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
or peremptory is by the Civilians themselves acknowledged to be a deviation à jure communi in casibus necessitatis tantum recepta quando alio modo quiâ— citari non potest Secondly Vbi locus non est â—utus ubi citandus habitat Thirdly Si persona est vagabunda quo casu edictum eo loco affigi debet ubi solita est conversari That such a possession is notwithstanding but fiduciary and the Plaintiff only put in possession Custodia causa vice pignoris detiâ—et donee reus veniat responsurus That a 2d trial decree or sentence restitutio in integrum do not seldom afterwards follow And that appeals from the lower Courts or Judges to the higher Commissions of adjuncts and revisions will never allow that Law to be â—o desirable expedite or little chargeable as our Common Laws are which our Novellists would perswade us to renounce and abandon Of which and the disparity of a great part of the Body of the Civil Laws with those of our cipal and common Laws the Dukes Earls and Barons of England were so sensible as in the eleventh year of the Reign of King Richard the 2. in the cause and appeal of Thomas Duke of Glocester and others against Robert de Vere Duke of Ireland the Earl of Suffolk and others they denyed to proceed to Judgment thereupon according to the Law civil and declared que la Roialme de Angliterre ne estoit devant ces Heures ne al intent du Roy signiours de parlement unques ne serra rule ne govern per le ley civil and our Ancestors more than what they retained of some of the actions rules and directions of reason which that excellent Law afforded and was necessary would not as our learned Selden hath observed constanti adhaesione by a constant perseverance and affection be drawn from that singular reverence and esteem which they had of the common Law which so long a course of time and antiquity had fitted to their nature and Genius In so much as William de la Pole Duke of Suffolk was in the Reign of King Henry the sixth accused amongst other things by the Commons in Parliament that he had sought to introduce the Civil Law And the great Cardinal Wolsey was in the Reign of King Henery the eight indicted or informed against quod ipse intendebat finaliter antiquissimas Anglicanas leges penitus subvertere enervare in universum hoc Regnum Anglie ejusdem Regni populum legibus Imperialibus dict legibus Civilibus earundem legum canonibus subjugare And King James coming from a Kingdom where those Laws were much in use and seemed to have some inclination to introduce or intermingle some part of it with our Common Laws did notwithstanding forbear to do it acknowledging that the Civil Law was not applicable to this government or fit for it And our Innovators that have been so wiling to intermingle with their System that part of the Civil Law which in the cases of contumacy did allowe a missio bonorum repleuisable as aforesaid may upon a further search and enquiry satisfie themselves and others that for the expedition of Justice put on and perswaded by the increase of trade and insolvency of debtors the Caesarean or Civil Law hath long ago forsaken their course of granting judgments for not appearing missionem rum and Seisure and found the Citatio realis captura incarceratio to be the more ready and less prejudicial way of compelling debtors or Defendants to appear in judgment For certainly to inforce perswade or give a libertie to the people in their Law Suits and concernments depending thereupon to circulate when they may go a more easy and less expensive way nearer more streight and better conducing to their honest ends will be but to vex and tire both Plaintiffs and defendants and multiply their charges When to draw and prepare the declarations which in Debt and common Actions were until the fourteenth year of the Reign of King James to be entred by the Filacers and ought yet if the cause or reason of their remitting that ancient part of their imployment do cease and be taken away the Plaintiffs will in this new devised expedient for a quick and Pie-powder Course of Justice be put to a charge for the drawing of their Declarations before hand when it may be there will be no need of them and to pay for the Copies of them which in a more regular course after apparances entred were to be payed for by the Defendants And to the Trouble and charge of entring judgments and the hazard of the loss of charges poundage aud other fees payd to Sheriffs and Bayliffs upon execution or paying of damages where they are wrongfully or not well obtained multitude of Affidavits pro con of motions in Court on the one side and the other many referrences and reports wagers of non-summons writs of restitution actions on the case for non summons or for slander or defamation brought for malitious contrivances cum muliis aliis which will increase and heighten the Bill of Charges And that goods Seized inventaried and sold by under Sheriffs and Bayliffs at half or less value though it may suffice one greedy and merciless Creditor will not be unlikely to defeat another or many others of their more just debts and utterly blast the Debtor in his credit by which he might well have subsisted and survived the disgrace and trouble of so furious a prosecution And that the long ago trodden path or way of compelling or bringing men unto judgment or unto Courts of Justice would not so frequently be made use of in England the way of Summons Pone and distress being not yet altogether