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 repealed CHAP.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 which giveth Proces of Capias and Bxigenâ— in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliaments of 28 E. 3.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 had been repealed by the shortly after following Statutes of 28 E. 3.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 had repealed it the Statute made by the aforesaid King E. 3.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
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
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
by discountenancing the present Laws to loosen the bonds of government to the end that all disorder and confusion might breake in upon him And in his answer to the above mentioned 19. propositions sent unto him by both houses of Parliament the 2. of June 1642. Declared unto them that those that had the conduct of that affair thought fit to remove a troublesome rub out of their way viz. the Law to the end they might undermine the very foundation of it Which every day after grew more and more visible when they being called together to council and advise him could not by their Votes which they would make as binding and obligatory as if they were Laws made and established by their Soveraign wrest and take from him the Militia or Sword wherewith he should protect and defend his people took it to be not a little advantagious to their purposes to ravel and dislocate the method and proceedings of his Laws and Justice By which his Throne was established that by overturning the long approved Laws and Customs of the Kingdom upon which the best Monarchy in the World was built they might open a passage to let in that gain and Anarchy which they aimed at which being once made known to their Emissaries and so much encouragement given by their members of that which was then untruly called a Parliament who rather then fail of Petitions unto them from the sons of Zerviah and Shimei out of every Countrey City Corporation and Market Town caused Printed Bills to be affixed upon the Posts and Corners of the Streets in London whose multitudes of Inhabitants in Masters Apprentizes Tapsters and other Illiterate and Vulgar kind of people could readily afford them good store of such as had been borne or lived in every County City and Corporation of England and Wales to give a meeting at a place appointed to some Members of Parliament for the framing of Petitions unto it And thus the Hounds being uncoupled and let loose to chase the Royal Hart and the Presbyterian Ministers like Huntsmen busied in the ha loo lo ho ha loo loo so ho. Whooping and following to cheer and set them on and busying themselves to remove all things that might hinder the pursuit of their Petitions for the presenting whereof Pulpit Granado men were employed to procure them to be brought with 100 or 200 or more of the factious on Horseback with the Petitions ready printed or Tackt to their Hats or Hatbands with Swords by their sides The London Porterswere set on to Petition against the Militia when they were only told it was against the Watermen for carrying Trunks and other Burdens by Water And a Schoolmaster at Stamford was so wickedly Ingenious as to make his Boyes subscribe a Petition to that Parliament against Episcopacy as if their Parents had actually done it In the mean time the Diurnals News Books and seditious Pamphlets the Stationers Arrowes and Artillery were day by day shot to wound him and incense the people against him and some of the Parliament men were heard to say That they could not do their work without them And the design was carried on so prosperously as too many thought their time best of all bestowed to pull down or take in pieces either all our old Laws or such a part of them as might not only undermine the frame and constitution of the Monarchy but innovate and introduce so much of their own Modells and Inventions as might either directly lead to a republique or some new devices of Anarchy A Book called the pollution of University Learning printed in 1642. Marched in the van together with another Book called the Observator and his Jesuitical principles Quod efficit tale est magis tale and that the King was singulis Major but universis Minor and those kind of Engines were greatly incouraged in their attempts by a Book of Junius Brutus his vindiciae contra Tirannos translated out of Latine into English to infect the people with Treasonable Doctrines And a Book intituled Maxims Vnfolded That the Election of the Kings of England ought to be by the consent of the people The Royal and politique power in all Causes and over all persons is properly the Parliament The Oath of Supremacy binds not in Conscience to the King against the Parliament but the Pope And another book written by Mr. William Prynn an utter Barrister of Lincolnes Inne Entituled the Soveraigne power of Parliaments and Kingdoms Printed at London in the year 1643. Wherein with heaped quotations and much Learning and reading the wrong way he was willing to invite his Readers to believe that the Court of Parliament had a lawful power to question the Kings Patents Charters Commissions Proclamations Grants Warrants Writts and Commandments whether they be legal and to Cancell and repeale them that be illegal or mischievous and onerous to the subject not only without but against his consent It is lawful for the people submitting themselves to prescribe the King and his successors what Laws they please the Sheriffs of every County were antiently elected by the Freeholders and had power to raise the Militia that the Navy Ammunition Armes and Revenue of the King though they be in his possession are the Kingdoms That Kings and their great Officers Counsellors and Justices were at the first created and elected by the people that the King hath an absolute Negative voice in the passing of Bills of common right and Justice for the publique good that the Parliaments present necessary defensive war is just and lawfull both in point of Law Divinity and Conscience and no Treason or Rebellion the Parliament hath a right and Jurisdiction to impose Taxes and Contributions upon the subjects for defence of the King in case of the King his wilfull absence or Arming against them Seconded by a Book entituled Lex Rex written as believed by one Rutherford a Scottish Divine Printed at London by John Field and published in the year 1644. By the then usurped authority wherein he falsly endeavoured to maintaine against all the grounds and fundamentals of Law and Religion That Kings and their Families have no calling to the Crown but only by the people Royalty is not transmitted from Father to Son if the people may limit the King they give him the power who is the servant of the people both objectively and subjectively and is inferiour unto them who cannot make away their power but do retain the fountain power of making a King that to swear non self preservation and to swear self Murther is all one The King is a Fiduciary Life-Renter not a Lord or Heritor the conscience of the people is immediately subordinate to God not to the King mediatly or immediately the Judges are the immediate Vicars of God not of the King The Parliament hath more power then the King The Crown is the Patrimony of the Kingdom not of him who is King or of his Father The Parliament
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
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.
