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
the words of thy mouth that of taking and casting into Prison for debt until the utmost Farthing was paid and such or the like coercions to compel men to appear in Courts of Justice and satisfie actions were long before the Incarnation of our blessed Saviour in use amongst the Athenians in their Laws And the Romans those great Masters of Libertie who having their Lictores Serjeants carrying their Rods and Axes before their Magistrates expresly ordained that if a man would not or could not come before the Judge he should give Bail to answer the action Metellus one of the Tribunes of the People at Rome arrested one of the Consuls for taking away his Horse The great Scipio Africanus being called to accompt for moneys received and refusing to come to his answer the Tribunes of the People those great protectors of their supposed Liberties urged very hard to have him Arrested and fetched out of his house in the Country and made to appear Julius Caesar was inforced to give Bail to his Creditors who were about to stay him when he went Praetor to Spain Urgulania a great favorite of Augusta mother of Tiberius the Emperour being summoned by Piso in an action of Debt which she disobeying was Arrested but rescued and conveyed to Caesars house whereupon a great stir and tumult happening and Augusta her self complaining that she was injured by it the mony notwithstanding was afterwards sent and paid by her nor was such arresting of persons condemned by our Blessed Saviour when he advised Defendants to agree with their adversaries before they were by them delivered to the Judge and the Judge deliver them to the officer and they be cast into Prison Those Roman Laws and Customes being to be allowed for an inducement to our Common Laws to do the like which never refused to take in and borrow from other Nations any thing that might add to its own perfections and excellencies and could be no strangers unto the Civil and Caesarean Laws brought into England about 50 years after Christ when the Emperor Severus Raigned seven years together at York and that great Lawyer Papinian as Praetor or Lord Chief Justice governed the Civil affairs and Justice of this Nation under him and those Laws continued as a Seminary of many of our Laws Customs as may be demonstrated for more than three hundred years after By the Laws of Ina a Saxon King Raigning here in England betwixt the years 712 and 727. made suasu instituto of Cenred his Father Hedda and Erkenwald his Bishops omnium Senatorum natu majorum sapientum populi sui in magna servorum Dei frequentia if the Plaintiff demanded right to be done unto him by the Judge and could not obtain it and the Defendant shew no cause why he should not give him a Pledge or Sureties the Judg was to be fined thirty shillings and to do him right notwithstanding within a Week after And then there could be no doubt but that he had power to compel him to appear and to Punish his contumacy for otherwise the Judge could not be justly fined that had no power to enforce the Defendant to appear before him And if a Pledge were required of him that was accused which as to the giving of a Pledge or Bail was no less then the awarding of a Capias and he had not wherewithal to do it before the Suit be determined another might lay down a Pledge for him upon condition that he remained with him or in his Power which is a most antient and cleare example saith that great AntiAntiquary Sr. Henry Spelman of being Bailed out of Prison or giving Bail to answer the Action By the Laws of King Edgar who Raigned Anno Dom. 971. made Frequenti senatu every man was to have sureties who might have him forth coming to do right By the Laws of Canutus made Sapientum consilio who Reigned in Anno Dom. 1031. no man was to compel another by distraining or taking away Pledges to a Suit in another Liberty unless he had thrice required right to be done him within the hundred If any one be destitute of Friends and cannot find Pledges let him be put into Prison In the Hundred Courts County Courts Courts Leet Baron which saith our Learned Selden have a resemblance of the Customs of the old Germans brought hither by the Saxons the Process are for the most part by Summons Attachment and distress or if upon the Summons a nihil habet be returned that is to say hath nothing whereby he may be Summoned then a Capias By the Laws of King Edward the Confessor who Reigned in Anno Dom. 1044. which were of so high esteem with the English that after a commission to find them out by the oaths of twelve men in every County of England elected and chosen they with much a do Precibus fletibus obtained of William the Conqueror to have them confirmed and were after so exceeding careful not to loose them as the observation of those Laws were by an oath afterwards taken by the succeeding Kings of England at the Coronation more espetially recommended unto them Every man that would be accounted a Freeman ought to be in Pledge that the Pledges might bring him to Justice if he should offend and if he escape such Pledges should pay what he was Sued for which saith our Sr. Henry Spelman in his Glossary resembles our Frank Pledge and let the Hundred and County say those Laws be demanded for him as our Ancestors have ordained For say the same King Edwards Laws it is the greatest and highest security by which all men and their Estates are strongly upheld By the Laws of William the Conquerour who confirmed the Laws of King Edward the Confessor omnis homo qui voluerit se teneri pro liberâ— sit in plegio ut plegius eum habeat ad Justitiam si quid offenderit si quisquam talium videant plegii solvant quod Calumpinatum est every man who would live or be accounted as a free holder is to live in frank Pledge so as his Neighbour or Pledge may bring him to Justice if he shall offend and his Pledges or Neighbour in the Tithing are to look unto it and pay that which shall be demanded of him and he shall be adjudged to Pay By the Laws of Henry the 1 made Concilio Baronum he which is summon'd to the Hundred Court and without any just necessity refuseth to come if he be able let thirty Pence be taken from him for the first and second time which seemeth to be a forfeit and let him be distreined by the Hundred but let him be put to Pledges till the day of Pleading And he which was brought or compelled by Process before the Judge for so the word Pulsatus in that Law of H. 1. was by the
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 Dâ—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 perâ—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
should in such a case have a Writ de ldempuitate nominis as had been in time past And in the 38th year of that Kings Reign whereas many People were grieved and Attached by their body in the City of London at the Suit of the People of the same City surmising to them that they be Debtors and that they Prove by their Papers whereas they have no Deed or Tally It was assented that men may wage their Law upon Debts due upon such Papers And the Right use of that Act of Parliament of 25. F. 3. cap 17. did from time to time receive its Allowance and Approbation by several Acts of Parliament made by our Kings and Princes from the makeing of that Act until that never to be enough deplored infatuation and unruly Giddiness of a rebellious part of the Nation betwixt the year 1641 and his Majesties happy return in the year 1660. As by an Act of Parliament made in the first year of the Reign of King Richard the 2 it was enacted that Prisoner upon judgments given in any of the Kings Courtss of Justice should not be suffered to go at large that a fained confession of a Debt due to the King should not delay anothers Execution And that Priests should not be arrested doing Divine service And in the second year of that Kings Reign being but about 27 years after the making of that Statute of 25 E. the 3. to proceed to Utlary by way of Capias in Actions of Debt Robert de Hauley Esquire being Arrested upon an Action of Debt and upon his Escape pursued into Westminstar Abby Church where he took Sanctuary was in a Tumult in the Church Slain at the High Altar when the Priest was Singing high Mass and the offence and breach of Priviledg as it was then pretended to be complained of in Parliament by the Arch Bishop of Canterbury and the rest of the Prelates and Clergy who prayed that due Satisfaction and amends might be made of so Horrible a fact It was opposed by the Lords and Commons who Vouched records and called to witness the Justices and others that were Learned in the Laws of the Land that in the Church of England It hath not been accustomed that the offenders flying to a Church ought to have Immunity for Debt or Trespas or other cause whatsoever except for crime only and certain Doctors of Divinity Canon and Civil Laws being thereupon examined and sworn before the King himself to speak the plain truth said upon mature and sound deliberation that in case of Debt account or Trespass where a man is not to loose Life or Member no man ought to have Immunity in holy Church and said further in very high expressions that God saving his perfection and the Pope saving his holiness nor any King or Prince can grant such a Priveledge and that if the King should grant such a one the Church which is and ought to be favoured and nourished ought not to accept of it whereof offence or occasion of offence may arise for it is a Sin and occasion of offence saith the Record to delay a man willingly from his Debt or the just recovery of the same And so little did that great affray complaint of a then Powerful Clergy for that breach of Priveledge the trouble of the King and Parliament therein perswade our forefathers to any dislike of the way of proceedings by way of arrest by Capias or Utlary thereupon as at another Parliament holden in the same year for the avoiding of debtors withdrawing themselves and Flying into Places