of Insolvent Debtors in pieces after a Sentence and small limitation of time and giving every Creditor a piece learnt by the Romans from the Athenian and Grecian Laws but never put in practice for the cruelty thereof the Nexus and taking of Debtors prisoners by the Creditors own authority until they had by some good Laws been taught a less fierce and cruel way of recovering their Debts and keeping them bound in Chaines in their own houses the making the Children Slaves for their Fathers Debts by the People of Asia that large Quarter or fourth Part of the World and the like Customes used by the Athenians and Romans or the usage of the Longobards who if the Debt were not payed after the third time demanded did suffer the Creditor to pawn the Debtors Body or take by order of the King or Judge his Men or Maid-servants Prisoners or that of the Wisigothes the Spaniards Ancestors whose Laws ordained a penalty of three pounds of Gold to be payed by the Offendor or such as contemned the Kings Commaâ—d and Authority and if he were not able to pay it was to endure Quinquaginta Ictus Flagellorum Fifty lashes with a whip or of the Russians beating with Cudgels their Insolvent Debtors upon the Calves of their legs and bottoms of their feet or if the Debtor be poor set him under a Crucifix and cause the Plaintif to take his Oath over his head that his Debt is true which being done the Duke causeth the Defendant to be brought home to his house putteth him to labour or letteth him to hire until he be redeemed Or of the Aegyptians in not permitting the bodies of the Debtors to be buried but to be left as a pawn to their Creditors Donec Haeredes Aes alienum integrè solverent Until their Heirs or Executors paid the Debt and was so imitated by the Athenians the wisest Nation of the learned Greece as the brave Cimon was constrained to yield himself a Prisoner in Chains as the manner then was to the end that his glorious Father Miltiades who had deserved better of them dying a Prisoner for a Debt owing to the Publicque might be buried And by the Gothes and some other Nations under their large Dominions until by a Constitution of Theodorico King of the Gothes and some other Princes Tanquam inhumanum erudelitati proximum It was prohibited under severe penalties which in these times used to be more then threatned as Inhumane and too near bordering upon cruelty and is notwithstanding yet at this day used in some parts of the Lower Germany as Holstein Brunswich and Holland that great Monopoly as they think of Liberty when they do but dream of it for Debts or Money owing to private Persons Or not so rigid or uncompassionate as the way of prosecution for Debts is in the vast Empire of the Great Mogul where if the Debtor do not pay his Creditor according to the time limited by the Judge he is severely whipped and his Wife and Children sold for Slaves by the Creditor or the Merciles manner of poinding Horning or Outlary and Caption for Debts upon short and almost impossible prefixions used in Scotland When our Writs of Pone or Attachment by the favor and unwillingness of Sheriffs to execute the extremities and rigour of Writs and Proces of Law or their kindness procured by some other perswasions of rewards or power were in the moderation of our Laws and Courts of Justice which Canutus by his Laws desired to be ad Divinam Clementiam temperata not so exactly executed or the Defendant enforced to put in real Pledges and Security as formerly And the Distringasses have only small or little issues returned upon them nothing near amounting to the Rents and Proffits of the Lands Goods and Chattels of the Partie prosecuted betwixt the teste and return of the Writ And the Writs of Capias when made out are very often easily satisfied by an Attorneys undertaking to appear to the Action or if Bond be given to the Sheriffs by two Sureties for the Defendants appearance are not one in many hundreds enforced to give special Bail afterwards and if the
or not so necessary convenient or useful as was intended or expected or like unto some of the Laws of the Medes and Persians which were said to be irrevocable but the People had by the grace and favour of the Soveraign a remedy by Parliament to abrogate repeal explain or amend them by substracting of some clause or adding some other unto it for liberties are both by Civil and Common Law defined to be of things not forbidden otherwise vaga liberâ—â— as may quickly come to be misera servitus and bring those that would use an unbounded liberty where it shall meet either with Laws or a greater force into a most miserable slavery And therefore just liberties do by our Common Laws saith Sir Edward Coke signifie the Laws of the Land And that which is the Law cannot be called Tyranny nor that which is against the Law liberty And that ancient manner of Trial for those who were criminally accused called Fire ordeal which ordained the Partie suspected to walk blindfold over certain Plow-shares of Iron heated red hot laid at a distance one from another and if the Party did not touch any of them or treading upon them received no harm he was declared to be innocent coming into this Land with the Eazons and the Law of Trial of Titles by Battle or Duel continuing here long after the Norman Conquest and to this day in force in certain doubtful cases though they had very much of blood and cruelty in them could be suffered to wear out into