or peremptory is by the Civilians themselves acknowledged to be a deviation à jure communi in casibus necessitatis tantum recepta quando alio modo quiâ— citari non potest Secondly Vbi locus non est â—utus ubi citandus habitat Thirdly Si persona est vagabunda quo casu edictum eo loco affigi debet ubi solita est conversari That such a possession is notwithstanding but fiduciary and the Plaintiff only put in possession Custodia causa vice pignoris detiâ—et donee reus veniat responsurus That a 2d trial decree or sentence restitutio in integrum do not seldom afterwards follow And that appeals from the lower Courts or Judges to the higher Commissions of adjuncts and revisions will never allow that Law to be â—o desirable expedite or little chargeable as our Common Laws are which our Novellists would perswade us to renounce and abandon Of which and the disparity of a great part of the Body of the Civil Laws with those of our cipal and common Laws the Dukes Earls and Barons of England were so sensible as in the eleventh year of the Reign of King Richard the 2. in the cause and appeal of Thomas Duke of Glocester and others against Robert de Vere Duke of Ireland the Earl of Suffolk and others they denyed to proceed to Judgment thereupon according to the Law civil and declared que la Roialme de Angliterre ne estoit devant ces Heures ne al intent du Roy signiours de parlement unques ne serra rule ne govern per le ley civil and our Ancestors more than what they retained of some of the actions rules and directions of reason which that excellent Law afforded and was necessary would not as our learned Selden hath observed constanti adhaesione by a constant perseverance and affection be drawn from that singular reverence and esteem which they had of the common Law which so long a course of time and antiquity had fitted to their nature and Genius In so much as William de la Pole Duke of Suffolk was in the Reign of King Henry the sixth accused amongst other things by the Commons in Parliament that he had sought to introduce the Civil Law And the great Cardinal Wolsey was in the Reign of King Henery the eight indicted or informed against quod ipse intendebat finaliter antiquissimas Anglicanas leges penitus subvertere enervare in universum hoc Regnum Anglie ejusdem Regni populum legibus Imperialibus dict legibus Civilibus earundem legum canonibus subjugare And King James coming from a Kingdom where those Laws were much in use and seemed to have some inclination to introduce or intermingle some part of it with our Common Laws did notwithstanding forbear to do it acknowledging that the Civil Law was not applicable to this government or fit for it And our Innovators that have been so wiling to intermingle with their System that part of the Civil Law which in the cases of contumacy did allowe a missio bonorum repleuisable as aforesaid may upon a further search and enquiry satisfie themselves and others that for the expedition of Justice put on and perswaded by the increase of trade and insolvency of debtors the Caesarean or Civil Law hath long ago forsaken their course of granting judgments for not appearing missionem rum and Seisure and found the Citatio realis captura incarceratio to be the more ready and less prejudicial way of compelling debtors or Defendants to appear in judgment For certainly to inforce perswade or give a libertie to the people in their Law Suits and concernments depending thereupon to circulate when they may go a more easy and less expensive way nearer more streight and better conducing to their honest ends will be but to vex and tire both Plaintiffs and defendants and multiply their charges When to draw and prepare the declarations which in Debt and common Actions were until the fourteenth year of the Reign of King James to be entred by the Filacers and ought yet if the cause or reason of their remitting that ancient part of their imployment do cease and be taken away the Plaintiffs will in this new devised expedient for a quick and Pie-powder Course of Justice be put to a charge for the drawing of their Declarations before hand when it may be there will be no need of them and to pay for the Copies of them which in a more regular course after apparances entred were to be payed for by the Defendants And to the Trouble and charge of entring judgments and the hazard of the loss of charges poundage aud other fees payd to Sheriffs and Bayliffs upon execution or paying of damages where they are wrongfully or not well obtained multitude of Affidavits pro con of motions in Court on the one side and the other many referrences and reports wagers of non-summons writs of restitution actions on the case for non summons or for slander or defamation brought for malitious contrivances cum muliis aliis which will increase and heighten the Bill of Charges And that goods Seized inventaried and sold by under Sheriffs and Bayliffs at half or less value though it may suffice one greedy and merciless Creditor will not be unlikely to defeat another or many others of their more just debts and utterly blast the Debtor in his credit by which he might well have subsisted and survived the disgrace and trouble of so furious a prosecution And that the long ago trodden path or way of compelling or bringing men unto judgment or unto Courts of Justice would not so frequently be made use of in England the way of Summons Pone and distress being not yet altogether forsaken and disused as it was formerly for that betwixt the Reigns of Canutus a Danish King the 25 year of the reign of King Edward the Third and for some ages after there neither could be any either frequency of arrest or necessity for it as there hath been since and is now CHAP. III. The reason and necessity of the more frequâ—nt use of VVrits of Arrest and Outlawry then was before thi making of the Statute of 25 E. ca. 17. IN regard that in those former Ages there were more Lands than Tenants more real Estates but little personal the Trade of the Nation not the fortieth part of what it is now so little before the Reign of King Edward the third as those few Merchants that came hither had Letters of safe conduct granted unto them before they came and that the Commerce and Trade which was in King Edward the Third's time long after was only with the Esterlings and Hanse Towns Burgundy Aquitaine some Genoese and Italian Merchants the Turky East and West Indy and Affrican trades not then or long after known or used Usury so horrid and damnable a Crime as it was a cause of Excommunication denyal
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
happen consequences hunted to death upon a supposition of subverting the Laws when if it had been either possible or true it could upon an Accumulation of all â—his pretended Crimes have extended no farther then an endeavour to subvert one of our Fundamental Laws may be their own Judges convict and justly condemn themselves for unpardonable faults in seeking to subvert so many of our Fundamental Laws uno Ictu with one stroke and at once which they themselves â—ave sworn to maintain and defend Notwithstanding all which Oliver Cromwell did so well understaâ—d his own interest and single-personship CHAP. XVII That neither Oliver Cromwell or his Son Richard the second mock Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever changing kind of Refermations ANd that the administration of Justice was a great end and one of the principal parts of Government and remembred that the men of Westminster of which he was too great a member and director calling themselves after the murther of the King a Parliament did the 9th day of February 1648 declare that they were fully resolved to maintain and should and would uphold preserve and keep the Fundamental Laws of this Nation for and concerning the preservation of the lives properties and liberties of the people with all things incident thereunto and required all Judges Justices Sheriffs Officers and Ministers of Justice to proceed in their respective places and offices accordingly and did the 17th day of Marâ—h then next following declare That our Laws being duly executed are the most just free and equal of any other Laws in the world and that they were very sensible of the excellency great antiquity and equality of them and that the liberty property and peace of the Subjects were fully preserved by them did so little believe it to be for the good and honor of the Nation to hearken or yeild unto the product of those wind-mil giddy and vertiginous brains or by the perswasion of some idle and ridiculous Pamphlets written and contrived by such as would for their own advantages plow up the Laws and reasonable customes of the Kingdom to settle and set up a Weather-cock Government ridiculous to all other Nations as he did in his Speech to that which he called his Parliament upon his Dissolution of them the 12th day of September 1654. declare that in every Government there must be somewhat fundamental somewhat like a Magna Charta that should be unalterable that some things are Fundamentals which he should deal plainly with them may not be parted with but were to be delivered over to posterity else every succeeding Parliament would be disputing to change and alter the Government and we shall be as often brought into Confusion as we have Parliaments and he and his Parliaments in the time of his hypocritical Government did so little relish the taking away of the process of Arrest and Utlary as they ordered only prisoners to be discharged out of prison if they made Oath that they were not worth five pounds after their Debts paid and undertake to pay their Debts when they should be better enabled which to procure their liberty made many lustily to Forswear themselves and had no great cause to be in love with their pretended Reformations when the fiery Mr. John Jones of Nayoth was after his abusing and rayling upon our Laws found guilty of deceits and committed by them a prisoner to the Fleet. And when in the year 1653. or beginning of the next ensuing by an Act of Parliament had for the relief of Creditors constituted a Committee for London and the Suburbs thereof to sit at Salters-Hall and several other Committees in all the Counties of England and Wales and impowred them to be the only Judges though not Sworn to hear and determine matters of Debt and escape to fine for breach of trust and concealments imprison set at liberty remaund to prison adjudge to the Pillory or house of Correction grant lease or sell the Estates of the prisoners were to admit of no legal forms but proceed in a summary way and to be responsible to none but the Parliament and sell dead prisoners Estates as well as if they were living whether the Lands were Entailed or not It was upon complaint of some prisoners of Note and Worth alledged and offered to be