forsaken and disused as it was formerly for that betwixt the Reigns of Canutus a Danish King the 25 year of the reign of King Edward the Third and for some ages after there neither could be any either frequency of arrest or necessity for it as there hath been since and is now CHAP. III. The reason and necessity of the more frequâ—nt use of VVrits of Arrest and Outlawry then was before thi making of the Statute of 25 E. ca. 17. IN regard that in those former Ages there were more Lands than Tenants more real Estates but little personal the Trade of the Nation not the fortieth part of what it is now so little before the Reign of King Edward the third as those few Merchants that came hither had Letters of safe conduct granted unto them before they came and that the Commerce and Trade which was in King Edward the Third's time long after was only with the Esterlings and Hanse Towns Burgundy Aquitaine some Genoese and Italian Merchants the Turky East and West Indy and Affrican trades not then or long after known or used Usury so horrid and damnable a Crime as it was a cause of Excommunication denyal
non prospexit recourse is to be had to the Body of the Tenant and if he be not to befound the Landlord is to impute it to his own negligence that he did not look better to it Cum quis ad warrantum vocatus fuerit Christianus vel Judaus qui terram non tenuerit in feodo quae capi possit in manum domini Regis per quam distringi possint pracipiatur vicecomiti quod habeat corpora eorum when any man is vouched to warranty be he Christian or Jew and hath not Land which may be taken into the Kings hands or by which he may be distrained the Sheriff shall be commanded to take his Body or bring him And a Bishop being Summond in a quare non admisit cum non venit nec se excusat per nun-nec per Essoniatorem attachietur when he neither comes nor sends his excuse nor essoins shall be attached Upon a writ awarded to a Bishop to command him to bring before the Kings Justices a Clark or Minister in holy Orders refusing to find Pledges because he was in holy Orders and had no lay Fee whereby he might be distrained if the Bishop did not after a Summons pone Distringas awarded against himself cause him to come the Court did proceed against the Clark upon the contempt and cause him to be arrested nor could the Sheriff or his Bayliffs incur any punishment for doing of it for the execution of the Law saith Bracton wrongeth no man By the Statute of Marlebridg made in the 52 year of the Reign of that King if any shall not obey or suffer Summons attachments or executions of the same according to the Law and customs of the Kingdom they were to be punished The word Attachment being saith the learned Vossius derived from a French word to apprehend or detain An Attachment is to arrest force or compel a man denying to come to judgement saith Sir Henry Spelman And by Skene a learned Scotch Lawyer is defined to be a certain Bond or Constraint of the Law whereby a Defendant is unwillingly compelled to answer in Judgment to the Party complaining In the Statute of 52 Henry the third where a Capias is given against accomptants it is said they shall be Attached by their bodies An Attachment made for disobeying a Writ of prohibition is in the very form of a pone the awarding and entry of a pone is that the defendant should be Attached And saith Bracton the course or solemnity of Attachments to compel the Defendant to come to the Court to answer his contempt was not so always observ'd but in trespas for the greatness of the offence or in favour of Soldiers that were going to the Wars or of Merchants or such as required haste in Actions of Debt and it is probable that the Actions or Suits of Merchants were most commonly of that nature the Judges granted an Habeas Corpus which to that purpose was in effect as much as a Capias whereby the Sheriff was commanded all delays set apart in regard of such haste and priviledge to bring the Body of the Defendant to answer the Plaintiff in an Action of Debt or Trespas as the case required with a Clause in the Later end or perclose of the Writ that the Sheriff should be grievously amerced if he refuse to do it By an Act of Parliament made in the 52 year of the Reign of the aforesaid King in a Plea of Common custody or guard by reason of ward if the deforcers came not at the great distress the Writ was to be renewed twice or thrice within the half year following and if after the Writ read and proclaimed in open County the deforceant absent himself and the sheriff cannot take his Body to bring before the Justice then as a Rebeâ—â—e shall loose the Seisin of his ward By the Statute made in the third year of the Reign of King Edward the first if any under Sheriff or other do withhold Prisoners replevishable after they have offerd sufficient security he shall pay a grievous amerciament to the King in which act of Parliament men committed by the King or his Justices are excepted and declared to be not replevishable By a Statute of the aforesaid King made in the same year the title of it being against the arresting of men in Liberties great men and their Bayliffs the Kings Officers only excepted to whom special authority sayeth the Statute is given were not to attach men passing thorough their Jurisdictions with their goods compelling men to answer before them upon contracts and covenants c. And the writ of prohibition in the Register awarded upon that Statute is for attaching a man to answer upon contracts