and divers other Commissioners therein named to call before them such Prisoners and their Creditors in and upon Actions of Debt Gase Trespasses Trover Detinue or other Personal Actions Judgements and Executions whatsoever thereupon and to treat for Compositions and Agreements some of the Judges of the Court out of which such prisoners have been committed to be privy to such Compositions and Agreements to the end that the said Prisoners night be relieved and have such reasonable years dayes and times of payment for such debts and damages as they shall not be presently able to satisfie and with such Security for payment thereof as in equity and good Conscience having respect to the ability of the Prisoners and charge of Wife and Children and other incidents to pious Cases considered And if any Creditor should refuse to appear before them the Commissioners were impowred to punish them and take such Order for their Appearance as they should think meet and to use all lawful wayes to make them take such reasonable Compositions as to any Three or more of them should be thought meet And his Majesty therein Declared that his meaning was to be aiding and assisting with his Grace and Faâ—vour to the misery and calamity of such as be truly poor and distressed and not unto such as lye in Prison rather of wilfulness and obstinacy and out of a resolution to retain large and ample Estates to themselves and therefore straightly charged the said Commissioners to be very vigilant and circumspect therein and did in the said Commission mention that Queen Elizabeth did upon the supplication of the Prisoners in the Prisons of the Fleet and Kings Bench in the Eight and twentieth Year of her Reigne Authorize certain Commissioners under the Great Seal of England for the ordering and compounding of the Controversies and Causes between the distressed Prisoners and their Creditors and such others by whom tbey were detained Prisoners or in Execution and contined the said Commission nntil her Decease And that King James being informed that certain Clauses in the said Commission were Derogatory to the Common Laws of England and that by colour of the said Commission which was intended for the Charitable relief of poor miserable and distressed Prisoners certain refractory and obstinate Debtors which rather wanted will then meanes to satisfie their just Debes took occasion to molest and trouble their Creditors did to prevent all occasions of Inconveniencies to his loving Subjects especially such as tended to the breach of his Laws forbear for many years to renew the said Commission and finding that his forbearance had wrought a good effect by discouraging obstinate and wilful Debtors that sought nothing more then Evasions to avoid the payment of their just Debts so also that for want of that or some other charitable course for the relief of such as were truly and indeed poor distressed and miserable and wanted meanes to satisfie their Creditors it had been occasion to pester and fill his Prisons with the bodies of such persons whose punishment could no way avaâ—l their Creditors but rather was an hindrance to the satisfaction of their Debts for that during the time of their restraint they were no wayes able to go about or attend their lawful business but must of force consume themselves and that little that they had miserably and in Prison did by his Commission under the Great Seal of England in the Sixteenth Year of his Reigne by the advice of the then Lord Chanâ—cellor of England and also of divers of his principal Judges of his Courts at Westminster authorize the Commissioners therein named to proceed according to the Tenor of the said Commission for the relief of the said poor Prisoners in the said Prisons and afterwards being informed that his said Commission had not taken that good Effect which was expected renewed the said Commission and thereby prescribed and directed such a moderate course as that neither the Insolence of wilful and obstinate Debtors should be thereby incouraged to the derogation of his Laws nor yet his Grace and Clemency be wanting unto such to whom it should be meet to Extend the same did upon the humble suite of the distressed Prisoners in the Prisons of the Marshalsea and other Prisons in and about the Cities of London and Westminster and the places near adjoyning to the same whose Cases were as much to be commiserated and lamented as the said Prisoners in the said Prisons of the Kings Bench and the Fleet by another Commission under the Great Seal of England in the Two and twentieth Year of his Reigne authorize certain Commissioners therein named for the Ordering and Compounding of the Causes of the distressed Prisoners in the Prisons within the places aforesaid and that his Majesties Royal Father did by Two several Commissions under the Great Seal of England the one bearing Date in the Fourth Year of his Reigne and the other in the Sixth impower divers Persons therein named to the same or the like purpose Nevertheless the Good Old Cause as they are pleased to misâ—name it with all its hypocritical tricks of State must not by any meanes be abandoned but they which did so much adore that Empusa or Witch called the Publique Faith which like the Golden Calf made by the Idolatrous children of Israel helped them to great store of money plate and Rings to furnish out and maintain a Rebellion could not now forbear to be as violent as they could to pull Down the ever to be reâ—spected and honoured better Publiqe Faith and Justice of the Nation and Disturb his Majesty his subordinate Judges Magistrates in the administration thereof and therefore some Synon or Trojan horse was of necessity to be made use of or introduced under a colour of publique Good or some stratagem or mine prepared to accomplish that by cunning and circumvention which by suit or force of Law reason and arguments they could not before be able to obtain and for that had as they thought a pattern or way cut or chalked out by the before-mentioned S. D. and some of his levelling Clerks and Attornies associating with him in their aforesaid proposals presented to the Committee for Regulation of the Laws in the year 1650 wherein they alledged that what they had proposed was not that the Writ of Capias should be taken away first but humbly conceived that it would be better by finding out nearer and cheaper wayes to bring the old road to be neglected then to deprive the suitors of the Old before they can have experience of the new and it was only proposed by way of supplement not to take away the antient course of proceedingâ— by way of Capias and â—â—igent if the case shall require it CHAP. XIX That the Proceedings at the Common Law desired by the new way of a peremptory Summons or the old by Writs of Summons Pone and Distringas or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable
Soul of Trade and their growing and already gained Riches there may be reckoned in their two Sheriffs Courts twice every week in the Year holden no less than two hundred Actions and Arrests weekly entered and made upon Debts which makes no more disturbance than a quiet putting in of Bail which secures the Debt more than it was before And in all the Counties Cities and Corporations of England and Wales as well as in the City of London the death of a Bailiff Serjeant at Mace or Catchpole is not to be found in the remembrance of the most aged persons And the Writs and Records of the Courts of Westminster from which very many Writs and Proces do Issue and are to be returned into cannot shew any frequency of Writs of Rescues or any assaults made upon the Sheriffs or their Bayliffs in the Execution of them And if the Proposers of this Bill and great Alteration of the Laws will not think themselves to be prejudiced if they should speak according to the Truth and what every man upon the visible evidence of demonstration and Records may rationally believe It cannot be denied but if there be in one County or City two Thousand Writs or Actions of Debt made out in a year to Arrest not above five hundred of them do proceed or come to Appearance and that of that five hundred unagreed there are scarce half of them that are declared against or make any defence and not half of that half ever come to be tryed and that those do also most commonly come to an end or determination Where there is no Demurrers or matters of difficulty in Law or peevishness in some of the parties to occasion the contrary within less than a third Term that many thousands of Actions are both in the Superior courts at Westminster and the Country and hundred court Barons and the inferior Courts determined within a few days weeks or months very many in a quarter of a year and those that remain uncompounded and undispatched do not survive the contention or trouble of half a year after the Suit commenced or begun So that all things considered if the Laws and Praxis in Scotland France Spain Germany Italy Holland Brabant and all the other Kingdoms and Provinces of the Christian world civil and municipal shall be rightly compared with our more happy less troublesome and chargable they will not be found to afford to their people such a quick dispatch of Justice adaequate and ready way unto it as ours have done and will always do if they be not turned out of their old course and channel By an Invention now proposed which will be as illegal as unparallel'd and hath no other precedent or pattern then that late way of proceeding in Actions of Ejectment hatched in the leveling or Oliverian times and hath then and ever since amongst knowing and good men gained no better an esteem then that of a publick grievance and a monstrum horrendum informe ingens cui lumen ademptum spawned and bred up in a Rebellion when Monarchy was Banished and the word of God and Laws of the Land were shamefully and as much as they could be misused For that there is an absurdity confusion and Hysteron Proteron in it putting the Cart before the Horse and making a Declaration which should be after a summons Executed and Appearance entred to precede the Appearance and at the same time go along with the Summons with a prefixion but from one Terme to the next which betwixt Easter and Trinity Terme being but with an Interval of seventeen days Sundays not excepted will be too short peremptory and prejudicial to Defendants and in the Lent Vacation which is commonly three Months and the Summer Vacation which is never less than 15 weeks and sometimes longer may be as inconvenient to Plaintiffs who by the ancient and more legal prefixions with the small distance of time of 15 days from return to return in the Term time might sooner have recovered their Debts appoints no Tryal by Juries nor declares by what certain Authority or Court the Summons shall be made whether by the Parties Plaintiffs or otherwise and gives a promiscuous Conusance of Pleas to all the Courts of Law at Westminster when as all but the court of Common Pleas some cases of priviledge excepted have by our ancient Laws and Magna Charta no jurisdiction or right therein Makes the Summons for a time to come to falsifie the Declaration if at the same time deliver'd with it to suppose it to be already made and the Declaration which supposeth it to be already made and is and ought to be a copy of the Record in the Court wherein the Action is pretended to be laid and intended to be Tryed to say he was Summoned when he was not the Fieri to be a Factum and the future to be a past or present and will create some contradictions when the injured defendant shall come to wage his law make Affidavit of a non Summons or bring his action for damages sustained by a false Affidavit or returne And will be sure enough to produce as necessary effects of causes very many not easie to be altogether foreseen or enumerated mischeifs and inconveniences Overturn and mutilate all our fundamental Laws upon which the Monarchy of England the best of Governments and less arbitrary in the world and the Justice of our Nation have for above one Thousand years been built and established and cut and canton both it and our well tempered Monarchy into little pieces and bring them as near as may be to an unhappy Republique which will neither fit or be for the good of the Nation Deform or almost annihilate our long approved Courts of Justice at Westminster by taking away a great part of the Process and excellent Formes and Proceedings thereof as Adonizebek is said to have done to his Captive Kings when he did cut off their Thumbs and great Toes destroy a great part of the Kings Prerogative which limited and bounded by our Laws and our Kings and Princes Concessions is no more than his just and necessary means of Government and in and by his High court of Chancery superintends over all the Courts of Justice in the Kingdom And as to the Law and Latine part of it and granting out of Writs remedial under his Teste meipso will appear to be a Court as antient as the reason and civility of the Nation from which all the other Courts of Westminster-Hall Country-courts Sheriffs Turns Court-Leets and Baron and all other Courts inferior in the Realm may truly be said to have their beginning the Matrix or Womb of all our Fundamental Laws either before or since Magna Charta which had its birth and being from it the Repository under the King in the absence of Parliaments of Justice in all cases where an appeal to the King or Parliament or the helps of Parliament shall be necessary the Custome of the Nation
