be at the trouble hazard and charge of the experiments may do better to understand or if they cannot give leave to others to help them to understand That the purport intent and true proper and genuine signification of the words of our Magna Carta ca. 29th was to secure the People that the King might not take or imprison any Man Nisi per legale judicium parium suorum vel per legem terrae which if extended to the People in their affaires one with another and made to be as obligatory and binding unto them as it is and ought to be to the King can have no other just interpretation then what Sir Edward Coke hath given us in his Comment thereupon published after his death in the later end of March 1641. or the beginning of the year 1642. Which is saith he as the Statute of 37 E. 3. ca. 18. expoundeth it by due Proces of Law and what that kind of Process was hath been already determined and proved to be as well by Writs and Process of Arrest as by Summons Pone and Distress though the latter as the condition and course of the affairs of the Nation then stood was much more frequent and usual and it appeareth by that part of Magna Carta ca. 29. and the Exception therein that there was a Process or proceeding in Law besides the Legale Judicium or Trial by Peers or Jury and the Process where Defendants were not willing to come to Judgement and have their Controversies determined which but in very seldom Cases never was or is likely to be otherwise there was and will ever be a necessity of compelling them by Proces to appear in Judgment when they delayed or refused it For as the great and learned Grotius hath said upon another occasion The Liberties claimed from a Prince ought to be such as competere possint subditis might accord with his Superiority and their duty of Subjects for our so eager clamours of Liberty cannot certainly be so nayled to any of their extravagant opinions and desires as to induce them to think it either to be lawful rational or consistent with the Great Charter to deny the King or his subordinate Courts of Justice a power to Imprison any that shall be guilty of Contempt against His Person or Authority and to constrain them to appear in Judgment For the way which the Judges and Interpreters of our Laws have hitherto used in the Construction and understanding of Parliaments nothing appearing to the contrary hath been an Inquiry into the occasion and purport of them commonly expressed in the preambles and reason thereof and into the sense as well as the words of them for the preamble of an Act of Parliament saith Dyer sometimes Lord Chief Justice of the Court of Common Pleas is the Key to open the minds of the Makers of the Act and of the mischiefs which they did intend to remedy and a Man ought not to dwell upon the letter nor to think that when he hath the letter on his part that he hath the Law on his part say the Judges in the Resolution of the Case between Easton and Studde in regard that the rule in the expounding of Statutes is to search out the mind of the Law-makers what Construction they would have made of it if they were living And that Acts of Parliament ought to be understood by a reasonable Construction to be collected out of the words thereof according to the true intention and meaning of the Makers of the Act that Statutes in the affirmative do not regularly take away Statutes precedent in the affirmative unless in some special Cases and Statutes referring to other Statutes do not make any alteration in Law but unto the points unto which they do Refer nor doth a latter Act with Negative words say our Laws take away a former if it be not contrary in matter And the Parliaments of this Nation have alwayes taken care to use express and clear words of repealing any Statutes which they intended to Repeal by plain and certain mention thereof with the times wherein they were made sometimes repealed but a part of some former Acts by a new Act of Parliament and enlarged and proceeded further then the former Acts did extend unto as in the Act of Parliament concerning Servants and Artificers wages made in the fifth year of the Reign of Queen Elizabeth The words and meaning of the Statute 28 E. 3. ca. 3. being no more then That no man of what Estate or Condition that he be shall be put out of Land or Tenement nor taken nor imprisoned nor dis inherited nor put to death without being brought to answer by due Proces of the Law And in that of 42 E 3 ca. 1. It is assented and accorded that the great Charter and the Charter of the Forrest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none And being a confirmation in general of all the thirty-seven Points Articles or Chapters of Magna Carta granted in the Ninth year of the Reign of King Henry the Third some of which did concern the King in his profits did neither only intend that particular Chapter of Magna Carta ca. 29. to be made void or repealed or declare that what was done or to be done by lawful Judgment of Men by their Peers which could not be without some kind of Proces or proceedings then in use or that what was done or to be done by the Law of the Land should be repealed as contrary thereunto but did so not at all then intend to do it or to affirm the due Proces of the Law to be contrary unto Magna Carta either as to that twenty-nineth Chapter or to any other the Points Articles or Chapters of Magna Carta As that some of the People being at the time of the making of the said Act of Parliament of 42 E. 3. ca. 3. or not long before too busie in Arresting Imprisoning and vexing one another by false Accusations made to the King and his Councel that Chapter or Branch of 42 E. 3. ca. 3. was made for the redress thereof and for the good Government of the Commons as that Act doth import having these words To eschew the mischiefs and damage done by false Accusers which oftentimes have made their Accusations more for revenge and singular benefit then for the profit of the King or his People of which accused Persons some have been taken and sometimes caused to come before the Kings Councel by Writ and otherwise upon grievous pain against the Law It is assented and accorded That no Man be put to answer without presentment before the Justices or matter of Record or by due Proces or Writ original according to the old Law of the Land and if any thing from henceforth be done to the contrary it shall be void in the Law and holden for error Both of
deliriums are likewise to be added those giddy Assertions that the People are unsecure in their Estates and that their good and welfare depends upon their being manumitted and enfranchised in their persons and made Noble and free by Abolishing of the Process of Arrest and Outlary And that such an Act of Grace will be accompted by all goodmen and their posterities a sufficient recompence for all the Subjects past sufferings and be the greatest mercy that ever any King of England extended to his Subjects since they were a Nation Which should it take effect may be as little successful to the pretended Advocat and his Party and the Trade and Interest of the Kingdom as the Eagles carrying in another Case the burning Cole in the Apologue to her Nest And until they could have been sure of a better which they are never like to be might have forborne their Snarling and Barking at our Laws of which that Act of Parliament of 25. E. 3. ca. 17. Was accompted to be a part which until the Distemper which seized upon a seditious part of the people in the unhappy year of 1641. were so well beloved and deservedly commended as Thirning Chief Justice of the Court of Common Pleas publickly declared in the 12th year of the Reign of King Henry the 4th that the Laws of England were in the Reign of King Edward the 3d. In the greatest perfection that ever they were the Judges Sage and learneds and the pleading the greatest Honour and Ornament of the Law were in that Kings Reigne of that excellency as those of former times were but feeble unto them Sir John Fortescue Knight Lord Chief Justice of the Court of Kings Bench in the Reign of King Henry the sixth by comparing of our Laws and Government with the Laws and Government of France and other Nations hath in his learned Book Written on that Subject proved and demonstrated that our Laws of England Do deserve the Preheminence over all other Laws and do more secure the People in their Estates Liberties and Properties then those of France or any other Nation Queen Elizabeth who made it her constant and usual Charge to her Judges to do Justice and not to disturbe or delay it Governed her people by her Laws in Plenty Peace and Prosperity to the Worlds admiration Terror of her Enemies and the Comfort and Support of her Friends and Allies did so after her death Reign and live in her peoples hearts as they in or about London have to this time from the Coronation or beginning of her happy Reign now above one hundred and sixteen years ago in a grateful acknowledgment of it never omitted to Celebrate that day with the Ringing of Bells some legacies having been given in some places also for the perpetuating thereof King James had a great care of the expedition and execution of the Laws in whose peaceable and plentiful Reign ten years have passed without any Tax or Assessment of the people And King Charles his Son made a great part of his Coyn to wear the Inscription that he fought against a Rebellious part of his Subjects to maintain the Laws priviledges of Parliament and liberties of the people and dyed a Martyr because he would not betray or deliver them up to a Lawless unlimited and ever to be dreaded Arbitrary power So as that seducing Author might have found a better imployment then to throw dirt at our Laws before he understands them and might have been able to have given a better accompt of his time if he had followed the advice of Sir Edward Coke Who was so much a welwiller to the Proces of Arrest and Utlary as whilst he was Chief Justice of the Court of Comon Pleas he did never dislike or refuse the putting his name and Teste to such kind of Writs under the Kings Seal entrusted to his custody and being afterwards made Lord Chief Justice of the Court of Kings Bench had so good an opinion of the Process of Arrest and the necessity and usefulness thereof as that to maintain and support the Writs of Latitat and Bills of Midlesex in Actions of Debt and other personal Actions then too often made by that Court which had no Jurisdiction or Conusans thereof but in Case of a Defendants present imprisonment or of priviledge of some of their Members to hold Pleas in such kind of actions he feigned a prescription to be made and used in the declarations thereupon that the Defendant was in Custodia Marr ' Marescalli Curiae and actually a Prisoner when he neither was so at the time of the making of the said Writs or the time of the Defendants giving Bond for his appearance to the Sheriff or at the time of the Plaintiffs declaring against him as he did publiquely declare in Print That every man ought next to his duty to God and his King to yield a due reverence and obedience to the Common Laws of England for that of all Laws humane they were most equal most certain of great antiquity least delay most beneficial and easie to be observed And That he could defend them against any Man that is not malicious without understanding and make it manifest to any Man of judgment and indifferency by proofs pregnant and demonstrations and by Records and testimonies luculent and irrefragable Which just and due value and estimation of our Laws may well be credited when if a Jury of the Subjects of our Neighbour Nations Kings and Princes or of the Republique of Holland that Corporation of Kings were impannelled and fitted with the knowledge and understanding of the excellency of them they could not either as to the imposing or payment of Taxes or to any other particulars refuse to give a Verdict upon Oath that our Laws and Customes do in their perfection and right reason generally far excel those by which they are governed aud that the Subjects of England and Wales are by the happiness of a well tempered Monarchy and our Laws as secure from any danger of arbitrary power as any people under Heaven And he would find it to be a difficulty insuperable to ptocure our Merchants of England or any of those who do undertake to insure the hazardous adventures of those that do go or send to Sea and see the wonders of the deep and adventure their personal Estates upon the cholerick waves thereof not seldom accompanied with humerous and raging winds to give him an assurance and certainty that the people shall not be ruined by that his goodly indigested project which in its folly and inconveniencies as to the credit reputation and Justice of the Nation exceeds that of Jack Cade that great Master of Ignorance who had perswaded his Rable-rout to believe that it would be an excellent piece of Reformation and much for the good of the people to suppress all learning and dispatch all business and affaires by the help only of the Score and the Tally And will howsoever be as