demand in the Writ specified be under 20. pounds are by the Rules and Custom of the Court of Common Pleas not to be insisted upon or if above not at all in the Case of Defendants being Executors or Administrators and if the Defendant for want of Bail for his appearance do continue in Prison three terms and no habeas Corpus be brought or declaration given or further prosecution made he is to be delivered by a Writ of Supersedeas made of course upon the apparance to the action only without any special Bail put in before a Judge or Bond given to the Sheriff and where special Bail is very seldom given it is but that if Judgment be obtained against the Defendant he shall render his body to Prison or satisfie the condemnation Our Writs of Arrest ad respondendum being ad Cautionem custodiam non ad poenam but to enforce a gage or pledge or to detain or put a Debtor or Defendant into the Custody of the Law to the end he may give Bail Judicatum solvere to abide the Judgment of the Court or if no Bail be required to appear to the Action And the Proces of Utlary which although they were not ordinarily used in Actions of debt before the making of the Statute of 25 E. 3. was notwithstanding in cases of trespas for breach of the Peace and for Contumacy and Contempts in not appearing warranted by the Laws of King Edgar Canutus Edward the Confessor and the practise of our Saxon Ancestors borrowed and deduced from the Ancient Customs of other Nations is not now so dreadful as it was in former Ages when as Bracton and Stamford do agree the Partie outlawed did forfeit Patriam Amicos omnia terras tenementa bona Catalla sua all that he could entitle himself unto was out of the protection of the King and his Laws and could not bring any action until he had rendered himself to Prison obtained his Charter of Pardon brought his Writ of Error and given Bail to answer the Action but may now without Bail unless specially required be admitted to reverse the Utlary before Judgment upon defect of Proclamation only or some small Error without a Writ of Error or the Record certified into the Court of Kings Bench or Errors assigned with other the many troubles and charges which that way produced The Plaintifs for fear of obstructing or narrowing the wayes of Justice are not put as they were anciently to find real Sureties to prosecute and make good their actions or to pay a Fine to the King if they do not as our Laws do intend they should or to make Oath of their debts or de non calumniando that the Action is not prosecuted in malice or upon sinister ends as the Civil Law enjoyned And the Statute of Westminster the second doth in Writs of Execution against the Goods and Chattels of a Defendant except Boves Affros de Caruca sua Oxen and Horses of Husbandry and the Writ imports as much in the tenor of it the Judges do without any Inquisition or proof that there were not other goods sufficient to satisfie the Execution permit for the Creditors more speedy attaining to his satisfaction all the goods to be taken in Execution which in more Ancient times was so unusual as a Defendant hath brought his Action against the Sheriff and the Plaintif for taking them in Execution when there was other personal Estate sufficient And do also suffer the Plaintiff to prosecute the Sureties upon a Bond when the Principal hath not been sued and was sufficient to pay the Debt or dammage which by the former course and practise of the Law was not allowed And our Writs of Exigent and Outlary were truly and properly only to be made use of where the Defendant refuseth to appear in contempt of a Court of Justice and the Proces thereof is fugitive or incertain where to be found taken or arrested hath no visible or certain Estate or lurketh in some Liberty of which there are many in England and Wales where the Kings ordinary Writs and Proces do not run or have any power or force and a Capias utlegatum carrieth with it in the same Writ a Non omittas propter aliquam libertatem and impowereth the Sheriff to enter into any Liberty and arrest the Defendant and by a special Capias utlegatum to seize and take at the same time all the Defendants Lands Goods Chattels and Estate into the Kings hands as forfeited for his Contempt and that seisure transferred into the Court of Exchequer bringeth the Plaintif an advantage to take a Lease of the King of the Lands so seised at a very low rent until the Defendant purge himself of the Contempt reverse the Outlary give Bail and appear unto the Action which being so consonant to the Outlawries Bannes and proscriptions of Germany and other Nations Kings and Princes in the like Cases to preserve their own Authority in that of their Courts of Justice and requiring some severity and a more then ordinary Proces hath been all the means which without force and violence and a greater disturbance of the People our Laws and a long Custom and usage of time have hitherto prescribed can contrive to bring unwilling Men to Judgment CHAP. VI. The delayes and inconveniences of the Proces of Summons Pone and Distringas were a great if not the only cause of the disuse thereof FOr the way and Course of Summons Pone and Distringas so much in use before that Statute of 25 E. 3. was unto Plaintifs as full of delayes as they were of increase of Charges and trouble which a view of the old Records of the Court of Common-Pleas before the making of that Statute by the many Writs of Alias and Pluries Distringas with issues forfeited and returned upon them occasioning a great proâ—it to the King and less to the Subjects and the many Writs of testatum Distringas made into other Countries where the Plaintifs averred that the Defendants had Lands and Estate suffiâ—ient and Writs of Averment and Enquiry made out upon too small issues returned directed unto the Justices of Assize to certifie if there might not be more issues returned and such a Writ of Enquiry to be executed in the Lent or Summer Vacations could not but cause a more long chargeable and troublesome delay to get better issues to be returned may help to attest the more necessary and better use of the Proces of Capias and Arrest and that Writs of Exigent and Outlawry will in the Cases aforesaid propter inevitabilem necessitatem be everlastingly necessary especially when in the same Parliament of 25 E 3. wherein Proces of Outlawry in Actions of Debt were granted a great complaint was made that the Steward and Marshal of the Kings House or their Deputies did upon Actions attach and distrain men by ten Marks of their Goods one day and by as much the next