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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	case_n	law_n	matter_n	1,445	5	5.3017	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A27455	An argument shewing that 'tis impossible for the nation to be rid of the grievances occasion'd by the marshal of the King's-Bench, and warden of the Fleet, without an utter extirpation of their present offices with proposals for a new constitution of those offices by way of letter to a member of Parliament.	J. B. (John Berisford)	1699 (1699)	Wing B1962; ESTC R5834	20,197	36

hence is That the Rules of Court ought not to be taken upon Trust nor as if they were undoubtedly Legal because they are Rules of Court And therefore if any such have been made in respect of the Rules of the Fleet and King's-Bench Prisons it may be reasonable for a Parliament to Enquire into the Justice and Validity of them And this brings me to Consider that other part of the Enacting Clause where 't is said That no Prisoner shall be suffered to go at large except by Virtue of some Habeas Corpus or Rule of Court which Rule of Court shall not be Granted but by Motion made or Petition read in Open Court c. So that if there be a Rule of Court for it a Prisoner now may lawfully go abroad This is I Confess an Extraordinary Clause and looks as if a Judge himself or at least some Body who was pretty sure of being one had Penn'd it for it gives the Court an Arbitrary or which Tantamounts a Discretionary Power to Release all the Prisoners in England I don't say or believe that they will ever Exert it to such a height But why should the Court have a Power to do it if they please Why should the Debtors Restraint any more than the Creditors Liberty be Precarious Since the same Laws are the Measures of both and a Violation of the one may soon be followed by a Violation of the other for they who have an Absolute Power to give Liberty may in time pretend to that of Restraint 'T is true we are Secure from all Apprehensions of this Nature during the present Government who may doubtless Challenge all the Reigns since the Conquest to produce a more August and Reverend Bench for Learning Temper and Integrity So that it seems the peculiar Happiness of His Majesties mighty Genius to be Blessed with Council at Home equal to the Success of his Arms Abroad that he might Triumph both in Peace and War But 't is Posterity that I am labouring for What if in process of time a Deluge of Oppression and Tyranny should again Overwhelm us What if such a Sett of precious Judges should be trumpt up as the late Reign produced Some of which were the Scum and Refuse of the Law a Disgrace and Scandal to the Robes they Wore and all but one were base Deserters of their Countrey 's Cause and were cull'd out for no other End but to put the great Machine of Arbitrary Power into Motion which they did effectually Perform by prostituting the Laws Religion Honour and Justice of the English Nation to the Vile Lust of a Superstitious and Despotick Monarch But as I was Observing how Dangerous would it be to Intrust such a Power in the Hands of Renegado and Apostate Judges who might Raise Vast and Immense Sums by Granting such Rules of Enlargement If the late Lord Chief Justice Sir Robert W. had been Invested by Act of Parliament with such a Discretionary Power he might in his great Wisdom have thought it an Easier and more Honourable Way of Supplying his Necessities than by Mortgaging his Estate a Second time and adding Perjury to the Bargain by making an Affidavit that 't was free from all Incumbrances besides he might have thought this Power a Perquisite to his Place and that he might Justifie this Method of making up the Loss of his Sallary the greatest part of which went on t'other side of the Hall I know it may be Objected That never such a General Rule of Enlargement was made nor perhaps ever thought on before or since the making of the Act tho' I shall quote one by and by which was made long before that Act and comes pretty near it and that this Rule of Court which is Excepted in the Act is commonly understood of Day-Rules and that only such are Granted Tho' I should acknowledge this to be true yet it admits of an easie Answer for I am only Arguing that the Court May Grant a General Rule of Enlargement by Virtue of this Act and so they May Grant other Rules by Virtue of it As for Instance I don't see but the Court may now Grant a Rule to bring up a Prisoner to be a Witness at a Tryal at Bar or to carry him to York to be a Witness at a Tryal there or upon any