proved that one of those kind of Judges at Salters-Hall having two Brothers practising before that Committee the one as a Solicitor and the other as a Councellor at Law would bring his party with him whisper unto his Fellow-Judges arise from the Bench and go and sit by the Clark and make the Orders as he pleased and liked those his doings so well as he was heard to say he did not doubt but to make his place worth 1000 l. per Annum unto him before he had done with it and might be in good hopes of it when besides those his ungodly Extraordinaries large Salaries were allowed to him and his Brethren of that Committee for their Sons and Agents and the gain which they and their Confederates might have by the sale or indirect purchase thereof in other mens names that Committee were to have distributed amongst them two pence in the pound upon the sale of any prisoners Lands or Estates The pretending Gospel-Improvers in South-wales had shut up most of the Churches and gathered in the mean time one hundred fifty thousand pounds into their private purses and therefore both Oliver and Richard Cromwel their Councel Parliaments did only receive those unquiet Innovators Petitions and as they did in the determining of what should be Incumbrances fit to be put into a publick Registry or the taking away of Tythes make a shew of intending great matters when they only hung them upon long delay 's and an everlasting deliberation never to be brought to any conclusion And our Laws having thus long fought with Beasts like St. Paul at Ephesus might by his Majesties happy Restauration have given them no small assurance that they should have deserved some rest and tranquility but it seems as the wrongs done unto them were unrepented so were their patience and sufferings to be prolonged And the professors of our or any other good Laws should not be so contemptible when that blessed Apostle could be no less than a Lawyer when he sate and had been Educated at the feet of Gamaliel and was afterwards by his Apostolical Office and great Endowments in all manner of Learning such a darling and beloved of God Almighty as he had in his life-time the inexpressible joyes and wonders of the Third Heaven communicated unto him when they were before and that time and long after in better Ages of such an esteem and usefulness amongst the wiser and better sort of man-kind as they were justly called Sacerdotes Justitiae Ministers that sacrificed for the
THE Ancient Legal Fundamental and Necessary Rights OF Courts of Justice In their Writs of Capias Arrests and Process of Outlary And the Illegality many mischiefs and Inconveniences which may arrive to the People of England by the Proposals tendred to His Majesty and the High Court of Parliament for the abolishing of that old and better way and method of Justice and the establishing of a new by peremptory Summons and Citations in Actions of Debt By Fabian Philipps Esq Antonius Matheus in Praefat ad Lib de Auctâ—onibus Arduum est vetustis novitatem dare novis Autoritatem Dira per incantum Serpunt Contagia vulgus LONDON Printed for Christopher Wilkinson and are to be sold at his Shop at the Sign of the Black Boy in Fleet-street over against St. Dunstans Church 1676. The Contents of the Chapters Chap. 1. THe many mischiefs and inconveniences which may happen by an Act of Parliament if obtained for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired Chap. 2. That the most part of that desired Innovation was borrowed from Mr. Elsliot's wicked Invention and a wild Systeme not long after framed and from some also now much disused part of the Civil Laws Chap. 3. The reason and necessity of the more frequent use of Writs of Arrest and Vtlary then was before the Statute of 25 E. 3. cap. 17. Chap. 4. The Ancient use as well as necessity of the Process of Arrest and Outlawry in this and other Nations Chap. 5. The Process of Arrest and Vtlary are a more gentle way of compelling men to pay their Debts or appear in Courts of Justice then that which was formerly used Chap. 6. The delays and inconveniences of the Process of Summons Pone distringas were a great if not the only cause of the disuse thereof Chap. 7. The Writs and Process of Arrest and Outlawry have increased preserved and encouraged Trade better secured the Creditors Debts and made the borrowing of Money more easie then it was before Chap. 8. The pawn and ingagement of the Body is most commonly a better security then Lands or personal Estate upon which the borrowing of Money was not only very troublesome but difficult Chap. 9. 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 Chap. 10. The way of Capias and Arrest is no oppression or tyranny exercised upon the people since the making of the Statute of 25 E. 3. cap. 17. or hath been hitherto or may be destructive to their Liberties Chap. 11. That the wisest of the Grecian Commonwealths Athens and Sparta those great contenders for Liberty and preservers of it did in their establishments and methods of Justice neither understand or suspect any Tyranny or oppression to be in the necessary and modâ—rate use of the Process of Arrest Chap. 12. The troubles and seditions of the people of Rome concerning the whippings scourging selling for Bond-slaves and other cruelties used by Creditors in the suing and prosecution for their Debts and the troubles and endeavours of the Magistrates and Senators to appease them Chap. 13. That their Order made to pacifie a tumult was not perpetual or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restraints of their persons until they appeared in Courts of Justice or gave bayl to do it Chap. 14. That the Statute of 25 E. 3. cap. 17. which giveth Process of Capias and Exigent in Actions of Debt and other Actions therein mentioned is not repealed either by the Acts of Parliament of 28 E. 3. or 42 E. 3. cap. 1. there being no inconvenience or prejudice to the Publique good in those kind of Law proceedings which might deserve a repeal by those or any other Acts of Parliament Chap. 15. That the Nation hath not been base or slavish ever since the making of the said Act of Parliament of 25 E. 3. cap. 17. Chap. 16. An examination of the Opinions of Sir Edward Coke in his report of Sir William Herberts Case touching the Process of Arrest used in our Laws and the many Errors appearing in that Book or Manuscript called the Mirrour of Justice and the fictitious matters and relations mentioned therein Chap. 17. That the late incessant needless complaints against our Laws and the proceedings in our Courts of Justice had in the bottom of it a design of overturning Monarchy and Government and to create Offices places imployments and profits to the contrivers thereof and their party Chap. 18. That neither Oliver Cromwell or his Son Richard the second Mock-Protector or little Highness did conceive it to be reasonable or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever-changing kind of Reformations Chap. 19. What occasioned the contrivance of the former Projects and groundless Complaints against our Laws since his Majesties happy Restauration Chap. 20. That the Proceedings at the Common Law desired by the new way of a peremptory Summons or the old by Writs of Summons Pone Distringas or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable one with the other and that Laws being to be binding are to be certain and positive not arbitrary Chap. 21. That it will not be for the Interest of the King and his people to give way to that Design which may open a passage to other Innovations and Contrivances as much if not more inconvenient and prejudicial CHAP. I. The many mischiefs and inconveniences which may happen by an Act of Parliament to be made for the more speedy recovery of Debts upon Bonds or Bills under the Debtors hands and seals in the manner as is by some desired THe Suggestions and that which should be the Causes or inducements to such an Act of Parliament are greatly mistaken or if there happen any such Evils as are pretended they are Raro Contingentia and do but seldom happen And when they do arise have their originals from other Causes but not from Arrests in Actions of Debt which by the shortest account are and have been of 374. years continuance by order and approbation of many Acts of Parliament but may be demonstrated to have been of a far greater Age and equal to that of the Eldest Court or Method of Justice in this or any other civilized Nation in the world The mischances happening by two or three Bailiffs in 20. or 30 jears killed most commonly upon the score of their own provocation rudeness and misdemeanors are when they do so happen in the unruly Suburbs of London towards Westminster for in the other too vast extent of them an Age or Century is scarce able to furnish out one of those evil accidents And within the City of London where Credit seems to be the Life and
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
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
demand in the Writ specified be under 20. pounds are by the Rules and Custom of the Court of Common Pleas not to be insisted upon or if above not at all in the Case of Defendants being Executors or Administrators and if the Defendant for want of Bail for his appearance do continue in Prison three terms and no habeas Corpus be brought or declaration given or further prosecution made he is to be delivered by a Writ of Supersedeas made of course upon the apparance to the action only without any special Bail put in before a Judge or Bond given to the Sheriff and where special Bail is very seldom given it is but that if Judgment be obtained against the Defendant he shall render his body to Prison or satisfie the condemnation Our Writs of Arrest ad respondendum being ad Cautionem custodiam non ad poenam but to enforce a gage or pledge or to detain or put a Debtor or Defendant into the Custody of the Law to the end he may give Bail Judicatum solvere to abide the Judgment of the Court or if no Bail be required to appear to the Action And the Proces of Utlary which although they were not ordinarily used in Actions of debt before the making of the Statute of 25 E. 3. was notwithstanding in cases of trespas for breach of the Peace and for Contumacy and Contempts in not appearing warranted by the Laws of King Edgar Canutus Edward the Confessor and the practise of our Saxon Ancestors borrowed and deduced from the Ancient Customs of other Nations is not now so dreadful as it was in former Ages when as Bracton and Stamford do agree the Partie outlawed did forfeit Patriam Amicos omnia terras tenementa bona Catalla sua all that he could entitle himself unto was out of the protection of the King and his Laws and could not bring any action until he had rendered himself to Prison obtained his Charter of Pardon brought his Writ of Error