better Laws and yet be obeyed as Laws whilst they were such the Law of torturing or pressing such men to death in case of Felony as will not pleadâ— or do refuse to be tryed by a Jury to be so many houres in dying and have no other drink but Kennel-water hath enough of horror in it to be found fault with if it were not the Law and the only means to preserve the Authority of Laws and Judicature and there were not toom enough for men to avoid that direful way of punishment For there was never since the blessing of Laws Magistracy and Government came into the World any legal liberty not to appear in Judgment or not to be compelled to do right one unto another by Judges and those that were in Authority commissionated by their Superiours And if ever there had been such a liberty it may be renounced or released by our own Acts as in the entring into Bonds and Contracts one with another wherein we oblige our selves to the performance of any thing which the Laws of God and Nature do demand of us the Obligees may dispense with it And if the Law of Nature could have given us such a vast liberty as some would pretend a right unto the same Law of Nature doth in civil Conversation and Society give us a power sufficient to restrain it and make that which at the first was merae voluntatis in our own wills to be postea necessitatis a necessity and out of any supposed freedom of our own wills or the power thereof Neither can any man by any rule of Law charge our Laws with oppression because positive or made in terror or binding to strict rules to avoid arbitrarines or oppression in the Judges or rigour and severity as in some particular mans case they may happen to be by an abuse of them but the fault is rather to be laid at the doors of those who do violate and break them For an unlimited or absolute liberty and the liberty of the Subject are each unto other contradictory and there are no Laws but do retrench or take away some liberty which People had or took to do ill or might be inconvenient to the publick good For God the greatest and wisest of all Legislative Powers did put the Jews who were as he saith himself as the Bracelet upon his arm and the signet upon his right hand under a Law of fourty stripes and of death if they disobeyed the Sentence of the Judge And yet we do find them in their Generations above two rhousand years after in such an opinion of their freedom as they thought nothing could be added unto it saying they were of the Seed of Abraham and under no Bondage and are yet above sixteen hundred years since bragging of those their Laws When David had slain Goliah and might justly have expected the reward of having his Fathers House to be made free in Israel as some of the promised rewards he did not when he durst not lift up his hand against the Lords Anointed believe it to have been such a freedom as might exempt him from the duty of a Subject When our King Athelstan by his Charter gave Lands to St. Wilfrid and the Church of Rippon in Yorkshire in the words Al 's frelich as I may and in all things be al 's free as Hert may think or eych may se. And King William the Conquerour granted the Earldom of Chester to his Nephew Hugh Lupus Tenendum sibi haeredibus ita libere ad gladium sicut ipse totam tenebat Angliam ad Coronam to him and his Heirs to be holden as freely by the Sword as he did himself hold England and the Crown thereof Those very large Grants did neither free the Lands so given to St. Wilfrid and the Church of Rippon and that Earldom to the Earl of Chester unsubject the Owners or give either of them as our Records and Law-Books in the course of the after Ages will testifie any liberty not to appear upon any Summons to the Courts of Justice of our Kings and Princes For legalis liber homo saith Sir Henry Spelman hath in our Laws no other signification then Qui stat rectus in Curia non exlex seu utlagatus non excommunicatus vel infamis c. sed qui in lege postulet vel postuletur who standeth right in the Kings Court is not outlawed excommunicated or infamous but may at Law sue and be sued And it cannot be denyed but that in order to Justice a Summons or citation only might be sufficient and would certainly be most consonant to the ease and liberty of the People if they were or could be so of one mind or inclination to Justice as to obey the first Summons either of the Parties complaining or the Courts of Justice commanding or not make excuses or delayes hide themselves or run away or be loath to come to it be so of one kind of affaires and business as never or seldom to be absent so alwayes provided of their Councel Witnesses and Evidences as not to need any further time to make their necessary deffences and to be of so much sufficiency of estate as to have wherewithal to make a speedy answer or satisfaction And that there were no such pravity or incertainty in the wills and actions of men as that the Creditor would be alwayes sure to demand no more