the words of thy mouth that of taking and casting into Prison for debt until the utmost Farthing was paid and such or the like coercions to compel men to appear in Courts of Justice and satisfie actions were long before the Incarnation of our blessed Saviour in use amongst the Athenians in their Laws And the Romans those great Masters of Libertie who having their Lictores Serjeants carrying their Rods and Axes before their Magistrates expresly ordained that if a man would not or could not come before the Judge he should give Bail to answer the action Metellus one of the Tribunes of the People at Rome arrested one of the Consuls for taking away his Horse The great Scipio Africanus being called to accompt for moneys received and refusing to come to his answer the Tribunes of the People those great protectors of their supposed Liberties urged very hard to have him Arrested and fetched out of his house in the Country and made to appear Julius Caesar was inforced to give Bail to his Creditors who were about to stay him when he went Praetor to Spain Urgulania a great favorite of Augusta mother of Tiberius the Emperour being summoned by Piso in an action of Debt which she disobeying was Arrested but rescued and conveyed to Caesars house whereupon a great stir and tumult happening and Augusta her self complaining that she was injured by it the mony notwithstanding was afterwards sent and paid by her nor was such arresting of persons condemned by our Blessed Saviour when he advised Defendants to agree with their adversaries before they were by them delivered to the Judge and the Judge deliver them to the officer and they be cast into Prison Those Roman Laws and Customes being to be allowed for an inducement to our Common Laws to do the like which never refused to take in and borrow from other Nations any thing that might add to its own perfections and excellencies and could be no strangers unto the Civil and Caesarean Laws brought into England about 50 years after Christ when the Emperor Severus Raigned seven years together at York and that great Lawyer Papinian as Praetor or Lord Chief Justice governed the Civil affairs and Justice of this Nation under him and those Laws continued as a Seminary of many of our Laws Customs as may be demonstrated for more than three hundred years after By the Laws of Ina a Saxon King Raigning here in England betwixt the years 712 and 727. made suasu instituto of Cenred his Father Hedda and Erkenwald his Bishops omnium Senatorum natu majorum sapientum populi sui in magna servorum Dei frequentia if the Plaintiff demanded right to be done unto him by the Judge and could not obtain it and the Defendant shew no cause why he should not give him a Pledge or Sureties the Judg was to be fined thirty shillings and to do him right notwithstanding within a Week after And then there could be no doubt but that he had power to compel him to appear and to Punish his contumacy for otherwise the Judge could not be justly fined that had no power to enforce the Defendant to appear before him And if a Pledge were required of him that was accused which as to the giving of a Pledge or Bail was no less then the awarding of a Capias and he had not wherewithal to do it before the Suit be determined another might lay down a Pledge for him upon condition that he remained with him or in his Power which is a most antient and cleare example saith that great AntiAntiquary Sr. Henry Spelman of being Bailed out of Prison or giving Bail to answer the Action By the Laws of King Edgar who Raigned Anno Dom. 971. made Frequenti senatu every man was to have sureties who might have him forth coming to do right By the Laws of Canutus made Sapientum consilio who Reigned in Anno Dom. 1031. no man was to compel another by distraining or taking away Pledges to a Suit in another Liberty unless he had thrice required right to be done him within the hundred If any one be destitute of Friends and cannot find Pledges let him be put into Prison In the Hundred Courts County Courts Courts Leet Baron which saith our Learned Selden have a resemblance of the Customs of the old Germans brought hither by the Saxons the Process are for the most part by Summons Attachment and distress or if upon the Summons a nihil habet be returned that is to say hath nothing whereby he may be Summoned then a Capias By the Laws of King Edward the Confessor who Reigned in Anno Dom. 1044. which were of so high esteem with the English that after a commission to find them out by the oaths of twelve men in every County of England elected and chosen they with much a do Precibus fletibus obtained of William the Conqueror to have them confirmed and were after so exceeding careful not to loose them as the observation of those Laws were by an oath afterwards taken by the succeeding Kings of England at the Coronation more espetially recommended unto them Every man that would be accounted a Freeman ought to be in Pledge that the Pledges might bring him to Justice if he should offend and if he escape such Pledges should pay what he was Sued for which saith our Sr. Henry Spelman in his Glossary resembles our Frank Pledge and let the Hundred and County say those Laws be demanded for him as our Ancestors have ordained For say the same King Edwards Laws it is the greatest and highest security by which all men and their Estates are strongly upheld By the Laws of William the Conquerour who confirmed the Laws of King Edward the Confessor omnis homo qui voluerit se teneri pro liberâ— sit in plegio ut plegius eum habeat ad Justitiam si quid offenderit si quisquam talium videant plegii solvant quod Calumpinatum est every man who would live or be accounted as a free holder is to live in frank Pledge so as his Neighbour or Pledge may bring him to Justice if he shall offend and his Pledges or Neighbour in the Tithing are to look unto it and pay that which shall be demanded of him and he shall be adjudged to Pay By the Laws of Henry the 1 made Concilio Baronum he which is summon'd to the Hundred Court and without any just necessity refuseth to come if he be able let thirty Pence be taken from him for the first and second time which seemeth to be a forfeit and let him be distreined by the Hundred but let him be put to Pledges till the day of Pleading And he which was brought or compelled by Process before the Judge for so the word Pulsatus in that Law of H. 1. was by the
Civil Law and the Laws of the Longobards commonly rendred might appeal if he suspected his Judges and appealing might not be detained in Custody Ranulphus de Glanvil who recorded much of what was the practice of the Courts of Justice in England in his time and was Lord Cheif Justice in the Reign of King Henry the 2 when as he saith in his proaemio or Epistle to that Book the Laws then in use were founded upon reason and antient Customs the King willing to be advised the Judges men of great Wisdom and Knowledge in the Laws and Customs of the Kingdom and Justice so faithfully administred as the great men could not oppress the Poor Writeth that if the Defendant appeared not in an Action of Dâ—bt after he was Summoned an Attachment was awarded and a Distringas as in other Pleas. And it was in those times held to be Common Law that where a fine was Levied and that after 3 Essoynes either of the Parties refused perâ—ormance tunc remanet in misericordia Regis salvo attachiabitur quous que securitatem in veniret bonam In the Reign of King Henry the 3. as appeareth by Bracton a Judge and learned Lawyer of those times in his book delegibus consuetudinibus Angliae compiled as he saith ex veteribus Judiciis Justorum out of ancient records and memorials if upon the 4th day of the return of the Summons in an Action of Covenant or Trespass the Defendant appeared not whether the Summons were returned or not an Attachment was awarded If he came not then a second Attachment was awarded to put the Defendant to better Pledges or securities And if he had not Land which might be taken into the Kings hands or by which he might be distrained the Sheriff should be commanded to take his Body or bring him and the Pledges were to be in misericordia quia ulterius non sunt summonendi and if he came not at the day appointed sed maliciose se subtraxerit latitaverit quod Corpus inveniri non possit vel forte se transtulerit extra Comitatum potestatem vicecomitis vicecomes mandavit quod non fuit in ventus in balliva sua then in default of his appearance three Writs of Distringas shall be made out one after another the first by all his Lands and Chattels second by all his Lands and Chattels ita quod nec ipse nec aliquis pro eo nec per ipsum manum apponat ita quod habeat Corpus ejus ad alium diem si tunc non veniret precipiatur vicecomiti quod distringat eum per omnes terras Catalla quod Capiat omnes terras omnia Catalla sua in manum domini Regis Capta in manus domini Regis detineat quousque dominus Rex aliud inde preceperit quod de exitibus eorundem domino Regi respondeat And for this kind of proceedings cited a Record in Michaelmas Term in the Third year of that Kings reign which in its use and nature carried along with it a restraint of the Body of the Defendant for the Sheriff was by the Writ to distrain the defendant Ita quod haberet corpus and it would be in vain to distrain him who perhaps had a small Estate or profit of his Lands to be destrained betwixt the Teste and return of the Writ if the Sheriff did not at the same time restrain or secure his Body to appear before the Justices at the time prefixt to answer the contempt as well as the Action But saith Bracton if the Plaintiff post tot tantas dilationes justiciam non fuerit consecutus should not after so many delays obtain Justice what shall be done for durum est enim quod placitum suum deserat infecto negotio