and given Bail to answer the Action but may now without Bail unless specially required be admitted to reverse the Utlary before Judgment upon defect of Proclamation only or some small Error without a Writ of Error or the Record certified into the Court of Kings Bench or Errors assigned with other the many troubles and charges which that way produced The Plaintifs for fear of obstructing or narrowing the wayes of Justice are not put as they were anciently to find real Sureties to prosecute and make good their actions or to pay a Fine to the King if they do not as our Laws do intend they should or to make Oath of their debts or de non calumniando that the Action is not prosecuted in malice or upon sinister ends as the Civil Law enjoyned And the Statute of Westminster the second doth in Writs of Execution against the Goods and Chattels of a Defendant except Boves Affros de Caruca sua Oxen and Horses of Husbandry and the Writ imports as much in the tenor of it the Judges do without any Inquisition or proof that there were not other goods sufficient to satisfie the Execution permit for the Creditors more speedy attaining to his satisfaction all the goods to be taken in Execution which in more Ancient times was so unusual as a Defendant hath brought his Action against the Sheriff and the Plaintif for taking them in Execution when there was other personal Estate sufficient And do also suffer the Plaintiff to prosecute the Sureties upon a Bond when the Principal hath not been sued and was sufficient to pay the Debt or dammage which by the former course and practise of the Law was not allowed And our Writs of Exigent and Outlary were truly and properly only to be made use of where the Defendant refuseth to appear in contempt of a Court of Justice and the Proces thereof is fugitive or incertain where to be found taken or arrested hath no visible or certain Estate or lurketh in some Liberty of which there are many in England and Wales where the Kings ordinary Writs and Proces do not run or have any power or force and a Capias utlegatum carrieth with it in the same Writ a Non omittas propter aliquam libertatem and impowereth the Sheriff to enter into any Liberty and arrest the Defendant and by a special Capias utlegatum to seize and take at the same time all the Defendants Lands Goods Chattels and Estate into the Kings hands as forfeited for his Contempt and that seisure transferred into the Court of Exchequer bringeth the Plaintif an advantage to take a Lease of the King of the Lands so seised at a very low rent until the Defendant purge himself of the Contempt reverse the Outlary give Bail and appear unto the Action which being so consonant to the Outlawries Bannes and proscriptions of Germany and other Nations Kings and Princes in the like Cases to preserve their own Authority in that of their Courts of Justice and requiring some severity and a more then ordinary Proces hath been all the means which without force and violence and a greater disturbance of the People our Laws and a long Custom and usage of time have hitherto prescribed can contrive to bring unwilling Men to Judgment CHAP. VI. The delayes and inconveniences of the Proces of Summons Pone and Distringas were a great if not the only cause of the disuse thereof FOr the way and Course of Summons Pone and Distringas so much in use before that Statute of 25 E. 3. was unto Plaintifs as full of delayes as they were of increase of Charges and trouble which a view of the old Records of the Court of Common-Pleas before the making of that Statute by the many Writs of Alias and Pluries Distringas with issues forfeited and returned upon them occasioning a great proâ—it to the King and less to the Subjects and the many Writs of testatum Distringas made into other Countries where the Plaintifs averred that the Defendants had Lands and Estate suffiâ—ient and Writs of Averment and Enquiry made out upon too small issues returned directed unto the Justices of Assize to certifie if there might not be more issues returned and such a Writ of Enquiry to be executed in the Lent or Summer Vacations could not but cause a more long chargeable and troublesome delay to get better issues to be returned may help to attest the more necessary and better use of the Proces of Capias and Arrest and that Writs of Exigent and Outlawry will in the Cases aforesaid propter inevitabilem necessitatem be everlastingly necessary especially when in the same Parliament of 25 E 3. wherein Proces of Outlawry in Actions of Debt were granted a great complaint was made that the Steward and Marshal of the Kings House or their Deputies did upon Actions attach and distrain men by ten Marks of their Goods one day and by as much the next
day to their utter ruine and undoing And the Goods and Chattels must be such as the Sheriff can be confident the Defendant hath a property in for otherwise he will require Bonds or Sureties of the Plaintif to be saved harmless and where the Estate doth lye only in Goods and Chattels within an House the Sheriff may in a Town or City where are many Inmates or Lodgers and three or four sometimes in an House together be not a little puzled to know into whose Room he shall enter or upon whose property he seizeth and his Serjeants or Bailifs may be afraid to enter and distrain for fear of Actions to be brought against them And many of the Goods and Chattels may be such as the Law doth not allow to be distrained or if the Defendant hath Lands a Distringas issueth out against him and hath no Stock or Cattle upon it or they shall be beforehand eloigned or driven away as it may often happen there will be little profit made of the Land betwixt the Teste and return of the Writ especially if it come to be executed in the Winter season or that much of it is in Lease And then he must do as well as he may to get Tenants whereby to raise the profits or let it lye for Crows and Trespassers to raise it for him for Tenants such as wish well to the Defendant or are depending upon him being not likely to be willing to take or Rent it at all will be hardly got and those that do malice or maligne him will if they may not have it at cheap Rates be unwilling to adventure the hazard of actions of trespas or other inconveniences for a small term or time which can be no longer then until the Defendant shall appear or make his peace with the Plaintif or if the Plaintif should himself take a Lease of it for such a short term from the King if he may not have it at a very easie rate he will be as little a gainer as the Defendant by it and as far from the recovery of his Debt as those that had lately Writs of Distringas against the Company of the Vintners or Grocers in Actions of Debt for very great sums of Money whose Lands though it was well known they had a great proportion of them belonging to their several Companies were so invisible as the Sheriffs or the Bailifs of the County where they lay could not discover or would not tell where to find them And if they did or could find any Lands would to avoid the trouble of an Actual Eecution of the Writs of Distringas whereupon they were allowed no pondage Fees return small or petit Issues and but such as they could easily answer take off or procure an Indempnity for to save themselves harmless Or if a Tenant be himself in Debt and be distrained and his Stock taken away he is sure enough to be undone and his Landlord not a little prejudiced also by it when for want of Stock he cannot menage or hold his Farm any longer which the Statute of Westminster the 2. made in the 13th Year of the Reign of King Edward the First did as well believe as foresee when it prohibited the taking in Execution the Cattle and Utensils of Husbandry now not at all as to that particular obeyed or observed And the Writs and Proces of Distringas will be much more inconvenient and destructive to Trade and Trades-men when they become Creditors or shall be made Defendants and be distrained by Proces of Distringas for Debt or in any other personal Action for then such a Defendant may suddenly be ruined in his credit not only himself but ten or 20. of his Creditors suffer not a little by it And it may be when all is done the Action may appear to be but upon some malicious pretence or upon Covenant or Action of the Case battery or trespas where in no adjudication of the value of the Action can be had before a Trial or Writ to enquire of dammages and one hundred Pounds worth of Goods may be taken or spoiled upon an Action of less then so many Shillings for the Sheriff to have enough will not fail to seize more if he can come at it then the Demand of the Writ or the Plaintifs suggestion amounts unto and the Defendants Estate will thereby become ruined and racked as far as the greedy unconscionable or knavish pretences of a Plaintif for all are not likely to be conscionable or reasonable shall carry him unto and after he shall be thus pulled in pieces or condemned and executed before he be heard or come to his Trial or can well know what it is for will be left afterwards to make himself up as well as he can which to a Trades-man was never easie and seek his revenge or remedy by as many suits in Law or equity as himself or his Friends or necessities shall put him upon And when he hath appeared to the Action after he hath been undone a great deal more then the Action comes to cannot easily restore or so make himself up again as to be in the same plight or condition of Credit which he was in before And it is not also unusual to some Tradesmen when they find themselves sinking or to be in any desperate condition or likelyhood of breaking to endeavour more then they should to be most commonly before-hand with their Creditors make away their Goods and Wares lodge them in other Mens hands cover them under some secret and never to be discovered trusts and putting as much Money as they can into their Purses retire themselves into some Place incognito shut up their Shops and leave little or nothing therein and assoon as they can make it their business to compound and give their Creditors for very great Sums of Money owing to them no better a satisfaction then three or four Shillings in the Pound and keep the overplus for their labours and a setting up again which they could not so unawares or advantageously to their evil ends have done or contrived if they had been arrested All which or many more mischiefs and inconveniences happening to that kind of Dilatory Proces may appear to be no over nicely guessed or strained consequences if if shall be but considered what an abundance of hideous and remediles mischiefs and inconveniences would every day and long ago have happened to Shop-keepers and Men of Trade and Credit in the City of London and the Suburbs thereof if the Proces issuing out of the Courts of Common Pleas and Kings Bench and the Courts of the City of London against them had been not to Arrest Defendants but to distrain and seek after their Goods and Wares when the property of the Defendants Wares and Goods may be so concealed or disguised by Bills of Sale fraudulent deeds or contrivances the Wares in a Trades-man Shop being many times other Mens who upon some allowance of share have employed or