of Debt if it had been a grievance or not understood as it ought to be a legal and necessary part of the Laws of the Land or have omitted so often and daily happening Concernments of themselves and their Posterity if they could have thought that way of Procesâ— and proceedings at Law either was or could have been a grievance when as they did then so much believe all the grievances of the Nation to be by that abundantly satisfactory Act of Parliament made upon that Petition of Right to be banished and their fears quieted as they caused publick rejoycings and Bon-fires to be made for it And if it had not been so understood by the Reverend and Learned Judges and Sages of the Law who were then in being and have been since entrusted with the Administration of Justice such Proces and proceedings would never certainly have been made when the Petition of Right prayed That in the things aforesaid all his Majesties Officers should serve him according to the Laws and Statutes of this Realm as they would tender the honour of His Majesty and prosperity of the Kingdom and the King in his answer thereunto and giving it the life and power of a Law did will that right should be done according to the Laws and Customes of the Realm and that the Statutes be put in Execution that His Subjects may have no cause to complain of any Wrong or Oppression contrary to their just Rights and Liberties For it must be a more then an ordinary Hypochondriacal Melancholy that can perswade any Man to think that if the Process of Arrest or Outlawry could by any foresight or prospect have been believed to have been either a grievance or illegal or any Seminary of ill Consequences that ever to be lamented unhappy Parliament begun in November 1640. would in that fatal Remonstrance of theirs published to the People the 15th day of December following wherein they were so willing to amass every thing that might but look like a grievance of the People and were so effascinated in their evil purposes as they crowded in amongst them many essentials and necessaries of Government have omitted such an important and often happening grievance if any could with any colour of Law or reason have believed it or that in the nineteen high and mighty Propositions sent by them unto him in June 1642. or in the Message or Committe of the Lords and Commons then remaining at Westminster sent unto him at Oxford in Anno 1643. by the Earl of Northumberland William Peirpont Esquire and others or in the Treaty and Propositions at Vxbridge for Peace betwixt the King and that misnamed Parliament in the year 1644. such a necessary if it had been thought to have been one should have been neglected or in the Message of the Lords and Commons in the then so called Parliament sent unto him when he was a Prisoner at Holimby in the year 1647. with propositions for Peace nothing should have been desired to prohibit Arrests but on the contrary an Act of Parliament was required for confirmation of all Customs Charters Liberties and Franchises of the City of London which for many hundred of years before had been approved Or that in the Bills and Propositions sent unto Him in the same year to the Isle of Wight when he was there a close Prisoner Or in an Act or Ordinance made by the Lord Major and Common Councel of London in the year 1660. for the better regulating of that Cities Courts at Guild-hall in which notice was taken of their ancient Customs and diverse abuses committed by Serjeants at Mace and their Yeomen in arresting of Men there should be no mention made of any original Grievances or Illegality by or in the Proces of Arrest nor any orders made or desired to be made against it Until therefore this invisible and untelligible repealing Act of the Statute of 25 E 3. ca. 17. shall be pleased to appear and shew it self the Founders of that fancy may do well to build no further upon it but silence their causeless out-cries against it And when such or the like imaginations shall offer themselves think rather that Acts of Parliament according to the advice and opinion of the Judges in Doctor Foster's case which have been established with so much solemnity wisdom gravity and universal consent for the good of the Weal publick ought not by any strained construction or ambiguous words if there had any been in any subsequent Act to be laid aside disused or abrogated and that doubtful aequivocal words if there had been any ought according to the rule in Gregories Case to be interpreted in the better and more likely sence And not trouble themselves as they have lately done for before the year 1640 and 1641. when Liberty ran mad and the Factious part of the People did too much read the Books of Plunder and Sequestration and admired the Models and Contrivances of Hugh Peters Huson the Cobler Pride the Drayman and every Mechanick and Tradesman and every Mercenary Red-coat Rebel-Souldier who would by his indigested conceptions be a Solon or Licurgus they did not to subvert as they endeavour'd to do our long experimented approved Laws Customs to make room for their own ungodly advantages and sordidly ignorant alterations and at the same time allow the Caption and Horning of that by them Conquered and once illegally Covenanting Scotland to be lawful Nor vex themselves and others as they have done with the Chymeras and phancies of that never to be found repealed Statute of 25 E. 3. cap. 17. and their so much mistaken Gorgons head and affrights of their Liberties being likely to be lost by that or other our Laws when our Laws and the due Execution thereof are and have been by our Kings and Princes and their just authority the only means under God to preserve them Or be so over-lavish in shooting their Bolts in undertaking to assert That England is impoverished more then a Million of Money Sterling every year by Sheriffs Bailiffs Serjeants Marshals-men Proces-makers Habeas Corpus Rules