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
of Christian Burial or a power to make a last Will and Testament the Friborghs or Tubings in every County so obliged men to an obedience to the Laws the publick peace as every man of the Tubing or Freborgh were bound upon all occasions to bring each other to Justice the Nobility Gentry Masters of their numerous Families were to do the like for all that were de manu pastu or in their service the Lords of Mannors kept much of their demesnes in their own hands with great Stocks Herds of Cattel thereupon had their Bondmen and Bondwomen in their Families Villains Neifes regardant to their Mannors did let their other Lands for small Rents and much personal service as to plow their Land now their Grass make their Hey reap their Corn carry in their Harvest Wood do a great part of their Husbandry and sometimes ride with them 600 Abbies and Religious Houses with their numerous Monks Fryers Nuns and all their Dependants and Servants belonging to them lived out of the reach of Writs and Proces and all or most of them and the secular Clergy in above 9600. Parishes so formidable as they were as it were exempt from common Proces and no man durst lay violent hands upon them that many thousand Tenants in Capite and by Knight service and the Tenants which did hold their Lands of the Nobility Gentry either as free-hold or copy by Lease or at Will in the times of that great Hospitality Protection and Comfort which they receivedunder them and the great Veneration Awe and respects which they paid unto them could never find it to be either safe or convenient for them to commence or prosecute any Action or Suit in Law against them or any of their very numerous Dependants Friends Kindred or Alliances and there were many thousands which in the Reignes of King Henry the 1 Henry the 2 Richard the 1 King John Henry the 3 and Edward the first were Croysadoed for the wars in the Holy-land and at Jerusalem and thereby claimed and enjoyed a Freedom from any arrests or molestations concerning the paymentof their debts with the many necessary protections given unto such as were imployed in Servitio Regis which the said several Princes several of their successors whilst they had so many Provinces in France and wars for the defence of the same could not deny unto those whose service they made use of increase of people by reason of more than formerly frequent marriages of the laicks and the marriages of all our Clergy which before had been for some hundred of years forbidden could not but administer so many occasions to disuse the more slow way of the process of summons pone distringas and make use of that more expedite and quicker way of recovery of Debts or bringing men to justice when in so great a change as hath since happened in the alteration of the Estates Manners business and trade of the Nation not only at home but a broad inward and outward and that every man could not like a Snail carry his house upon his head or be sure always to be found in it there could not be a few very great and pressing necessities to call for it especially When if all the People of the Nation were numbred or put into Ranks there would be 1. Free-holders 2. Copy-holders Lease-holders and such as have an Estate only in Tythes Annuities or Rent Charges 3. Men of Estate only in Goods 4. Or of Trade and Credit only 5. Men whose Estates are only in Money at use or abroad in other mens hands 6. Or of no Estate but what they carry about with them or hope for by their Friends or their Industry or some future preferment 7. Such whose Estates depend upon their daily labours or profits arising thereby as mechanicks Artificers Servants Labourers and the like 8. Mariners and a sort of adventitious people who have little or no abode going or coming to or from beyond the Seas Merchants Strangers and the like Of all which several sorts of people the Free-holders and first Classis are the only men who are properly to be summoned or to be within this new proposed Law because they have lands Estates to be known and thereby summoned and are to be found with some certainty but are not the fortieth part of those which have not Of the second sort the Copy-hold Estates which being very near a fifth part of the Nation are not extendable or liable to debts nor can without manifest prejudice to the Lords of the Manors whose Predecessors or Ancestors did under certain Limitations permit them to enjoy them be made to be so Tithes are for the most part not distrainable and may be sold or compounded for before they be due Leases may be surrended or assigned so as none shall easily find the true Proprietor Annuities or Rent-Charges are not extendable The third and fourth sort may either convey away their Goods or have very little of them The Estate of the fifth either not to be found out or hardly to be come at And the experience of some Thousands of years past and the latter as well as the