of Churches Priviledged It was ordained by the King upon the Petition of the Commons in Parliament that in such cases after the Creditor had brought an Action of debt and procured a Capias to be thereupon awarded and the Sheriff returned that he could not take the defendant because of places of Priviledge another Writ should be made with Proclamation to be made at the gate of such Priviledged place by five Weeks continually every Week once that such person render himself And the Succeeding Kings were so careful not to suffer particular grievances to disappoint the effects of good Laws made for the generality of the People As by a Statute made in the first year of the Reign of King Henry the fifth it was ordained that in every original Writ of Actions personal upon which an Exigend shall be awarded the names of the defendants and their additions shall be mentioned And by another made in the 7th year of the said Kings Reign upon the Petition of the Commons as the Statute witnesseth like process for the common profit of the Realm saith the preamble of that Statute shall be had in Writs of forging of Charters or evidences by Capias and Exigend as in Trespass By a Statute made in the 23 year of the Reign of King Henry the sixth Sheriffs shall take Bonds securities or sureties for the appearance of such as be Arrested except upon Writs of Execution Capias utlegatum or excommunicatum By a Statute made in the 19th Year of the Reign of King Henry the 7th because there have been great delays saith the Preamble of that Act like Process is given in Actions of the Case as in Actions of Trespas or debt By an Act of Parliament made in the sixth year of the Reign of King Henry the eighth Proclamation shall be awarded to give notice unto him that dwelling in one County shall be sued to an Exigend in another By a Statute or Act of Parliament made in the three and twentith year of his Reign because there are many delays in Actions of Annuity for that Process of Utlary saith that Act doth not lie like Process was granted by the King in Writs of Annuity as was formerly used in accompt Writs of Capias Exigent and Outlawry were allowed in Wales by a Statute made in the 34th year of the Reign of the aforesaid King And two several Statutes the one made in the 1. year and the other in the 5th year of King Edward the 6th taking notice that for want of such Proclamations many of the persons Inhabiting in Wales Lancashire Cheshire or Chester were without knowledg or cause of Suit wrongfully and unjustly Outlawed to their utter undoing did without abrogating the Right use of the proces of Utlary ordain that upon every Writ of Exigend against any Persons Inhabiting in every of the said Counties or Places Proclamations shall be made and awarded directed to the Sheriffs of the several Counties where the defendants inhabit do give notice thereof By an Act of Parliament made in the fifth year of the Reign of Queen Elizabeth three several VVrits of of Capias with Proclamations with the Penaltie of 20l a time shall be awarded against an Excommunicate person that cannot be taken by the Sheriff upon the Writ of Capias excommunicatum granted out of the Chancery By a Statute
which Statutes will be best expounded by Sir Edward Coke who in his Exposition and Comment upon Magna Carta ca. 29. and all the other parts thereof for out of that most commendable Law those two Acts of Parliament of 28 E. 3. ca. 3. and 42 E. 3. ca. 3. do seem to have been drawn and are but as Confirmations of it saith that by the Law of the Land is to be understood the Common Law Statute Law and Customes of England which though they be in the Negative have no reference or contrary matter unto that of 25 E. 3. ca. 17. and do not prohibit the former allowed and due Proces of the Law or declare them to be contrary to Magna Carta or any Article or point thereof nor have any express words or so much as any preamble which may signfie any purpose that they had to repeal it for all that is forbidden by those two Statutes of supposed repeal is to prevent the mischiefs complained of by suggestions to the King and his Councel and that no man be disinherited put to death or out of his Land taken imprisoned or brought to answer but by due Proces â—f the Law according to the old Law of the Land And the Statute of 37 E. 3. ca. 18. giving an order of pursuing a Suggestion made unto the King doth mention the great Charter and the words therein contained That no Man be taken nor imprisoned nor put out of his Free-hold without Proces of the Law For if our Records and Law-books and the reason thereof and all that hath been learned and believed hitherto do not fail us those Statutes or either of them cannot be interpreted to intend to take away any lawful and necessary Arrests and Imprisonments in Actions of Trespas which were in use long before the making of Magna Carta or the arresting or restraining of the persons liberties of Defendants in Actions of Debt and the like or for a Contempt of the King or his Courts of Justice in not appearing when they were summoned or cited or when they had no visible Estate to satisfie or were likely to fly or run away the true intent and meaning of those Statutes of 28 E. 3. and 42 E. 3. tending rather to confirm and establish that Act of 25 E. 3. ca. 17. then to repeal or take it away the main scope or purpose of them being only to restrain any arbitrary Government or any Lawless proceedings of the People one against the other for it is impossible by any sense or reasonable Construction of those Statutes to conclude any the least design in them or either of them to take away or alter a Law or Custom of the Nation which was not then at all so much as complained of when by forbidding to do that which was against the Law they must of necessity be understood to allow of that which was the Law or consistent with it For it hath been said and never denyed to be a rule in our Common Law as well as in the Civil Law that Exceptio firmat regulam in Casubus non exceptis The exception or saving doth preserve and allow of that to be the Law which is excepted otherwise if the exception should be as certainly it is not nugatory and serves for nothing the meaning of our Magna Carta it self and all those very many Statutes of Confirmation afterwards enacted must be as they can never be rightly taken to be that be the matter or cause Civil or Criminal Treason Murder or Felony no Man is at all to be disseised or put out of his Lands arrested imprisoned or compelled to answer and the King who is sworn to administer Justice to his Subjects must by Magna Carta it self be denyed and debarred the use of means to do it and the People thereby put into a condition not to be able to obtain Justice one against another And if no Laws concerning Proces in Debt or other personal Actions which have been enacted or allowed by Acts of Parliament subsequent to those before mentioned and supposed repealing Acts of Parliament made in the 28. and 42 E. 3. or derived by necessary deduction from reason which ought to be the Soul and Constituting part of all Laws shall not be allowed or taken for Laws the Parliaments of England wherein all manner of grievances and many times very small and inconsiderable were seldom omitted to be complained of or petitioned against have by making of the Statute of 7 H. 5. for giving Proces of Arrest and Capias in Actions of forging of Charters of 9 H. 7. in Actions of the Case and 23 H. 8. in Actions of Annuity not only not remedied but enacted grievances and all our other Laws which have been since made concerning the taking or imprisoning of Mens Bodies in Actions of Debt or other Civil and personal Actions or been put in Execution have been no other then abuses and transgressions of the Law and all that so many learned conscientious and Reverend Judges of the Law and sworn to judge according to it have since those times done or permitted to be done in pursuance of those latter Laws have been but as so many great mistakings to the oppression of the People And the Parliament of 3 Car. primi whereof the very learned Selden and that great Lawyer Sir Edward Coke and many very worthy Men and Lovers of our English Laws and Liberties were Members some of which had not long before made themselves Prisoners to secure a pretended Liberty would have been guilty of a great oversight and inadvertency in not getting better Provisions in the Act of Parliament made upon that which was called the Petition of Right wherein that aforesaid part of Magna Carta ca. 29. and the Statutes of 37 E. 3. ca. 9. 17 R. 2. ca. 6. and the very Act of 28 E. 3. ca. 3. now so much insisted upon are confirmed And the Acts of Parliament of 37 E. 3. ca. 18. 38 E 3. ca. 9. 42 E. 3. ca. 3. and quoted in the margent of the said Act are declared to be good Laws and Statutes of the Realm and it was ordained That no Offender of what kind soever be exempted from the proceedings to be used and punishments to be inflicted by the Laws and Statutes of the Realm All those Acts of Parliament being then expounded and understood to be only intended against the Imprisonment of Men by the King or his Councel without cause shewn and the same Parliament did then procure diverse Acts of Parliament to be repealed but not that of 25 E. 3. ca. 17. which neither was repealed in that nor any other Parliament in Terms or words intelligible or by implication or otherwise and did never yet deserve to be so since the making thereof Nor would that Parliament labouring so much for liberty have at the same time allowed of that Act of Parliament of 25 E. 3. ca. 17. for the Proces of Capias and Exigent or Outlawry in Actions