Writers c. As a late Anonimous Champion of those kind of Liberty mongers terms them for which he would decoy as many inconsiderate People as he could into an opinion and belief that the Creditor is not the better one Peny for it which is as impossible to be proved or be lieved as that Bears are enabled by Nature to fly and usually do it or that the Mountains of Mountains the Alpes those highest Hills of the Christian World do usually at every Jubile leap to Rome to obtain an Indulgence or Pardon from that Holy Father for being so high-minded And what ever far lesser Sum of Money those Officers Fees which as to the Process-makers are very small and dearly enough earned do amount unto yearly it will be very difficult for that Man of confidence whosoever he be to prove that none or very many of the Creditors did
a magis and minus and variatioe of Circumstances in such kind of Offences which may either lessen or heighten them Nor do those Rules which are given by Bracton for the reason of Arrests or Restraints of liberty in personal Actions before judgment that a Habeas Corpus which amounteth in effect to a Capias or Restraint of the person or his liberty is presently to be granted propter privilegium eruce signatorum mercatorum in respect or favour of those that were to go to the Holy War or were Merchants or propter causam sive necessitatem for some urgent cause or necessity of dispatch or in Trespas propter atrecitatem injuriae the horridness or evil of the Offence or propter personam contra quem injuriatum est ut si injuriatus sit Domino Regi vel Reginae vel eorum liberis vel Fratribus vel Sororibus vel eorum Parentibus Propinquis in respect of the Person against whom the wrong is done as the King Queen their Children Brothers Sisters or their Parents or Kindred come up to the Rules of Justice for urgency of Affairs necessities or occesions considerations or respect of Persons can of themselves be no cause of making Justice which is not to be a respecter of Persons to be Eccentrick or go a step out of her way or to do any thing in one case which should not or ought not to be done in other Cases having the like ground of reason and justice attended with the same circumstances neither can atrocitas facti vel injuriae the grandeur and oughliness of the offence be the sole cause or ground of Arrest in common or petty actions of Trespas or for words if there could properly be any atrocitas or hainousness in them or where it is done involuntarily as in Cases of Trespass or damage done by a mans Cattle for Trespass may be greater or lesser and if every Trespass could be understood to be of the greater size or magnitnde and so horrid and enormous yet there can be no reason to make the Caption or Arrest to be in part of Corporal punishment before the Judge or Magistrate be ascertained of the guilt of the Party or instructed how to keep the order which the Laws of God Nature and Nations and our Magna Carta have enjoyned that is to say to punish only secundum quantitatem delicti according to the nature of the offence And that supposed ground or reason given by Sir Edward Coke will be as deficient that the Common Law of England abhorring all force as the capital Enemy to it subjects the body to imprisonment until it hath made agreement with the Party and fined to the King bring any better reason with it For if the King shall as he conceiveth punish force by a Capias to Arrest the body before the party be permitted to defend him-or a Tryal had by Jury whether he be guilty or not that would be more against Magna Carta then any Process of Capias or Arrest in Debt can be dreamed or fancied to be and a Capias pro fine after a Tryal and finding guilty will either shew that it was not the arresting of the body in Trespass which was intended or inflicted for the punishment but the Capias pro fine and if both the Capias in Trespass before Judgement and the Capias pro fine after Judgement should be inflicted for one and the same offence They would not be secundum modum sive quantitatem delicti proportionate to the offence and the Capias to Arrest would be before the King or his Courts of Justice could be ascertained that there was an offence Nor will that other cause or ground given by him in the Report of the said Sir William Herberts Case that the King may by the Common Law arrest the body of the Debtor for that Thesaurus Regis est vinoulum bellorum nervus The Money and Treasure of the King is the Bond of Peace and Sinuwes of War obtain the conclusion which he aims at For that were to make a King or supream Magistrate which ought to be Lex viva and Justice it self to destroy that which he was sworn to protect and give him licence to break Laws who is not in ordinary Cases against the Rules of Justice and right reason to give such a liberty to himself or any others or to do an act for an advantage or necessity which the even and adequate Rules of Justice common right or right reason cannot allow So as by the favour of so great an authoâ—â—ty in our Laws as Sir Edward Coke is and with as much reverence as is or can be due to so great a lover of the Laws of England and the veneration which he justly merits I must of necessity by what appears in the Cabinet and Treasury of time and Antiquity and what is clearly to be perceived in those pure streams which the Fountains of Justice and right reason have imparted unto Mankind assert what I have done and