former Ages can and will bear witness and record of the usefulness and approbation of the Proces of Summons pone and Distress where the Defendants are Free-holders have a visible Estate and of Arrest in case of Contumacy and Contempt of Courts of Justice and suspition of Flight and Insolvencies CHAP. IV. The Ancient use as well as necessity of the Proces of Arrest and outlawry in this and other Nations FOr it may be evident to any who shall not too much be led by a causless prejudice or an humour of censuring that which they do not understand that an attachment upon Pones do cause a manucaption or Bail and that upon on a Distringas made thereupon a manucaption of the Defendants person is Returned as well as the issues or profits of his Lands or goods that the words of Attach or Capias used in the writs process and records of our Law are in many thiâ—gs Synonimous and of one and the same signification And that the procedings in law by process of Capias and Arrest may not at all seem to be unwarrantable cruel and unjust when precedents and approbation of the like and greater severities are to be found in the sacred and always to be believed records of holy Writ in the old and new Testament as the putting the man in ward that was found gathering of sticks upon the Sabbath whilst the Children of Isreal were in the wilderness because it was not declared what should be done unto him and if thy Brother that dwelleth by thee be waxen poor and sold unto thee thou shalt not compel him to serve as a Bond Servant and the selling of a debtor and taking his Children to be bondmen If thou be surety for thy friend thou art snared and taken with
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
called together by Tribes or Wards under the Authority of the Tribunes or if they had so many Usurers and all that were either Rich men or Creditors were likely to have been against it And an Act of the Senate it could not be for they were forced or affrighted to it and it wanted the consent of all the Peoples deliberation and the just solemnities of it For ab exactis Regibus from the time of putting down Monarchy till the Reign of Tiberius Caesar saith Bodin the Senate alone had no power to make Laws but only Annual Decrees or Ordinances Which bound not the Common People Ordinances or Decrees of the Senate saith Dionisius Halicarnasseus a most diligent Inquirer into the Roman Customes having Nullam vim legis nisi Populus probaret No force or effect of Law unless the People approved of it Et ea quae Populus probaverat annua tantum erant nisi rogatione ad Populum vel ad plebem vim legis adipiscerentur And those also which the People did approve were but Annual if by rogation or asking the People's consent being called together by their Wards it obtained the force of a Law and without a rogation or demanding the Suffrage of the People was as Bodin saith ineffectual so as a Law it was not because all the People were not duly called nor had agreed to it and being no Law could be no more then an Edict of the Consuls or an Ordinance of the Senate or if a Law because we fiud it by Paulus Manutius reckoned for no less was but temporary and to pacifie and bring to their wits again the inraged multitude But whatsoever it was it extended not nor was so much as intended to take away that necessary power of the Praetor or Magistrat of coercing or compelling men to appear before them in Judgment but was abrogated or continued but for that time or a little after or not put in execution a fate which many other enforced Acts or Orders of that Common-wealth came under as that of the Law Licinia or choosing of one of the Consuls out of the Commons that of lessening of Usury at one time or taking it quite away at another which had their intermissions the latter of which was so impossible to be kept as by custom and mens necessities it came to be to no purpose which the many Seditions of the People which happened afterwards concerning Usury and the more ease then abatement of it may be enough to perswade us unto For besides what may be observed concerning the enforcing of that Law and the course taken to pacifie the People the meaning of Bona Debitoris pecuniae oreditae non Corpus obnoxium esset That the Goods of the Debtor not his Body should be obnoxidus or liable to the Debts might probably be understood to be that the Goods of the Debtor should be sold or taken in Execution for the satisfaction of the Creditor as far as they would go and that his Body howsoever should not be bound or lye in chains for it and that those that were bound in Fetters or Chains were released from that kind of imprisonment as may appear by the Body of that Law or the perclose and conclusion of it which only saith Ita nexi soluti so those that were bound in Fetters or Chains were released which must be understood to be by the Sale of their Goods And for the time to come singly relating to the matter of binding in Chains or Fetters