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
of the principal money and Interest under the severity of a forfeiture will if he be a Nabal more eagerly then he needs or should call for his Money upon a pretence of the Interest not being duly paid of which the back wardness and delay of the Tenants may be many times the only cause or of his want of the principal Money which upon a due Examination may appear to have more of a contrivance then truth in it or if that will not trouble or disturb the Debtor enough will do all that he can to affright him to quit his right in the Land and permit him to have a cheap bargain of it by suggesting some flaw and defect to be in the Title and tells him that otherwise he must call in his Money for he dares not continue it any longer upon so weak an assurance And if he thus gets it at a lamentable cheap rate can notwithstanding assure himself he hath a very good title and such as needs no confirmation but if that will not do his business and accomplish his griping design will exhibit his Bill in Chancery against him to enforce him to pay the Money or loose his equity of Redemption whereupon a six Moneths or some not very long prefixion given unto him by the Lord Chancelor or Lord Keeper he must either upon that short warning sell the Land at low and unreasonable Rates and great disadvantages and loss to a Stranger or take what pittance or little Sum of Money the Mortgagee will find a conscience to give him upon a Release of his claim and interest in the Land which is twice and many times more worth then the Money lent upon some short prefixion or time of Redemption allowed And that affording him but som small parcel of relief and he being not also at that time able to procure a Redemption must lie down under his sorrow and let the Mortgagee enjoy the Land for scarce half the value A due consideration whereof might either in equity or compassion become a Court of Equity in such a case to order the overplus of the just price or value of the Land after the principal Money Interest and costs of Suite satisfied to be paid to the poor Mortgagor and his Wife and Children and be much more agreeable to Justice and good conscience then to deliver up the distressed Mortgageor to the greedy appetite or gripes of a merciless Creditor or Usurer bruise the broken Reed add affliction to affliction and strengthen the hands of the Oppressor which the Prophet Ezechiel saith was one of the crying sins of Sodom in a time especially when too many of the loyal Nobility and Gentry have so abundantly suffered in their endeavours to rescue their King Country Laws Religion and Liberties from the pretences and oppression of a factious and disloyal part of the Nation who by plunder and sequestrations did too well know how to enrich themselves by the ruin of their betters and having after all their villanies received his Majesties mercy in being themselves pardonned cannot tell how to allow a Christian forbearance to the sick and languishing Estate of a Mortgageor who hath been so much undone by them And whether he can be able to Mortgage the residue of his Lands or sell that which is already mortgaged must take along with him as new additions to his heart breaking miseries the fall or enforced abatement of Rents as much if not more then twenty per Cent and to give the fuller weight or measure to his troubles be constrained to sell it after that abated Rate and Rent at sixteen years purchase when it would before have yielded eighteen or twenty and could neither procure two thousand Pounds â—pon the former Mortgage or the latter if he could attain unto it without one hundred Pounds given for the procuring of each two thousand Pounds and walk a great way besides towards fourty or fifty Pounds Charges more in the contriving and preparing the assurances and after many a scruple and Rock of the Lenders never to be satisfied fulness of security passed over many a weeks attendance and charge in the humoring of his many times purposed procrastinations to drive him into greater necessities whereby the easier to procure his unjust advantages and render him the more patient to endure that Strappado may being bound hands and feet and abundantly wrapt in Sheep-skin engagements and incumbrances sit down at Weeping Cross and wonder there was no express Prayer in our Litany against unmerciful Creditors and such as make more necessities then they find with a good Lord deliver us And if that now over trodden way be not taken to dig down and demolish the Borrowers Estate and foundations of livelyhood will apply himself to as destroying a course by extending the mortgaged and all other Lands which the Debtor hath at a low rent and keep it so in his possession and a careless management and with so great a loss to the Debtor as the fiftieth year of Jubile may come before the Lands by the unjust accompt of the mean profits be able to shake of that burden and bring an Action also against him and imprison him for the not performance of his Covenant to pay the mortgage Money or for breach of some other Covenants in the deed of mortgage and if he hath any other Lands of his own or his Wives that can escape the fury of such a Creditor shall not by reason of the former incumbrance be able without great difficulties and cost to borrow any more Money upon what remains unmortgaged And if the Money could be borrowed of a Citizen of London upon a mortgage it must be of Lands near London or in some adjacent County otherwise his Nicetyship will by no means be intreated to lend any Money upon it but he must be as unlikely as a poor Schollar or Poet or borrow any more Money and may dream of a Credit and believe he hath a right unto it when he is never more like to come in sight of it When a Country Gentleman whose Credit hath not been tainted could heretofore with ease enough sometimes upon his own single Bond or at the worst with a Friend or two and one of them but his Taylor joyned in the Bond with him borrow fifty or one hundred or two hundred Pounds and the Farmer or Country-man wanting Money to pay his Rent could upon a short warning procure fourty or fifty Pounds upon his own Bond or Bill and a Citizen of London or some other trading Town can with a small Estate in Money and no Land but a great care of his Credit and performances be trusted upon his Word Bond Bill or personal Security with ten or twenty times more then he is ever likely to be worth And it is very well known that a multitude of London Merchants Retaylers Tradesmen and Artificers in or about that vast City and the overgrown Suburbs thereof being in their number about six hundred thousand Men
Women Children and Servants could not maintain or uphold themselves in their several orbs and stations withovt a trusting of their Customers and being trusted themselves or a confidence on both sides in personal Securities Bargains Contracts and Promises which is very often done and necessitated to be done without Pawns or mortgage security in the course of Commerce and interchange of affairs one with another by all Merchants Seamen Retaylers Farmers Taylors Laborers Husband-men and all sorts and degrees of People in the Kingdom and other Parts of the World and even the landed men and Free-holders who are not the fortieth part of the Nation and the Copy-holders when they do not deal for so great Sums of money as to surrender and engage their Copy-hold Estates cannot in the multitude diversity speed and management of their almost daily and hourly business one with another and at Markets and Faires and elsewhere avoid the taking or giving of personal Securities or Contracts which cannot primarily affect those that have Lands or concern their real Estates but are to follow the Persons of those that are Debtors for the performance thereof So as it would be no Probleme or Criple assertion to aver that the forbidding of trust or giving dayes of payment by which the Citizens and Trades-men of London do gain more then they should do by enlarging their price and Items to a very great excess and in some as it may be feared to more then a double or larger Interest and the taking of huge Sums of money with Apprentices now more then formerly become a part of their Trade and a publique Registring enjoyned of all money and debts which they do owe and are engaged for by Credit or otherwise Would quickly manifest how Trade would be undone if it were not for trust upon personal securities and performance and the benefit and necessity of Writs of Arrest enforcing their Debtors to make payment or to be the more careful of it And by so speedy a way of enforcing a Defendant to appear to the Action make the Merchants and Trades-men so punctual in their payments whereby they do get great Credit and Riches and have given a confidence to all Trade and Commerce which since the Reign of King Edward the 3. hath been hugely encreased makes the poor man which hath no great Stock or Estate to be as good security for what he undertakes as those who have greater and gives us the reason why those that do lend Money unto Country Gentlemen or Men of great Estates do usually require a Citizen though he have but a very weak and small Estate and is more in danger of breaking then the Gentleman to be bound with him and do think their money not to be very safely lent without such a security And that great City and Emporium which sitteth upon many waters and stretcheth out her lines to the utmost ends of the Earth would certainly languish and decay if she should be deterred or bound up from trusting or being trusted and there would be none or a very little Trade and Commerce in the Nation if it should not be driven by personal securities when our Merchants that do Trade into Persia the East-Indies Turkie the Levant and Norway with as much Money as Commodities having neither Pawns nor Lands to morgage do not seldom deal upon personal security Forreign Merchants being in that manner contented to do as they would have done unto them and do many times borrow money in their own Countreys to give day and time of payment unto Merchants and their Correspondents in other Countries And there would not be wanting very great and many mischiefs inconveniences delayes disturbances and obstructions in the universal Trade and affaires of our Nation both at home and abroad if that great and daily manage of our Commerce at the Royal Exchange of London for vast sums of