conclude that he was a man and hath as the best Authors may in their Books sometimes do which are not Scripture and Canonical erred in averring that there was no Process of arresting the body of a Debtor either before or after judgment until the Statute of 25 Ed. 3. which gave Process of Outlawry in Actions of Debt When in allowing Process of Arrest in debt in the Kings Case as he doth in Actions of Trespass he must acknowledge the same reason and necessity which is a just and rational coertion to appear before the Tribunals of Justice and of caution to be given to abide their judgments to be in Actions of Debt and other personal Actions And he himself in many of his Books and Writings hath as well as the Civil Law and our Common Law and the Law of Nations affirmed that the same Reason may claim the like Law For the reason that Joseph would have imprisoned his Brethren upon a suspition that they were come to espie the Land and kept Simeon a Prisoner until their words and denials were proved gives us the reason necessity and justice of arresting in personal Actions and Debt as well as Trespass until cause or caution be given of appearing in Courts of Justice and performing the judgments And that learned Judge could if he were now living very well remember that he hath often said as well as found that many of our Acts of Parliament are but declaratory of the Common Law and that which was long before used and understood to be as it was reasonable That the matter or thing excepted in an Act of Parliament is not included in any purvieu or provision of it but is out of the reach and gun-shot thereof and that when in the Statute of Magna Carta made in 9 H. 3. ca. 29. it is said That no Freeman shall be taken and imprisoned or be disseised of his Freehold or Liberties or free Customes or be outlawed or exiled
non prospexit recourse is to be had to the Body of the Tenant and if he be not to befound the Landlord is to impute it to his own negligence that he did not look better to it Cum quis ad warrantum vocatus fuerit Christianus vel Judaus qui terram non tenuerit in feodo quae capi possit in manum domini Regis per quam distringi possint pracipiatur vicecomiti quod habeat corpora eorum when any man is vouched to warranty be he Christian or Jew and hath not Land which may be taken into the Kings hands or by which he may be distrained the Sheriff shall be commanded to take his Body or bring him And a Bishop being Summond in a quare non admisit cum non venit nec se excusat per nun-nec per Essoniatorem attachietur when he neither comes nor sends his excuse nor essoins shall be attached Upon a writ awarded to a Bishop to command him to bring before the Kings Justices a Clark or Minister in holy Orders refusing to find Pledges because he was in holy Orders and had no lay Fee whereby he might be distrained if the Bishop did not after a Summons pone Distringas awarded against himself cause him to come the Court did proceed against the Clark upon the contempt and cause him to be arrested nor could the Sheriff or his Bayliffs incur any punishment for doing of it for the execution of the Law saith Bracton wrongeth no man By the Statute of Marlebridg made in the 52 year of the Reign of that King if any shall not obey or suffer Summons attachments or executions of the same according to the Law and customs of the Kingdom they were to be punished The word Attachment being saith the learned Vossius derived from a French word to apprehend or detain An Attachment is to arrest force or compel a man denying to come to judgement saith Sir Henry Spelman And by Skene a learned Scotch Lawyer is defined to be a certain Bond or Constraint of the Law whereby a Defendant is unwillingly compelled to answer in Judgment to the Party complaining In the Statute of 52 Henry the third where a Capias is given against accomptants it is said they shall be Attached by their bodies An Attachment made for disobeying a Writ of prohibition is in the very form of a pone the awarding and entry of a pone is that the defendant should be Attached And saith Bracton the course or solemnity of Attachments to compel the Defendant to come to the Court to answer his contempt was not so always observ'd but in trespas for the greatness of the offence or in favour of Soldiers that were going to the Wars or of Merchants or such as required haste in Actions of Debt and it is probable that the Actions or Suits of Merchants were most commonly of that nature the Judges granted an Habeas Corpus which to that purpose was in effect as much as a Capias whereby the Sheriff was commanded all delays set apart in regard of such haste and priviledge to bring the Body of the Defendant to answer the Plaintiff in an Action of Debt or Trespas as the case required with a Clause in the Later end or perclose of the Writ that the Sheriff should be grievously amerced if he refuse to do it By an Act of Parliament made in the 52 year of the Reign of the aforesaid King in a Plea of Common custody or guard by reason of ward if the deforcers came not at the great distress the Writ was to be renewed twice or thrice within the half year following and if after the Writ read and proclaimed in open County the deforceant absent himself and the sheriff cannot take his Body to bring before the Justice then as a Rebeâ—â—e shall loose the Seisin of his ward By the Statute made in the third year of the Reign of King Edward