desperatus recedat domum it would be hard that the Plaintiff should go home in despair and be able to do nothing and therefore concludes that if it be a civil or personal action for mony or upon any contract it would be good to put the Plaintiff in possession of the Defendants goods and Chattels according to the quantity of his demand and summon the Defendant at a time limited to appear and answer the Action at which time if he do appear he shall have his goods and Chattels restored unto him so as he answer the Action otherwise he shall never more be heard concerning his goods and Chattels sed querens extunc verus possessor efficiretur but the Plaintiffs shall from thence be reckoned the true owner and possessor thereof si autem cum corpus non Inveniatur nec terras habuerit nec Catalla ille de quo quaeritur iniquum esset si Justicia remaneret vel malitia esset Impunita But if his Body cannot be found and he hath not any goods or Chattels it would be unjust that Justice should be at a stand and not go forward and that the evil actions of men should remain unpunished and therefore whether the Action was pecuniaria vel injuriarum was in Debt or for mony or Trespass the Court was to proceed against him by Process of Utlary propter contumaciam inobedientiam factam domino Regi quia nullum majus Crimen quam Contemptus inobedientia omnes enim qui in Regno sunt obedientes esse debent domino Regi ad pacem suam cum vocati vel summoniti per Regem venire contempserint faciunt se ipsos Exleges for their contempt and disobedience to the King because there is no greater Crime then contempt and disobedience for all that are in his Kingdom are to be obedient to the King and observe the peace and Justice thereof and being called or Summoned by him shall contemn it or refuse an obedience thereunto do make themselves Outlaws Et ideo Utlagari deberent non tamen ad mortem vel membrorum truncationem si postea redierent vel intercepti fuerint cum causa utlagationis criminalis non existat sed ad perpetuam prisonam vel Regni abjurationem a communione omnium aliorum qui sunt ad pacem domini Regis and therefore he ought to be Outlawed but is not if he return or should be taken to be punished by Death Mutulation or cutting off his Members in regard that the cause of the Utlarie was not Criminal but he is to be commited to perpetual Prison or to abjure the Kingdom be Banished and forbid the society of all the Kings Subjects And in those days where a man by Lease had taken an house rendring a certain Rent quid saith Bracton what shall be done when the Tenant doth not pay his Rent nihil in domibus locatis conductis inveniatur and hath no goods and Chattels yet howsoever resolves the question recurrendum erit ad corpus conductoris si autem Corpusnon inveniatur hoc poterit locator suae imputare negligentiae vel imperitiae quod sibi Cautius
made in the eighth year of her Reign for that many of their malicious minds and without any just cause did procure divers of the Queens Subjects to be Arrested it was enacted that the defendants should recover their costs and damages where the Plaintiffs doe delay discontinue their Suits or be non Suited And by an Act of Parliament made in the one and thirtieth year of her Reign it was for the avoiding of secret outlawries in Actions personal ordained that upon every Writ of exigend awarded against any person three several Proclamations shall be made by the Sheriff of the County or place where such defendant inhabiteth first at the County Court the second at the Quarter Sessions and the third at the Church dore of the Parish where such Person inhabiteth And the like to be done in the County Palatine of Durham where as the Statute saith many men have without knowledge been outlawed to their utter undoings if some speedy remedy be the sooner provided but those misdoings were not not then accompted to be sufficient to bereave a Multitude or far greater number of the people of the good which they received by the process of Utlary By an Act of Parliament made in the three and fortieth year of Her Reign the procurers or makers of any Warrant to Summon Arrest or Attach any Person by his or their Body or Goods to appear in any of her Majesties Courts of Justice not having before an original Writ or Process to warrant the same shall be Imprisoned without Bail or mainprise and not be delivered until he shall have paid 10l to the Partie grieved besides his Costs and Damages and 20l. a peice for their offences to her Majestie her Heirs and Successors By an Act of Parliament made in the 21th year of the Reign of King James the Lands of him which Dieth in Execution shall be Chargeable with the Debt By an Act of Parliament made in the 13th year of his now Majesties reign reciting that by the antient and fundamental Laws of this Realm where any Person is Sued Impleaded or Arrested by any Writ Bill or Proces Issuing out of any his Majesties Courts of Record at Westminster at the Suit of any Common Person the true cause of Action ought to be set forth and particularly expressed It was ordained that where the true cause or certainty of Action is not expressed in any such VVrit Bill or Process the Sheriff shall take no greater Bond for any Defendants Appearance thereunto then of the Penalty of Forty Pounds Which in such a length of time and approbation of many Statutes and Acts of Parliament and of our Judges in Courts of Justice in the awarding and allowance of such kind of Writs and Process which as the Rolls and Records of the Court of Common Pleas in the 17th year of the Reign of Edw. the 2 and of former Kings Reigns do declare were not granted of Course as for the ease of the People they have been in later times by sworn and experienced officers but upon grave and deliberate advice upon Petitions or motions to the Judges and the names sometimes of the Chief Justice and at other times of the particular puisne Judge that granted them mentioned in the latter ends of the Entries thereof might if there had been no Vestigia or track of the necessary Process of Arrest to compel men to appear in Courts of Justice to be found a multis retro seculis ex longissima experientia observata in almost all the foregoing ages and wisdom of the Auntients abundantly serve to recal that humour or desire of novel experiments or imposing or practising upon our Laws and Liberties and conduct those Sons of Innovation to a better obedience and veneration of our Laws rules of right reason and necessity of maintaining the indispensable Antient Legal power and Authority of Justice in the blessings of that which we have already received and may hereafter receive by its due administration if we do not give entertainment unto the wild proposalls of those who in their plenty of Ignorance Obstinacy and Interest would have they know not what And bring upon the Nation and themselves and posterities the many sad effects and consequences it will produce and may give them to understand that having such a small assureance of an Infallibility they may do better to stop the Carrere of their so causeless prejudice against the Process of Capias and Arrest and observe what their Neighbour and other Nations have adjudged to be very necessary and unavoidable in their proceedings in Courts of Justice upon personal Actions Who have not so lost or forsaken the Antient Customes and Pathes of their Fore-Fathers but that the same or very like what is and hath been so long in use amongst us may be seen amongst many of the most civilized of them and was so early in the World as it seemes saith John Oldendorpius to be deduced from the Laws of God and Nature Right reason and necessity By an Edict or Law of Theodorico King or Emperour of the Gothes made in the year of our Lord God 497 Arrests of the Bodies of Defendants were allowed to be made By a Constitution of Charlemaigne whose dominion extended over the greatest part of Europe made about the year of our Lord God 780. the houses of those that with-held their Tythes were to be seized and if they opposed and presumed to enter again of their own authority the Ministers of the Common-wealth were to put them in Custody In the Empire of Germany more especially in famous Mart Towns and Imperial Cities as Frankford upon the Mayn Lipsich Norinberg c. saith John Koppen in Rangensdorff Chief Councellor to the Elector of Brandenburgh Arrests for Debt are frequently made and the Debtors Imprisoned and this saith he a vetustissimis Romanorum legibus originem sumpsit had it's begining from the most Antient Roman Laws a Clark in holy Orders and likely to run away a Debtor that hath no Land or is likely to remove away his Goods is a Prodigal or contumatious refuseth to appear and cannot give Sureties may by the Laws and practice of those Countries Jure Saxonico be Arrested and taken In Poland he that will not or cannot give Bayl to answer the Action is arrested In Russia when any of the officers of the Courts of justice do come to a Defendant if he give not Bayl he is to be detained in Custody In Geneva upon a return or Certificate that the Defendant hath nothing he is arrested The like course of Arrest and compelling of men to appear in Judgment is and hath been long ago practised in the Kingdomes of France Spain Hungary Scotland and in the Dukedom of Savoy and many other Places who do think that they have a great deal of Liberty as the Common-wealths of Venice Holland and the united Provinces the Hanse Towns Switzerland and Genoa
of the Tribuns to step between and had wrought some of their own Brotherhood to do it who as soon as they saw the Wards or Tribes called forth by Licinius and Sextius to give their Suffrages would not suffer those Bills to be read or pass by the Commons whereupon when the Nobles began to choose the Tribuns Military L. Licinius and Sextius crossed them so as there was no election at all but of Aediles and Tribunes of the Commons for Licinius and Sextius being chosen Tribunes again suffered no Magistrates of the Chair or of State to be created After that other Wars ensue and with much ado an Army is levied Sextius and Licinius the publishers of those Laws were the eighth time made Tribunes of the Commons and Fabius also a Tribune Military five in eight of the Tribunes of the Commons ernestly and like men bestraught of their wits urge for to have those Laws enacted Sextius and Licinius with part of their Tribune Brethren and M. Fabius the Military Tribune being saith Livy their Craftes Maisters and knowing well enough by so many years experience how to manage the minds of the Commons demand of them how every one of the Senate and other Rich men could in equity hold the Land well near of three hundred Citizens and a Commoner have hardly ground enough to build him a House upon and to serve for a place to bury his Dead whether the Commoners oppressed with Usury should yield their Bodies to bear Irons and suffer Torments unless they pay the Interest before the principal and that daily they should in whole Companies be had away from the bar and condemned to thraldom and alledge that the Commons could never be relieved until they make one out of their body a Consul who might be equal in the Soveraign command and power of the Sword and maintain and protect their liberty The next year the Legions being returned home the same Tribunes of the Commons are chosen and the same Laws again proposed the Senate when they saw the Tribes called and none of