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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A54680	The ancient, legal, fundamental, and necessary rights of courts of justice, in their writs of capias, arrests, and process of outlary and the illegality ... 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.	Philipps, Fabian, 1601-1690.	1676 (1676)	Wing P2002; ESTC R3717	157,858	399

Book stiled the Good Old Cause dressed in its Primitive lustre said to have been written by R. Fitz-Brian it was insinuated that the distempers of the Nation being so great as they could not admit of a redress and conserve still their old frame things must unavoidably wheel about and fix themselves upon another Basis Providence united the honest party of the victorious Army so as it was resolved that the poor who had nothing to pay their Debts should be freed from the bondage of a perpetual Confinement the corruption of the Laws were become at once both the shame and impoverishment of the Nation and some Expedient was to be had for the freeing of it from so horrid a Cheat Divine providence did by degrees point out a necessity of the change of Government and Kingship being laid aside as unnecessary chargable and dangerous it was devolved into a Commonwealth It being a certain rule that corrupt and degenerate States cannot be perfectly healed and regulated but by stepping into those forms which are the farthest distant from that wherein they were corrupted Backed by an Anonymous Author who being desirous to try an experiment as well projected as that of the cutting the Moon into Stars to make the greater light and save the expence and trouble of Candles and to contrive a way for the ruining at once of many of our fundamental Laws root and branch doth in a Book entituled a Chaos or frame of a Government by way of a Republick printed by the said Livewel Chapman endeavour a creation of new Laws out of a confusion of his own making wherein as a well-willer to the Publique as he stiles himself but a greater to all at home he doth in order and respect which there will be no reason to believe to the Lawyers profit and to the peoples enjoyment of Magna Charta propound National Provincial Subprovincial and Parochial Registries to which Courts all causes of Civil concernment are to be reduced all Suits in Law or Equity to be determined in six months upon a penalty to the Judges and loss of Cause to the Client whether Plaintiff or Defendant if guilty of delay the Judges in Chancery to sit de die in diem the Itinerant Judges to determine all Causes that shall be tryed before them and a Term of a month to be at Westminster-hall after every Circuit for the determination of matters of Law with rules to be given for the Jurisdiction of each Registerial Court a National Registry to be appointed at Westminster to consist of a Register and six Clarks Assistants or Deputies which may have each as many writing and examining Clarks under him as the business shall require each County of England to be one entire Province and those allotted to the Jurisdiction of the said several six Clarks and Deputies viz. so many Counties as are comprised within the several Circuits of the Judges in every Shire-Town a Provincial Register and he to have two Clarks assistants who shall as to the imployment divide the Province only Yorkshire is to have three Clarks assistants who are to divide according to the Ridings Subprovincial Registers to depend upon the Provincial and to have one Clark assistant every Parish or two where one is too little to have one Register and a Clark assistant every person having Estates in two or more Counties shall enter their Estates and Annual values in the National Registry of each Circuit and all that have any claim or right in possession or reversion of Lands of Inheritance of the yearly value of 1000 l. or upwards shall enter it accordingly and of the yearly value of 100 l. and under 1000 l. either in possession or remainder are to enter it with the Provincial Register all persons having Estates above the clear yearly value of 10 l. and under 100 l. are to enter them in the Registry in the Hundred or Wapentake of the Province and all not exceeding 10 l. per annum to be entred in the Parochial Registry all Debts exceeding 1000 l. to be entred with the National Registry all above 100 l. and not exceeding 1000 l. with the Provincial Registry all above 10 l. and not exceeding 100 l. with the Subprovincial Registry and all under 10 l. with the Parochial Register where the Debtor inhabiteth or his Estate lyeth And when such Entries are perfected the National Register shall within 14 days certifie it unto the Provincial who shall within 8 days certifie it to the Subprovincial and he within 6 days to the Parochial Register And where several claims under several titles shall be made unto one and the same thing the Register shall give notice thereof to the several Inhabitants and Tenants thereof the Parochial Register shall likewise certifie to the Subprovincial