the first if any under Sheriff or other do withhold Prisoners replevishable after they have offerd sufficient security he shall pay a grievous amerciament to the King in which act of Parliament men committed by the King or his Justices are excepted and declared to be not replevishable By a Statute of the aforesaid King made in the same year the title of it being against the arresting of men in Liberties great men and their Bayliffs the Kings Officers only excepted to whom special authority sayeth the Statute is given were not to attach men passing thorough their Jurisdictions with their goods compelling men to answer before them upon contracts and covenants c. And the writ of prohibition in the Register awarded upon that Statute is for attaching a man to answer upon contracts and covenants Britton who wrote his Book by the command of King Edward the first saith if any man will complain of a debt under forty shillings let him find Pledges to prosecute his debtor and if he that is sued in Trespas maketh default let him be distrained And that in an action of debt if there be not a sufficient distress the Difendants might be taken by their Bodies be they Clarks or Laymen Fleta or whosoever was the Author of the Book so called reciting the then manner of proceedings at law as an old and accustomed course saith they were by Summons Attachments and distress in personal actions the entries and awarding thereof upon record being the very same with little difference as they are now used If a debtor had bound himself to be in default of payment distrained by the Steward and marshal of the Kings house then upon security given by the Creditor to prosecute a distringas was awarded against the debtor until he found Pledges so as he were within the virge and if he were personally to be found was to be Attached by his body until he should by Pledges acquit himself and if he had not Pledges was to be held in Custody until that he answered the Creditor non tamen in vinculis or if he found Pledges and after made default the Pledges were to be amerced and the Defendant arrested and detained and not be bailed or let loose by Pledges before he had answered And that not only Marescallus sub suo periculo omnes captos infra virgam custodire debet sed de eis coram Senescallo respondere de Judicatis plenam facere executionem the Marshal should at his Peril keep all that were taken within the virge but answer for them before the Steward and ought to take in execution those against whom Judgment should be given and the Steward did of course command the Clark that keepeth the placita Aulae pro Rege Rolls and Records of the Kings Court to direct his writ Marescallo quod ipsum de quo fit sine dilatione attachiari faciat to the Marshal that he do without delay attach him of whom any complaint should
demand in the Writ specified be under 20. pounds are by the Rules and Custom of the Court of Common Pleas not to be insisted upon or if above not at all in the Case of Defendants being Executors or Administrators and if the Defendant for want of Bail for his appearance do continue in Prison three terms and no habeas Corpus be brought or declaration given or further prosecution made he is to be delivered by a Writ of Supersedeas made of course upon the apparance to the action only without any special Bail put in before a Judge or Bond given to the Sheriff and where special Bail is very seldom given it is but that if Judgment be obtained against the Defendant he shall render his body to Prison or satisfie the condemnation Our Writs of Arrest ad respondendum being ad Cautionem custodiam non ad poenam but to enforce a gage or pledge or to detain or put a Debtor or Defendant into the Custody of the Law to the end he may give Bail Judicatum solvere to abide the Judgment of the Court or if no Bail be required to appear to the Action And the Proces of Utlary which although they were not ordinarily used in Actions of debt before the making of the Statute of 25 E. 3. was notwithstanding in cases of trespas for breach of the Peace and for Contumacy and Contempts in not appearing warranted by the Laws of King Edgar Canutus Edward the Confessor and the practise of our Saxon Ancestors borrowed and deduced from the Ancient Customs of other Nations is not now so dreadful as it was in former Ages when as Bracton and Stamford do agree the Partie outlawed did forfeit Patriam Amicos omnia terras tenementa bona Catalla sua all that he could entitle himself unto was out of the protection of the King and his Laws and could not bring any action until he had rendered himself to Prison obtained his Charter of Pardon brought his Writ of Error and given Bail to answer the Action but may now without Bail unless specially required be admitted to reverse the Utlary before Judgment upon defect of Proclamation only or some small Error without a Writ of Error or the Record certified into the Court of Kings Bench or Errors assigned with other the many troubles and charges which that way produced The Plaintifs for fear of obstructing or narrowing the wayes of Justice are not put as they were anciently to find real Sureties to prosecute and make good their actions or to pay a Fine to the King if they do not as our Laws do intend they should or to make Oath of their debts or de non calumniando that the Action is not prosecuted in malice or upon sinister ends as the Civil Law enjoyned And the Statute