not as to the Sale or taking of Goods hath only these words Cantumque in posterum ne necterentur And for the future it was enacted that for Money borrowed the Debtors should not be bound in Chains which needed not have been if their Goods and not their Persons had only been liable to Debts the way of Distringas or attaching Men by their Goods where they were not Fugitives or had a certain or visible Estate being not then unusual as may appear by what was done in the Case of the Senators who had their Goods taken and distrained for not coming upon Summons unto the Senate-house Which Law or whatsoever it is to be called got so little allowance in the opinion of Livy that most learned and ever approved Historian as he gives it no better opinion in the reporting of it but that upon occasion of an injury done to one Man A mighty bond or tye upon the People to keep their Credit was that day broken And it will howsoever be evident enough to any who shall but acknowledge that truth which will every where meet him in his enquiry through the Roman History or Customes that they did not by that Edict or Law abridge or take away the power of the Praetor or Judge who though he was at first appointed and set up at the Request of the Tribunes and People had two Lictors with Axes and bundels of Rods a more terrible kind of Officer then our Serjeants or Mace-bearers allowed to attend him in the necessary course of preserving that power was put into his hands to judge and determine of causes For we may find Sempronius a Tribune of the People about sixteen years after the pretended Law of prohibitting Men to be bound in Fetters for Money lent to command Appius the Censor to be attached or committed to Prison for no criminal or hainous fact That in the accusation and pleadiug of Scipio Africanus about one hundred twenty-two years after concerning an Accompt of the publick Treasures the Court was attended by Lictors or Serjeants and a common Cryer and that the Tribunes of the People themselves in the absence of Scipio Africanus when he sent his Brothers to appear for him but failed to appear in Person upon a longer day granted for the Process of the Law against him to cry out saying Dare we not now send Folk to fetch him being but a private Person out of his Farm and House in the Country and make him appear unto whom not seventeen years ago at which time he was General of an Army at Land and Admiral at Sea we were so bold as to send Tribunes of the Commons and an Aedile to Arrest and bring him away that L. Scipio his Brother being after his death accused and condemned for not bringing to accompt some Treasures taken in the Wars when some of Scipio's Friends had appealed to the Tribunes of the People for their help and remonstrated the many merits and services of him and his Family the Praetor or Lord Chief Justice opposed and said That for his part he could not do with all but if the Sum wherein he was condemned was not brought into the Common Treasury He knew no other remedy nor what else to do but command him as a condemned Person to be apprehended again and had away to Prison And when the Tribunes of the People all but Titus Gracchus pronounced alone that they would not interpose and
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
at once in a Common persons case whereby to have Damages twice recovered against him After an Elegit although the Sheriff return that he hath neither Lands or Goods the plaintiff shall not have an Execution against the Body a Capias ad satisfaciendum doth not lie after a Fieri Facias until a Nulla bona returned nor a Fieri Facias or Elegit after Imprisonment of the Defendants body A Writ of Annuity purchased pending another was abated where two brought Writs of Quare Impedit one against the other returnable at one and the same day the one was discontinued and they pleaded upon the other in the Case between Bery and Heard in the Seventh Year of the Reign of King Charles the Martyr it was in the Court of Kings Bench adjudged that where a man had his Election to seek his Remedy by the Commou Law or by the Statute of Glocester that gave an Action of Wastâ— he could not do it by the one way and the other for our Laws and Courts of Justice would never allow a Plaintiff to have two Actions or Remedies for one and the same thing at the same time but were so careful to hinder it as they suffered discontinuance of Process and Pleas in Abatements where one Action was brought depending another for the same matter And Bracton saith that where a man hath an Action depending and bringeth another for the same thing Cadit breve posterius the later is to be quashed agreeable whereunto at this day in Chancery where a man hath an Action depending at the Common Law and seeks relief in Chancery upon the same Account he is put to make his Election in which Court he will proceed And therefore if such an Arbitrary Act of Parliament should be made to give the Plaintiffs