the Subprovincial to the Provincial and the Provincial to the National Registry the Seal of the National Registry shall be the Great Seal of England to be kept by the Register and his six Clarks and nothing to be sealed but in the presence of the National Register and two of his Clarks assistants each several Province shall have his peculiar seal whereon shall be the Arms or cognisance of the Province City or Corporation wherein the Registry is and shall be in the custody of the particular Register or his Assistants and in like manner for the Subprovincial and Parochial Registries The several Registers where no double claim is entred shall give Certisicates under their seals of any Entries which shall be desired Claims not entred within three months unless in case of Infancy Death or being beyond Sea shall be an absolute bar Entry to be made within three months after the establishing of the Registries Certificates to be made under seal to any that shall desire it which shall be a sufficient warrant for the recovery thereof without any further trouble to the Creditor then to make his claim thereunto All manner of Bargains and Contracts w●ere any Estate of Inheritance Mortgage or Lease shall be made or any right transferred from one to another all Covenants Conditions Considerations and Times of payment in the presence of the several parties shall be made before the several Registers certified under his seal delivered to the Creditor and Counterparts to the other parties And Entries made of payments and discharges of Bargains personally by the parties in the presence of two known witnesses unless where the parties Bargaining shall be sufficiently known to the Register or his Deputy all Marriages to be entred in the Parochial Register the Covenants and Conditions of the Marriage to be entred and certified under the seal of the Register who is also to enter the Christening of every Child deaths and burials of all persons all Wills and Testaments the hiring and wages of Servants to be entred in the Parochial Registries and Certificates under seal given thereof the Fees for entring any Estate of Inheritance in the National Registry 20 s. per page for the two first pages

Civil Law and the Laws of the Longobards commonly rendred might appeal if he suspected his Judges and appealing might not be detained in Custody Ranulphus de Glanvil who recorded much of what was the practice of the Courts of Justice in England in his time and was Lord Cheif Justice in the Reign of King Henry the 2 when as he saith in his proaemio or Epistle to that Book the Laws then in use were founded upon reason and antient Customs the King willing to be advised the Judges men of great Wisdom and Knowledge in the Laws and Customs of the Kingdom and Justice so faithfully administred as the great men could not oppress the Poor Writeth that if the Defendant appeared not in an Action of D●bt after he was Summoned an Attachment was awarded and a Distringas as in other Pleas. And it was in those times held to be Common Law that where a fine was Levied and that after 3 Essoynes either of the Parties refused per●ormance tunc remanet in misericordia Regis salvo attachiabitur quous que securitatem in veniret bonam In the Reign of King Henry the 3. as appeareth by Bracton a Judge and learned Lawyer of those times in his book delegibus consuetudinibus Angliae compiled as he saith ex veteribus Judiciis Justorum out of ancient records and memorials if upon the 4th day of the return of the Summons in an Action of Covenant or Trespass the Defendant appeared not whether the Summons were returned or not an Attachment was awarded If he came not then a second Attachment was awarded to put the Defendant to better Pledges or securities And if he had not Land which might be taken into the Kings hands or by which he might be distrained the Sheriff should be commanded to take his Body or bring him and the Pledges were to be in misericordia quia ulterius non sunt summonendi and if he came not at the day appointed sed maliciose se subtraxerit latitaverit quod Corpus inveniri non possit vel forte se transtulerit extra Comitatum potestatem vicecomitis vicecomes mandavit quod non fuit in ventus in balliva sua then in default of his appearance three Writs of Distringas shall be made out one after another the first by all his Lands and Chattels second by all his Lands and Chattels ita quod nec ipse nec aliquis pro eo nec per ipsum manum apponat ita quod habeat Corpus ejus ad alium diem si tunc non veniret precipiatur vicecomiti quod distringat eum per omnes terras Catalla quod Capiat omnes terras omnia Catalla sua in manum domini Regis Capta in manus domini Regis detineat quousque dominus Rex aliud inde preceperit quod de exitibus eorundem domino Regi respondeat And for this kind of proceedings cited a Record in Michaelmas Term in the Third year of that Kings reign which in its use and nature carried along with it a restraint of the Body of the Defendant for the Sheriff was by the Writ to distrain the