of Westminster the second doth in Writs of Execution against the Goods and Chattels of a Defendant except Boves Affros de Caruca sua Oxen and Horses of Husbandry and the Writ imports as much in the tenor of it the Judges do without any Inquisition or proof that there were not other goods sufficient to satisfie the Execution permit for the Creditors more speedy attaining to his satisfaction all the goods to be taken in Execution which in more Ancient times was so unusual as a Defendant hath brought his Action against the Sheriff and the Plaintif for taking them in Execution when there was other personal Estate sufficient And do also suffer the Plaintiff to prosecute the Sureties upon a Bond when the Principal hath not been sued and was sufficient to pay the Debt or dammage which by the former course and practise of the Law was not allowed And our Writs of Exigent and Outlary were truly and properly only to be made use of where the Defendant refuseth to appear in contempt of a Court of Justice and the Proces thereof is fugitive or incertain where to be found taken or arrested hath no visible or certain Estate or lurketh in some Liberty of which there are many in England and Wales where the Kings ordinary Writs and Proces do not run or have any power or force and a Capias utlegatum carrieth with it in the same Writ a Non omittas propter aliquam libertatem and impowereth the Sheriff to enter into any Liberty and arrest the Defendant and by a special Capias utlegatum to seize and take at the same time all the Defendants Lands Goods Chattels and Estate into the Kings hands as forfeited for his Contempt and that seisure transferred into the Court of Exchequer bringeth the Plaintif an advantage to take a Lease of the King of the Lands so seised at a very low rent until the Defendant purge himself of the Contempt reverse the Outlary give Bail and appear unto the Action which being so consonant to the Outlawries Bannes and proscriptions of Germany and other Nations Kings and Princes in the like Cases to preserve their own Authority in that of their Courts of Justice and requiring some severity and a more then ordinary Proces hath been all the means which without force and violence and a greater disturbance of the People our Laws and a long Custom and usage of time have hitherto prescribed can contrive to bring unwilling Men to Judgment CHAP. VI. The delayes and inconveniences of the Proces of Summons Pone and Distringas were a great if not the only cause of the disuse thereof FOr the way and Course of Summons Pone and Distringas so much in use before that Statute of 25 E. 3. was unto Plaintifs as full of delayes as they were of increase of Charges and trouble which a view of the old Records of the Court of Common-Pleas before the making of that Statute by the many Writs of Alias and Pluries Distringas with issues forfeited and returned upon them occasioning a great proâ—it to the King and less to the Subjects and the many Writs of testatum Distringas made into other Countries where the Plaintifs averred that the Defendants had Lands and Estate suffiâ—ient and Writs of Averment and Enquiry made out upon too small issues returned directed unto the Justices of Assize to certifie if there might not be more issues returned and such a Writ of Enquiry to be executed in the Lent or Summer Vacations could not but cause a more long chargeable and troublesome delay to get better issues to be returned may help to attest the more necessary and better use of the Proces of Capias and Arrest and that Writs of Exigent and Outlawry will in the Cases aforesaid propter inevitabilem necessitatem be everlastingly necessary especially when in the same Parliament of 25 E 3. wherein Proces of Outlawry in Actions of Debt were granted a great complaint was made that the Steward and Marshal of the Kings House or their Deputies did upon Actions attach and distrain men by ten Marks of their Goods one day and by as much the next
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
by discountenancing the present Laws to loosen the bonds of government to the end that all disorder and confusion might breake in upon him And in his answer to the above mentioned 19. propositions sent unto him by both houses of Parliament the 2. of June 1642. Declared unto them that those that had the conduct of that affair thought fit to remove a troublesome rub out of their way viz. the Law to the end they might undermine the very foundation of it Which every day after grew more and more visible when they being called together to council and advise him could not by their Votes which they would make as binding and obligatory as if they were Laws made and established by their Soveraign wrest and take from him the Militia or Sword wherewith he should protect and defend his people took it to be not a little advantagious to their purposes to ravel and dislocate the method and proceedings of his Laws and Justice By which his Throne was established that by overturning the long approved Laws and Customs of the Kingdom upon which the best Monarchy in the World was built they might open a passage to let in that gain and Anarchy which they aimed at which being once made known to their Emissaries and so much encouragement given by their members of that which was then untruly called a Parliament who rather then fail of Petitions unto them from the sons of Zerviah and Shimei out of every Countrey