or otherwise destroyed but by lawful judgment of his Peers or by the Law of the Land And by 25 Ed. 3. ca. 4. That no Man shall be taken by Petition or suggestion but by Indictment or Presentment or by Process made by Writ original at the Common Law He is in his Comment upon Magna Carta and that Statute of 9 H. 3. of opinion that the words Per legem terrae do refer to all the procedent matters in that Chapter or Statute that that Statute was but declaratory of the old Law of England That a Commitment by Lawfull warrant either indeed or in Law is accounted in Law a due process or proceeding of Law and by the Law of the Land as well as by force of the Kings writ and that if a man be suspected and he flyeth or hideth himself it is a good cause to arrest him that in many cases a man may be by the Law of the Land taken and imprisoned by force of the Kings writ upon a suggestion made and that against those that attempt to subvert and enervate the Kings Laws there lyeth a writ to the Sheriffe in nature of a Commission ad capiendum impugnatores juris Regis ad ducendum eos ad Gaolam de Newgate to arrest the Impugners of the Kings Laws and to bring them to the Gaole of Newgate and if he had not been of that opinion the words of Magna Charta in that Statute of 9. H. 3. can if they were put upon the rack and tortured bear no other genuine sense or interpretation then that no man shall be taken or imprisoned but by lawfull judgment of his Peers or by the law of the land And those words of the Statute of 25. Ed. 3. ca. 4. that no man shall be taken by petition or suggestion but by indictment or presentment or by process made by writ original at the Common Law can receive no other construction but that a man may be taken by process made by writ original at the Common Law of which nature are the process or writs of Capias in the Court of Common Pleas at Westminster which are made upon original writs issuing out of the Chancery have been in use upon occasion and are matters of record before the Justices in this Kingdom long before the making of those Statutes And such an universal approved Ancient long and continued Praxis founded and fixt upon the Laws of God Nature and Nations in order to the preservation of Faith and Justice those grand Supporters of humane Societies should need no Advocate to plead and justifie the necessary use thereof but be sufficient to perswade the opponents to acquiesce in the reason and legality of it And that great Lawyer Sir Edward Coke might have had more lawrels to have encompassed and grown up by his urne and had not so much Eclipsed that great reputation which he had gained in his Studies and Profession of the Laws as he hath if he had not without a due and serious examination so much taken upon trust Caressed Magnified and recommended to posterity that Manuscript called the Mirror of Justice and some other Manuscripts so often by him appealed unto and vouched in his 2. part of the Institutis or Comment upon Magna Charta In which Consarcination called the Mirror of Justice that Mirror of Justice Maker or Deviser dreameth truly to have recited some exemplary Judgmeets or direful punishments inflicted by King Alured or Alfred upon 44. Judges of his times for supposed Errors and Misdemeanors by them committed And hanged them who with great probability may be believed not yet to have been hanged by that King or any other for that if any such remarkable things or Examples of Justice had ever been done by him they could not in all likelihood have escaped our old Historians Symeon Dunelmensis Ailredus Abbas Rievalensis John Brompton William Malmesbury Henry Huntington Roger Hoveden Henry Knighton Matthew of Westminster Ingulphus and all our other Ancient times Remenbrances nor would have been unrecorded by Asser Menvensis who for the fame of his Learning being sent for out of Wales to come and live with him was preferred by him and made a Bishop and residing in his Court Wrote his life and recommended to Posterity his most memorable Actions excellent Qualities and Endowments but was so far from the Registring of any such Severeties as on the contrary he doth make mention of the extraordinary clemency and lenity of that Virtuous Prince who although he was a most diligent inquisitor of any male administration of Justice by his Judges yet saith Asser Menevensis Leniter Advocatos aut per scipsum aut per alios suos fideles quoslibet Interrogabat quare Ita nequiter Judicassent utrum per ignorantiam aut propter aliam malevolentiam id est utrum pro aliquorum amore vel Timore aut aliquorum odio aut etiam pro alicujus pecuniae cupiditate Gently calling them to him he did by himself or others whom he might trust demand of them Wherefore they had given such Judgments whether ignorantly or for any ill will or for love fear hatred covetousness or love of Money Denique si illi Judices profiterentur propterea se talia Ita Judicasse eo quod nihil rectius de his rebus scire poterint tunc ille discrete moderanter illorum imperitiam insipientiam redarguens aiebat Ita inquiens nimirum admiror vestram hanc insolentiam eo quod dei dono meo sapientium gradus usurpati sapientiae autem studium operam neglexistis But if those Judges did confess that they had so Judged or done because they knew no better then he did discreetly and moderately shew them their ignorance and say unto them truly I do very much wonder at your folly for that by Gods guist and mine you have taken upon you the degree of my wise men and Judges but the study of the Laws you have neglected Qua propter aut terrenarum potestatum ministeria quae habetis illico dimittetis aut sapientiae studiis multo devotius docere studiatis impero Wherefore I command you either suddainly to leave your places or give your minds more unto study Quibus auditis verbis perterriti veluti pro maxima vindicta Correcti Comites praepositi ad aequitatis discendae studium totis viribus se vertere nitebautur ita ut mirum in modum illiterati ab infantia Comites pene omnes prepositi ministri litteratoriae arti studerent malentes insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere Whereupon they viz. His Earles and subordinate Judges being as much terrified as if they had been actually punished did wholly addict themselves to the study of the Laws so as to a wonder the Earles and Judges aforesaid many of whom from their youth were ignorant and illiterate did by study endeavour to make themselves more able choosing rather the hardship
Jurisdictions being great grievances and oppressions might be taken away the Laws translated into English the Six Clarks Head Registers Masters of Chancery and the Petty-bag Affidavit Office Prothonotaries and all other grand Monopolies and Patentees might be abolished no mans life taken away for Felony unless accompanied with Murther that the eldest Sons in every Family might have a double Portion in the Fathers Estate and the rest be divided amongst the younger Children that no Fines be paid to any Cursitor or upon any Original Writ but may be quite abolished that no mans person might be imprisoned for Debt but his Estate made liable to satisfie the same it being more suitable to the Turkish or Heathenish practice then to Christian English Professors of the Gospel to rack and grind the bodies of men in prison At the heels whereof was brought to that Assembly at Westminster who named themselves a Parliament and to cherish such doings seldom failed by their Speaker to give thanks in the name of the House to all Petition and Declaration-drivers a Petition of the Well-affected in the County of Buckingham said to be a Representation of the middle sort of men within the three Chilterne Hundreds of Disborough Burnam and Stoke and part of Alesbury Hundred declaring That they had waited eight years in the pursuance of their just Rights and Freedom with which God had invested them and the whole Nation kept from them by Arbitrary power and Tyrannical factors of the Nobility Courtiers Episcopal Priests cheating Lawyers Impropriators Patentee men Lords of Mannors and all illegal Courts and other diabolilical interessed parties and desire that all Licences Commissions c. and Grants from the late King whose first predecessor was that Outlandish Bastard William the Conqueror from whence proceeded the original of all their slavery both in Tenures Laws Terms Customs c. in an Outlandish tongue the Lawyers being the chief Instruments of their misery might be abolished and protesting against all arbitrary Laws Terms Lawyers Impripriators Lords of Manors Priviledges Customs Tolls Tithes going to the Terms at Westminster payment of Heriots Quit-Rents Head-Silver Lawyers Fees and the whole Norman power being a burden too intollerable to bear did invite all men to enter upon Commons and cut and fell the Wood growing thereon and desired which they would not be willing to do if they had been Lords of Manors and other the parties struck at to go by the golden rule of Equity viz. to do as they would be done by not to tyrannize over any or to be tyrannized over Another Pamphleteer feared he should be taken to be ill affected to the babe of Sedition if he also should not be doing somewhat in a Modest Plea as he terms it dedicated to the High Court of Parliament which he would have to be the Supreme Authority of the Nations prayed that there might be an equal Commonwealth against Monarchy wherein there is a Lift against the Vniversities Colledge Lands Tenures Hereditary Nobility Church Revenues Churches and Bells Mercenary Lawyers and Tithes with an Apology for Younger Brothers and desires a restitution of the Tenures in Gavelkind In the same year the Lord General Fairfax Lieutenant General Cromwell the Lord Mayor of London Colonel Harrison Mr. Francis Allin Colonel Martin and others were impowred to place and displace any Judges of the Courts at Westminster and all Officers thereunto belonging and all Sheriffs and Justices of Peace Mr. John Hare being unwilling to stay behind such Company in a Pamphlet sent out upon that design desired that the Norman yoke might be taken off and saith that the Norman Innovations are destructive to the honour freedom and other unquestionable Rights of the Nation In the same year the Officers and Souldiers in