defendant Ita quod haberet corpus and it would be in vain to distrain him who perhaps had a small Estate or profit of his Lands to be destrained betwixt the Teste and return of the Writ if the Sheriff did not at the same time restrain or secure his Body to appear before the Justices at the time prefixt to answer the contempt as well as the Action But saith Bracton if the Plaintiff post tot tantas dilationes justiciam non fuerit consecutus should not after so many delays obtain Justice what shall be done for durum est enim quod placitum suum deserat infecto negotio desperatus recedat domum it would be hard that the Plaintiff should go home in despair and be able to do nothing and therefore concludes that if it be a civil or personal action for mony or upon any contract it would be good to put the Plaintiff in possession of the Defendants goods and Chattels according to the quantity of his demand and summon the Defendant at a time limited to appear and answer the Action at which time if he do appear he shall have his goods and Chattels restored unto him so as he answer the Action otherwise he shall never more be heard concerning his goods and Chattels sed querens extunc verus possessor efficiretur but the Plaintiffs shall from thence be reckoned the true owner and possessor thereof si autem cum corpus non Inveniatur nec terras habuerit nec Catalla ille de quo quaeritur iniquum esset si Justicia remaneret vel malitia esset Impunita But if his Body cannot be found and he hath not any goods or Chattels it would be unjust that Justice should be at a stand and not go forward and that the evil actions of men should remain unpunished and therefore whether the Action was pecuniaria vel injuriarum was in Debt or for mony or Trespass the Court was to proceed against him by Process of Utlary propter contumaciam inobedientiam factam domino Regi quia nullum majus Crimen quam Contemptus inobedientia omnes enim qui in Regno sunt obedientes esse debent domino Regi ad pacem suam cum vocati vel summoniti per Regem venire contempserint faciunt se ipsos Exleges for their contempt and disobedience to the King because there is no greater Crime then contempt and disobedience for all that are in his Kingdom are to be obedient to the King and observe the peace and Justice thereof and being called or Summoned by him shall contemn it or refuse an obedience thereunto do make themselves Outlaws Et ideo Utlagari deberent non tamen ad mortem vel membrorum truncationem si postea redierent vel intercepti fuerint cum causa utlagationis criminalis non existat sed ad perpetuam prisonam vel Regni abjurationem a communione omnium aliorum qui sunt ad pacem domini Regis and therefore he ought to be Outlawed but is not if he return or should be taken to be punished by Death Mutulation or cutting off his Members in regard that the cause of the Utlarie was not Criminal but he is to be commited to perpetual Prison or to abjure the Kingdom be Banished and forbid the society of all the Kings Subjects And in those days where a man by Lease had taken an house rendring a certain Rent quid saith Bracton what shall be done when the Tenant doth not pay his Rent nihil in domibus locatis conductis inveniatur and hath no goods and Chattels yet howsoever resolves the question recurrendum erit ad corpus conductoris si autem Corpusnon inveniatur hoc poterit locator suae imputare negligentiae vel imperitiae quod sibi Cautius

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 agains● 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

thereof then to be put out of their places And the names of those Judges which were said to have been hanged do if there were any such very much favour of later times or if any of them were Earles for so most of the provincial Judges then used to be should if guilty by the custome of this and other Nations unto which this of ours may in that and many other things be found not to have been altogether a stranger not in all likeilhood have been subjected to so vile and vulgar a punishment and the offences for which those imaginary Judges are by that Author said to have been hanged were such of which there were then for ought appears no Laws in being to make them guilty of the breach thereof For all the Laws of King Ina which have come unto us who reigned here in the year of our Lord 712. and next preceeded King Alfred and most of the Laws of King Alfred and the Saxon and Danish Laws of their several Kings which reigned after him did ordain and inflict their punishments by pecuniary mulcts with relation to their Capitis estimationes valuation of their Qualities and Estates and there were certain known and appointed Rates for the redemption of Lahshlite or Manbote for Manslaughter or the death of a man he which killed a Stranger forfeited 2. partes of esiimationis Capitis to the King and the 3. part to the Children or kindred of the party slain Theft was punished by the Laws of King Alured who reigned in the year 871. ratione 60. hidarum so as if the offender had been the