City Corporation and Market Town caused Printed Bills to be affixed upon the Posts and Corners of the Streets in London whose multitudes of Inhabitants in Masters Apprentizes Tapsters and other Illiterate and Vulgar kind of people could readily afford them good store of such as had been borne or lived in every County City and Corporation of England and Wales to give a meeting at a place appointed to some Members of Parliament for the framing of Petitions unto it And thus the Hounds being uncoupled and let loose to chase the Royal Hart and the Presbyterian Ministers like Huntsmen busied in the ha loo lo ho ha loo loo so ho. Whooping and following to cheer and set them on and busying themselves to remove all things that might hinder the pursuit of their Petitions for the presenting whereof Pulpit Granado men were employed to procure them to be brought with 100 or 200 or more of the factious on Horseback with the Petitions ready printed or Tackt to their Hats or Hatbands with Swords by their sides The London Porterswere set on to Petition against the Militia when they were only told it was against the Watermen for carrying Trunks and other Burdens by Water And a Schoolmaster at Stamford was so wickedly Ingenious as to make his Boyes subscribe a Petition to that Parliament against Episcopacy as if their Parents had actually done it In the mean time the Diurnals News Books and seditious Pamphlets the Stationers Arrowes and Artillery were day by day shot to wound him and incense the people against him and some of the Parliament men were heard to say That they could not do their work without them And the design was carried on so prosperously as too many thought their time best of all bestowed to pull down or take in pieces either all our old Laws or such a part of them as might not only undermine the frame and constitution of the Monarchy but innovate and introduce so much of their own Modells and Inventions as might either directly lead to a republique or some new devices of Anarchy A Book called the pollution of University Learning printed in 1642. Marched in the van together with another Book called the Observator and his Jesuitical principles Quod efficit tale est magis tale and that the King was singulis Major but universis Minor and those kind of Engines were greatly incouraged in their attempts by a Book of Junius Brutus his vindiciae contra Tirannos translated out of Latine into English to infect the people with Treasonable Doctrines And a Book intituled Maxims Vnfolded That the Election of the Kings of England ought to be by the consent of the people The Royal and politique power in all Causes and over all persons is properly the Parliament The Oath of Supremacy binds not in Conscience to the King against the Parliament but the Pope And another book written by Mr. William Prynn an utter Barrister of Lincolnes Inne Entituled the Soveraigne power of Parliaments and Kingdoms Printed at London in the year 1643. Wherein with heaped quotations and much Learning and reading the wrong way he was willing to invite his Readers to believe that the Court of Parliament had a lawful power to question the Kings Patents Charters Commissions Proclamations Grants Warrants Writts and Commandments whether they be legal and to Cancell and repeale them that be illegal or mischievous and onerous to the subject not only without but against his consent It is lawful for the people submitting themselves to prescribe the King and his successors what Laws they please the Sheriffs of every County were antiently elected by the Freeholders and had power to raise the Militia that the Navy Ammunition Armes and Revenue of the King though they be in his possession are the Kingdoms That Kings and their great Officers Counsellors and Justices were at the first created and elected by the people that the King hath an absolute Negative voice in the passing of Bills of common right and Justice for the publique good that the Parliaments present necessary defensive war is just and lawfull both in point of Law Divinity and Conscience and no Treason or Rebellion the Parliament hath a right and Jurisdiction to impose Taxes and Contributions upon the subjects for defence of the King in case of the King his wilfull absence or Arming against them Seconded by a Book entituled Lex Rex written as believed by one Rutherford a Scottish Divine Printed at London by John Field and published in the year 1644. By the then usurped authority wherein he falsly endeavoured to maintaine against all the grounds and fundamentals of Law and Religion That Kings and their Families have no calling to the Crown but only by the people Royalty is not transmitted from Father to Son if the people may limit the King they give him the power who is the servant of the people both objectively and subjectively and is inferiour unto them who cannot make away their power but do retain the fountain power of making a King that to swear non self preservation and to swear self Murther is all one The King is a Fiduciary Life-Renter not a Lord or Heritor the conscience of the people is immediately subordinate to God not to the King mediatly or immediately the Judges are the immediate Vicars of God not of the King The Parliament hath more power then the King The Crown is the Patrimony of the Kingdom not of him who is King or of his Father The Parliament
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 〈◊〉