and covenants Britton who wrote his Book by the command of King Edward the first saith if any man will complain of a debt under forty shillings let him find Pledges to prosecute his debtor and if he that is sued in Trespas maketh default let him be distrained And that in an action of debt if there be not a sufficient distress the Difendants might be taken by their Bodies be they Clarks or Laymen Fleta or whosoever was the Author of the Book so called reciting the then manner of proceedings at law as an old and accustomed course saith they were by Summons Attachments and distress in personal actions the entries and awarding thereof upon record being the very same with little difference as they are now used If a debtor had bound himself to be in default of payment distrained by the Steward and marshal of the Kings house then upon security given by the Creditor to prosecute a distringas was awarded against the debtor until he found Pledges so as he were within the virge and if he were personally to be found was to be Attached by his body until he should by Pledges acquit himself and if he had not Pledges was to be held in Custody until that he answered the Creditor non tamen in vinculis or if he found Pledges and after made default the Pledges were to be amerced and the Defendant arrested and detained and not be bailed or let loose by Pledges before he had answered And that not only Marescallus sub suo periculo omnes captos infra virgam custodire debet sed de eis coram Senescallo respondere de Judicatis plenam facere executionem the Marshal should at his Peril keep all that were taken within the virge but answer for them before the Steward and ought to take in execution those against whom Judgment should be given and the Steward did of course command the Clark that keepeth the placita Aulae pro Rege Rolls and Records of the Kings Court to direct his writ Marescallo quod ipsum de quo fit sine dilatione attachiari faciat to the Marshal that he do without delay attach him of whom any complaint should
manage their Trade and by taking too great and in former Ages unheard of Sums of money to teach them their Mystery of gain will find it to be as inconvenient to themselves in that their new way of Prentice Trade as troublesom to the Parents of the Apprentices if they were to be satisfied with nothing but a mortgage by Security of Lands or Pawns or Pledges to be given by them for their Childrens honesty many times dearly discharged when as now their single Bonds or Covenants will suffise And they ought not surely to be accompted too Sanguine or over credulous who shall give entertainment to an opinion that if all the money which hath been borrowed in the times of our English Troubles lately past or long ago or in the now times of our unparrelled pride prodigality and luxury had been to have been borrowed only upon Mortgages Pawns and Gages the vitious and foolish part of the People of this Kingdom which are the far greater number would have long ago suffered their follies to have brought them into the sad condition of the Egyptians in the time of the more thrifty and forecasting Joseph when in a famine only of Bread prognosticated to continue for seven years they were in the first year of it constrained when money failed them to take bread in Exchange for their Cattle Horses Asses and Flocks and after their Bodies offered as pledges upon the like occasion and necessity to give up their Lands for necessary but no wanton supplies And although the first pawn or pledge that is mentioned in the Book of God the most Ancient and best of Records to have been given in the Fore-noon of the World was that of Judah's Signet Bracelets and Staff to his disguised Daughter Tamar for a security of what his Amours and unlawful Contract had promised yet shortly after his Brother Simeon became a personal security to his Brother Joseph for the bringing unto him his youngest Brother Benjamin and was in the mean time bound and kept in Prison and Reuben upon his return to his Father Jacob to remove him from his unwillingness to send his beloved Benjamin into Egypt offered his own two Sons in pledge that he would safely return him unto him again And when that could not prevail Judah without being bound or kept in Prison the while by his Father became a Surety for him as it were body for body and that of his own hand he should require him And the after Ages have found so great a benefit as well as a necessity of personal security as here in England long before the Statute of 25 E. 3. the Bodies of men as well Nobility as others have to the great advantages of the Kingdom and upon great and weighty reasons and occasions of State been given and taken as Sureties and Hostages for and to diverse of our Kings and Princes And by our Laws agreeable in that and many other particulars not only to the Civil and Caesarean Laws but of the Law of Nations the Plaintiffs when by our Original Writs made out of the Chancery in Actions of Debt impowring the Justices of the Court of Common Pleas to make proces and hold plea thereupon the Sheriff to whom the Writ is directed when he doth summon the Defendant to appear before the said Justices being commanded to take Sureties of the Plaintif that he will prosecute and justifie the Action was to take it by personal security and not by any pawn or pledge So as if there were not so many irresistible Arguments Reasons Examples proofs and necessities for the ancient long continued use of the Writs