the Regiments of Colonel Scroope Sanders and Walton and the Souldiers in the Garrisons of Arundel Rye and Chichester did petition the Lord General Fairfax that the abuses in the Courts of Justice be reformed that there be a Registring of Deeds and Contracts Tithes abolished Six Clarks in Chancery taken away and their Clarks sworn Attornies Mr. Sadler a Lawyer and a man in such favour with the Usurper as he was by them made one of the Judges for the proving of Wills and Testaments in his Book entituled The Rights of the Kingdom and Custom of our Ancestors saith that the Writs of Capias as now used were very mischievous did not lye at the Common Law in Actions of Debt cites Sir Edward Cokes opinion in Sir William Herberts Case and declared that in Debt the Mirrour of Justice did pronounce the Outlawry to be a great abuse In the year 1650. S. D. then an Attorney but since his Majesties happy Restauration and the altering of the Scene Knighted and put into several places of Honour and Trust having convened and gathered together some Tides-men and small understanding Clarks and Attorneys that were well inclined to set their Watches by Cromwells new Court-Dial did in order to the Regulation of the Law propound a Law to be made against Fines to be paid upon Original Writs for that the best reason that they could give against it it was against the reason of the Fundamental Laws of England which never imposeth any Fines but against offenders and the like against Vtlaries which were unnecessary and did tend only to Charges and delay and that a second Summons being served upon a Defendant and left at his house and by the Sheriff or his Officer retorned upon Record the first Summons being made seven days before the day of Apparance in which time the Plaintiff may enter his Declaration in Court and if no Apparance entred within eight days after then a new Summons in the nature of a Scire facias to be awarded upon the Imparlance roll to summon him to appear at a certain day to come when not appearing and pleading within eight days after Judgment shall be given by default Mr. John Jones of Nayoth in the County of Brecon in a Book printed and published in the same year entituled Judges Judged out of their own mouths or the Question resolved by Magna Charta who have been Englands Enemies King-seducers and the Peoples destroyers from King Henry the 3d. to King Henry the 8th and before and since stated by Sir Edward Coke late Lord Chief Justice of the Court of Kings-Bench wherein that mighty Cambro-Britain in his own opinion doth with as little Law as Reason charge the Judges and Professors of the Law with the destruction of honest men whom it should save and the saving of all those whom it should destroy or punish for unlawful respects and considerations tending to their own profits and ends And that by Prerogative Statutes devised by mercenary Lawyers to steal from the people their Birth-right contrary to Magna Charta and the Common Law of England they are become an intollerable mischief to the Commonwealth and do deserve exemplary punishments and cites the said Sir Edward Cokes opinion
Title to their rude and indigested Opinions Howsoever from some or all of these Causes not a few of the former wicked and never to be justified Principles ignorant and unwarrantable endeavours and complaints have since Monarchical Government and our Laws and Liberties were so happily restored sprung up again and no sooner was our David brought back over Jordan but many a railing cursing and rebellious Shimei that had done more then cast stones against him and his Royal Father made haste and came with the men of Juda and Loyal party to meet him and as if they had not remembred all the mischiefs which they had done unto him his Brethren Royal Father Family and good people pretended that they had been greatly instrumental in it and having gain'd a very large and extensive Act of general Pardon and Oblivion which as to treason murder felony faction and rebellion the Loyal party needed not an Act of Parliament for confirmation of what their abusive Courts of Justice had done in matters of Judicature betwixt party and party in the inter regnum and times of Usurpation and another Act of Parliament to make honest free many Parents on earth from Adultery or Fornication and legitimate and un-bastar'd many of their Children begotten in a wrong way of Marriage solemnized in despite of the Laws and our Church of England before a Justice of Peace not in a Church but an Hall Parler or Chamber where that kind of Magistrate was a Knight or Gentleman or many times in a Shop when he was a Trades-man which the Kings faithful Subjects abhorred and some of them having warmed themselves by the Farming of the Kings Revenue and those grand and ever to be detested Artifices of Advance and defalcation which have so much cankred decayed and ruined it and others that liâ—ed their consciences with plundrings and sequestrations and Committee ungodly Emoluments did fall again to their former Trade and Engines of subverting our Laws and turning the Justice of the Kingdom into their Abortive projects and new-found Politiques and hoped in the end to recompence the loss of their possesion of the Lands of the King Queen Prince Nobility Gentry Bishops Dean and Chapters which they having purchased at an easie rate were taken from them and enforced to be restored and their hopes of gaining the Lands and Endowments of the Universities and Colledges which by a failing of Providers and some mistakes as they wickedly thought of Divine Dispensations or some Errors of their new lights they had unexpectedly lost And therefore summoned got together their mis-apprehensions and Invectives against that antient very legal rational custom of Fines to be Pay'd upon Original Writs where the Debt or Damage exceeded Forty Pounds which from the Year 1651. unto his Majesties happy Return unto his Throne had by their Rebellions and ungrounded clamors against the payment of them to make a misâ—lead people the more willing and able to continue and contribute to a War against their consciences and eternal happiness been taken away or laid to sleep In order whereunto in a Book Entituled the Wants of England Printed in the year 1667. it was among other things offered to the consideration of both Houses of Parliament that according to the law of God and other Christian States Christian clemency gentleness and mercy and the antient Laws and Customes of this Kingdom no person be for any new debt cast in prison but be left at liberty to work out his Debt by industry In the year 1669. a Petition was exhibited to the King and both Houses of Parliament that in Actions of Debt there may be no Arrest or Imprisonment of the Debtors Body but a Summons made at his House or hung at his door and for want of an Appearance his Goods and real Estate to be seized and the like in the year 1671. And in the same Year a Bill for an Act of Parliament was with great Importunity desired for the Registring of all Incumbrances of Land and of all Debts and Ingagements then which nothing could have more undone the greatest part of an Impoverished Nobility and Gentry by the late Wars and Taxes nor any thing more have Bankrupted Citizens and Trades-men whose Estates do consist in a great deal more in Credit and Opinion than in reality and substance But the promoters of those Innovations who endeavoured to pull in pieces our wellestablished Laws concerning Arrests and Outlaries did in those their Attempts speed no better then Balaak the King of Moab did by sending for Balaam to curse the children of Israel when notwithstanding his Erecting of several Altars and all his solicitations and promisses of Rewards he could not hinder him from blessing instead of cursing them for the wisdom of the King and Parliament and his Privy Councel did think it to be more for the good of the people to suspend their desires and Devises until the King might understand that there could be any reason cause or ground to alter or forsake the old Fundamental Laws so for many Ages well approved to comply with their humors ill designes but being willing to give what reasonable content he could to that small complaining part of the people without preâ—judice damage to the universality greater number of his Subjects did as the fittest expedient and all that the Law could permit and his reason and Soveraignty perswade him to do for the allaying that distemper which had seised upon a sort of ignorant seditious unquiet spirited people whom no reason can satisfie but would set up their new devices which are never like to perform their Promises and Intendments And needed not as touching the taking away of the Process of Arrest Utlary to have troubled his Majesty and Parliament and themselves and others with such unwholsom and improbable Remedies for that which their Ignorance and Vain Imaginations only told them were Grievances but should rather have acquiesced in a due consideration that his Majesty did not hold it to be agreeable to Justice to abolish the Process of Arrest or Outlary or to change or take away the Fundamental Lawes which established or allowed of those Antient and legal kindes of Law proccedings as grant in the Year of our Lord 1664. by the advice of his Privy Councel his Commission for the relief of Poor and Distressed Prisoners under the Great Seal of England to the Arch-Bishop of Canterbury Bishops of London Winchester Rochester Lord Mayor of London for the time being Judges and Justices of the Courts of Kings Bench Master of the Rolls Judges of the Court of Common Pleas Barons of the Exchequer Chancellor of the Dutchy of Lancaster Masters of Requests and Chancery Attorney and Sollicitor-General and Attorney of the Dutchy of Lancaster Deans of St. Paul Westminster Lieutenant of the Tower of London Bishops Chancellors with the Advocats of the Court of the Arch Bishops of Canterbury and Bishop of London for thâ— time being c.