Money or the value thereof twice every day in every week of every year Sundays great Festivals and publick and extraordinary dayes of Fast or Thanksgiving only excepted should by a jealousie and distrust in all Merchants and Men of Trade therein every day concerned and the Actions and Estates of one another forsake their accustomed and very laudable wayes of trust and confidence in the credit and punctuality of performance of one another and not believe a Bargain or Contract to be well and securely made or Bills of Exchange safely answered without an almost infallible certainty of the Estates of those with whom they deal or correspond and in their diffidence thereof when as to the Sea and Forreign Trade the Winds and Tides will not be intreated to tarry and opportunities of vent and benefits if not suddainly laid hold on cannot be easily or at all times met withal or gained adjourn the conclusions or certain engagements of their Bargains Contracts Undertakings or Promises until they could consult with their Lawyers of some of the Inns of Court some not easily to be satisfied Conveyancers Scriveners or Men of scruple how to make their Contracts Charteâ— Parties Agreements Partnerships or Insurances to be without any or very little or seldom hazard or danger or procure some Perspective glasses to afford them a clear intimacy or visibility into the Estates of Men or a possibility of Accidents Shipwracks Piracies or Sea misfortunes or the breaking or knavery of Retaylers and render them as safe in their Trade and adventures against all contingencies as any moral or worldly probability or security can make them And that their great concernment and height of reputation guarded by the wakeful Eyes of publick Notarial Protests which is sometimes tromped upon them by some of their Forreâ—gn Factors or Correspondents inadvertencies or over charging them is of so britle and tender a nature as a small gust of misfortunes or adversities overturns and sinks it or a malicious or foolish report of being broke or likely to break shatters it all in pieces and puts the not long before prosperous Owner of it to recover as well as he can the dammage sustained by it and the Shipwrack of Credit can be no otherwise then exceedingly ominous and dreadful to men that are to make much of their livelyhoods and hopes to raise their fortunes by it when besides the many other disasters attending and lying in Ambuscado the Statute of Bankrupt made in the Reign of King James doth in the Character of a Bankrupt 21 Jas. ca. 19. amongst other things declare any Merchant Retayler or any other seeking to get their living by buying or selling to be a Bankrupt who being indebted to any Person in the Sum of one hundred Pounds or more shall be arrested for the same or lye in Prison two Moneths or more for that or any other Debt or afterwards escape out of Prison or gets forth by common or hired Bail shall be accompted and adjudged a Bankrupt to all purposes and intents And provide that such a one should have his Goods and Estate seised
and dividâ—d amongst his Creditors proportionably to their debts and be liable to the penalties of the said Act and the orders and provisions therein contained For certainly without competency of trust and confidence in Trade and dealings one man with another and a pawn or security of their Bodies subject to Arrests compulsion or disgrace all Commerce and Traffique would be destroyed no Merchant or Chapmen will or can give day for his Wares when he neither knows whether his Customers have Goods sufficient to pay for what they buy or where to find them when the Wares that he sells may either be used or sold away again to another or if they could be met with again will not be of half the value they were sold for No man without personal Security Contract or Promise will lend any money to Merchants because their Goods are either at Sea or in Forreign Countries and sent out so often and upon so many adventures and hazards as if they do they will not know how to get it again Young Tradesmen and Men of hope and industry that have none or very little Stocks of their own will have no Money lent them or if they have it must be upon such other Cautions or Security as may starve and take away the hopes of their preferment Moneys given to Charitable uses as they are many times to be lent upon security to poor Tradesmen or young Beginners that have little or nothing in Estate or their Shops cannot without Bonds or personal Security be lent or distributed according to the mind and intention of the Donors mortgage of Lands not being likely to be had for otherwise it cannot be done but to such as are rich already No Merchant or whole Sale-men will adventure to trust or sell to Retaylors upon one two three or â—ix Moneths as they shall be able to make or return it nor Retaylers to Retaylers as they do often use to do if they do not give personal Security whereby to be arrested if they do not pay the Money contracted for No Country Vintner will without it be furnished by the London Vintners or Merchants no man shall know how to do good to a Friend or Servant or set up a young man if personal Securities shall not oblige their Proces of Arrest No Tradesman shall be able to Trade as they do now and get his living and a comfortable subsistance by retailing under other Tradesmen nor any Mariner Souldier or Servant be trusted because they have nothing but their Bodies to be answerable for it Many Lawyers and Ministers who do carry much of their Estates in their brains the Artiâ—an in his hands and a few Tools the Souldier the most that he hath by his side Unlanded men or untrading Batchelors or single Men all or the most part upon their backs and the smaller sort of Farmers and Country Cottagers having very little Goods or Houshold-stuff may bewail their want of Credit when personal Security cannot help them and all the Trade and Commerce good will and charity of the Nation that was wont to flourish more by the Care and Credit and honesty of Men then any certainty or visibility of Estate must if necessities and occasions cannot be supplied as they were wont to be by Bonds Bills or personal Security now be turned into a way of Pawns and Broâ—age and three times more given then the value of that which is bought or borrowed where ready money is wanting And all Credit and Industry fall to the ground especially if it shall be considered that not long before our late times of Troubles and Confusion the money of some Dutch and Forreign Merchants lodged here being estimated to have been as much as five Millions Sterling have been much of it by reason of our bringing down of Interest to six per Cent and other disturbances called home and that the money Current in the Kingdom is by no very random computation verily believed to be scarce enough to pay the Interest of the Capital of what is owing by the People one unto another and if the course and way of Credit should be now stopped and turned out of his Chanel we may not expect to see any more happy effects of trusts and Credit as in this Age of ours we have done in a rich Sir John Spencer Sir William Craven Sir William Cockain and Sir Paul Bayning who beginning their World with no Original Riches have gone out of it with the comfort and honour of laying the foundations of several noble Families and every day in the hopes and flourishing of many young Merchants is ready to proclaim the great benefits of trust and Credit and that which not seldom happens by the only employ and advantage of another mans money And the sad ineluctabile fatum dismal and not to be overcome disasters which do fall upon those whose former props of trust and Credit have failed them when their Friends stand afar off and look upon them as Lepers and Persons infected do by the ill government of their tongues and censures debar them more then they should of all the opportunities of fortune or means to a more happy condition It was Credit and the care of it not Lands or a visible Personal Estate which made our Prince of Merchants Sir Thomas Gresham in the Reign of Queen Elizabeth to be able to lame the King of Spain and his Indies in his design of subduing England by draining of his Banks beyond the Seas with his personal security It was personal Security Credit and the care of not having any man come twice to his house for money which made Sir Abraham Dawes one of the Farmers of the Customs in the Reign of King Charles the Martyr able to take of those who voluntarily offered it one thousand Pounds at a time upon his single Bond or Bill which to support he did alwayes as he himself acknowledged keep five thousand Pounds at a time in a Chest in his house at Interest and when he had paid out any considerable part of it borrowed and took in as much to replenish it It was an imaginary Credit an heretofore punctual performance of our late handy dandy men the Bankers of London paying one mans money with anothers that decoyed and enticed almost all the money of England into their running ebbing and flowing Cash upon their or their Servants single notes for some years under their only hands for five hundred or a thousand Pounds at a time for some years after upon the Masters single Bonds And it was Credit and personal Security not so much any real Estate in Lands or Houses that have made the Banks of Lyons and Amsterdam so to flourish in the midst of Wars and abundance of Taxes and enabled the Dutch those mighty men of Trade and money whose Lands and Territories in all their Seven United Provinces do in quantity scarce equal our Yorkshire and Lincolnshire to ingross almost all the Trade of the Heathen