the Tribunes step forth to stop their proceedings began to be exceedingly afraid and choose a Dictator the Tribunes of the Commons call a Common Hall summon out the Wards to give their voices whereupon after the Laws were propounded and some of the Tribunes denyed them Camillus the Dictator their good old successful General formerly the Saviour of their Common-wealth against the Gaules a man of undoubted honour and integrity and the Darling of the Peoples sided with the gain-saying Tribuns and stickling to maintain their intercession and gain-saying authority sent his Lictors and Serjeants to command the Commons to depart threatning withal that if they proceeded thus like Conquerors to give Laws he would take a Military Oath of all the younger sort and presently lead an Army forth of the City which put them and their Captains and Ringleaders in so great a heat of contention as the Dictator terrified with some unlucky signs of the Birds gave up his office mean while in an Assembly of the Commons summoned by the Tribunes the Laws were passed concerning Lands and Usury howbeit shortly after it was found that Licinius had a great many more number of Acres of Land than his own Laws permitted After this another Dictator was chosen who nominated Licinius General of the Horse-men who with Sextius at the next Election day for the Tribunes of the Commons so demeaned themselves as seeming to be weary of the place they were the more eagerly desired by the Commons and alledged thereupon that the Commons themselves were they that hindred their own good who might presently if they would have their City their Common-Hall and places of Assemblies freed from those Creditors and their Lands recovered again from the unjust Landlords that it stood not with the modesty of the People of Rome to require to be eased themselves of Usury set in possession again of the Lands with-held from them and to leave those old Tribunes by whose means they had gained those commodities to shift for themselves without honour or hopes thereof and that if the Commons should not resolve to speak affirmatively to those Laws it would be to no purpose to choose any Tribunes neither would they accept of the Tribuneship neither should the Commons have those Laws ratified which were already granted But upon an Oration or Speech of Appius Claudius a Senator setting forth the inconveniences of what was propounded and that by what had been already wrested by the Tribunes All Credit in borrowing and lending and taking and putting forth of Money would be abolished to the destruction of all humane Society Commerce and enter-course whatsoever The matter was adjourned and the publication of those Acts cut off and deferred but the same Tribunes Sextius and Licinius being chosen again the Tenth time got a Law enacted that of the Decem viri for Church Ecclesiastical matters some should be elected of the Commons with which they were so well content as they laid aside the business of Tribunes Consular and gave way for the creating of Tribunes Military and the Venerable Camillus being almost fourscore years old is the fifth time chosen Dictator but after the Wars ended with the Gaules who had invaded them is welcomed home with a hotter Sedition in the City where after many sharp bickerings and contentions the Senate and Dictator were forced to accept of the Tribunes Laws and Sextius was created Consul out of the Commoners but by reason that the Nobles refused to give their consent that Camillus should leave his place of Dictator the Tribunes of the Commons as Camillus was set in his Chair in the Town-hall hearing of causes sent a Serjeant to him who commanded him to follow him and laid violent hands upon him to carry him away by force Which made an uproar saith Livy was never before seen in the Common-hall or Town-house Camillus Friends driving the Serjeant behind the Chair and the People crying out from beneath to the Serjeant to pull him out Notwithstanding all which he would not resign up his Office but taking with him those Senators which were about him went towards the place where the Senate was wont to be kept but before he could go in he returned back again to the Capitol and made his prayer to the Gods that it would please them to bring his Troubles again to a quiet and made a solemn vow and promise if those Troubles might be pacified to build a Temple to Concord And the matter coming after to be debated before the Senate there hapned such an hot contention and diversity of opinions as the easier way carried it which was to grant the Common Peoples desire that a Commoner should be chosen Consul with a Noble Man and it was agreed that the Common People should be content that the Nobles might out of the Patricii create a Praetor or Lord Chief Justice for Oyer and
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
that the Praetor might execute his Office and Authority all the favour which Gracchus one of the Tribunes thought fit to do him was to decree that as touching the Sum wherein L. Scipio was condemned he would not be against it nor hinder the Praetor but that he might use his power according to his place and take it out of his Goods as far as they would stretch but would never consent that he who had subdued the mightiest Monarch of the world and extended the bounds of the Roman Empire as far as the utmost ends of the Earth should lye in Prison and Irons Besides how little that pretended Law gained by a Tumult prevailed against the Imprisonment of Men in Chains or Irons after Judgment in Debt or other Civil Actions or a bare Imprisonment without them plainly enough appears in the Customes and Usages of those times held forth in the Oration made by Publius Scipio Naâ—ica another of those famous Brothers made to the Tribuns of the People in the behalf of L. Scipio his Brother to keep him from going to Prison clearing up unto us the usage of those times notwithstanding that pretended Law for there we may find him saying That which cannot be made of the substance and Goods of L. Scipio they will make good on his Body So that it will be abundantly evident that all the before recited Tosses Commotions and Troubles of that grand Common-wealth of Rome and that People's humors and ignorance in that Popular Government which made them to be restless as the Waves of the Sea tormenting and inquieting themselves and their Magistracy which continued until that Republique had as Tacitus saith tired it self Civilibus discordiis and gained a rest from those publick disturbances in the Government and Monarchy of Augustus Caesar were more in regard of an horrid Usury their Debts and being constrained at the same time to pay Tributes Muster and fight for their Countrey then of their being imprisoned and more for the chains and cruel manner of Usage then for the Imprisonment it self or restraint of their liberty upon actions of Debt which without a renouncing of Justice and all the hopes and benefits thereof could not be forsaken And were therefore without the former severities of Bondage Chains and Fetters to be reckoned amongst the most necessary excellent rules of Justice void of all Tyranny And was so liked and approved by that conquering and great Nation as Hermodurus an Ephesian who had been Assistant to the Decem viri in the Interpretation of Solon's Laws had his Statue erected in the Forum or Place of Justice and were so continued commended to after Ages as in Tully's time which was almost four hundred years after the publick and universal consent of the People and their Magistrates gained and likewise after the pacification of the People's complaints of their burdens of Usury the merciless usage of the Creditors those Laws were had in so great a reputation veneration as that part of them de in Jus vocando constraining Men to appear in Courts of Justice was as he saith a Parvis learnt and sung by him and other Children and after that he came to be that great Orator and Lawyer whose just praises and commendation the many Ages since and a long course of time have taken a delight to remember could have no other opinion of those Laws then that if all the learning and Libraries of the World were searched those of the Twelve Tables Si quis legum fontes capita viderit auctoritatis pondere utilitatis ubertate superarent If any would enquire into their reason and original their authority and benefit considered they would appear to be the best of all Laws And were so generally by after Ages well liked as Ammianus Marcellinus long after speaking of them saith That Solon adjutus Aegypti Sacerdotum satis justo modetamine legibus Romano quoque Juri maximum addidit firmamentum By the just and equal Laws which he had made by the assistance of the Egyptian Priests was a great means of the establishing of the Roman Laws And if they could have been truly charged with any Tyranny or Oppression or so much as a Suspition of either of them that Law de in Jus vocando being a part of the Twelve Tables could not as well as the rest have gained as it did the constant approbation and good liking of the World and come as it hath done from generation to generation unto these our present Times And it is a thing not unworthy of observation and pertinent enough to be here remembred that the Romans abhorring the cruelty of the Diaco or Athenian Laws ordaining the Debtor after a Sentence or Judgment given against him and a certain number of dayes limited and a failer of payment to be cut in pieces and distributed to the Creditors which cruel Law saith Quintilian Mos publicus repudiâ—vit The kindness of Mankind one unto another could not endure to be put in Execution did in lieu thereof appoint a seisure or Execution against the Goods of the Debtors and that in the course and Process of Arrest It was by a Constitution of the Praetor or Lord Chief Justice ordained which unless in Cases of Writs of Outlary and where the Dores are not open is to this day observed in our Laws Ne quis ex domo sua in Jus vocari vel pertrahi posset That no man should be arrested or forcibly taken out of his House And the Civil or Caesarean Law when according to the Custom of some Countries in Towns or Places of Trade as in Holland and the Vnited Provinces Arrests in Actions of Debt were at the first not much accustomed where the Debtor hath a Domicilium or fixed Habitation doth not withstanding in the notion or interpretation of a Suspectus de fuga warranting a present incarcâ—rstion or Arrest of a Debtor if he be not a Free-holder or Man of a very visible Estate appear to be so willing at this day to gratifie and secure the fears and jealousies of Creditors avoid those Circulations Inconveniences Delayes which would otherwise happen if they should tarry as they do sometimes under that Law to receive the debate before a Judge whether the Debtor was a Free-holder likely to run away deserving to be arrested or to have his Body to be secured as it hath allowed no less then 20. Exceptions against a Debtors not being to be exempted from it viz. First That he hath no Free-hold or ability to pay the Debt 2. Is a Forreigner Incerti Laris or a Vagabond 3. Hath made his Estate to be notoriously worse then it was formerly 4. Accepit Pecunias sub gravibus Vsuris gave too great Interest or brocage to borrow Money 5. Keeps ill Company 6. Hath met with some great misfortune since his Debt contracted 7. Is a great Liar and Deceiver and suspected to be a Bankrupt 8.