owner of 60. hides of Land he which stole any thing out of the Church was to pay the value of the thing and to have his hand cut off and there was a Capitis estimatio for a Nun taken by force out of a Nunnery or Killing a woman great with Child a man having for some Criminal offence forfeited his liberty or being adjudged to be a Slave for Felony was not to be hanged untill the 2. offence and it was in the accusers option or choice to have him only beaten of which book compiled out of many fragments the Author doth not seem to be well pleased with our Magna Charta and appears to be a great fault finder and complainer of the abuses of too many things in the Laws of the time wherein he lived and doth not well agree with himself in some of his own positions as where he saith it was forbidden that none should be distrained by their move able Goods but by their Bodies or Fees In another place concludeth that the Imprisonment of the Body of a man is an offence if not for tortious Judgments That no man is imprisonable for Debt and none to be utlawed if not for mortal Felony and menmentioneth the use of Justices in Eire when Sir Henry Spelman saith the Justices Itinerant or in Eire were not here instituted untill the reign of our King Henry the 2. And might have remembred if he had been so conversant as he pretended with King Alfreds Laws that Imprisonment of the body in Civil actions was not unusual in the time of his reign For that by one of his Laws if a man had given a pledge upon oath and promised which was not then infrequent quod juste legitime praestare potuisset neque prestiterit arma fortunasquae suas omnia amicorum fidei concredito ipse in custodiam Regiam per 40. dies mittitor subiturus supplicii quod ei Episcopus pro meritis imposuerit sin spatio haud plene confecto fugam agitarit fugientem que ante verterunt per 40 dies in Carcerem ut quidem antea fieri oportuit conjicitor verum si fuga elapsus fuerit ab omni legis patrocinio destitutus habetor atque in omnibus Christi Ecclesiis Anathema esto Quod si quisquam alius pro se fidem dederit penas fide jussonis violatae dato imperatum subito That which he might justly perform and did neglect and not do it his armes and all his Estate and Fortunes should be sequestred into the hands of his friends and himself imprisoned in the Kings Prison by the space of 40. dayes there to undergo such punishment as the Bishop according to his desert shall impose upon him but if before that time elapsed he shall escape and be taken again let him be imprisoned for 40. dayes as he should before And if he shall again escape then let him be out of the protection of the Law and excommunicate but if any have been his surety let him pay the forfeiture CHAP. XVI That the late incessant needless complaints against our Laws and the proceedings in our Courts of Justice had in the bottom of it a design of overturning Monarchy and Government and to create offices places and employments and profits to the contrivers thereof and their Party BUt there must be somthing else that hath made all this stirre and inquietude in the minds of those Causeless kind of Murmurers and hath so far transported themselves out of themselves as to forsake the reason of mankind for otherwise it cannot easily get admittance into any mans apprehension and belief That Land-Souldiers Seamen Mariners Merchants Mechanicks and some Tradesmen for of some of every of those sorts were too many of our late Church and State and Law reformers composed should if they would not be at leasure to consider that publique utility and neeessity do in many Cases both by the Laws of God Nature and Nations sometimes Curbe restrain lessen or take away the free use of properties so patiently and willingly without any mutining endure the rigorous penalties forfeitures and severities of the Laws of War and Navigation and the arbitrary exactions and impositions of their Companies and Governours of Trade And not at all reare the cry of Oppression and Invasion of their Liberties and yet so kick and wince at the legal and far more easie Rules of Justice and may therefore require some search to be made for the fountain and rise of that popular Frenzy and distemper and that so much mistaken late outcry against the Writts and Process of Arrest and Outlawry when the arguments which are framed and brought by that vulgar and leveling race of people do abundantly declare that they have not much troubled themselves with the reading and true understanding of those Laws which they do so labour to scandelize and the Records of the nation who do bear witness of them In the Inquest whereof the late pious Martyr King Charles hath pointed out the way unto a more full discovery of their designes when he did foresee it as in a Declaration published for the better satisfaction of his people in December 1641. After that the house of Commons had made their aforesaid unhappy Remonstrance he did not omit to give them to understand that he feared that a malignant party in that house did go about