c. And in New England whether the ignorant and mistaken consciences of many having carried diverse of our People where they would make their own Laws and be independent of the government of this Kingdom from whence they came they do notwithstanding Not want it where for the better expedition and execution of Justice as the words of their Laws are they do ordain that every Court of Justice shall have Ministers of Justice to attach and fetch and set Persons before the Magistrates And is likewise in practice in some Nations that are more remote and have only the light of Nature and some information of Reason to direct them as namely in the Region of Mallabor where if the Debtor do break his Day with his Creditor and often disappointed him he went to the principal of the Bramenes of whom receiving a Rod he goeth to the Debtor and making a Circle about him chargeth him in the name of the King and the Bramene not to depart from thence until he hath satisfied the Debt and if he do not he must Starve in the place for if he Depart the King will cause him to be executed And when that which hath been here so truly and Irrefragably asserted will never deserve to be thought a Postulatum conclusion or principle begged but is de facto apud multos de Jure apud omnes so done and practised by very many Nations and of right ought to be by all CHAP. V. The Process of Arrest and Vtlary are a more gentle way of compelling Men to pay their Debts or to appear in Courts of Justice then that which was formerly used EVery man that would entitle himself to any reason or not wilfully divorce or separate himself from the company thereof and shut out that light which the wisdom and practice of former Ages have tendred unto him may give way to so many cogent Arguments and acknowledge the course and way of our process of Arrest and Utlaries to be a more gentle way of proceeding in the doing and Execution of Justice then that of the forty stripes which in the most righteous Laws of God were in cases of controversie betwixt men ordered in none of the greatest sort of offences to be given to him who was condemned by the Judges then the taking away of the two Sons of the Widdow of one of the Sons of the Prophets by a Creditor to be Bondmen for their Fathers Debt the selling of a Debtor and his Wife and Children and all that he had by the Creditor in use amongst the Jews or taking them by the Throat saying Pay me what thou owest and Haling him to the Judge who cast him into Prison mentioned by our Saviour Christ the cutting of Insolvent Debtors in pieces after a Sentence and small limitation of time and giving every Creditor a piece learnt by the Romans from the Athenian and Grecian Laws but never put in practice for the cruelty thereof the Nexus and taking of Debtors prisoners by the Creditors own authority until they had by some good Laws been taught a less fierce and cruel way of recovering their Debts and keeping them bound in Chaines in their own houses the making the Children Slaves for their Fathers Debts by the People of Asia that large Quarter or fourth Part of the World and the like Customes used by the Athenians and Romans or the usage of the Longobards who if the Debt were not payed after the third time demanded did suffer the Creditor to pawn the Debtors Body or take by order of the King or Judge his Men or Maid-servants Prisoners or that of the Wisigothes the Spaniards Ancestors whose Laws ordained a penalty of three pounds of Gold to be payed by the Offendor or such as contemned the Kings Commaâ—d and Authority and if he were not able to pay it was to endure Quinquaginta Ictus Flagellorum Fifty lashes with a whip or of the Russians beating with Cudgels their Insolvent Debtors upon the Calves of their legs and bottoms of their feet or if the Debtor be poor set him under a Crucifix and cause the Plaintif to take his Oath over his head that his Debt is true which being done the Duke causeth the Defendant to be brought home to his house putteth him to labour or letteth him to hire until he be redeemed Or of the Aegyptians in not permitting the bodies of the Debtors to be buried but to be left as a pawn to their Creditors Donec Haeredes Aes alienum integrè solverent Until their Heirs or Executors paid the Debt and was so imitated by the Athenians the wisest Nation of the learned Greece as the brave Cimon was constrained to yield himself a Prisoner in Chains as the manner then was to the end that his glorious Father Miltiades who had deserved better of them dying a Prisoner for a Debt owing to the Publicque might be buried And by the Gothes and some other Nations under their large Dominions until by a Constitution of Theodorico King of the Gothes and some other Princes Tanquam inhumanum erudelitati proximum It was prohibited under severe penalties which in these times used to be more then threatned as Inhumane and too near bordering upon cruelty and is notwithstanding yet at this day used in some parts of the Lower Germany as Holstein Brunswich and Holland that great Monopoly as they think of Liberty when they do but dream of it for Debts or Money owing to private Persons Or not so rigid or uncompassionate as the way of prosecution for Debts is in the vast Empire of the Great Mogul where if the Debtor do not pay his Creditor according to the time limited by the Judge he is severely whipped and his Wife and Children sold for Slaves by the Creditor or the Merciles manner of poinding Horning or Outlary and Caption for Debts upon short and almost impossible prefixions used in Scotland When our Writs of Pone or Attachment by the favor and unwillingness of Sheriffs to execute the extremities and rigour of Writs and Proces of Law or their kindness procured by some other perswasions of rewards or power were in the moderation of our Laws and Courts of Justice which Canutus by his Laws desired to be ad Divinam Clementiam temperata not so exactly executed or the Defendant enforced to put in real Pledges and Security as formerly And the Distringasses have only small or little issues returned upon them nothing near amounting to the Rents and Proffits of the Lands Goods and Chattels of the Partie prosecuted betwixt the teste and return of the Writ And the Writs of Capias when made out are very often easily satisfied by an Attorneys undertaking to appear to the Action or if Bond be given to the Sheriffs by two Sureties for the Defendants appearance are not one in many hundreds enforced to give special Bail afterwards and if the
then what should be just and shew as much mercy if there should be occasion for it as the Debtor should have need of and that every man would be as willing to do right one unto another as it should be asked or demanded of him But that being not to be found in too many of the Sons of men or the smallest Societies nor was alwayes or is likely to be in the sublunaâ—y and lapsed condition of mankind some kind of compulsion was necessary and a lesser then what is now or hath been most anciently practised could not be to any purpose unless we could content our selves and take that to be a happiness which would certainly never prove to be any to have Justice which next to the Creation and the mercy of all mercies the Redemption of mankind and the Divine Protection and Providence is one of the greatest blessings which was ever imparted by God unto it and as to the continual guard and preservation of our lives liberties and estates is more necessary and less to be wanted then our food apparel houses or places of rest and is the great support of the being and well being of all humane Societies to be a meer speculation or empty word for Schollars only to dispute of in the Schools of Ethiques Or sit like Old Ely in a Chair with Why do you so my Sons and permit every man to deceive mischief one another and render the Justice of the Nation to be nugatory for the restraint now used of the Body of a Defendant refusing to appear voluntarily or upon a Summons or Citation is not in vinculis or Cippis in Chains or Fetters not ad poenam but ad Cautionem and in so moderate and gentle a manner and lessening of their liberty as it is but temporary and when so done is but after many delayes threatnings warnings and forbearings and most commonly occasioned by their own default or some long abuse of the Plaintiffs patience and such a remedy or course taken is no more if rightly interpreted then what common and right reason necessity and endeavour of right to be done did require And when it is but Majoris mali vitandi causa to avoid greater evils is so little in derogation of publick liberty as although it may for a time be something prejudicial to some particular man it proves many times to be a special help unto many men to recover their Debts or Money due unto them the want whereof might otherwise be a cause of their own imprisonment And so long as any man is a Member of a Common-wealth his liberty is to attend or depend upon the good of that Common-wealth otherwise he may claim a liberty as a Free-man but not as an English-man Nor could our Fore-fathers in the necessity of bringing or compelling men to appear in Judgment as well as of the preservation of the alwayes very necessary Power Authority and Jurisdiction of Courts of Justice which do order and direct it ever tell how to imagine that it should be understood to be a Tyranny to arrest attach or imprison such as should refuse to appear upon the Summons or Proces of a Court of Justice or be fugitive or like to run away or that it ever was or can be deemed to be an oppression to enforce such Persons in a legal and orderly way to pay their Debts and do that which God commandeth them to do and hath no less Justice or conscience in it then to be constrained to do right one unto another perform Covenants and Promises and obey Magistrates and Laws in force when the Book and Dictates of God himself do accompt a Man wicked that borroweth and payeth not and the wilful deceiving of Men in the not paying of Money due unto them or not performing of Promises is by good Divines and Expositors conceived to be a kind of theft and reckoned to be within the meaning of the Eight Commandment and to be numbred amongst the breaches and transgressions of it and it is no Tyranny by the Law of Nature for a Man to stay or lay hold of one who is running away with his Money or Goods or for a Judge by the Common Law of England to commit such as misbehave themselves by word or gesture in their presence or a Court of Justice