Jurisdictions being great grievances and oppressions might be taken away the Laws translated into English the Six Clarks Head Registers Masters of Chancery and the Petty-bag Affidavit Office Prothonotaries and all other grand Monopolies and Patentees might be abolished no mans life taken away for Felony unless accompanied with Murther that the eldest Sons in every Family might have a double Portion in the Fathers Estate and the rest be divided amongst the younger Children that no Fines be paid to any Cursitor or upon any Original Writ but may be quite abolished that no mans person might be imprisoned for Debt but his Estate made liable to satisfie the same it being more suitable to the Turkish or Heathenish practice then to Christian English Professors of the Gospel to rack and grind the bodies of men in prison At the heels whereof was brought to that Assembly at Westminster who named themselves a Parliament and to cherish such doings seldom failed by their Speaker to give thanks in the name of the House to all Petition and Declaration-drivers a Petition of the Well-affected in the County of Buckingham said to be a Representation of the middle sort of men within the three Chilterne Hundreds of Disborough Burnam and Stoke and part of Alesbury Hundred declaring That they had waited eight years in the pursuance of their just Rights and Freedom with which God had invested them and the whole Nation kept from them by Arbitrary power and Tyrannical factors of the Nobility Courtiers Episcopal Priests cheating Lawyers Impropriators Patentee men Lords of Mannors and all illegal Courts and other diabolilical interessed parties and desire that all Licences Commissions c. and Grants from the late King whose first predecessor was that Outlandish Bastard William the Conqueror from whence proceeded the original of all their slavery both in Tenures Laws Terms Customs c. in an Outlandish tongue the Lawyers being the chief Instruments of their misery might be abolished and protesting against all arbitrary Laws Terms Lawyers Impripriators Lords of Manors Priviledges Customs Tolls Tithes going to the Terms at Westminster payment of Heriots Quit-Rents Head-Silver Lawyers Fees and the whole Norman power being a burden too intollerable to bear did invite all men to enter upon Commons and cut and fell the Wood growing thereon and desired which they would not be willing to do if they had been Lords of Manors and other the parties struck at to go by the golden rule of Equity viz. to do as they would be done by not to tyrannize over any or to be tyrannized over Another Pamphleteer feared he should be taken to be ill affected to the babe of Sedition if he also should not be doing somewhat in a Modest Plea as he terms it dedicated to the High Court of Parliament which he would have to be the Supreme Authority of the Nations prayed that there might be an equal Commonwealth against Monarchy wherein there is a Lift against the Vniversities Colledge Lands Tenures Hereditary Nobility Church Revenues Churches and Bells Mercenary Lawyers and Tithes with an Apology for Younger Brothers and desires a restitution of the Tenures in Gavelkind In the same year the Lord General Fairfax Lieutenant General Cromwell the Lord Mayor of London Colonel Harrison Mr. Francis Allin Colonel Martin and others were impowred to place and displace any Judges of the Courts at Westminster and all Officers thereunto belonging and all Sheriffs and Justices of Peace Mr. John Hare being unwilling to stay behind such Company in a Pamphlet sent out upon that design desired that the Norman yoke might be taken off and saith that the Norman Innovations are destructive to the honour freedom and other unquestionable Rights of the Nation In the same year the Officers and Souldiers in the Regiments of Colonel Scroope Sanders and Walton and the Souldiers in the Garrisons of Arundel Rye and Chichester did petition the Lord General Fairfax that the abuses in the Courts of Justice be reformed that there be a Registring of Deeds and Contracts Tithes abolished Six Clarks in Chancery taken away and their Clarks sworn Attornies Mr. Sadler a Lawyer and a man in such favour with the Usurper as he was by them made one of the Judges for the proving of Wills and Testaments in his Book entituled The Rights of the Kingdom and Custom of our Ancestors saith that the Writs of Capias as now used were very mischievous did not lye at the Common Law in Actions of Debt cites Sir Edward Cokes opinion in Sir William Herberts Case and declared that in Debt the Mirrour of Justice did pronounce the Outlawry to be a great abuse In the year 1650. S. D. then an Attorney but since his Majesties happy Restauration and the altering of the Scene Knighted and put into several places of Honour and Trust having convened and gathered together some Tides-men and small understanding Clarks and Attorneys that were well inclined to set their Watches by Cromwells new Court-Dial did in order to the Regulation of the Law propound a Law to be made against Fines to be paid upon Original Writs for that the best reason that they could give against it it was against the reason of the Fundamental Laws of England which never imposeth any Fines but against offenders and the like against Vtlaries which were unnecessary and did tend only to Charges and delay and that a second Summons being served upon a Defendant and left at his house and by the Sheriff or his Officer retorned upon Record the first Summons being made seven days before the day of Apparance in which time the Plaintiff may enter his Declaration in Court and if no Apparance entred within eight days after then a new Summons in the nature of a Scire facias to be awarded upon the Imparlance roll to summon him to appear at a certain day to come when not appearing and pleading within eight days after Judgment shall be given by default Mr. John Jones of Nayoth in the County of Brecon in a Book printed and published in the same year entituled Judges Judged out of their own mouths or the Question resolved by Magna Charta who have been Englands Enemies King-seducers and the Peoples destroyers from King Henry the 3d. to King Henry the 8th and before and since stated by Sir Edward Coke late Lord Chief Justice of the Court of Kings-Bench wherein that mighty Cambro-Britain in his own opinion doth with as little Law as Reason charge the Judges and Professors of the Law with the destruction of honest men whom it should save and the saving of all those whom it should destroy or punish for unlawful respects and considerations tending to their own profits and ends And that by Prerogative Statutes devised by mercenary Lawyers to steal from the people their Birth-right contrary to Magna Charta and the Common Law of England they are become an intollerable mischief to the Commonwealth and do deserve exemplary punishments and cites the said Sir Edward Cokes opinion
to be so unjust as where they gave a Plaintiff but three hours to Plead they allowed the Defendant nine And it is not yet gone out of the memory of Man that in the year 1642 or 1643 the course of stealing or hurrying of Judgments now unhappily borrowed from the Innovation of the late wicked times of Usurpation in Actions of Ejectment was believed by Justice Bacon in the Court of Kings Bench and Justice Reeve in the Court of Common Pleas to be such a vioviolation of our Laws as they Publickly declaimed against it and threatned to imprison any Attorney that should practice in such a manner And with great authority and warrant of our Lawes and right reason for that as it was justly and truely said by the Judges in the Reign of King Edward the first that non summonitus nec attachiatus per Legem terre prejudiciari non potest and Fleta an approved Lawyer in the Reign of that King and King Edward the second his Son hath published it to be a great and known Truth that the Court of Common Pleas cannot hold Plea in real and personal Actions without the Commission or Authority of a Writ original out of the Chancery and that without it nec Warrantum nec Jurisdictionem neque Coercionem habent and our Laws did then and long after not proceed upon such warrant or commission until the Plaintiff had actually given sureties to prosecute and maintain his action and the Sheriff to whom such original Writ was directed for to summon or attach the debtor to appear before the said justices had returned that he was summoned or attached as the nature of the Action required or had nothing whereby to be summoned or attached When but a few years preceding that well deserved indignation of those two worthy Judges that excellent most just lawdable and rational course of justice had been endeavoured to have been subverted by one Elsliot of a degree betwixt an Attorney and a Barrister and a man very bold able enough to make and contrive tricks and abuses in Law proceedings who having about the middle of the reign of King Charles the Martyr as a Reprobate and Cast away in the Law shifted himself from England into Ireland and from thence after some bad prancks there played returning back again with as much poverty as impudence attending upon him and having a desire to get some money by a contrivance to gain a sudaine possession of some Lands or houses for one as bad as himself upon a judgment by default against the Landlord or his Tenant who were to know nothing of it caused a declaration to be prepared in an action of Ejectment against a feigned Def t. or ejector in the name of a feigned Lessee upon a short Lease pretended to be made by his naughty Clyent and left at the house of the Tenant who not well apprehending the force and extent of the project a judgment by default was entred possession surprized and taken for which upon complaint made to the Judges of the Court of Kings Bench in which Court the action was supposed to have been laid and examination of the fact the judgment was made void possession restored and