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
ends of Justice and those that seek it as it verifies and gives us the benefit and right use of that moderation and care of our Laws in that rule and maxime of it to threaten more then execute ut metus ad omnes poena ad pauco◠that the punishment of a few may operate as much as if all did partake thereof the affright being most commonly that which makes the suffering to be so disproportionate and less then what was necessarily or otherwise threatned For if four thousand Writs of Exigent be awarded and issued out of the Court of Common Pleas in the year 1674. which is very near an exact accompt taken thereof not much above one thousand of them do come to be returned filed or outlawed But the residue and those very many which are not are either stayed by Agreements or Retraxits and Complyance betwixt the Attorneys or in order to appearances upon new Originals without returning and filing the Writs of Exigent And may be taken to be no fancied Calculation when the number of all the Capias utlegatums special or general made by the Clark of the Outlaries in the year 1674. were no more then 1034. the Outlaries reversed no more then 27. And the Outlaries certified into the Exchequer no more then sixteen And all the Prisoners that were for Debt and other actions not Criminal in the Prison of the Kings Bench being the greatest in England and Wales either in the Prison or the Rules or abroad by Writs of Habeas Corpus the third day of May 1653. were under the hand of Sir John Lenthal Knight Marshal of the Court of Kings Bench with the several times of their Commitments certified upon the special order and command of the then miscalled Parliament to be no more then three hundred ninety one of which there appears to have been committed in the year 1616 but one In the year 1631-one In the year 1633 one In the year 1636 one In the year 1637-one In the year 1638-one In the year 1639-one In the year 1640 nine In the year 1641 five In the year 1642 two In the year 1643 three In the year 1644 four In the year 1645 seven In the year 1646 fourteen In the year 1647 fiveteen In the year 1648 twelve In the year 1649 fourty-six In the year 1650 thirty-two In the year 1651-fourty-one In the year 1652 one hundred thirty And in the year 1653 fourteen And it must needs then be a wonder and none of the smaller sort or size of wonders how or upon what ground cause or reason that so very ancient rational legal necessary and useful way of Capias Proces and Outlary derived and deduced from the Laws of God Nature and Nations should either deserve or come into so ill an opinion with some of the People or that it should be called or understood to be an Illegal Iron sharp and cruel Law a Tyranny thraldom mischief slavery lamentable bondage terror and sorrow of heart and utter ruin◠of the free born People of this Nation founded upon a misconstruction and inadvertency of the genuine sense of the Common Law it self and contrary to thirty Acts of Parliament made in Confirmation of Magna Charta or should be repealed by the Act of Parliament made in the 28th year of the Reign of King E. 3. ca. 3. and by the Statute of 42. E. 3. 〈◊〉 3. Or should now in its old age have no better a title then a grievance and those unjust Rabsheka railing reproaches when it hath been helpful to multitudes of men in several Ages cast upon it CHAP. X. The way of Capias and Arrest is no oppression or Tyranny exercised upon the People since the making of the Statute of 25 E. 3. ca. 17. or hath been hitherto or may be destructive to their liberties WHen as Tyranny in the known and general definition and understanding of it is a cruelty or power executed by one or more at pleasure contrary to Laws Divine and Humane and inconsistent with the Laws of that Place or Country wherein it is exercised For Laws do or at the least should intend to prohibit things unjust and to order things good and useful for that People and Nation unto which they are applied The intent of a virtuous and good Lawmaker being as Aristotle saith To make the People good and conduct them to virtue Or how it can be called Tyranny when it is no less then right reason which should be the Parent and Director of all Justice when as God himself the most just and rational Law-giver the Watch-man of Israel and the Keeper of the liberties thereof that gave unto Mankind a reasonable Soul and that great blessing of reason which is the Divini luminis radius A beam or ray of his own Excellency did in the Laws which he gave to Moses when he talked with him enact and ordain That if a man shall deliver unto his Neighbour money or stuff to keep and it be stoln and the Thief be not found the Master of the house shall be brought unto the Judges to see whether he hath put his hands upon his Neighbours Goods which was nothing less then an Arrest The Law of Nature that giveth every man leave and enjoyneth them to work rather then to be idle and want allows them not to hinder publick good or disturb the Rules of Civil Society and work within the City of London or the Liberties thereof if they be not thereunto authorized as Free-men of the said City or was it an oppression by an Act of Parliament as King Edward the 3. did in the 25th year of his Reign to limit Artificers Labourers and Servants wages or as Queen Elizabeth did by an Act of Parliament yet in force and unrepealed made in the 5th year of her Reign or when King Henry the 8th did limit the price of Victuals and Houshold Provisions by an Act of Parliament made in the 25th year of his Reign or an oppression of the People by Sumptuary Laws for Apparel made in his Reign and of his Daughter Queen Mary's which otherwise in a private man according to the bent and rules of Nature giving every one a liberty In rebus licitis non prohibitis in thing lawful not sinful and consistent with the Laws of publick good and Civil Society would have been within the freedom and dispose of his own will Neither do the People of Spain and Italy in their submission to a Banda or Rate imposed upon the Sellers of Victuals and Houshold Provisions or the Natives of France Spain and the elective Kingdom of Sweden think themselves to be too much or any thing at all abridged of their natural liberty by yielding for publick good a just obedience to their Sumptuary Laws lately made and ordained For there is no Law extant of this Nation so made but the Subjects might chuse to incur the penalty or hardship of it or if they should happen to be too severe or unfit