and Christian World to raise five Millions Sterling at home upon no more then as many Weeks short warning and to manage at a vast expence a long and lasting War with the greatest Kings and Princes of Christendom It being certain that Securities or Cautions for money or Credit cannot in the general be so safe possible or ready at hand to be had as personal Security which as our Bracton and Fleta in their Divisions of Actions into real personal and mixt have informed us do inducere Actionem in personam make an Action to be personal for that the individual and very same money is not nor can by the Plaintiff be expected to be restored but the value of it or dammages and it doth oblige the Person but not at the first the Lands Goods or Chattels as our Statutes Merchant or of the Staple or Recognizances in Chancery or elsewhere taken do when they do carry in them a condition upon default of payment to leavy the money upon Lands Goods and Chattels and upon the Body if the Lands Goods and Chattels be not sufficient to satisfie and in a Bond the words obliging are Obligo me Haeredes Executores Administratores meos the Land being chargeable in respect of the Person but not the Person in respect of the Land and the Goods and Lands if any or the properties thereof are many times more invisible then the Persons of men for Bonds or Contracts do bind and engage the Person as much as if he did thereby undertake to pawn his Body and subject it to an Arrest or Compulsion to appear in Judgment if he should fail in the performance for all Contracts and Promises saith Fleta have in them Vinculum Juris such a Bond or Obligation as ties us to the performance of them and is so personal and inseparable as it doth sequi personam obligati go along saith Bronkhorst with him that made it like the shadow with the Body And generaliter saith Bracton Jus gentium se habet ad omnes Contractus The Law of Nations binds us to the performance of them For saith Grotius he to whom the promise is made hath by the dictates of natural reason a right to compel it by lawful means For a man may be known where to be found when his Money Goods or Estate cannot or what Estate he hath at home or abroad in his own or other mens hands in trust for him or otherwise And the Pawn or Pledge of the Body must needs be the greatest tye upon a Debtor for if a Pedler travelling with a pack of Pedlery upon his Horse hath his Horse distrained and taken away and he be put to carry his pack upon his back or if the Debt be so much as to lay hold on both that cannot so disturb or trouble him as an Arrest will do of his Person Or if a poor man shall have his only Cow and the Instruments and tools of his daily labour taken from him that will not so much affright or beggar him and his Wife and Children if he do not take care to prevent it as an imprisonment of his Body will do And our Bonds are not so rigourous severe or jealous as the moveable Bonds in Scotland as they there term them are which even for small Sums of money with us but great with them can be so distrustful as to enforce the obligor to renounce beforehand All manner of exceptions to the Law which may be proponed to the contrary and all Priviledges and Jurisdictions with a clause and consent inserted of Registration Horning and Outlary and to have the strength of a decreit to pay principal Interest and Charges according to the Obligees own modification declaration of conscience or discretion and ten Pound Scotch money for Ilke shilling Scotish Money which shall be unpaid of the Principal nor so fierce as in some Parts of Germany where the Creditor if he suspected the Debtor to be poor will take Juratoriam Cautionem make him swear that he would pay the money again amongst whom and the Italians there were Ostagia or Undertakings to give entertainments to the Creditors with Men and Horses at the Sureties or Debtors charges till the Debt were satisfied And the Civil Law was upon Contracts and Bonds for money lent or trusted so well furnished with renunciations before-hand of the benefits of Law in general and particular as there is by Butrigarius reckoned up no less then fifty three several sorts of Renunciations which the cruelty or diffidence of Creditors did in their Contracts and Bargains usually and as they pleased put upon those that had occasion to borrow or deal with them But our Nation keeping it self constantly to its own more gentle and yet binding enough constant form of Bonds and Obligations for money used here in England for some Centuries of years last past hath with its Proces of Arrest attending and guarding it perswaded the People thereof justly to believe that that kind of Proces hath produced such a better more sure and easie Credit in the Nation then was formerly as it hath not only greatly encreased encouraged and facilitated the Trade and reputation thereof but it hath been its greatest prop and support in the for many years long and bloody Wars betwixt the two great contending Houses of York and Lancaster when Estates in Land were little worth and where they were of any value or enjoyed any quiet from the furies of War or disturbance of Seisures Attainders or Confiscations were until the 27th year of the Reign of King Henry the 8th and the 27th year of the Reign of Queen Elizabeth covered and protected with secret and undiscernable uses many of which were fraudulent and in the many other also tosses and troubles of our present and former Ages which may appear to be more then a conjecture to any who shall but consult their own reason and observations of the difficulties and inconveniences which would daily and hourly happen in the borrowing procuring or securing of money if nothing but Pawns or Pledges at as hard a rate to private Brokers many times as twenty per Cent or mortgages of Land would be taken for security for money or moneys worth or the value of it which in matters of Trade would so quickly turn all into Exchange and Barter as a Tradesman could not be able to furnish or stock himself or his Shop without either ready money which many Tradesmen and not one in every twenty are alwayes or often able to do or disfurnish or unstock themselves and carry as much out as they endeavour to take in and how quickly and easie upon the stock of Credit Reputation and Opinion one or more hundred Pounds may be borrowed upon a Bond with one or two Sureties and how readily and without any more ado one or more Counter-bonds of the Principal doth serve to counter-secure them And where Citizens do take Apprentices without whom they cannot
Terminer in causes within the City which being by the Dictator published to the People they were so joyful as they brought Camillus home to his house with great shouts of joy and clapping of hands and being the next morning assembled in the Town-house or Market-place decreed that the Temple of Concord should be built at the Common-wealth's charge that some Festival dayes should be solemnized and Sacrifices made unto the Gods in every Temple of the City to give them thanks and that the People should in token of joy wear Garlands upon their heads for this reconciliation About nine years after upon a new Sedition of choosing of Magistrates and for want of them an Interregnum happening the Commons lost their Consulship again and two of the Patricii began to govern who thinking to continue it as formerly in the Nobility had the trouble of another Sedition wherein the People after many stirs and meetings not prevailing two other Confuls of the Nobility were elected And though the Usury or rate of Interest was much abated yet the poorer sort of the People being over-charged with the payment of the principal became bound and thrall to their Creditors in so much as the Commons in regard of their private streights which they were driven unto never troubled their heads at all any more with the making of Consuls In the end of the next year after the contention betwixt the Senate and the Common People brake forth concerning the Election of the Consuls whereupon the Tribunes of the People stifly denyed to suffer any Assembly to be holden unless they might have one of the Consuls to be chosen out of the Commons according to the Law Licinian And the Dictator as stoutly bent to denye it the Election was adjourned and the Dictator leaving his Office the matter grew again to an Interregnum and the Interregents finding the Commons to be alwayes maliciously set against the Senators succeeded one after another until the Eleventh Interregnum when the discord and variance still continuing the Tribunes called on hard for the Law Licinia the Commons had an inward grief that struck nearer to them upon the excessive Usury that still increased and each mans private care and grievance brake out in their publick contentions and debates the Senate thereupon weary of such Troubles commanded L. Scipio the Interregent for the time being for concord and unity sake to observe the Law Licinia in the Election of the Confuls so as P. Valerius Publicola had joyned with him in fellowship of Government Cajus Martius Rutilius one of the Commons Who labouring to ease the matter of Usury being that which hindred the general agreement set a course to do it so as the long or old debts which were more intangled rather in regard of the Debtors slackness and negligence then want of ability the City out of the common Stock crossed them out of the Book by setting up certain Counters or Tables with ready coin in the publick Hall provided that good Security were given to the City by Sureties put in beforehand or else the Goods of Men valued at indifferent and reasonable prices were to discharge the Debts so as a great number of Debts without the complaint of either Party was satisfied and paid Two years after the Ancient possession saith Livy of the Consulship was restored to the Senators and about two years after that the Usury coming but to half so much as it was formerly the payment of Debts were dispenced and ordered to be paid in three years by even portions so as a fourth part were paid beforehand some of the Commons being for all that pinched therewith for that the Senate had more care to see Credit kept with the Chamber of the City then of the difficulties of private Persons which was the better born in regard of the forbearance to muster Souldiers and call for Tribute About seven years after that upon a mutiny of the Souldiers in the Camp a Law was published by a Tribune of the Commons that Usury should be made altogether unlawful and after many nnreasonable demands saith Livy the insurrection of the Souldiers who compelled their Commanders to march against the City was upon a Capitulation made as once before saith that learned Historian the Commons and a second time the Army had done with the Senate that their mutiny and insurrection should not be made use of to their danger or dishonour it was appeased About sixteen years after being three hundred and thirteen years before the Incarnation or coming of Christ Papirius Publius being bound for his Fathers Debt having consigned himself a Prisoner to the Creditor who supposing that he might abuse the young mans Body for Interest of his Money began to tempt him with fair words and promises afterwards to threaten him and when that would not serve commanded him to be stript naked and whipt whereupon the young man all wounded and torn ran forth into the Street and complained to all he met of the filthy lust and cruelty of the Creditor and thereupon a great company of People moved with the injury of the Usurer and pity of the young Man as also in regard of their own case and their Children gathered themselves into the Market-place or Town-hall and from thence towards the Senate-house and the Consuls being upon this suddain uproar Coacti saith Livy compelled to assemble the Senate the People as the Senators entred in the Senate-house lay prostrate at their feet as they passed by shewed the young mans back and sides whereupon the Consuls were commanded to propose to the People that from hence forward no person whatsoever unless guilty of matters Criminal or Trespas for noxa the word used there by Livy and Noxales actiones are by the Roman and Civil Laws and our Bracton also interpreted to be matters and actions of Trespas as well as greater crimes until he were condemned to punishment should be bound in Fetters or Chains and that the Goods of the Debtors not the Body should be obnoxious to the payment of the Money borrowed which might better be ordained there than with us or many other Nations for that the Romans by their Censors did keep publick Registers of every mans Lands Estate and Lands so they that were in Bondage became released and enlarged and order war taken for the time to come ne necterentur saith Livy that the Debtors should not hereafter be bound or chained in Prison Which if any shall misinterpret to be an absolute freedom of the Persons of the Debtors from Arrest the Roman Records and Histories will be againsâ— them CHAP. XIII That this Order made to pacifie a Tumult was not perpetual or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restrainte of their Persons till they appeared in Courts of Justice or gave Bail to do it FOr a Plebiscite or Law of the People it could not be for they were not