their Election to proceed by the way of the new contrived way of peremptory Summons the former wayes of Summons Pone and Distrainings or Capias not being prohibited the proceeding by process of peremptory Summons ought to be entred in a Court of Record and entred may be more prejudicial to the Plaintiffs then they expected for if they cannot resort or return again to the former better wayes of proceedings they may find cause enough to repent of their being so fond of a new way when the old will appear to have been much better which to reverse or discontinue cannot be for the Interest of the King or his people when it shall have no better reason or foundation for it For if the Proposers could give unto themselves or any of their fellow Subjects any assurance that it will be probably for their good and benefit yet if the King who is supreme and superiour to all the Judges in his Dominions were but a subordinate Judge he would as the Civil Law declareth transgress the rules of Justice and Right reason if he should follow opinionem probabilem relicta rejecta probabiliori an opinion that is but probable when there is an opinion to the contrary more probable and S. D. and his then Confederates might have considered that a Process against the Goods and Chattcls of a Defendant is of a different nature from that which is against his Body that duo contradictoria non sint nec possunt esse simul vera contradictions neither do or can at one and the same time agree and that Practica sunt speculativis praeferenda what is in speculation of a possibility not at all experimented is to give place to that which with an universal or major part of a consent hath been long practised CHAP. XXI That it will not be for the Interest of the King or his Subjects to give way to that Design which may open a passage to other Innovations and Designes as much if not more inconvenient and prejudicial FOr that all his good people by the sad and inexpressible calamities and miseries which they have lately endured by the Wars and Tumults unjustly raised against thc King and his Laws are not now to learn what a deep dyed hypocrisie and pretences for Reformation would have or to believe the evil consequences which have risen from a too much yielding to those popular humors which as that Royal Martyr hath in his Solitudes and Sufferings declared served to give life and strength to the almost infinite activity of those men who studied with all diligence and policy to improve their Innovating designes how dangerous the permitting of Innovations would be how careful all Princes and wise men have heretofore been to avoid them so that if there were nothing else to make the world out of love with them the never to be satisfied inquietude of many of that sort of people in the matter of Religion and Church-government and the swearing liking and shortly after disliking and hating the Solemn League and Covenant the by too many as it may be feared intended standing Rule of Rebellion and their unfixedness in every thing but their unwearied malice and ill designes against Monarchy and the present Government do and will abundantly proclaim that whatever hath been condiscended unto and by that a measure may be taken of the Future in giving them a liberty to play the Fools with the Sacred Scriptures hath but like the thirst and alwayes craving of an Hydropick sick person increased and provoked a desire of having more Wherefore they that built upon such wicked principles of overturning the State and Regal Government are if they had any reason or were ever likely to have any for their demands to be content to be denyed until they shall have renounced those pernicious ends and dangerous Tenents and positions they began their works and deeds of darkness withall and shall have proved that Justice ought to have no Sword to defend and protect her self and others that Courts of Justice can be to any purpose without a certain power constraining punishing Authority that the process of Arrest and Utlary are not incidents thereof and to be necessary Attendants thereupon that the Eternal and Almighty Law giver did not allow of that which the Greeks Romans those great Ingrossers of wisdom after the many very many commotions of their people for their more severe way of enforcing the paymcnt of Debts performance of Contracts preservation of the publick Faith and one man unto another which Tully held to be so very necessary as he was of opinion that nulla res vehementius rempublicam continet quam fides that nothing more concerns a Common-wealth then the keeping of Faith Credit therefore adviseth it by all meanes to be preserved and kept have acknowledged to be the best and most contenting Expedient for an obedience to Judges and Courts of Justice and the Civil Magistrates and that all the Essaies of an Indulgence to liberty made use of by some other Nations could never yet so far prevail as to make the most of the civilized Nations of the