that the Praetor might execute his Office and Authority all the favour which Gracchus one of the Tribunes thought fit to do him was to decree that as touching the Sum wherein L. Scipio was condemned he would not be against it nor hinder the Praetor but that he might use his power according to his place and take it out of his Goods as far as they would stretch but would never consent that he who had subdued the mightiest Monarch of the world and extended the bounds of the Roman Empire as far as the utmost ends of the Earth should lye in Prison and Irons Besides how little that pretended Law gained by a Tumult prevailed against the Imprisonment of Men in Chains or Irons after Judgment in Debt or other Civil Actions or a bare Imprisonment without them plainly enough appears in the Customes and Usages of those times held forth in the Oration made by Publius Scipio Naâ—ica another of those famous Brothers made to the Tribuns of the People in the behalf of L. Scipio his Brother to keep him from going to Prison clearing up unto us the usage of those times notwithstanding that pretended Law for there we may find him saying That which cannot be made of the substance and Goods of L. Scipio they will make good on his Body So that it will be abundantly evident that all the before recited Tosses Commotions and Troubles of that grand Common-wealth of Rome and that People's humors and ignorance in that Popular Government which made them to be restless as the Waves of the Sea tormenting and inquieting themselves and their Magistracy which continued until that Republique had as Tacitus saith tired it self Civilibus discordiis and gained a rest from those publick disturbances in the Government and Monarchy of Augustus Caesar were more in regard of an horrid Usury their Debts and being constrained at the same time to pay Tributes Muster and fight for their Countrey then of their being imprisoned and more for the chains and cruel manner of Usage then for the Imprisonment it self or restraint of their liberty upon actions of Debt which without a renouncing of Justice and all the hopes and benefits thereof could not be forsaken And were therefore without the former severities of Bondage Chains and Fetters to be reckoned amongst the most necessary excellent rules of Justice void of all Tyranny And was so liked and approved by that conquering and great Nation as Hermodurus an Ephesian who had been Assistant to the Decem viri in the Interpretation of Solon's Laws had his Statue erected in the Forum or Place of Justice and were so continued commended to after Ages as in Tully's time which was almost four hundred years after the publick and universal consent of the People and their Magistrates gained and likewise after the pacification of the People's complaints of their burdens of Usury the merciless usage of the Creditors those Laws were had in so great a reputation veneration as that part of them de in Jus vocando constraining Men to appear in Courts of Justice was as he saith a Parvis learnt and sung by him and other Children and after that he came to be that great Orator and Lawyer whose just praises and commendation the many Ages since and a long course of time have taken a delight to remember could have no other opinion of those Laws then that if all the learning and Libraries of the World were searched those of the Twelve Tables Si quis legum fontes capita viderit auctoritatis pondere utilitatis ubertate superarent If any would enquire into their reason and original their authority and benefit considered they would appear to be the best of all Laws And were so generally by after Ages well liked as Ammianus Marcellinus long after speaking of them saith That Solon adjutus Aegypti Sacerdotum satis justo modetamine legibus Romano quoque Juri maximum addidit firmamentum By the just and equal Laws which he had made by the assistance of the Egyptian Priests was a great means of the establishing of the Roman Laws And if they could have been truly charged with any Tyranny or Oppression or so much as a Suspition of either of them that Law de in Jus vocando being a part of the Twelve Tables could not as well as the rest have gained as it did the constant approbation and good liking of the World and come as it hath done from generation to generation unto these our present Times And it is a thing not unworthy of observation and pertinent enough to be here remembred that the Romans abhorring the cruelty of the Diaco or Athenian Laws ordaining the Debtor after a Sentence or Judgment given against him and a certain number of dayes limited and a failer of payment to be cut in pieces and distributed to the Creditors which cruel Law saith Quintilian Mos publicus repudiâ—vit The kindness of Mankind one unto another could not endure to be put in Execution did in lieu thereof appoint a seisure or Execution against the Goods of the Debtors and that in the course and Process of Arrest It was by a Constitution of the Praetor or Lord Chief Justice ordained which unless in Cases of Writs of Outlary and where the Dores are not open is to this day observed in our Laws Ne quis ex domo sua in Jus vocari vel pertrahi posset That no man should be arrested or forcibly taken out of his House And the Civil or Caesarean Law when according to the Custom of some Countries in Towns or Places of Trade as in Holland and the Vnited Provinces Arrests in Actions of Debt were at the first not much accustomed where the Debtor hath a Domicilium or fixed Habitation doth not withstanding in the notion or interpretation of a Suspectus de fuga warranting a present incarcâ—rstion or Arrest of a Debtor if he be not a Free-holder or Man of a very visible Estate appear to be so willing at this day to gratifie and secure the fears and jealousies of Creditors avoid those Circulations Inconveniences Delayes which would otherwise happen if they should tarry as they do sometimes under that Law to receive the debate before a Judge whether the Debtor was a Free-holder likely to run away deserving to be arrested or to have his Body to be secured as it hath allowed no less then 20. Exceptions against a Debtors not being to be exempted from it viz. First That he hath no Free-hold or ability to pay the Debt 2. Is a Forreigner Incerti Laris or a Vagabond 3. Hath made his Estate to be notoriously worse then it was formerly 4. Accepit Pecunias sub gravibus Vsuris gave too great Interest or brocage to borrow Money 5. Keeps ill Company 6. Hath met with some great misfortune since his Debt contracted 7. Is a great Liar and Deceiver and suspected to be a Bankrupt 8.