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
incertain of the success which none but mad Men and such as the Turks and Men of Mecha do usually adore can believe to be answerable to the end of publick good as he may sooner adventure to make an Affidavit if any credit could be given unto it of the possession infallible of the imaginary Elixir or Philosophers Stone the only Essay of the gaining whereof hath undone and emptied the Purses and Estates of many more learned then ever he will be then that the People of England have either lived in Slavery since the making of that Statute of 25. E. 3. ca. 17. or that there will such an happiness and mercy arrive or redound as he pretends unto them by the abolishing of the Process of Arrest and Outlawry when seven parts of eight the whole to be divided into no more shall be ruined in their present Estate and future hopes of a better for want of credit and trust And all the Men of Money lent out and trusted which are the smaller number shall be in danger enough of loosing it And the Free-holders of Lands which comparatively are far the smaller part of the Nation shall be only the Men and perhaps not half or a quarter of them that may be trusted or compelled to appear to any Actions of Debt or for Money which shall be commenced or brought against them And the Trade of the Nation which is now not so much outward as it either should or ought to be shall be very little stocked or driven with ready Money for want of trust or such a Process as may with any certainty or expedition compel the performance of it Or that His late or now Majesty when our Kings and Princes were wont in many of their Writs and Rescripts to acknowledge that they were Debitores Justitiae Debtors to their people in matters of Justice Astricti bound and obliged unto it by their Coronation Oaths could ever think it to be agreeable to their interests or correspondent to their Oaths and other obligations to God and Man to throw the Justice of the Land with which they have been by God intrusted into a Chaos and confusion to gratifie the humors of a smali or inconsiderable number of his Subjects the quondam Rebells and most factious and ignorant part of them and ruine the multitude who are as much committed to their cares as the other Ne cum parti alicui placeant reliquas deserant Least when they seek to please a few they do forsake and abandon those who are much the major part and greater number Howsoever let Sir Edward Coke say and write all that he can in the never to be denyed just praises and commendations of our Laws those that without any cause or knowledge do too much maligne and hate them adore a resolved infatuation and believe their Fort of Phansies to be impregnable and out of the danger of any Assaults or being taken will by their good wills rather then forsake their designs and the hopes they have of some new employments oblige and tye him to his former mistaken opinions delivered in the aforesaid Sir William Herberts Case and likewise in his Comment upon Magna Carta ca. 29. That the Imprisonment of the body for Debt unless in the King Case was not by the Common Law before the making of the Statute of 25 E. 3. ca. 17. although in all his Reports and Comments and other his learned Writings he hath not at all inveighed against the Process of Arrest and Outlawry in Actions of Debt or other personal Actions or declared or made any mention that they were either illegal or a grievance And when he said That Imprisonment of the body for Debt unless in the Kings Case was not before the making of the aforesaid Act of Parliament did no where say that it was not before that time upon Contempts of Courts of Justice or the Writs or Mandates thereof or upon a probability of a Defendants running away and are the more pertinatious in it by Sir Edward Coke's being so much enamored on a Manuscript called the Mirror of Justice which as to the Copie which he follows and cites in his aforesaid Comments upon Magna Carta and that so called Mirror of Justice which was afterwards printed and published in the year one thousand six hundred forty-six by William Hughs of Grayes-Inn Esquire Flagranti bello when the Laws and Liberties of the People were by a wicked Rebellion under a pretence of Reformation of Religion for some years before endeavoured to have been destroyed and said to be translated out of an old French Copy which hath been justly suspected in many important matters proved to be fictitious to Men of Learning and those that have traced the paths or fields of Learning and Manuscripts and observed the contrariety omissions additions transcriptions mistakings interpolations annotations impostures and words therein creeping out of the margent into the Text and those many counterfeit Books and Manuscripts which even in the primitive times of the Church and after Ages have been imposed upon Posterity and too often are and may be seen will administer no matter of wonder They therefore who do so cherish and delight in the novelty of opinions and are most pleased with those which are likeliest to answer their expectations of gain and profit or may serve to engage the protection and favour of some hopeful and prevailing Partie and Faction may do an Act of Justice to themselves and others to pause a while and look a little more into the aforesaid opinions of Sir Edward Coke although he must be acknowledged to have been a very great Rabbi in our Laws and consider well the Grounds Authorities and Reasons upon which he hath founded them before they do Jurare in verba Magistri and espouse or build upon them CHAP. XV. An Examination of the opinions of Sir Edward Coke in his Report of the said Sir William Herberts Case touching the Process of Arrest used in our Laws and the many Errours appearing in the Book or Manuscript called the Mirror of Justice and the fictitious matters and relations mentioned therein FOr although in Criminalibus Capitalibus causis in Criminal and Capital causes an Arrest or real Citation as the Civil Lawyers call it is and hath ever been used by the Laws of God Nature and Nations There shall not be such gentle Process or Proceedings by way of Attachment as is usual in other Cases but such Malefactors are presently to be arrested and the Goal or Prison is to be their Sureties until they defend or clear themselves yet those kind of necessary proceedings can have no other original or ground to support or warrant them but what proceeds from the before recited grounds or causes or some of them because until the Fact be tryed it is but an accusation and not alwayes so much as a probability but a change or suspition that it was done by him that is accused and there will be alwayes
general execution of the Laws as it is now practised is an oppression to the whole Nation that trivial and impertinent Suits are brought out of the Countries to Westminster and thereby all inferiour Courts are destroyed and proposed a publick Registry to be in every County of all Entails Mortgages and Statutes that before any cause or Action â—e entred in any Court or come before the Judges peace he offered by the Plaintiffs and that wise men be appointed to take up Controversies that all the Tithes and Glebe Lands with other things called Church-duties may be sold and a competent means provided for the Ministers of the Gospel In a Book entituled Englands safety in the Laws Supremacy and published in the year 1659 it was amongst other things required as a Law including the peopleâ— Liberties that no man be imprisoned for Debt but that all Estates real and personal be liable for discharge of Debts In the same year in a Pamphlet entituled the humble desires of a Free Subject it was desired that not any of the free people of the three Nations and Territories thereunto belonging should not be molested or imprisoned or have any violence offered to their persons but shall have full power and liberty to seek for their redress unto the Law and the Courts of Justice according to the ancient constitutions of the Laws of the three Nations In another owned by one Mr. James Freez entituled the outcry and just Appeal of the enslaved people of England to be delivered from the insupportable oppression of lawless yokes of misery it complains that thousands of people are ruined and robbed in their Estates Liberties and Lives by Arrests and Outlaries and prayeth that the Writs of Capias may be abolished and the imprisoned set free which would work the total downfall of Satans throne of Injustice cruelty and oppression even of the four Fairs kept in Westminster-hall by the ingrossers of pretended Justice where and by whom men are daily bought and sold in their Estates Rights and Liberties Some of the Inhabitants of Hull did petition that the Laws by which the Common-wealth is to be governed may be those holy just and righteous Laws of the great and wise God and declaring that the Nobility are the Pillars and Buttresses of Monarchy and Citadels of Pride and Tyranny ought to be only during life that the Divines the Lawyers and hereditary Nobility are irreconcilable Antagonists to a Free-State adviseth an Agrarian Law that the proportion of Lands be stinted and a rotation of all Offices and imployments that those which are capable may tast of rule as well as subjection In a Book called A Rod for the Lawyers they are called the grand robbers and deceivers of the Nation greedily devouring many millions of the peoples money and it alledgeth that there are in England Wales of Judges Lawyers Officers