LEGAL and other REASONS With all Humility Presented to His Most Excellent Majesty King Charles II. AND TO Both His Honorable Houses OF PARLIAMENT WHY THE SUBJECTS of ENGLAND Should not be Imprisoned FOR Debt or Damages Or any thing thereunto relating LONDON Printed in the year MDCLXXV Legal and other Reasons with all humility presented to His Most Excellent Majesty King Charles the Second and to both His Honorable Houses of Parliament why the Subjects of England should not be Imprisoned for Debt or Damages or any thing thereunto relating IT is evidently and undeniably plain that by the Ancient Common Law of the Land the Bodies of any of the people of England could not at the Sute of any Subject be Arrested Imprisonned or any of them Outlawed for Debt or Damages or any thing thereunto relating as clearly appears not only by our Antient Laws but by the Authority of these two great Sages of the Law the Lord Chief Justice Coke in his Third Report fol. 11 12. and the Lord Dyer An. 23 Eliz. 305. b. the which also by Magna Charta Chap. 29. that great Expositor of our Antient Laws was in affirmation of the Antient Common Law with great and 〈◊〉 circumspection provided against and not only not as much as thought on before the Conqâ—est but was abhorred in the least to be practised from that time and the time of the birth of that explanatory Law which was in the Ninth year of the Reign of King Henry the Third until many Ages after there being variety of great weighty and pregnant Reasons for the preservation of that greatest Liberty and Priviledge of the Subject the freedome of their Persons from Imprisonment and as well those Antient Laws before the Conquest as the Laws until the making of the great Charter and threescore years after were in that particular with all studious and sedulous care inviolably observed as an eminent and signal Badge of the immunitie and heroick freedome of the English Nation who were then deservedly called libera gens and lived so and in so great an happy Splendor to the envious admiration of the rest of the Christian World and to the eternal honor of our Ancestors without being subject to any such Imprisonment not only all the time of William the Conquerors Reign which was above Twenty years but one hundred fourscore and forteen years after his death and until the Statute of Westminster the second Chapter the 11. made in the Thirteenth year of King Edward the First invented a Capias and a new Process of Outlawry which from that time was full so many years the Statute of the two and fiftieth of Henry the Third Chap. 23. although the first that ever made any English Mans person subject to such Arrestâ— yet it being only against Baylifs of particular Lords I lay no great stress on but that breach and inroad being once made into and upon the Common Law by the Statute of Westminster the Second gave encouragement to the unhappy production of another Statute made in the twenty fifth year of the Reign of King Edward the Third Chap. 17. by which it was Enacted that such Process should be made in Debt and detinue of Chattels and by process of Exigent as was then used in in Writs of Accompt which were two such keen Laws that they not only Invaded but cut in sunder the choycest Liberty of the Subject by submitting the persons of the then free people of England to the cruelty of Imprisonment for Debt and Damages but the same wise King Edward the Third of whom the Lord Chief Justice Coke in the second part of his Institutes fol. 29 gives this Character That King Henry the Second Edward the First and Edward the Third were all of them Princes of great Fortitude Wisdome and Justice that governed by their Laws but that in the Reign of King Edward the Third the Laws did principally flourish who saith he was a Noble Wise and Wa 〈…〉 Prince This prudent Prince I say looking deliberately into the Wounds those Statutes had given to the honor and happiness of the Kingdom and to that ancient and most venerable part of the Common Law which preserved his Subjects persons from Imprisonment and the very many Kings Reigns and Ages without any the least interruption which that glorious and famous Liberty had prosperously continued and as it were repenting of the making of the said bitter Statute of the twenty fifth year of his own Raign and he and his Parliament finding the mischievous inconveniences and dishonor that it had put upon the people and resolving to file those Shakles from off the Subjects feet and to reinvest them into the Liberty and freedome of their persons from imprisonment according to the common Law of the Land by that gracious healing Statute made in the two and fortieth year of the Reign of the same King Edward the Third Chap. 1. those two Raizor metled cutting rigorous Laws were as to such Imprisonment as aforesaid by the opinion of many and by the general construction of Law and the true intendment hereof Repealed which declared that the Great Charter should be holden and kept in all points and if any Statute be made to the contrary that it should be holden for none which said last mentioned Statute was according to common construction intended fully to restore the brightness and luster of the ancient Common Law and to support and maintain the strength and vigor of that Standard of Law and Justice the Great Charter which not only asserts His Majesties just Rights and Prerogative Royal but defends and preserves the Freedom and just Liberties of the people which as the same Author in his Preface to his second Institute tells us hath been confirmed by two and thirty Acts of Parliament and not only so but by the Statute of the twenty fifth of Edward the First the same is to be taken as the Common Law But the seting up and creation