Doth wast his Estate and intendeth to defraud his Creditors 9. Is a Gamester 10. Hath all the signs of a suspitious Person 11. Makes use of many Men to be bound or ingaged for him 12. Engageth himself in many business 13. Is looking out or providing for another Habitation 14. Is turned Informer 15. Keeps his Shop shut up 16. Is a Man of ill life or conversation 17. Or hath been so formerly 18. Hath been an Offender in Criminal matters 19. Lodgeth his Goods in some secret place 20. And is packing up to be gone But they that can dream of Tyranny and Oppression in our Proces of Arrest and Outlawry and know not how to prove it will rather then miscarry in their design of Metamorphosing our Laws and putting them into as many new fashions as the variety 〈◊〉 vanity of their Cloths and Habits wâ—ll if those accusations must vanish and never be able to make them any good return seek out some other way to alter or abrogate those kind of Law proceedings and therefore to pretend that the Statute of 25 E. 3. ca. 〈◊〉 giving Proces of Capias and Outlawry in Actions of Debt is either by the Act of Parliament of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. repealed CHAP. XIV That the Statute of 25 E. 3 ca. 17. which giveth Proces of Capias and Bxigenâ— in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliaments of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. there being no indâ—â—venimâ—â— or prejudice to the publick good in those kind of Law proceedings which might deserve a repeal by those or any other Acts of Parliament WHen it cannot come within the virge of any probability that the said Statute of 25 E. 3. ca. 17. should in the same Parliament those grand Assemblies being then long before usually shout and of no long continuance be made when the Statute of 25. E. 3. ca. 4. was made That none should be taken by Petition or Suggestion to the King or his Councel but by 〈◊〉 Indictment Presentment or Proces made by Writ original If it had not been believed to have been consistent with it or the meaning of our Magna Charta ca. 29. or if the Statute of 25 E. 3. ca. 17. had been repealed by the shortly after following Statutes of 28 E. 3. or 4â— E. 3. ca. 1. such a repeal should not be taken notice of by those that lived in those times or near unto them or that if there had been any grievance found or perceived in that Statute of 25 E. 3. ca. 17. or that the said Statute of 28 E. 3. had repealed it the Statute made by the aforesaid King E. 3. in the 36. year of his Reign would have ordained the Confirmation of the great Charler and the Charâ—er of the Forrest and commanded that the other Statutes mode in his time and in the time of his Progenitors be well and surely holden and kept in all points or that the Citizens of London who in their Courts of Justice in their City have for so many Centuries of years last past to their very great advantages made use of the Proces of Arrest as a lawful and beneficial Custom and constrained all that were to enjoy the largely comprehensive Freedom of that City to take an Oath to maintain the Franchises and Customs thereof would have made it their business to get many an Act of Parliament to confirm them if they had supposed it to have been prejudicial to them And that the People of England should in so many several Ages since those pretended Acts of repeal not only have petitioned for several Acts of Parliament for Proces of Arrest and Outlawry in several Actions but through so many past Ages and Generations Arrest and imprison one another in the way to Justice and not at all think themselves guilty of betraying their own Liberties and never complain of it Or that the Justice of the Nation should in all that long course of time be so sleepy or mistaken as to continue and put in Execution an Act of Parliament repealed and maintain and continue a grievance Oâ— that our Ancestors who were not all restrained by that Statute of 25 E. 3. ca. 17. from the former more usual course of proceedings in Actions of Debt by Writs of Summons Pone and Distringas for there were Writs of Summons Pone and Distress made use of in Debt and Accompt after the making of that Statute where there was such a visibility of Estate as the Sheriff could not safely return that the Defendant had nothing whereby he might be summoned it having been in Easter Term in the 22 year of the Reign of King Edward the 1. declared to be a constant rule in Law Quod nullus qui habet terras debet arrestari per Corpus ad reddendum compitum set per terras cum habeat sufficientiam No Man that had Lands sufficient was to be arrested by his Body in an Action of Accompt as there may be at this day if the Plaintiffs have a mind unto it and would rather procede by a longer way about then a shorter And should of themselves have made an Election of the way of Capias Arrest or Outlawry and continue it for above three hundred fifty years without any thing like a complaint against it if they could have believed that that Act of Parliament of 25 E. 3. ca. 17. had been repealed and a long and undeniable experience had not informed them that it was a much better and expedite way of bringing Men to Justice or that if the Writs of Pone and Distress had been the better way the Statute made in the Seventh year of the Reign of King Henry the Fifth which was sixty-nine years after to give Proces of Arrest and Outlawry in Actions or Writs for forging of Charters or Evidences would have esteemed it to be for the Common good of the People to have enacted it or if after the making of that Statute the course of Capias Arrest and Outlawry had not been believed to be the most beneficial the Statute made in the 19th year of the Reign of King Henry the Seventh for giving of Proces of Arrest and Outlawry in Actions of the Case which was made 84. years after would have declared the way of Pone and Distress to have been the Cause of great delays or that the Act of Parliament made in the 23th year of the Reign of King Henry the Eigth for giving Proces of Capias in Writs of Annuity which was made twenty-eight years after the making of that Statute would have said there were many delayes in Actions of Annuities because no Writ of Capias did lie in that Action Acts of Parliament in those dayes and long before after having by our Kings been granted upon the Petitions and Request of their Subjects and penned advised or carefully perused