or for a Creditor by the Civil Law to Arrest or stay his Debtor if he be running away before he can get a Warrant or Proces from a Judge To punish Souldiers with death by the Law Military for running away from their Colours stragling in their March or going above a Mile from the Army without licence to Arrest or Imprison such as resort to unlawful Games until they shall find Sureties no longer to use or haunt any place where such unlawful Games are used or to imprison Collectors for the Poor refusing to accompt And Sir Edward Coke in his Commentaries upon that part of Magna Charta saith that a Watchmans arresting a Night-walker or one that hath dangerously wounded another or that keepeth Company with a notorious Thief whereby he comes to be suspected is lawful and no breach of Magna Charta although it be done without the Warrant of a Writ By what rule of right reason then shall so gentle and necessary a course or way of compelling Men by Proces of Arrest to appear in a Court of Justice in order to a Sentence or Judgment when he may be bailed be styled a Tyranny or Oppression When it shall not be so called or esteemed to take a Man in Execution for not obeying or performing a Judgement where he cannot be bailed or shall it be Tyranny to Arrest a Defendant to oblige him to appear in a Cause or Action Civil and none at all in a Criminal An Oppression or Tyranny to Arrest a Defendant to constrain him to appear in an Action of Debt and none at all in an Action of Trespas Nay rather is it not an Oppression to endeavour to defraud and injure Men detain their Estates and Livelyhoods withhold from the Poor and needy their right and undo the Widdows and Fatherless by keeping away the Money which should feed or keep them from starving without making satisfaction or shall it be no Tyranny to do the wrong but a Tyranny in a legal and ordinary manner or way to seek to be relievâ—d against it Or how can it be justly accompted to be a Tyranny when no whereelse it hath been so esteemed but was so little believed to be a Tyranny or Oppression by other Nations or any thing less then right reason as they have not only made use of the Proces of Arrest and Imprisonment of the Body in Actions of Debt and other the like Personal Actions in these later Ages but long before the Incarnation of our blessed Saviour The Athenians had their Bailiffs Serjeants and Apparitors to bring Defendants into their Courts of Justice and the Plaintiff might
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
are not Judges by derivation from the King Who cannot make or unmake Judges Inferior Judges are more necessary than a King Parliaments may conveen and Judge without a King Are co-ordinate Judges with him not advisers only Subordination of the King to the Parliament and Co-ordination are both consistent The King transgressing in a hainous manner is under the coaction of Law Defensive Wars are lawful And there may be a distinction betwixt the Kings person and his Royal power The Physical act of taking away the life of offending persons when commanded by the Law of self-defence is no Murther Wars raised by the Subjects and Estates for their own just defence against the Kings bloody Emissaries are lawfull Parliament power is a fountain power above the King Who is but a noble Vassal of the Kingdom Is not head of the Church The people in some Cases may convene without the King Subsidies are the Kingdoms due rather then the Kings And thus provided and the scaling ladders made ready to storm the Laws which were the Forts and Bulwarks of the King and Government and heretofore made it their business to give help or shelter to the King the Deformers rather then Reformers do hasten one another to be up and doing And therefore in a Pamphlet entituled Liberty vindicated against Slavery Printed in the year 1645. the Author declared that Imprisonment for Debts is against the foundamental Laws of England Propositions were shortly after made unto that company of Monarchy underminers called the Parliament for the laying aside the six Clarks in Chancery and the imploying their under Clarks at Cheaper Rates In the year 1646. Mr. John Cooke of Grayes Inne who sufficiently deserved to be hanged drawn and quartered as he was afterwards as a Traytor in a Book dedicated to the most high and most honourable Court of Parliament the supreme as he calls it Judicatory of the Kingdom saith that the alteration of fundamental Laws as Sir Edward Coke saith produces many inconveniencies as in that statute of imprisoning mens bodies for Debt And there must needs be good work in that their sport of pulling down and setting up when it hath been as truly said as verified that the Kings Parliament began in 1640. and continued with some freedom of Votes untill December 1641. From thence it was governed by the City of London and their Tumults Propositions and Petitions unto December 1643. And from thence by the Scots and their rebellious League and Covenant unto the Month of June 1647. When the Presbyterians had the ascendant and predominancy and that was not unjustly called the Apprentises Parliament And after that Sir Thomas Fairfax his Parliament which was governed by his Army and their Addresses Declarations and Proposals wherein the Independant party were Superior and ought to be called the Agitators Parliament The King in the mean time in his great desire of peace with those whose wicked designes never intended it not making that right use which he otherwise might have done of the successes which God had given him in the just defence of himself and his Loyal Subjects and the Laws Liberties and Religion of his People tired with the treachery of those that too often betrayed and sold his just advantages and overpowered with an Army of Covenanting Scots who came to assist their brother Rebells of England and believing himself to be somthing safe in their Oaths and Promises and flying to them for Succour was by a party of them contrary to the Laws of God and Nations sold to the English Rebells for two hundred thousand Pounds Sterling Too great a summe of Money to be restored again as Judas did the thirty pence the wages of his sin for the betraying of our Lord and Saviour and by tricks and devices carried Prisoner from place to place untill he was barbarously Murthered And the Heire and Royal Issue driven out of their Inheritance and then every Mechanick head was set on worke to frame a new Government in which there were as many diversities of opinions as there were Ignorances and Sinister ends to advance their particular ambitions or advantages and a mart being kept of Whimsies some being much in love with the Balletting box used at Venice others with the Rota and Mr. Harringtons Oceana and all or too many thus busied Sedition and Ignorance sat in their Triumphal Chariots with the Laws Learning and Religion of the Nation like so many Captive Kings in Chains attending all which did not fully correspond with the Votes and expectation of the Presbyterians when as Cromwell the gâ—â—at Encourager of the Independents or Fanatick party then the more numerous feeling his own strength and having a prospect of a better design of establishing himself did so delay and trifle with the Parliament his Masters in their desires of disbanding the Armies as the Presbyterian Souldiers in the mean time selling their Debenturs the wages of their Rebellion and wickedness at 16 d. or 18 d. a pound with a long Interest to the Independents who were thereby easily enabled to buy King Queen and Princes the Bishops and Dean and Chapters Nobility and Delinquents Lands as they mis-called them and that party being so well gratified were not afterwards unwilling to Lacquey after his hypocrisie and permit him to frame and make his own Instrument and method of a more arbitrary Government then our Laws permitted or any of our Kings or Princes exercised and to be as a single person Protector of all the Knaves and Fools in England Scotland Ireland and Wales withall their fancied and supposed Liberties which as they used them were but to hunt and chase all that were loyal and honest and thought they might do any thing to the Amorites Moab and Amalek and that all the Scripture was contained in Gain being as they supposed Sanctified into a pretence and outward semblance of Godliness In the later end of the year 1648. some thousands of Well-affected as their Sedition perswaded them inhabiting the Cities of London and Westminster Borough of Southwark and Hamlets supposing the Time to smile upon their purposes did Petition that which when the King was murthered was no Parliament that they would consider the many thousands that were ruined by perpetual imprisonment for Debt and provide for their enlargement In the year 1649. one Thomas Faldoe of Grays-Inne Esq was so loth to have his Conceipts and Opinions lag behind as in a Pamphlet entituled Reformation of Proceedings at Law published on the behalf of himself and the Commonwealth of England he complained That the Law of Property was depressed and useless by the colour of the Statute of Imprisonment and sacrificed to all the Birds of prey even to Covetousness the mother of Cruelty in the several Offices and Instruments of Justice And in the same year came out a Representation of divers as they called themselves Well-affected persons in or about the City of London petitioning the Parliament That all tenures in Capite and all inferiour