Master Elsliot the contriver committed and told by Justice Barkley that it was a shame that ever he should come or shew his face in a Court of justice Howsoever getting himself afterwards enlarged and the confusion and troubles of the late civil Warrs disturbing and breaking in upon the Law and all the Courts of Justice Mr. Elsliot began again to appear to be somebody engages in another exploit which was to gain by the like device accompanied with force some other naughty ways possession of an house and a very considerable estate in Lands in the County of Essex of Sir Adam Littletons the Father of Sir Thomas Littleton Knight now a member of the house of Commons in Parliament who to his great cost and trouble endeavouring to extricate and free himself and his Fathers Estate from the peril and danger of such a villany may well remember that a counterfeit record was in that pretended suit privatly layd in the office of the Records in the Tower of London sworn unto and offered to be justified but was at length taken as it ought to be for a Roguish piece of Forgery and Sir Adam Littleton and his Estate freed from any further disturbance Whilst that no smal parcel of Knavery being in great respect with the Agitators of the then called Parliament Army Levellers other State moulders and stiling himself the Esquire at armes being somtimes a Prisoner in New-gate and somtimes out wanted not a Liberal maintenance from his Patrons and great Masters until death shortly after unexpectedly rid the world of him From which reasonless and ungodly formula or way of proceeding rather to be exploded then embraced in actions of Ejectment and so utterly against the Law evil examples being oftner followed then good by some of his proselites and the connivance or want of courage in some of the Judges in the time of the Cromwelian usurpation dum sui non fuerunt knowing better but doing worse the same came again to be revived and creep into an allowance with a note indorced by the Attorney in the name of the incognito or casual ejector directed to the Tenant or Landlord requiring them to appeare and look to the action and confess Lease Ouster and Entry otherwise he must and would confess a judgment or let it pass by default As if such a judgment acknowledged by practice and confederacy could not with a great deal of ease have been reversed by a court that should not be so abused and the parties contrivant severely punished Of which kind of irregularity in the Law and wandring out of the old Paths never to be justified the Justices of the court of Kings-bench have been so sensible as they have for some years last past caused a Writ of Latitat which antiently was used to be warranted by a VVrit Original of the Chancery to be awarded and sued out against the feigned ejector And it is not half a yeare agoe since the Pillory of Westminster proclaimed a Brewer to be more Crafty then wise or honest when to gain an indirect possession of some houses by Judgments upon defaults having fudled the Tenants with Drink and Tobacco And giving them peices of the declarations as waste paper when they knew not what had been written therein to give fire to their tobacco thought he had snapt them with judgments upon defaults when he made oath that he had left declarations at their houses where they were in that manner made drunk and could neither say or sware to the contrary But unde or from whence soever it came or if this new manner of Law proceedings could have derived its pedegree from any more Noble an Ancestor It will if every Client and his Attorney who is no member of the court but only
be made In the seventeenth year of the Reign of King Edward the second a nihil habet being returned by a Sheriff upon a Distringas in wast a Capias was awarded by the Justices of the Court of Common Pleas against the defendant And that if a Sheriff return upon a pone a Tarde that the VVrit came so late unto him as he could not execute it and it be averred that the VVrit came time enough or that the Party was present and might be attached the Sheriff was to be amerced Personal Actions saith the Mirrour of Justice so much admired by Sir Edward Coke have their introductions by Attachments of their Bodies real by Summons and mixt actions By Summons and after by Attachment in personal Action And in the same Kings Reign if a Religious man Professed had forsaken the house and become vagrant a VVrit upon a Certificate of the Abbot or Prior issued out of the Chancery to the Sheriff to take him In the eight year of the Reign of King Edward the third presentatio facta fuit apud Lincolne contra Thomam de Carleton sub Vicecomitem Indictatum de extorsionibus aliis malefactis inter alia quod mittit homines arrestatos pro debitis in ergastulum strictum fetidum inter latrones quousque finem fecerint cum illo pro deliberatione sua extra c. Contra formam statuti plurima alia pro quibus fecit finem cum Rege postea pardonatur per breve domini Regis eo quod invenit Regi in guerra sua Scotiae tres homines armatos duos Hobelarios Thomas de Carleton under Sheriff of the county of Lincolne was indicted at Lincoln for several Extortions and Misdemeanors and amongst other things for that he did put such as were Prisoners and arrested for Debt in a close and loathsom Prison amongst Theeves until they gave him mony for their better accomodation against the form of the Statute and did commit many other Misdemeanours for which he paid a Fine to the King and was pardoned for that he furnished the King in his VVars in Scotland with three armed men and two Hoblers or common Soldiers By an Act of Parliament made in the 18 year of the Reign of the same King a Capias is to be awarded against such as not having wherewithal to live do refuse to serve 22. Ed. 3. It was held for Law that upon a Judgment obtained for Debt or Damages the Body of the Defendant might be taken in execution and by the opinion of Thorpe and Basset Judges where conusance of Pleas is granted there are also granted all things necessary unto it as to proceed by way of Capias Distresse c. And it was in those times agreed to be Law that the Judges have Power by Word of Mouth to command a Defendant to be Attached and that he that Bailed a man might by the Law without Process Arrest or take the partie Bailed and bring him into the Court. All which put together and brought to a due consideration with the small or no difference which is betwixt a Pone and a Capias as to the Attaching and Compelling of Defendants to appear in the Tenor and antiently practised and yet intended use of it may be enough to Rescue us from the imputation of Error or presumption if pace tanti viri we shall take that which hath been said in Sir Will. Herberts case by Sir Edward Coke in his third Reports that the Body of a Defendant in an Action of debt was not subject or lyable to an execution before the Statute made in the 25th year of the Reign of King Edward the third to be no more than an opinion built upon a great mistake for that Statute was not made only to give Process of Arrest by Capias upon a nihil habet or non est Inventus upon a Pone or a nihil habet or non est Inventus returned upon a Distringas by a Sheriff because it was so before by the Common Law of England it being altogether improbable that those who had Lands or any visible Estate in Goods or Chattels were before the making of that Statute always Resident or did never hide or absent themselves for Debt or some other Actions to avoid a Summons or some Arrest or compulsory way to bring them into Courts of Justice to answer and give satisfaction unto such as had cause to complain of them or that those who had no Lands or Goods were always to be free and exempted from any restraint or arrest of their Bodys upon actions of Debt or for any other matters commenced against them But was intended only to have Process to the Exigend and Utlary which could not be without a Write of Capias in Actions of Debt detinue of Chattels and taking of Beasts per Capias Exigend selon retourne du vicecount come home use en breifs daccompt by Capias and Exigenâ— according to the return of the Sheriff as was used in Writs of accompt and being at the petition of the Commons in Parliament priont les Commons the King as the record it self witnesseth did answer I l plese ou Roy que ainsi soit quil soit mys en Estatut it pleaseth the King that it should be so and that it be put or formed into a Statute And the reason of that petition of the Commons in Parliament to the King which introduced and procured that Act of Parliament many Acts of Parliament and good Laws in the former Ages being usher'd in and obtained by the Petitions of the Commons in Parliament to their King and Sovereign may in all probability seem to be for that they did not think either the former Process of the Law by Summons Pone Distringas or Capias to be severe or sufficiently coercive or so powerful to bring a Defendant to Justice as the fear of an Utlary which in the Saxons times were so Terrible as he that was outlawed was accompted to be a Friendless or Lawless man and was afterwards so formidable to those that by the contempt of the Laws incurred in the forfeiture of their Liberties Goods Chattels Profits of their Lands and Benifits of the Laws as it might well be believed every man would be careful to avoid so great a danger and trouble And therefore in the eighteenth year of the Reign of that King being but seven years before the making of that Statute it was deemed to be for the good of the People to have it declared by Act of Parliament in what cases process of Exigend and Utlary should be that is to say against such as received the Kings Wool or Mony and detained it such as transported Wool not Cocquetted or without Custom against Conspirators and Confederates of quarrels such as commited Ryots and brought in false mony if they could not be found or brought in by Attachment or Distress and not