of Capias and Outlary beyond a prescription and memory of man and many ages That which hath in all Ages been allowed as the best expedient to secure from doing or suffering wrong in case of lesser or greater Crimes as Trespas Felony Manslaughter Murder Treason or suspition of either where the less favours are to be shewed propter atrocitatem criminis for the horridues of the Fact until Offenders can be brought to Judgment For whom Plegii sint donec se defenderunt Carcer Gaola The Goal and the Prison were to be Securities saith our old and learned Bracton And that old rule of Law not used to be denyed kickt or spurned at eadem ratio eadem lex that a parity of reason in one Law or Case may be the foundation of a like Law in another and that other maxime of Law Qui non habet in Aere â—uat in corpore Where a man hath nothing in his purse to answer the Law he ought to suffer for it in his Body the punishment of Contempts of the authority of Courts of Justice and the securing of mens Debts where there is A suspitio fugae Any suspition likelyhood or signs of the Debtors running away which the old Almans were so careful to prevent as that rather then fail they suffered the Plaintiffs themselves to take and imprison them may be called in as Assistants to maintain the right reason and necessity of Writs of Capias and Outlary in matters of Debt and other the like personal Actions And those very good effects of our said English Law proceedings and the consequences thereof and benefits adâ—rewed thereby are and may be demonstrable by the less difficult way of borrowing money more safe lending of it and more speedy way of recovering and getting it in with little dammage and loss when in this last Century and present Age of about one hundred and fifty thousand Capias or Proces of Arrest and Outlary sued out or prosecuted in a year there are little more then one housand of them if so many so arrested or unbailable as to be carried to Prison or being destitute of Friends or Money do remain in Prison a quarter or half a year at the most or if any do continue any longer they are so very few in respect of the far greater number which were threatned or might have been there as if the Prisons of the Fleet Kings Bench Marchalsea Ludgate the Compters in London Newgate the Gatehouse at Westminster and the Counties and every other City Goals or Prisons belonging to Liberties in England and Wales shall be truly searched and examined either as to those who are actually in every of those Prisons or are out upon Writs of Habeas Corpus or how many new Prisoners are every year half year or quarter of a year brought in upon Actions of Debt Trespas or other Civil Actions And how long or little while they did or do there tarry the product of that accompt may truly testifie that the terrors and continual affrights and trouble of Arrests with the Tristis poenae expectatio paena molestior often sad apprehensions of the many inconveniences of imprisonment which do inevitably follow as to the Charges loss of Estate and Credit do so summon and call together all their cares and so gently and best of all conduce to 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
called together by Tribes or Wards under the Authority of the Tribunes or if they had so many Usurers and all that were either Rich men or Creditors were likely to have been against it And an Act of the Senate it could not be for they were forced or affrighted to it and it wanted the consent of all the Peoples deliberation and the just solemnities of it For ab exactis Regibus from the time of putting down Monarchy till the Reign of Tiberius Caesar saith Bodin the Senate alone had no power to make Laws but only Annual Decrees or Ordinances Which bound not the Common People Ordinances or Decrees of the Senate saith Dionisius Halicarnasseus a most diligent Inquirer into the Roman Customes having Nullam vim legis nisi Populus probaret No force or effect of Law unless the People approved of it Et ea quae Populus probaverat annua tantum erant nisi rogatione ad Populum vel ad plebem vim legis adipiscerentur And those also which the People did approve were but Annual if by rogation or asking the People's consent being called together by their Wards it obtained the force of a Law and without a rogation or demanding the Suffrage of the People was as Bodin saith ineffectual so as a Law it was not because all the People were not duly called nor had agreed to it and being no Law could be no more then an Edict of the Consuls or an Ordinance of the Senate or if a Law because we fiud it by Paulus Manutius reckoned for no less was but temporary and to pacifie and bring to their wits again the inraged multitude But whatsoever it was it extended not nor was so much as intended to take away that necessary power of the Praetor or Magistrat of coercing or compelling men to appear before them in Judgment but was abrogated or continued but for that time or a little after or not put in execution a fate which many other enforced Acts or Orders of that Common-wealth came under as that of the Law Licinia or choosing of one of the Consuls out of the Commons that of lessening of Usury at one time or taking it quite away at another which had their intermissions the latter of which was so impossible to be kept as by custom and mens necessities it came to be to no purpose which the many Seditions of the People which happened afterwards concerning Usury and the more ease then abatement of it