of the great numbers of Offices and Officers and the herds of persons which those most severe Laws Westminster the Second and the Statute of the twenty fifth of Edward the Third had most advantageously preferred almost in every City Town and Village of the Kingdome had so fix'd fastned and rivited such Multitudes of persons many of them of very great and eminent quality and interest in places of great and tempting gain which had made so deep an impression upon the minds of that prevalent and powerful part of the Kingdome who had thereby plentifully enricht themselves that notwithstanding the said Statute of the two and foroftieth Edw. the Third so intentionally composed as aforesaid for the manumitting of the people of England as 〈◊〉 from the thraldome of a Prison as otherwise to preserve their Liberty they went on to Imprison the Bodies of the Subject which hath ever since been practised not only by vertue of those two Laws Westminster the Second and the twenty fifth of Edward the Third
but that of Acton Burnell and the Statute de mercatoribus touching Arrests upon Statutes Staple and Merchant and by other Laws built upon them which contrary to the antient Common Law as is very plain doth continue the invassilation of Imprisonment against and upon all the free born Subjects of England except the Lords and they themselves in some case as the Law by some is holden to be are not exempted neither for if a Nobleman be Outlawed as it is holden he may be arrested and Imprisoned and until the Outlawry be reverst is not only incapable to sit in the House of Peers but all his personal Estate is forfeited and his Lands in the same condition with any other Subject So that it is indisputably clear how great an Intrenchment the Imprisonment of Mens persons is upon the honor of the antient Common Law of which as the Lord Chief Justice Coke saith the Great Charter is but declaratory and as a late Writer from good authority tells us did not grant any thing de Novo but that thereby our antient Laws and Liberties were only repeated and confirmed and indeed all those our Ancestors maintaiâ—ed not only with indefatigable prudential care and industry but with the vast expence of Blood and Treasure witness the more then twenty years intestine Bloody Civil War in the Reign of King Iohn and in the end the confirmation of those Laws and Liberties by the same King in the face of the Nobility and other the great Men of the Kingdome and of an infinite multitude of other the free people of England as saith Brittaine fol. 219. So that there wants nothing to make it fully demonstrable that by our Ancestors magnanimity and resolved courage in maintaining the antient Common Law they and their Posterity were not only establisht in their just Rights but were preserved from such Imprisonment for Debt or Damages or any thing thereunto relating two hundred and fourteen years after the Norman Conquest which now is inflicted upon many thousands of His Majesties Good Loyal and Faithful Subjects to the utter ruine of them their Families and Relations whilst those who have lined their Iron Consciences with nothing but their profit and their Chests throughout with the Wealth of the Kingdome which they have gotten by the late unhappy differences and troubles smile to see those who have sacrificed their Bloods nay themselves and theirs in and to His Majesties faithful Services 〈◊〉 up by many of them in disconsolate and loathsome Prisons and thereby made useless nothings to the World and themselves Whereas if we cast our eyes back into the Reigns of the Saxon Kings we shall find that those Martial Wise and Wary Princes King Ina King Echelston and after them all the Saxon Kings according to the ancient British Laws were so very tender of the Imprisonment of Mens persons that they did not punish their very Bond-Men with it And King Alfrede displaced and Imprisoned one of his Judges for daring so to do and when the Government devolved and came to the Normans William the Conqueror William Rufus and Henry the First took such exact care to preserve this liberty un-infringed that in their Reigns not any person was Imprisoned although for mortal crime it self unless he were first attainted upon the Verdict of twelve Men. And additional to all this many ages after the Conquest by the ancient Common Law the Writ de Odio Atia was given to a Man that was Imprisoned although for an hainous Crime for the death of a Man yet the Law in that golden age in favor and out of an high esteem it had of the Liberty of a Man and that his Body should not be detained in Prison until the Justices in Eyre should come he might sue out this Writ directed to the Sheriff and although the offence for which he was committed was not baylable by Law yet the ancient Common Law did so highly hate and abominate the long Imprisonments of Men that it gave him this Writ for his relief which appears by Bracton in his third Book fol. 121. and by Fleta in his first Book Chap. 14. And with whom also Glanvell agreeth in his forteenth Book Chap. 3. And the Myrror of Iustice a Book of great Antiquity and Estimation in the Law as well as the Books before cited Chap. 5. Sect. 1. complains of the Imprisonment of Mens Persons as an abuse although it had been for breaking of a Goal Now for that it is clear as the light how highly valuable and dearly precious the Liberties of Mens persons were by the Common Law of the Land it is in most humble and submissive manner proposed that as well for the general good of all His Majesties Subjects as for Prisoners the antient Common Law may be restored and that great Liberty of the Freedome of all the Subjects of England and Wales from Imprisonment for Debt or Damages may by the Grace and Favor of