other Occasion the Court shall think proper Whereas before the late Act I do not think such a Rule was sufficient to Secure the Keeper from an Action of Escape There is an Authority to this purpose in 1 Sid. 13. That if a Habeas Corpus ad testificandum be directed to a Gaoler to bring up a Prisoner who is in Execution to be a Witness If the Goaler by Virtue of this Writ brings the Prisoner yet this is an Escape for which he is Answerable and why should a Rule of Court have a greater prevalence and force than the King 's Writ which has been Established by the Common Law time Immemorial But pray let us Consider a little the Nature of these Day-Rules and how far they will stand the Test of a Legal Examination This Rule it seems is made every Day in Term upon Motion or Petition in which it is Suggested by the Prisoners that they have Extraordinary Occasions to go Abroad to Direct their Attorneys and Advise with Councel about their Business and the like Upon this the Court makes a Rule for them accordingly but t is suppos'd they are to have a Keeper with 'em tho' if they have that will not alter the Case But the question is Whether the Common Law does Allow that a Prisoner in Execution may be permitted in any Case to go and Advise with his Councel tho' it may be about Matters which relate to the Cause of his Imprisonment And I conceive that the Common Law does not Indulge any such Liberty And for this I rely on Two Substantial Authorities The First is in Plowden's Commentaries 360. where 't is said that a Man in Prison hath not liberty to go at Large to make his Entry or Claim or to seek Councel The Other is in Co. Lit. 259. where 't is also said That a Man Imprison'd shall not be bound by a Descent for that by the Intendment of Law he is kept without Intelligence of things Abroad and hath not Liberty to make his Entry or Claim or to seek for Councel I 'll quote one Case more and that is Mostin's Case in my Lord Dyer 297. which was this Mostin being in Execution in the Fleet the Lord Treasurer and the Barons of the Exchequer Commands by their Order or Rule of Court that the Warden should let the Prisoner go at Large accordingly the Prisoner was let loose but the Warden in those times paid for 't in an Action of Escape brought against him in the Common Pleas where his Justification under the Rule of Court was not Allow'd So that here 's a President of a General Rule of Enlargement and what has been done

would have been of excellent use in Diebus illis when the Sky was Serene and Clear and no Clouds Overshadow'd any part of the Office But now since the whole is cover'd with Mists and Obscure Intreagues the Scene is quite Alter'd the Judges are at a loss where to find the Profits or if they are found out by the Inrollment yet they must be Excused for they are Pre-ingaged and all Pre-ingagements must in Justice as well as Honour be Allow'd of And therefore tho' the former part of the Statute does positively Affirm That the Fees and Profits shall in the first place be Applied towards Satisfaction of the Prisoner's Debts yet the latter part does as positively Deny it For that Saves all the Rights Titles Interests and Securities of Johnson Boulter Norwood c. which they have in the said Offices or the Profits thereof And now Their Demands must be first Satisfied so that this Unfortunate Act of Parliament Commits a Violence on its self seems to be a Felo de se and by a Fatal Contradiction gives its own Heart a Mortal Wound And after all Suppose the Judges should Sequester the poor Remnant of the Profits if any such there be when all the Pre-ingagements are Discharg'd I would then ask this single Question by whom shall the Marshal or Warden who does Officiate be paid his Sallary for the poor Creature must have a Livelihood I doubt the Court will want their Officer unless they can suppose that one Skeleton may live upon another for by this time both the Office and Officer must be reduc'd to a mighty thin Contexture I have now done with this Famous Act of Parliament of which we were so big with Expectation and I 'm sorry it should be said at last Parturiunt Montes Having thus made the Way Clear and I hope given you Convincing Proofs Drawn from the Sacred Repositories of our Law that the present Foundation as well as Management of these Offices is Diametrically Opposite to the reason of the Common Law and wholly Inconsistent with the Noble Frame of the English Happy Constitution I come now to Offer my Humble PROPOSALS to the Parliament for a New and Regular Establishment of these Offices which in themselves