may be enough to perswade us unto For besides what may be observed concerning the enforcing of that Law and the course taken to pacifie the People the meaning of Bona Debitoris pecuniae oreditae non Corpus obnoxium esset That the Goods of the Debtor not his Body should be obnoxidus or liable to the Debts might probably be understood to be that the Goods of the Debtor should be sold or taken in Execution for the satisfaction of the Creditor as far as they would go and that his Body howsoever should not be bound or lye in chains for it and that those that were bound in Fetters or Chains were released from that kind of imprisonment as may appear by the Body of that Law or the perclose and conclusion of it which only saith Ita nexi soluti so those that were bound in Fetters or Chains were released which must be understood to be by the Sale of their Goods And for the time to come singly relating to the matter of binding in Chains or Fetters not as to the Sale or taking of Goods hath only these words Cantumque in posterum ne necterentur And for the future it was enacted that for Money borrowed the Debtors should not be bound in Chains which needed not have been if their Goods and not their Persons had only been liable to Debts the way of Distringas or attaching Men by their Goods where they were not Fugitives or had a certain or visible Estate being not then unusual as may appear by what was done in the Case of the Senators who had their Goods taken and distrained for not coming upon Summons unto the Senate-house Which Law or whatsoever it is to be called got so little allowance in the opinion of Livy that most learned and ever approved Historian as he gives it no better opinion in the reporting of it but that upon occasion of an injury done to one Man A mighty bond or tye upon the People to keep their Credit was that day broken And it will howsoever be evident enough to any who shall but acknowledge that truth which will every where meet him in his enquiry through the Roman History or Customes that they did not by that Edict or Law abridge or take away the power of the Praetor or Judge who though he was at first appointed and set up at the Request of the Tribunes and People had two Lictors with Axes and bundels of Rods a more terrible kind of Officer then our Serjeants or Mace-bearers allowed to attend him in the necessary course of preserving that power was put into his hands to judge and determine of causes For we may find Sempronius a Tribune of the People about sixteen years after the pretended Law of prohibitting Men to be bound in Fetters for Money lent to command Appius the Censor to be attached or committed to Prison for no criminal or hainous fact That in the accusation and pleadiug of Scipio Africanus about one hundred twenty-two years after concerning an Accompt of the publick Treasures the Court was attended by Lictors or Serjeants and a common Cryer and that the Tribunes of the People themselves in the absence of Scipio Africanus when he sent his Brothers to appear for him but failed to appear in Person upon a longer day granted for the Process of the Law against him to cry out saying Dare we not now send Folk to fetch him being but a private Person out of his Farm and House in the Country and make him appear unto whom not seventeen years ago at which time he was General of an Army at Land and Admiral at Sea we were so bold as to send Tribunes of the Commons and an Aedile to Arrest and bring him away that L. Scipio his Brother being after his death accused and condemned for not bringing to accompt some Treasures taken in the Wars when some of Scipio's Friends had appealed to the Tribunes of the People for their help and remonstrated the many merits and services of him and his Family the Praetor or Lord Chief Justice opposed and said That for his part he could not do with all but if the Sum wherein he was condemned was not brought into the Common Treasury He knew no other remedy nor what else to do but command him as a condemned Person to be apprehended again and had away to Prison And when the Tribunes of the People all but Titus Gracchus pronounced alone that they would not interpose and
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
reproaches and not always without the scorn of being asked if they had any Latin by those that did never understand it or were ever likely or in a capacity to do it And Pride the Drayman turned by an accursed Rebellion into a Colonel could say that he hoped shortly to see or it would never be well untill the Lawyers Gowns were like the Scottish Colours hung up in Westminster hall So great was his and his partisans malice and hatred to those Laws which once they seemed to be so much in love with professed and covenanted to maintain In the same year that so remarkable Thomas Elsliot calling himself a member of Jesus Christ and of the English Common-wealth a free-born person of the English Nation Esquire at Arms Conquerour of the Gentlemen of the Long Robe now or late the Satan of the Commonwealth in his Book entituled The true Mariner with his Metaphorical and Hieroglifical Ship demonstrating the way to Paradice dedicated to Oliver Cromwell saith the Prothonotaries and Registers in the Courts of Justice are immense Foxes the Attorneys and Clarks Kindle-coals the Bum-bailiffs Serjeants at Mace and Marshals-men Serpents Toads Rats and Mice James Stocall Colonel of a Regiment of fifteen hundred men in the Isle of Jersey proposed that if a man