deliriums are likewise to be added those giddy Assertions that the People are unsecure in their Estates and that their good and welfare depends upon their being manumitted and enfranchised in their persons and made Noble and free by Abolishing of the Process of Arrest and Outlary And that such an Act of Grace will be accompted by all goodmen and their posterities a sufficient recompence for all the Subjects past sufferings and be the greatest mercy that ever any King of England extended to his Subjects since they were a Nation Which should it take effect may be as little successful to the pretended Advocat and his Party and the Trade and Interest of the Kingdom as the Eagles carrying in another Case the burning Cole in the Apologue to her Nest And until they could have been sure of a better which they are never like to be might have forborne their Snarling and Barking at our Laws of which that Act of Parliament of 25. E. 3. ca. 17. Was accompted to be a part which until the Distemper which seized upon a seditious part of the people in the unhappy year of 1641. were so well beloved and deservedly commended as Thirning Chief Justice of the Court of Common Pleas publickly declared in the 12th year of the Reign of King Henry the 4th that the Laws of England were in the Reign of King Edward the 3d. In the greatest perfection that ever they were the Judges Sage and learneds and the pleading the greatest Honour and Ornament of the Law were in that Kings Reigne of that excellency as those of former times were but feeble unto them Sir John Fortescue Knight Lord Chief Justice of the Court of Kings Bench in the Reign of King Henry the sixth by comparing of our Laws and Government with the Laws and Government of France and other Nations hath in his learned Book Written on that Subject proved and demonstrated that our Laws of England Do deserve the Preheminence over all other Laws and do more secure the People in their Estates Liberties and Properties then those of France or any other Nation Queen Elizabeth who made it her constant and usual Charge to her Judges to do Justice and not to disturbe or delay it Governed her people by her Laws in Plenty Peace and Prosperity to the Worlds admiration Terror of her Enemies and the Comfort and Support of her Friends and Allies did so after her death Reign and live in her peoples hearts as they in or about London have to this time from the Coronation or beginning of her happy Reign now above one hundred and sixteen years ago in a grateful acknowledgment of it never omitted to Celebrate that day with the Ringing of Bells some legacies having been given in some places also for the perpetuating thereof King James had a great care of the expedition and execution of the Laws in whose peaceable and plentiful Reign ten years have passed without any Tax or Assessment of the people And King Charles his Son made a great part of his Coyn to wear the Inscription that he fought against a Rebellious part of his Subjects to maintain the Laws priviledges of Parliament and liberties of the people and dyed a Martyr because he would not betray or deliver them up to a Lawless unlimited and ever to be dreaded Arbitrary power So as that seducing Author might have found a better imployment then to throw dirt at our Laws before he understands them and might have been able to have given a better accompt of his time if he had followed the advice of Sir Edward Coke Who was so much a welwiller to the Proces of Arrest and Utlary as whilst he was Chief Justice of the Court of Comon Pleas he did never dislike or refuse the putting his name and Teste to such kind of Writs under the Kings Seal entrusted to his custody and being afterwards made Lord Chief Justice of the Court of Kings Bench had so good an opinion of the Process of Arrest and the necessity and usefulness thereof as that to maintain and support the Writs of Latitat and Bills of Midlesex in Actions of Debt and other personal Actions then too often made by that Court which had no Jurisdiction or Conusans thereof but in Case of a Defendants present imprisonment or of priviledge of some of their Members to hold Pleas in such kind of actions he feigned a prescription to be made and used in the declarations thereupon that the Defendant was in Custodia Marr ' Marescalli Curiae and actually a Prisoner when he neither was so at the time of the making of the said Writs or the time of the Defendants giving Bond for his appearance to the Sheriff or at the time of the Plaintiffs declaring against him as he did publiquely declare in Print That every man ought next to his duty to God and his King to yield a due reverence and obedience to the Common Laws of England for that of all Laws humane they were most equal most certain of great antiquity least delay most beneficial and easie to be observed And That he could defend them against any Man that is not malicious without understanding and make it manifest to any Man of judgment and indifferency by proofs pregnant and demonstrations and by Records and testimonies luculent and irrefragable Which just and due value and estimation of our Laws may well be credited when if a Jury of the Subjects of our Neighbour Nations Kings and Princes or of the Republique of Holland that Corporation of Kings were impannelled and fitted with the knowledge and understanding of the excellency of them they could not either as to the imposing or payment of Taxes or to any other particulars refuse to give a Verdict upon Oath that our Laws and Customes do in their perfection and right reason generally far excel those by which they are governed aud that the Subjects of England and Wales are by the happiness of a well tempered Monarchy and our Laws as secure from any danger of arbitrary power as any people under Heaven And he would find it to be a difficulty insuperable to ptocure our Merchants of England or any of those who do undertake to insure the hazardous adventures of those that do go or send to Sea and see the wonders of the deep and adventure their personal Estates upon the cholerick waves thereof not seldom accompanied with humerous and raging winds to give him an assurance and certainty that the people shall not be ruined by that his goodly indigested project which in its folly and inconveniencies as to the credit reputation and Justice of the Nation exceeds that of Jack Cade that great Master of Ignorance who had perswaded his Rable-rout to believe that it would be an excellent piece of Reformation and much for the good of the people to suppress all learning and dispatch all business and affaires by the help only of the Score and the Tally And will howsoever be as