I own are an Essential part of the Common Wealth I. That the present Officers of the King's-Bench and Fleet the Marshals and Wardens Superiour and Inferiour with all the Train of Rubbish which Attends 'em may be Dismiss'd their further Service and tho' these Miscreants have been such Unprofitable Servants to all Mankind but themselves and by their Crimes have undoubtedly Incurr'd a just Forfeiture of all their several Interests yet that even those who Purchased their Places for Valuable Considerations should be Reimburs'd their Purchase-Money tho' this is a Favour which they can't pretend a Title to and that which perhaps no other Power upon Earth but an English Parliament would Indulge II. That all Mortgages and other Securities and Incumbrances whatsoever which have been made really and bona fide upon Valuable Considerations may be Paid Off and Discharged with Principal and Interest which otherwise would have lain an Eternal Dead Weight on the Offices For to be sure the Marshal and Warden would have kept all Incumbrances still on Foot on purpose to Secure the Profits thereof from being touch'd So that until these Obstacles are Remov'd all Endeavours for an Effectual Relief must be Vain Fruitless and Insignificant And I am inform'd That the whole Charge that will be requisite upon this Occasion will not Amount to above Thirty or Forty Thousand Pounds a small Recompence for a National Benefit no more than some single Regiments of the Army are to have before they are Disbanded III. The Stage being Clear of these Vermin like Snails let 'em carry their Houses and Prisons with 'em for indeed they are not large enough to Contain a Tenth Part of the Prisoners which I take to be a strong Argument against the possibility of the present Prisons answering the Ends of the Law viz. Confinement c. And therefore as to the Foundation of this New Establishment in the first place I Propose the Builing of Two Large and Capacious Prisons which may be contrived to Contain Three or Four Thousand Men apiece and in each of these New Prisons a Work-House to be set apart which cannot but turn to a very good Account for not only our Manufactures might be thereby Improved by so great a Number of Hands but also abundance of Miserable Wretches who are in a starving Condition and forc'd to Beg thro' a Grate would find a Comfortable Subsistence And besides there would be this particular Advantage to the whole Nation That whereas now by the 43 Eliz. c. 2. the Justices of the Peace of every County and Corporation in England are yearly to Rate every Parish towards the Relief of the Poor Prisoners of the King's-Bench all this constant Charge and Expence which has been paid already for near a Hundred Years will be taken off which otherwise might continue upon us as a Rent-Charge to the End of the World so that the Nation will Discharge a Debt by this Means Indeed I have often wondred that there have been no Provisions hitherto made for the Setting poor Prisoners for Debt at Work and why they should be looked on as Useless and Rotten Members of the Common Wealth any more than poor Prisoners Committed to Gaol for Felony and other Misdemeanors for whom by the 19 Car. II. c. 4. the Justices of the Peace at their General Sessions are to Provide a Stock of such Materials as they think convenient and sit Persons to Oversee and Set them to Work Now for the Charge of these New Buildings it may be so Managed as not to cost the Nation a Farthing for I do not question but there are Five Hundred Persons in this Town who would gladly Undertake the Building of these Prisons on the Terms of being Reimbursed by part of the Profits which may Arise within the Walls either by Chamber-Rent or from the Prisoners Work or other Methods as shall be thought fit by Parliament IV. And in Order to Reduce the Number of the King's-Bench and Fleet Prisoners by preventing the Removal of Prisoners from the Countrey Prisons That no Habeas Corpus may be Allow'd unless it be upon some Affidavit made of the Fact by which it may appear to the Court or the Judge what the Nature of the Cause is for which he was Committed and if it appears to have been upon any Mesne Process or Execution for Debt Damages or Costs c. that either the Habeas Corpus may be Denied or if the Matter be doubtful by reason of Cross Affidavits that the Prisoners may be brought up and after Examination be Remanded as is usual in Criminal Cases And I can't see what Occasion there is of this Habeas Corpus when the Prisoner may be as well Charged by a Copy of the Declaration delivered to