Clarks Attorneys and Solicitors above 30000 a quarter of that number at the largest reckoning being not to be found of them which admitting that each of them do get 250 l. per annum very many of them not getting 100 l. per annum many not 50 l. per annum and many not 10 l. per annum or so much as the Rag-gatherers in London-streets do who take it to be an ill week that yields them not 10 s. it will saith that Calculator amount unto seven millions and an half per annum besides the charges of riding to and from London whereas if ever there were such a number to be proved there are greater numbers of Carpenters and Smiths who do yearly gain as much as the smaller sort of the Law Profession do by their as necessary labours In a Declaration and Proclamation of the Army as they called themselves of God published in the same year they did declare and resolve by the help of God that there should be liberty of Conscience but not of Sin Godly Laws to be enthroned but not the Jews Judges to be in every City but not imposed Prison doors should be set open to let out Debtors to labour towards the payment of their Debts and look'd upon it as the voice of God calling upon them and giving them an opportunity and therefore desiring assistance in so great an enterprize by as many persons of note and ability as God hath made willing and able together with themselves to put in sufficient security for the performance thereof did intreat them to send in their names to Mr. Livewell Chapman Book-seller in Popes-head-alley by the Exchange who hath promised to keep them secret untill by sober and frequent meetings the matters may be digested fit to be presented to the Parliament and chief Officers of the Army Where if the Propositions do prove acceptable there will be a sum of 500000 l. ready towards performance of the same And in the Plea called the Armies Plea it is alledged that the peoples safety is the chief Soveraignty of all Laws Statutes Acts and Ordinances Covenants Engagements Promises Subscriptions Vows Oaths and all manner of obligations and expressions thereof and are only binding to the Publique safety and not to the persons of the Governours or forms of Government but with reference thereunto and as principles of truth and right reason brought to light by the late Parliament And one being willing to come on as fast as he could and keep company with those goodly assertions saith that it is not lopping the branches or cutting off the Top branch of Monarchy that will deliver a Nation from bondage unless the Axe be laid to the root thereof to the evil root of bitterness whence springs all our misery to the root of every usurping and domineering Interest whether in things Civil or Divine The number of Freeholders being much increased hath had a natural and strong tendency towards a Commonwealth no Government can be fix'd in this Nation but according to the Ballance of Land that Prince that is not able neither by his own or the publique Revenue in some measure to counterpoise if not over-ballance the greater part of the people must necessarily be Tenant at will Another in his Arguments and fancied Reasons against the office and title of Kingship published in the year aforesaid saith that the Office of a King makes way for an Act of resumption and the unsetling of mens Estates that the abolishing of Episcopacy and Peerage and the establishing of Liberty for Tender consciences were not the ground of the Wars for nothing appeared at the first but the Militia the Negative voice and the removing of Evil Counsel the other things were brought into the quarrel in the progress of the contest by an higher hand of providence then mans purpose One of the same company and School of contrivances desired publickly that no man should be imprisoned for Debt except such as are doubted to be running away and then not above three days and to be maintained by the Plaintiff at 3 s. a day in the mean time In a
Book stiled the Good Old Cause dressed in its Primitive lustre said to have been written by R. Fitz-Brian it was insinuated that the distempers of the Nation being so great as they could not admit of a redress and conserve still their old frame things must unavoidably wheel about and fix themselves upon another Basis Providence united the honest party of the victorious Army so as it was resolved that the poor who had nothing to pay their Debts should be freed from the bondage of a perpetual Confinement the corruption of the Laws were become at once both the shame and impoverishment of the Nation and some Expedient was to be had for the freeing of it from so horrid a Cheat Divine providence did by degrees point out a necessity of the change of Government and Kingship being laid aside as unnecessary chargable and dangerous it was devolved into a Commonwealth It being a certain rule that corrupt and degenerate States cannot be perfectly healed and regulated but by stepping into those forms which are the farthest distant from that wherein they were corrupted Backed by an Anonymous Author who being desirous to try an experiment as well projected as that of the cutting the Moon into Stars to make the greater light and save the expence and trouble of Candles and to contrive a way for the ruining at once of many of our fundamental Laws root and branch doth in a Book entituled a Chaos or frame of a Government by way of a Republick printed by the said Livewel Chapman endeavour a creation of new Laws out of a confusion of his own making wherein as a well-willer to the Publique as he stiles himself but a greater to all at home he doth in order and respect which there will be no reason to believe to the Lawyers profit and to the peoples enjoyment of Magna Charta propound National Provincial Subprovincial and Parochial Registries to which Courts all causes of Civil concernment are to be reduced all Suits in Law or Equity to be determined in six months upon a penalty to the Judges and loss of Cause to the Client whether Plaintiff or Defendant if guilty of delay the Judges in Chancery to sit de die in diem the Itinerant Judges to determine all Causes that shall be tryed before them and a Term of a month to be at Westminster-hall after every Circuit for the determination of matters of Law with rules to be given for the Jurisdiction of each Registerial Court a National Registry to be appointed at Westminster to consist of a Register and six Clarks Assistants or Deputies which may have each as many writing and examining Clarks under him as the business shall require each County of England to be one entire Province and those allotted to the Jurisdiction of the said several six Clarks and Deputies viz. so many Counties as are comprised within the several Circuits of the Judges in every Shire-Town a Provincial Register and he to have two Clarks assistants who shall as to the imployment divide the Province only Yorkshire is to have three Clarks assistants who are to divide according to the Ridings Subprovincial Registers to depend upon the Provincial and to have one Clark assistant every Parish or two where one is too little to have one Register and a Clark assistant every person having Estates in two or more Counties shall enter their Estates and Annual values in the National Registry of each Circuit and all that have any claim or right in possession or reversion of Lands of Inheritance of the yearly value of 1000 l. or upwards shall enter it accordingly and of the yearly value of 100 l. and under 1000 l. either in possession or remainder are to enter it with the Provincial Register all persons having Estates above the clear yearly value of 10 l. and under 100 l. are to enter them in the Registry in the Hundred or Wapentake of the Province and all not exceeding 10 l. per annum to be entred in the Parochial Registry all Debts exceeding 1000 l. to be entred with the National Registry all above 100 l. and not exceeding 1000 l. with the Provincial Registry all above 10 l. and not exceeding 100 l. with the Subprovincial Registry and all under 10 l. with the Parochial Register where the Debtor inhabiteth or his Estate lyeth And when such Entries are perfected the National Register shall within 14 days certifie it unto the Provincial who shall within 8 days certifie it to the Subprovincial and he within 6 days to the Parochial Register And where several claims under several titles shall be made unto one and the same thing the Register shall give notice thereof to the several Inhabitants and Tenants thereof the Parochial Register shall likewise certifie to the Subprovincial the Subprovincial to the Provincial and the Provincial to the National Registry the Seal of the National Registry shall be the Great Seal of England to be kept by the Register and his six Clarks and nothing to be sealed but in the presence of the National Register and two of his Clarks assistants each several Province shall have his peculiar seal whereon shall be the Arms or cognisance of the Province City or Corporation wherein the Registry is and shall be in the custody of the particular Register or his Assistants and in like manner for the Subprovincial and Parochial Registries The several Registers where no double claim is entred shall give Certisicates under their seals of any Entries which shall be desired Claims not entred within three months unless in case of Infancy Death or being beyond Sea shall be an absolute bar Entry to be made within three months after the establishing of the Registries Certificates to be made under seal to any that shall desire it which shall be a sufficient warrant for the recovery thereof without any further trouble to the Creditor then to make his claim thereunto All manner of Bargains and Contracts wâ—ere any Estate of Inheritance Mortgage or Lease shall be made or any right transferred from one to another all Covenants Conditions Considerations and Times of payment in the presence of the several parties shall be made before the several Registers certified under his seal delivered to the Creditor and Counterparts to the other parties And Entries made of payments and discharges of Bargains personally by the parties in the presence of two known witnesses unless where the parties Bargaining shall be sufficiently known to the Register or his Deputy all Marriages to be entred in the Parochial Register the Covenants and Conditions of the Marriage to be entred and certified under the seal of the Register who is also to enter the Christening of every Child deaths and burials of all persons all Wills and Testaments the hiring and wages of Servants to be entred in the Parochial Registries and Certificates under seal given thereof the Fees for entring any Estate of Inheritance in the National Registry 20 s. per page for the two first pages
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.