and 40 s. for every page more for all Leases Mortgages Jointures Dowers or Debts 10 s. for the first page and 20 s. for the following pages including the Fees for the Certificates for all Entries of Inheritances in Fee in the Provincial Registry 10 s. for the two first pages and 20 s. for every page more for all Leases Mortgages Jointures Dowers or Debts 7 s. 6 d. for the first page and 15 s. for every following page Certificates included for the entry of every Inheritance in Fee in the Subprovincial Registry 7 s. 6 d. for the first page and 10 s. per page for every page after and for all Leases Mortgages Jointures Dowers or Debts 5 s. for the first page and 7 s. 6 d. for every following page for the entries of Inheritances in Fee in every Parochial Registry 5 s. for the first page and 7 s. 6 d. for every page more and for all Leases Mortgages Jointures Dowers or Debts 2 s. 6 d. for the first page and 5 s. for every following page And in case any of the Entries of Debts Leases Mortgages Jointures or Dowers shall not exceed 6 lines Registerially wrâ—t in the Parochial Registry the Fee thereof shall be but 1 s. the Fees for the Certificates excepted the Fees for Entry and Certificate of every Birth Christening Death Burial in the Parochial Registry if it exceed not 6 lines to be only 6 d. as also for the retainer of any Servant or Apprentice but if it shall exceed theâ— the Fees to be according as was allotted per page No money shall be recoverable upon any Bargains or Contracts whatsoever unless the same be entred in the Registries as aforesaid within he times limited the Fee of the Seal of the National Registry in all cases of settlement of any Estate Lease Mortgage Jointure or Dower to be 5 l. in all cases of Debt not exceeding 2000 l. the Fee to be 50 s. otherwise 5 l. the Fee of every Provincial Seal in the cases aforesaid 50 s. in all cases of Debt 25 s. and in all cases of Debt Mortgages c. to be 12 s. 6 d. In the National Registry 3 4th parts of the Seal shall be to the Commonwealth and a 4th to the Register and his assistants and Clarks for all entries of each two first pages of every particular Entry and for all the following pages an 8th part only in each Provincial Registry 3 4th parts of the Fees for the Entries and for Seals also to be to the Commonwealth and the 4th to the Register his assistants and Clarks in the Subprovincial Registry 2 parts of 3 of the Entries and Seals to be to the Commonwealth and the 3 to the Register in the Parochial Registry 2 parts of 3 of the Seal to the Commonwealth and the 3 of all the Fees of Entries to be to the Register his Clarks and Deputies Every Clark Assistant or Deputy of the National Registry shall have six sworn Attorneys or Messengers whose care shall be to transmit his several Certificates to the several Registries of the Provinces solicit the causes in the said Registerial Court and have for every cause in every Court-day besides all charges 7 s. 6 d. and no more every Clark assistant in each Provincial Registry shall have 3 Attorneys or Messengers who are to officiate as in the National Registry and have for every cause in which any of them shall be imployed 5 s. for Fee and no more besides charges and expences each Subprovincial shall have 2 Attorneys who shall do the same work and for every Court day shall have for Fee in every cause 4 s. besides all charges each Parochial Registry shall have 2 Attorneys which according to the number of 9725 Parishes in England and Wales will make almost 20000 Attorneys besides their Clarks which with Solicitors and their Clarks added unto them will more then three times exceed the number of Attorneys Solicitors and Clarks if truly accompted now in being whose Fee shall be for every Court day 3 s. besides charges and shall do the like as is before directed every Attorney shall be punished for fraud or neglect and make satisfaction to the Client for all damages and if not able to do it shall be dismissed of his place another chosen and the Client restored to his former condition the Clarks assistants to be chosen by the respective Registers upon security to be given and they are to give directions unto them and be responsal for them each Clark assistant in the Provincial Registry shall make choice of one Attorney and the Register of two The Judges in the several Parish Courts shall be the Register the Minister and the Constable and Churchwardens for the time being whereof in all hearings two to be present with the Register or his Deputy the several Courts to be kept every Thursday fortnight and all matters to be brought to hearing the 3d. Court day and to hold pleas of all Debts not exceeding 10 l. principal and all Estates under 10 l. per annum lying in the same Parish 12 Judges learned in the Law to be appointed by Parliament to attend the National Registerial Court 21 Judges be appointed to attend every Provincial Registerial Court where one Judge at least is to be present with the Register and one Clark assistant when all matters are to be â—eard every month shall be a Court Provincial upon the Tuesday in every week the Subprovincial Court every Friday 3 weeks and the Judges to be the Register and his Assistant and the Minister of the Parish All Summons to be granted upon motion of the party or his Attorney giving security to defray the charges of the party to be Sâ—mmoned if his Action he not good or cause just by the respective Registers their Clarks Assistants or Deputies in writing under their hands unto which of Apparance shall be given either in person or by Attorney the Cause is to proceed but if no Apparance shall be given a second Summons is to be granted under the seal of the Register to which if no Apparance shall be given Judgment shall be given the second day of Apparance and entred in the Court Registry and if agreement intervene not before the next Court day and be entred with the Register Execution shall be granted and the Registers seal put thereon not to be reversed or any appeal admitted Two Vacations in the whole year to be in tâ— National Registry as to the trying of Causes the one from the first of December to the 10th of February and from the last day of May to the first day of September But that Chaos-maker or good man if any one could find any cause or reason to call him so or some of his Partisans when they shall have remembred it themselves or have heard it from others that the Noble and innocent Earl of Strafford was by false witnesses and accusations remote and improbable inferences strained constructions and never like to