against any other And by another Statute of the same year no exigend was to be granted in trespass but where it was for breach of the Peace and at this day notwithstanding the Statute of 25. E. 3. ca. 17. no Writ of Capias can be made without a nihil habet returned nor could a Capias in accompt be otherwise made before the making of that Statute nor can be since without a nihil habet returned by the Sheriffe unless the Coâ—â—t should by their coercive power of punishing contempts and contumacy think fit to do it as is now done by Attachment in Chancery upon a Defendants not appearing and was long before that Statute done by the Judges of our Courts of Common Law for not obeying prohibitions or VVrits Commanding the not Impanâ—lling of one above the age of 70 years to be of a Jury a VVrit to replevin or Bayl a man which was Imprisoned upon a moderata misericordia against a Steward or Bayliffe of a Manour for amercing too much against a Sheriffe for not Summoning or misreturning a Jury and the like they being as well enabled to cause a Defendant to be attached or arrested for a default or contempt in refusing to appear before them as they did usually before that statute and do yet award a grand Cape against the Lands of a Tenant for not appearing in a real Action make out a Capias pro fine Imprison a Defendant for Pleading non est factum to a Bond or other deed after it is found against him and a Capias to arrest such as shall make a Rescue as they did before that statute and do yet make a Capias upon a nihil habet returned upon an original in accompt when the Statute of Marlbridge 52. H. 3. cap. 23. only gives it upon a Distringas when the Defendant hath nothing to be distrained and as they did before the statute of 25. E. 3. cap. 17 and yet do in actions of Trespass make a Capias upon a nihil habet returned instead of a Distringas when the original Writ out of the Chancery is a Pone or attachment Otherwise they cannot do Justice to those that complain and their jurisdiction will be useless and to no purpose saith Mr. Selden and therefore where ever there is the one of necessity there must be the other and the Judges saith Glanvil in H. 2. time had power to Punish contempts and such as should absent themselves And had no less in the Reign of King Henry 3 when it was said by Bracton ex quo eis commissa est causa simpliciter extenditur eorum Jurisdictio ad omnia sine quibus causa terminari non potest quantum ad judicium executionem judicii when they are commissionated to hear a cause their jurisdiction is to be extended unto that without which the cause as to the judgement and execution thereof cannot be determined and did not want a coercive power in the Reign of King Edward the 1. when a man could not have a VVrit de homine replegiando when he is taken by the commandment of the chief Justice and upon all contempts made to any Courts of Record in disobeying the commandment of the King under his great Seal the offender is to be fined and imprisoned for jurisdictions saith the civil Law are maintained and upheld by such kind of coercions and is no more either as to the point of contumacy or when the defendants have not goods sufficient then is now usually done in the collecting the excise or monthly assessements when the collectors where no distress can be found are impowered to take and imprison the Body and even the System maker in the time of the late rebellion when the inclosures of the Law and all that supported or savoured of Monarchy were endeavoured to be thrown down and every discontented or foolish fancy would be a Legislator and busie it self in the alteration and spoiling of our Laws could not tell how to avoid the allowing of an arrest or Capias where the defendant had no visible and certain Estate whereby to be Summoned And with much more which might be alledg'd for the antiquity legality rationality long approbation and usefulness of the Writs and Process of arrest and Utlary which have been and are a great part of the power and ancient rights and customs of our Courts of Justice without which they can neither subsist exercise maintain or Keep their authorities or accomplish the design and ends of justice and their constitution may inform all those that would not bind or make themselves more than apprentices to those inconsiderate clamours which since that fatal and unhappy year 1641 have been raised by the mobile scelestum vulgus ignorant and plundering part of the People and their new Fangled devices and designs for the banishment or alteration of our Laws which they but a little before had cryed up and publickly professed to be their birth-right And by the Extirpation of Monarchy Kingly and Church government plow up the Kingdom to their own ungodly advantages and profits and render it to be in a worse and more barbarous condition then Wat Tiler Jack Cade or Ket could have brought it unto if their several Rebellions and Clounery had gained their expected success That there is nothing to uphold those their reasonless desires of Innovation And that our Fore-fathers were so well content with the benefit of that Act of Parliament of 25. E. 3. for the proceedings by Writ of Capias and by Process of Exigend to the Utlary in Actions of Debt detinue of Chattels and taking of Beasts for that may appear to be the only design and purpose of that Statute And did so little believe the Process by way of Capias and Arrest to be any invasion of their liberties and rights of Freemen as they did in the said Parliament Petition for and obtain an Act of Parliament that no man might be taken but by Indictment or Presentment or by Proces made by Writ origynal at the common Law or to be prejudicial unto them or their posterities and in the 38 year of the Reign of that Kiâ—g Although great mischiefes did as was complained to that King in a Parliament holden in the seven and thirtieth year of his Reign often happen and dayly come because that Escheators Sheriffs and other the Kings Ministers did seise the Lands Goods and Chattels of many surmising that they were Out-Lawed where they were not because they did beare such names as those that were Outlawed the benefits of the aforesaid Statute of 25 E. 3 for Process of Utlary by VVrits of Capias and Exigend which was made but two years before did so over ballancâ— that or other inconveniences as might happen in some mens particulars as the VVisdom of that King and Parliament could not think it fit to repeal that Statute or forbid or discourage the right use of it but did only ordain that if any complained he
Man took a Free-man as a Pledge by force and shut him up as a Prisoner he was to pay forty Shillings penalty If the time for the Pawn was expired and it was not within that time redeemed he was to bring it before the Judge whereupon an Apprisement made by three honest Men he was to be licensed to sell it restoring to the Owner the over-plus If Men or Maids were taken in pledge and being kept in the Custody of the Creditor had stolen any thing he was to endure the dammage If Oxen Horses Minuta Animalia or smaller Cattle Vestments Jewels and Vtensils of Husbandry remained as pawns with the Creditor by the space of twelve nights and they were not redeemed he might make use of them as his own And if he that owed the Pawn or Pledge complained that they were misused he could have nothing but the Creditors Oath concerning it If any did pawn a Man or Maid-servant of another Man 's by a mistake he was to procure them to be released And if the Creditor was questioned for it by their Master he was to take his Oath that he thought the Debtor had pawned them If any Debtor did against the Law give any Man in pawn or pledge without Licence he was to pay fourty Shillings penalty And if the Creditor took Hogs in pledge without order both he and the Driver were to undergo severe penalties And the grievances and inconveniences did by pawning and pledging grow so high and burdensom as by Theodorico King of the Gothes and Italy the pawning of the Children by their Parents was forbidden And Charles the Great or Charlemaine added to his Lombardy Laws concerning pledging that he Et ille cujus est causa the Emperor and the Creditor Would as they please shew mercy and ordained that No Judge should cause Men to pawn any thing contrary to Law especially their Oxen Quia audivimus muâ—â—a damna afflictiones propter hoc Populum nostrum sustinuisse For that he understood that his People had lain under many losses and afflictions by it And the borrowing of Money by Pawns and Pledges and securing of it thoâ—gh with less usury and Brocage then now was in the former Ages so very difficult and upon hard terms as upon the putting in a Fidejussor or Surety For a Debt or Money amongst the Burgundians he That became the Surety carried home to his house the Debtor there to remain as his pledge for performance And where the Surety had not so secured himself he was Before Witnesses to have three times more than the Debt secured or gaged unto him And if the Debt were not paid within three Moneths was to retain it to his own use And the Old Bavarians did use To take the Bodies of Men for Pledges or Security and shut them up as Prisoners in their houses Nor was the borrowing of Money in the Kingdom of Pegu or Brama very pleasant where the Wife Children and Slaves of the Borrowers are bound to the Creditors who may carry them to their Houses and there shut them up or sell them And was not with us in the times of greater Charity which was then believed to be a Scala Caelorum very meritorious and the most ready way to blessedness so easie as it is now when in the Reign of our King Henry the Second and long before and sometimes after the Lenders of Money if they were any thing suspicious of the return and payment thereof did not seldom take an Oath of the Borrower besides his Bond or Pledges which gave the Ecclesiastical Courts an occasion or pretence of taking cognisance of Debts