be overburdened with Debts and imprisoned and his Estate not able to pay he ought if he come into Court and affirm it upon his Oath to be freed of all his Creditors so as he do leave them what he hath whereby to satisfie every Creditor according to the priority of every mans Debt Shortly after followed Proposals by some Chancery Clarks aiming to hurt their Masters the Six Clarks in Chancery and make what benefit they could for themselves that twelve ancient practising Clarks to be chosen two out of every Office by the major votes of the Clarks and presented to the Lord Keeper Lord Chancellor or Lords Commissioners of the Great Seal and out of them to be chosen some Overseers or Superintendents and to have an Annual stipend the Subpoena Office to be nulled and those Writs to be made by the Chancery Clarks the Affidavit Office to be taken away Lawyers Fees to be ascertained and none to take any more Fee in that Term for any particular Cause and no matters to be referred to Masters of Chancery but Accompts Charles George Cock would have Vtlaries abolished and no Arrest and that there be only a Summons without a Writ or attaching the person and if twice summoned let him be proceeded against upon his Goods In the year 1652. Gerrard Winstanley published his opinion that the Kings old Laws cannot govern a free Commonwealth and it is not possible for a people to be too free and in a Book entituled The Law of Freedom or true Magistracy restored complaineth that Tolls in the Market are a burden that the Gentry do oppress the Common people live idly upon their labours and carry away all the comfort and livelihood of the Earth that the powers of Lords of Manors do remain still over their Brethren requiring Fines and Heriots beating them off the free use of their Commons the Commoners have cast out the King therefore they are in equity free from the slavery of that Lordly power and that it will blast the power of the Parliament and Army to see the Government of the Commonwealth to be built upon the Kingly Laws and Principles and that all slaveries and oppressions which have been brought upon mankind have been by Kings Lords of Manors Lawyers Landlords Divines who ought to be cast out and prayeth that there may be a Judge in every Shire Peace-makers in every Town Overseers and a band of Souldiers attending them Another proposeth that instead of an Arrest a Summons might be sufficient and if no Apparance Judgment and Execution to pass In the year 1653. in a Book entituled a supply to a draught of a Systeme proposed by a Committee for the Regulation of the Law it was desired that none be arrested attached molested or troubled by any Original or other Writ And thus whilst too many addle-headed Reformers were labouring to establish wickedness by a Law or Authority and the major part of the Members of the miscalled Parliament having as they thought rear'd their designs to that height and nearness of accomplishment that they took themselves to be Officers of Righteousness elected and chosen to do wonderfull things that Gods will might be done on earth as it was in heaven that every one might be holy and the Pots yea the Bells upon the Horses as they were pleased to phrase it might be holiness unto the Lord and that God might reign and be all in all they did in that hurry and fit of Zeal without any solid or rectified reason cause or consideration without the hearing of any defences to be made against their supposed to be infallible Judgments Vote that the High Court of Chancery and all the other Courts at Westminster-hall should be dissolved and no more made use of and a Member of that Society and a Burgess for the Town or University of Cambridge who might have done well to have disswaded his Election until he had learned more wit was so willing to have the Civil Laws here used to be destroyed or set packing with the Common Laws as he could not forbear crying out Mr. Speaker one word I beseech you for Jesus Christ let the Civil Law also be put down But that not well according with the sentiments and purposes of Cromwell their man of Sin who had designed to trepan them to deliver up their fancied Parliamentary Government and to bless God for the yoke and Instrument of his own making whereby he as a single person had with many curbing contrivances a future absolute lawless and unlimited power and Authority he did for the better preserving of the Justice of the Nation for the administration whereof he intended to make himself an allowance of Two hundred thousand Pound per annum and well understood to be as necessary in a Common-wealth as it had been in the best of Monarchies and some other his reasons of State whilst those Dreamers of Godly Reformations had upon his Summons and Command refused to dissolve or come out of their opinionated Senate or Parliament-house cause some of his Janisaries or Red-coat Souldiers to pull them out of the House and lock up the doors And their ungodly and particular interests having thus enticed the vulgar and less considerate part of the people too many of them made all the hast they could to pull in pieces the frame and the noble ever to be admired constitution of our Government where they could be sure of hopes of gain and losing nothing by it and joyning with some Lawyers of the smaller size that wanted Practice and expected imployments by a Renverse of our Old Laws and setting up New the finews and foundations of our Laws were endeavoured to be cut Monarchy Justice and