at once in a Common persons case whereby to have Damages twice recovered against him After an Elegit although the Sheriff return that he hath neither Lands or Goods the plaintiff shall not have an Execution against the Body a Capias ad satisfaciendum doth not lie after a Fieri Facias until a Nulla bona returned nor a Fieri Facias or Elegit after Imprisonment of the Defendants body A Writ of Annuity purchased pending another was abated where two brought Writs of Quare Impedit one against the other returnable at one and the same day the one was discontinued and they pleaded upon the other in the Case between Bery and Heard in the Seventh Year of the Reign of King Charles the Martyr it was in the Court of Kings Bench adjudged that where a man had his Election to seek his Remedy by the Commou Law or by the Statute of Glocester that gave an Action of Wastâ— he could not do it by the one way and the other for our Laws and Courts of Justice would never allow a Plaintiff to have two Actions or Remedies for one and the same thing at the same time but were so careful to hinder it as they suffered discontinuance of Process and Pleas in Abatements where one Action was brought depending another for the same matter And Bracton saith that where a man hath an Action depending and bringeth another for the same thing Cadit breve posterius the later is to be quashed agreeable whereunto at this day in Chancery where a man hath an Action depending at the Common Law and seeks relief in Chancery upon the same Account he is put to make his Election in which Court he will proceed And therefore if such an Arbitrary Act of Parliament should be made to give the Plaintiffs their Election to proceed by the way of the new contrived way of peremptory Summons the former wayes of Summons Pone and Distrainings or Capias not being prohibited the proceeding by process of peremptory Summons ought to be entred in a Court of Record and entred may be more prejudicial to the Plaintiffs then they expected for if they cannot resort or return again to the former better wayes of proceedings they may find cause enough to repent of their being so fond of a new way when the old will appear to have been much better which to reverse or discontinue cannot be for the Interest of the King or his people when it shall have no better reason or foundation for it For if the Proposers could give unto themselves or any of their fellow Subjects any assurance that it will be probably for their good and benefit yet if the King who is supreme and superiour to all the Judges in his Dominions were but a subordinate Judge he would as the Civil Law declareth transgress the rules of Justice and Right reason if he should follow opinionem probabilem relicta rejecta probabiliori an opinion that is but probable when there is an opinion to the contrary more probable and S. D. and his then Confederates might have considered that a Process against the Goods and Chattcls of a Defendant is of a different nature from that which is against his Body that duo contradictoria non sint nec possunt esse simul vera contradictions neither do or can at one and the same time agree and that Practica sunt speculativis praeferenda what is in speculation of a possibility not at all experimented is to give place to that which with an universal or major part of a consent hath been long practised CHAP. XXI That it will not be for the Interest of the King or his Subjects to give way to that Design which may open a passage to other Innovations and Designes as much if not more inconvenient and prejudicial FOr that all his good people by the sad and inexpressible calamities and miseries which they have lately endured by the Wars and Tumults unjustly raised against thc King and his Laws are not now to learn what a deep dyed hypocrisie and pretences for Reformation would have or to believe the evil consequences which have risen from a too much yielding to those popular humors which as that Royal Martyr hath in his Solitudes and Sufferings declared served to give life and strength to the almost infinite activity of those men who studied with all diligence and policy to improve their Innovating designes how dangerous the permitting of Innovations would be how careful all Princes and wise men have heretofore been to avoid them so that if there were nothing else to make the world out of love with them the never to be satisfied inquietude of many of that sort of people in the matter of Religion and Church-government and the swearing liking and shortly after disliking and hating the Solemn League and Covenant the by too many as it may be feared intended standing Rule of Rebellion and their unfixedness in every thing but their unwearied malice and ill designes against Monarchy and the present Government do and will abundantly proclaim that whatever hath been condiscended unto and by that a measure may be taken of the Future in giving them a liberty to play the Fools with the Sacred Scriptures hath but like the thirst and alwayes craving of an Hydropick sick person increased and provoked a desire of having more Wherefore they that built upon such wicked principles of overturning the State and Regal Government are if they had any reason or were ever likely to have any for their demands to be content to be denyed until they shall have renounced those pernicious ends and dangerous Tenents and positions they began their works and deeds of darkness withall and shall have proved that Justice ought to have no Sword to defend and protect her self and others that Courts of Justice can be to any purpose without a certain power constraining punishing Authority that the process of Arrest and Utlary are not incidents thereof and to be necessary Attendants thereupon that the Eternal and Almighty Law giver did not allow of that which the Greeks Romans those great Ingrossers of wisdom after the many very many commotions of their people for their more severe way of enforcing the paymcnt of Debts performance of Contracts preservation of the publick Faith and one man unto another which Tully held to be so very necessary as he was of opinion that nulla res vehementius rempublicam continet quam fides that nothing more concerns a Common-wealth then the keeping of Faith Credit therefore adviseth it by all meanes to be preserved and kept have acknowledged to be the best and most contenting Expedient for an obedience to Judges and Courts of Justice and the Civil Magistrates and that all the Essaies of an Indulgence to liberty made use of by some other Nations could never yet so far prevail as to make the most of the civilized Nations of the