our Laws enforced to dwell in the Tents of Mesech and Kedar and lying amongst the Pots and the Wolves made the Guardians of the Sheep and Lambs the Tenth Commandment in the Decalogue was bid to stand off and not trouble it self with their business until they could be at more leisure to talk with it or understand it every one was rooting up the foundations and like those that are too busie in breaking bulk or taking the spoil of a distressed wreckt Ship the wild Boar brake into the Vineyard and the Swine into the Garden and Bed of Spices unto whom the Rose of Sharon and the Lilly of the Vallys the charming Hyacinth and Tulips and gloriously adorned other flowers and the filth of a Dunghill were in their grunting capricious sense of an equal if so much value and estimation And Mr. John Dury a Scotish Minister who had before in the reign of King Charles the Martyr by good approbation of divers of our Bishops and Learned men of this Nation and many learned and worthy of the Reformed Churches beyond the Seas endeavoured a better agreement betwixt the Lutheran and Calvinists had no time or labour spare to bring his Countrymen and their mad Brethren of England into their wits again but for some Preferment had or promised was so well contented to ring the Changes with them as he could not let such things pass without some blessing or Grace said unto them or a box of what he took to be a more special Balm of Gilead bestowed upon them for the ease and comfort of such a small number as should be troubled with tender and puling Consciences as he did in his Re-proposals licensed by Mr. Joseph Caryl declare that God by an extraordinary way of providence had shaken the foundations of this Kingdom and turned in into a Commonwealth believed that the just Judgment of God had brought it upon those who without any respect to tender Consciences did press the ensnaring former Oaths of Allegiance and Supremacy and the Covenant and laid them as stumbling-blocks before their Brethren conceived that the requiring a general promise from Subjects to perform an undeniable and unquestionable duty to the Commonwealth wherein they live by those that have the power of affording or refusing Civil protection is not in the same nature with those former Oaths and Subscriptions And that he should pray and intercede for such as are under the trouble of their own Spirits and fear of sinning that the many years experience of their quiet behaviour and faithfull services may be accepted towards aâ— just degree of security and assurance for future peaceableness In the same year Mr. 〈◊〉 Gray a prisoner in the Compter of Woodstreet in London for the not payment of Tithes would perswade as many as would be so foolish as to believe him that Tithes were a curse to all Nations but Canaâ—n and a vexation to all people but the Hebrews In the year 1654. Mr. John Rogers once a Minister of the Church of England but afterwards a fiery zealot of Rebellion by his Book fuller of railing then truth or reason entituled Sagrir or Doomsday drawing nigh with Thunder and Lightning in an Alarm for New Laws and the Peoples Liberties from the Norman and Babylonian yokes wherein he calling the Lawyers Tyrants and Locusts saith that it is high time and more then time for the people to know their Rights Priviledges and Freedom that all that are past Children and Fools should call for them and that it concerns all to write print publish and declare against the Norman Tyranny of Laws and Lawyers and that he doth it with as much assurance and confidence as if he had a halter about his neck and were to endure the penalty of the Locrian Laws for failing in what he should alledge against them that the Lawyers are Antichrists State Army of Locusts and that the people have been robbed of their Rights to this day by the Income of corrupt Laws and Lawyers the true rise of their interest Innes of Court and trades by Sin that none are suffered to plead but Lawyers or such as are brought up in their Courts and Innes in their trade cheats and tricks to sell the Law at a large rate to Chapmen called their Clients and would make it to be no small grievance that men are imprisoned for Debt every man may not plead his own cause and that there are not County Judicatories to hinder the great charges put upon the Nation to prosecute their Suits at London and Westminster Mr Boone an Attorney or something of a Lawyer with his name wrapt up in an Anagram in his Book entituled Examen Legum Angliae published in the year 1656. whose reading of good Authors mentioned in his Quotations might have better informed him and made him of another opinion will not allow of any of our Laws that do not agree with the Mosaical or were not derived from them or of any which were made or allowed of in the times of Popery but saith that the Law of England as it is now in use is a departure from the Law of God and a taking of a Law from Heathens and Idolaters that the whole body of Popery is in a manner comprehended in Littletons Book so much commended by Sir Edward Coke and that the old Statutes made in the affirmance of the Common Law and the Books and Entries whereof he makes mention are stuffed with all manner of impieties errors that Magna Charta Charta Forestae do not appear to be any Acts of Parliament although they be so called that chiefly therein was intended the advancement of the Romish power in a Tyrannical Government that the Statutes of Marlebridge Westminster the first and the rest of the old Statutes said to be declaratory of the Common Law do savour of the power of Antichrist and do contain in them manifold impieties and superstitions that the Statute of 24 E. 1. concerning Ecclesiastical Judges and the Statute made in 9 E. 2. concerning Prohibitions Clarks convict Prelates Spiritual Courts Excommunications Abjurations power of the ordinary Fees of the Church Superstitious Houses Monasteries Parsons Parsonages containing sixteen Chapters are nothing else but Popery and the advancement thereof and the like may be said of 25 E. 3. ca. 3 4 5 7 8 9. concerning lapses of Benefices Clarks convict Ordinaries c. that such causes as do chiefly require remedy in a Court of Equity may easily be determined by Judges in Courts of Law Common Recoveries for assurance of Lands are nothing but a pack of lies that the Theory of the Common Law and some of the Statutes now in force do contain matters repugnant to the Law of God that most of the old Statutes as well such as are said to be in affirmance of the Common Law as others introductory to new Laws do contain in them great oppressions and wrong to the people and ought to be amended that the
general execution of the Laws as it is now practised is an oppression to the whole Nation that trivial and impertinent Suits are brought out of the Countries to Westminster and thereby all inferiour Courts are destroyed and proposed a publick Registry to be in every County of all Entails Mortgages and Statutes that before any cause or Action â—e entred in any Court or come before the Judges peace he offered by the Plaintiffs and that wise men be appointed to take up Controversies that all the Tithes and Glebe Lands with other things called Church-duties may be sold and a competent means provided for the Ministers of the Gospel In a Book entituled Englands safety in the Laws Supremacy and published in the year 1659 it was amongst other things required as a Law including the peopleâ— Liberties that no man be imprisoned for Debt but that all Estates real and personal be liable for discharge of Debts In the same year in a Pamphlet entituled the humble desires of a Free Subject it was desired that not any of the free people of the three Nations and Territories thereunto belonging should not be molested or imprisoned or have any violence offered to their persons but shall have full power and liberty to seek for their redress unto the Law and the Courts of Justice according to the ancient constitutions of the Laws of the three Nations In another owned by one Mr. James Freez entituled the outcry and just Appeal of the enslaved people of England to be delivered from the insupportable oppression of lawless yokes of misery it complains that thousands of people are ruined and robbed in their Estates Liberties and Lives by Arrests and Outlaries and prayeth that the Writs of Capias may be abolished and the imprisoned set free which would work the total downfall of Satans throne of Injustice cruelty and oppression even of the four Fairs kept in Westminster-hall by the ingrossers of pretended Justice where and by whom men are daily bought and sold in their Estates Rights and Liberties Some of the Inhabitants of Hull did petition that the Laws by which the Common-wealth is to be governed may be those holy just and righteous Laws of the great and wise God and declaring that the Nobility are the Pillars and Buttresses of Monarchy and Citadels of Pride and Tyranny ought to be only during life that the Divines the Lawyers and hereditary Nobility are irreconcilable Antagonists to a Free-State adviseth an Agrarian Law that the proportion of Lands be stinted and a rotation of all Offices and imployments that those which are capable may tast of rule as well as subjection In a Book called A Rod for the Lawyers they are called the grand robbers and deceivers of the Nation greedily devouring many millions of the peoples money and it alledgeth that there are in England Wales of Judges Lawyers Officers Clarks Attorneys and Solicitors above 30000 a quarter of that number at the largest reckoning being not to be found of them which admitting that each of them do get 250 l. per annum very many of them not getting 100 l. per annum many not 50 l. per annum and many not 10 l. per annum or so much as the Rag-gatherers in London-streets do who take it to be an ill week that yields them not 10 s. it will saith that Calculator amount unto seven millions and an half per annum besides the charges of riding to and from London whereas if ever there were such a number to be proved there are greater numbers of Carpenters and Smiths who do yearly gain as much as the smaller sort of the Law Profession do by their as necessary labours In a Declaration and Proclamation of the Army as they called themselves of God published in the same year they did declare and resolve by the help of God that there should be liberty of Conscience but not of Sin Godly Laws to be enthroned but not the Jews Judges to be in every City but not imposed Prison doors should be set open to let out Debtors to labour towards the payment of their Debts and look'd upon it as the voice of God calling upon them and giving them an opportunity and therefore desiring assistance in so great an enterprize by as many persons of note and ability as God hath made willing and able together with themselves to put in sufficient security for the performance thereof did intreat them to send in their names to Mr. Livewell Chapman Book-seller in Popes-head-alley by the Exchange who hath promised to keep them secret untill by sober and frequent meetings the matters may be digested fit to be presented to the Parliament and chief Officers of the Army Where if the Propositions do prove acceptable there will be a sum of 500000 l. ready towards performance of the same And in the Plea called the Armies Plea it is alledged that the peoples safety is the chief Soveraignty of all Laws Statutes Acts and Ordinances Covenants Engagements Promises Subscriptions Vows Oaths and all manner of obligations and expressions thereof