and incroaching upon the Jurisdiction of the Kings Temporal Courts of Justice as may be seen in many Plea Rolls in our Kings Courts of Justice in the Reigns of King Henry the 3d. Edward the 1 2d and 3d. where Prohibitions were sent into the Spiritual Courts by our Kings and their Temporal Courts of Justice and Actions were brought upon the disobeying of them by the Parties grieved as well against the Ecclesiastical Judges as the Parties therein prosecuting Quare traxerunt eos in placitum in Curia Christianitatis in placito debiti contra prohibitionem Domini Regis And then there was no doubt but that a Sentence being given for the payment of the Debt an Excommunication was upon the non prrformance denounced and a Writ de Excommunicatum Capiendo often granted by the Secular Power to arrest and take the Body of the Defendant which kind of Writ and Proces was as early as the Constitutions or Parliament of Clarendon in the tenth year of the Reign of King Henry the Second Insomuch as King Edward the First to preserve the Priviledge of his Menial Household Servants and prevent their Arrests and Imprisonments upon Excommunications held it necessary to make and issue out his Writ De promulgatoribus Sententiam Excommunicationis in Ministros Regis capiendis imprisonandis to take and imprison such as excommunicated any of them CHAP. IX The difference betwixt borrowing of Money upon Lands and real Estate and the procuring of it upon personal security and that without trust and personal security Trade cannot well or at all subsist ANd the difference betwixt the borrowing of Money upon Lands and real Estate and the procuring of it upon personal security may by the Borrowers sadly be evidenced When security by Lands is now most commonly by way of Leafe and Release being a dark way of assurance and within the memory of man at first only purposely concontrived by Serjeant Francis Moore at the Request of the Lord Norris to the end that some of his Kindred or near Relations should not take notice by any search of publick Records what conveyance or setlement he should make of his Estate and by the sad experience of sometimes double or treble Mort-gages hath not appeared to have been so safe as the former which was more publick and of Record And when for a Security of two thousand Pounds the Borrower must upon strange scrutinies and almost a Spanish Inquisition the torture of the Body only excepted have his Estate Evidences and Credit put upon the Rack and be bound with an abundance of over-jealous hard-hearted thorney Covenants and unmerciful provisoes and conditions too near of Kin to the Scottish moveable Bonds mort-gage Lands worth four or five thousand Pounds or more give his answer upon Oath to a Bill in Chancery what Judgments Statutes or Incumbrances are upon it and so embroil that and the residue of his Lands and Estate with Statutes Judgments and Recognizances of great penalties for the performance of those Covenants as he shall hardly be able to have any more Credit by it or Money lent upon it or if the Creditor who to be sure to keep him in the Chaines or thraldom of his power and threatning will seldom give him time for above one year or two for the repayment
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
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.
at once in a Common persons case whereby to have Damages twice recovered against him After an Elegit although the Sheriff return that he hath neither Lands or Goods the plaintiff shall not have an Execution against the Body a Capias ad satisfaciendum doth not lie after a Fieri Facias until a Nulla bona returned nor a Fieri Facias or Elegit after Imprisonment of the Defendants body A Writ of Annuity purchased pending another was abated where two brought Writs of Quare Impedit one against the other returnable at one and the same day the one was discontinued and they pleaded upon the other in the Case between Bery and Heard in the Seventh Year of the Reign of King Charles the Martyr it was in the Court of Kings Bench adjudged that where a man had his Election to seek his Remedy by the Commou Law or by the Statute of Glocester that gave an Action of Wastâ— he could not do it by the one way and the other for our Laws and Courts of Justice would never allow a Plaintiff to have two Actions or Remedies for one and the same thing at the same time but were so careful to hinder it as they suffered discontinuance of Process and Pleas in Abatements where one Action was brought depending another for the same matter And Bracton saith that where a man hath an Action depending and bringeth another for the same thing Cadit breve posterius the later is to be quashed agreeable whereunto at this day in Chancery where a man hath an Action depending at the Common Law and seeks relief in Chancery upon the same Account he is put to make his Election in which Court he will proceed And therefore if such an Arbitrary Act of Parliament should be made to give the Plaintiffs their Election to proceed by the way of the new contrived way of peremptory Summons the former wayes of Summons Pone and Distrainings or Capias not being prohibited the proceeding by process of peremptory Summons ought to be entred in a Court of Record and entred may be more prejudicial to the Plaintiffs then they expected for if they cannot resort or return again to the former better wayes of proceedings they may find cause enough to repent of their being so fond of a new way when the old will appear to have been much better which to reverse or discontinue cannot be for the Interest of the King or his people when it shall have no better reason or foundation for it For if the Proposers could give unto themselves or any of their fellow Subjects any assurance that it will be probably for their good and benefit yet if the King who is supreme and superiour to all the Judges in his Dominions were but a subordinate Judge he would as the Civil Law declareth transgress the rules of Justice and Right reason if he should follow opinionem probabilem relicta rejecta probabiliori an opinion that is but probable when there is an opinion to the contrary more probable and S. D. and his then Confederates might have considered that a Process against the Goods and Chattcls of a Defendant is of a different nature from that which is against his Body that duo contradictoria non sint nec possunt esse simul vera contradictions neither do or can at one and the same time agree and that Practica sunt speculativis praeferenda what is in speculation of a possibility not at all experimented is to give place to that which with an universal or major part of a consent hath been long practised CHAP. XXI That it will not be for the Interest of the King or his Subjects to give way to that Design which may open a passage to other Innovations and Designes as much if not more inconvenient and prejudicial FOr that all his good people by the sad and inexpressible calamities and miseries which they have lately endured by the Wars and Tumults unjustly raised against thc King and his Laws are not now to learn what a deep dyed hypocrisie and pretences for Reformation would have or to believe the evil consequences which have risen from a too much yielding to those popular humors which as that Royal Martyr hath in his Solitudes and Sufferings declared served to give life and strength to the almost infinite activity of those men who studied with all diligence and policy to improve their Innovating designes how dangerous the permitting of Innovations would be how careful all Princes and wise men have heretofore been to avoid them so that if there were nothing else to make the world out of love with them the never to be satisfied inquietude of many of that sort of people in the matter of Religion and Church-government and the swearing liking and shortly after disliking and hating the Solemn League and Covenant the by too many as it may be feared intended standing Rule of Rebellion and their unfixedness in every thing but their unwearied malice and ill designes against Monarchy and the present Government do and will abundantly proclaim that whatever hath been condiscended unto and by that a measure may be taken of the Future in giving them a liberty to play the Fools with the Sacred Scriptures hath but like the thirst and alwayes craving of an Hydropick sick person increased and provoked a desire of having more Wherefore they that built upon such wicked principles of overturning the State and Regal Government are if they had any reason or were ever likely to have any for their demands to be content to be denyed until they shall have renounced those pernicious ends and dangerous Tenents and positions they began their works and deeds of darkness withall and shall have proved that Justice ought to have no Sword to defend and protect her self and others that Courts of Justice can be to any purpose without a certain power constraining punishing Authority that the process of Arrest and Utlary are not incidents thereof and to be necessary Attendants thereupon that the Eternal and Almighty Law giver did not allow of that which the Greeks Romans those great Ingrossers of wisdom after the many very many commotions of their people for their more severe way of enforcing the paymcnt of Debts performance of Contracts preservation of the publick Faith and one man unto another which Tully held to be so very necessary as he was of opinion that nulla res vehementius rempublicam continet quam fides that nothing more concerns a Common-wealth then the keeping of Faith Credit therefore adviseth it by all meanes to be preserved and kept have acknowledged to be the best and most contenting Expedient for an obedience to Judges and Courts of Justice and the Civil Magistrates and that all the Essaies of an Indulgence to liberty made use of by some other Nations could never yet so far prevail as to make the most of the civilized Nations of the