and are only binding to the Publique safety and not to the persons of the Governours or forms of Government but with reference thereunto and as principles of truth and right reason brought to light by the late Parliament And one being willing to come on as fast as he could and keep company with those goodly assertions saith that it is not lopping the branches or cutting off the Top branch of Monarchy that will deliver a Nation from bondage unless the Axe be laid to the root thereof to the evil root of bitterness whence springs all our misery to the root of every usurping and domineering Interest whether in things Civil or Divine The number of Freeholders being much increased hath had a natural and strong tendency towards a Commonwealth no Government can be fix'd in this Nation but according to the Ballance of Land that Prince that is not able neither by his own or the publique Revenue in some measure to counterpoise if not over-ballance the greater part of the people must necessarily be Tenant at will Another in his Arguments and fancied Reasons against the office and title of Kingship published in the year aforesaid saith that the Office of a King makes way for an Act of resumption and the unsetling of mens Estates that the abolishing of Episcopacy and Peerage and the establishing of Liberty for Tender consciences were not the ground of the Wars for nothing appeared at the first but the Militia the Negative voice and the removing of Evil Counsel the other things were brought into the quarrel in the progress of the contest by an higher hand of providence then mans purpose One of the same company and School of contrivances desired publickly that no man should be imprisoned for Debt except such as are doubted to be running away and then not above three days and to be maintained by the Plaintiff at 3 s. a day in the mean time In a
happen consequences hunted to death upon a supposition of subverting the Laws when if it had been either possible or true it could upon an Accumulation of all â—his pretended Crimes have extended no farther then an endeavour to subvert one of our Fundamental Laws may be their own Judges convict and justly condemn themselves for unpardonable faults in seeking to subvert so many of our Fundamental Laws uno Ictu with one stroke and at once which they themselves â—ave sworn to maintain and defend Notwithstanding all which Oliver Cromwell did so well understaâ—d his own interest and single-personship CHAP. XVII That neither Oliver Cromwell or his Son Richard the second mock Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever changing kind of Refermations ANd that the administration of Justice was a great end and one of the principal parts of Government and remembred that the men of Westminster of which he was too great a member and director calling themselves after the murther of the King a Parliament did the 9th day of February 1648 declare that they were fully resolved to maintain and should and would uphold preserve and keep the Fundamental Laws of this Nation for and concerning the preservation of the lives properties and liberties of the people with all things incident thereunto and required all Judges Justices Sheriffs Officers and Ministers of Justice to proceed in their respective places and offices accordingly and did the 17th day of Marâ—h then next following declare That our Laws being duly executed are the most just free and equal of any other Laws in the world and that they were very sensible of the excellency great antiquity and equality of them and that the liberty property and peace of the Subjects were fully preserved by them did so little believe it to be for the good and honor of the Nation to hearken or yeild unto the product of those wind-mil giddy and vertiginous brains or by the perswasion of some idle and ridiculous Pamphlets written and contrived by such as would for their own advantages plow up the Laws and reasonable customes of the Kingdom to settle and set up a Weather-cock Government ridiculous to all other Nations as he did in his Speech to that which he called his Parliament upon his Dissolution of them the 12th day of September 1654. declare that in every Government there must be somewhat fundamental somewhat like a Magna Charta that should be unalterable that some things are Fundamentals which he should deal plainly with them may not be parted with but were to be delivered over to posterity else every succeeding Parliament would be disputing to change and alter the Government and we shall be as often brought into Confusion as we have Parliaments and he and his Parliaments in the time of his hypocritical Government did so little relish the taking away of the process of Arrest and Utlary as they ordered only prisoners to be discharged out of prison if they made Oath that they were not worth five pounds after their Debts paid and undertake to pay their Debts when they should be better enabled which to procure their liberty made many lustily to Forswear themselves and had no great cause to be in love with their pretended Reformations when the fiery Mr. John Jones of Nayoth was after his abusing and rayling upon our Laws found guilty of deceits and committed by them a prisoner to the Fleet. And when in the year 1653. or beginning of the next ensuing by an Act of Parliament had for the relief of Creditors constituted a Committee for London and the Suburbs thereof to sit at Salters-Hall and several other Committees in all the Counties of England and Wales and impowred them to be the only Judges though not Sworn to hear and determine matters of Debt and escape to fine for breach of trust and concealments imprison set at liberty remaund to prison adjudge to the Pillory or house of Correction grant lease or sell the Estates of the prisoners were to admit of no legal forms but proceed in a summary way and to be responsible to none but the Parliament and sell dead prisoners Estates as well as if they were living whether the Lands were Entailed or not It was upon complaint of some prisoners of Note and Worth alledged and offered to be proved that one of those kind of Judges at Salters-Hall having two Brothers practising before that Committee the one as a Solicitor and the other as a Councellor at Law would bring his party with him whisper unto his Fellow-Judges arise from the Bench and go and sit by the Clark and make the Orders as he pleased and liked those his doings so well as he was heard to say he did not doubt but to make his place worth 1000 l. per Annum unto him before he had done with it and might be in good hopes of it when besides those his ungodly Extraordinaries large Salaries were allowed to him and his Brethren of that Committee for their Sons and Agents and the gain which they and their Confederates might have by the sale or indirect purchase thereof in other mens names that Committee were to have distributed amongst them two pence in the pound upon the sale of any prisoners Lands or Estates The pretending Gospel-Improvers in South-wales had shut up most of the Churches and gathered in the mean time one hundred fifty thousand pounds into their private purses and therefore both Oliver and Richard Cromwel their Councel Parliaments did only receive those unquiet Innovators Petitions and as they did in the determining of what should be Incumbrances fit to be put into a publick Registry or the taking away of Tythes make a shew of intending great matters when they only hung them upon long delay 's and an everlasting deliberation never to be brought to any conclusion And our Laws having thus long fought with Beasts like St. Paul at Ephesus might by his Majesties happy Restauration have given them no small assurance that they should have deserved some rest and tranquility but it seems as the wrongs done unto them were unrepented so were their patience and sufferings to be prolonged And the professors of our or any other good Laws should not be so contemptible when that blessed Apostle could be no less than a Lawyer when he sate and had been Educated at the feet of Gamaliel and was afterwards by his Apostolical Office and great Endowments in all manner of Learning such a darling and beloved of God Almighty as he had in his life-time the inexpressible joyes and wonders of the Third Heaven communicated unto him when they were before and that time and long after in better Ages of such an esteem and usefulness amongst the wiser and better sort of man-kind as they were justly called Sacerdotes Justitiae Ministers that sacrificed for the
maliciis Vicecom obviam cap. 67. Mirrour of justice 79 register 267. 20. E. 2. Register 267. 8 E. 3. corain rege Roâ—i 24. Statute of Laborers 18. E. 3. Lib. Assis. 22. Ed. 3â— 61. Br. Conusans 33. 22. Assis. 43. Brook tit execution 79. Coke l. 3. relat Sir William Herberts Case 25. Ed. 3. cap. 17. Ro. part 25. E. 3. Bracton lib. 3. cap. 13. Oldendor pius in definit actionum 25. 31. Selden de Synedriis in prefat 61. 62. Bracton lib. 3. cap. 1. §. 3. Westminster cap. 15. F. N. B. Coke 8. relat Beechers case 19. E. 3. 37. E. 3. cap. 2. 38. E. 3. cap. 5. 1 R. 2. cap. 12. 15. Rs. parl 2. R. 2. m. 72 73 74. 2R 2. cap. 3. 1. H. 5. â—a 5. 7. H. 5. ca. 1. 23. H. 6. ca. 10. 19. H. 7. ca. 6. 6. H. 8. cap. 4. 23. H. 8. cap. 14. 34. H. 8. cap. 16. 1. E. 6. cap. 10. 5. E. 6. cap. 26. 5. Eliz. cap. 26. 8. Eliz. cap. 2. 31. Elâ—z cap. 3. Ibidem cap. 6. 43. Eliz. cap. 6. 21. Jac. cap. 24. 13. Car. 2. Trin. 17. E. 2 in communi Banco in aliis antiq Record Rotulis ejusdem Cur. 〈◊〉 Oldendorpius de definit actionum 11. 20. 21. Goldastus constitutiones Imperial 18. cap. 8. Spelman Glossar in verbo Hinfare Jo. Koppen in decision questionum in Germania qu. 35. §. 1. 2. 4. qu. 29. § 10. 15. Cromerus lib. 2. de Polonia Commentar de Russia Laws of Geneva Printed at London 1562. Molin in consuetud Paris tit 2. gl 1. Num. 3. Bibliotheque oâ— Thresor du droit du France tit Arrests 326. Gonzale de Suarez de pas as part Tom. 81. decret Uladisâ—ai Regis Hungariae Anno. 1492. Art 91. Edicts Arrests de Savoy An 1574. Laws of Genoa Printed at Milan 1576. Laws of New-England Printed at London 1641. Purchas Pilgrimage lib. 5. Deut. 25. v. 1. 3. 2 Reg. 4. v. 1. 2. Matth. 18. v. 25. Gellius noct Attic. Livy Plutarch in vita Luculli Solonis Dionisius Halicar lib. 6. LL. Longobard tit 21. §. 1. 7 8. LL. Wisigothorum in Liudenbrogio l. 2. cap. 88. Fletcher de Republica Moscoviae Quenstadt de Sepultur veter Valer. 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