His Majesty and of both His Honorable Houses of Parliament be again retreived and brought back with Honor to the people of this Kingdome and that the ancient forms and ways for recovery of Debts may be as for several hundred of years it was by Original Writ distress infinite Fieri facias and Levari facias and as by the ancient Common Law it continued with great and happy peace and tranquillity for such great length of time as aforesaid And certainly great reason it is that it should be so all Debts and Damages being to be properly had out of the Estate of the Debtor and not his Person It is said by the Lord Chief Justice Coke in his third Report fol. 11 12. that the Common Law hath and had its foundation laid and built upon the true grounds of Reason and that being granted as of necessity it must then it will consequentially follow that it were an Act of as much Honor as Justice to restore to the people of England the possession of the Inheritance and birth rights which they all have in and to the ancient Common Laws of England and of which they have so long and unhappily been diseised who indeed have too long already groaned under the very miserable alteration thereof by such the Imprisonment of Men as aforesaid And indeed the very large vast and sufficiently known great Prudence truly wise Apprehensions and Princely compassion of His late Majesty of ever precious and glorious memory now in Heaven towards his Subjects were such that it is eminently known that had not the unhappy eruption of the late Civil War prevented it the bent of his full resolutions were to have intimated his recommends to the Parliament for the discharge of all Prisoners for Debt or Damages and the absolute taking away of all Arrests and Outlawries upon some reasonable compensation to be made for the emoluments that thereby came to his Crown which was then hoped would have gone under no great difficulty to have been done and is now with as
great facility and ease as is conceived by the Wisdome of the Parliament to receive a full and perfect consummation and as his said late Royal Majesty was pleased to say in the Court of the Highest Injustice the Christian World ever knew that he thought he understood the Laws of England as well as any Gentleman of his Kingdome whose profession it was not so by this intentional Act of his had it succeeded he had made it fully and clearly evident to all his people that by restoring the antient known Law of the Land herein to its pristine and original just strength and vertue he would thereby as well have compelled their ignorance to understand with how great and profound knowledge in the very antient Laws of the Kingdome as the more modern he was largely and plentifully furnisht as by his un-enthrawling new and fresh enfranchising his Subjects herein and by calling them and his and their ancient Laws out of the dark Caves and Dens of Prisons where for so great length of time they had lain Sepulchred together And truly it is a Solicisme that may be justly thought on that the Law which is so kind and merciful to my Horse as to take provisional care for a Replevin to inlarge him and yet that I my self should be reteined indurance under a perishing condition nay and without as much as any difinitive time by Law set for my releasement and for years that may tell steps to the last stand of my life there to melt and burn out my time by a kind of every days death And I can in no sort doubt but that Wise and Prudent Men will seriously and deliberately perpend and consider as elsewhere I have said that this is the case of almost every English Subject for let him be crammed with never so much Wealth yet he knows not nor is it possible for him to know or foresee how soon he may be in a Prison himself or if not himself yet his Widdow Child or Children near and dear Relations Kinred or intimate Friends And notwithstanding all this if it shall be thought too great a boone that all Imprisonments for Debt or Damages should now and for ever hereafter be taken totally away and the blessed antient Laws of England be thereby fully and happily restored to all persons in general as is hoped and desired it may be it is then humbly recommended to a serious and deliberate digestion that taking into due consideration the late direful miseries which like raging and tempestuous Waves have one in the neck of another rowl'd in upon those that are now in Prison and their Estates by the several great and calamitous Judgments of the late Civil War Plague Fire and Dutch War if it may not come within a just and conscientious commiseration to free and discharge all such as are now Prisoners in the several Prisons of England and Wales from their Imprisonments and yet notwithstanding such their discharge that their Creditors may have their just and antient Remedies such as by the antient Common Law they might have had for recovery of their Debts out of such Prisoners real and personal Estates by such way and means as the same antient Law prescribes and as herein before is set forth and declared which most modest Proposal being only on the behalf of such as are now Prisoners and being not proposed as a standing Act to continue and discharge Prisoners in future is hoped will find a gentle and smooth passage to its desired end But if this must be also thought an Act of Grace too large yet certainly it cannot be apprehended less than a perfectly honest and truly conscientious offer in lieu of their being dischardged from their Imprisonments to be ready and willing to part with all their Estates both real and personal for the satisfaction of all their Creditors and not only to submit themselves but any Witness or Witnesses to be examined upon Oath for the true discovery thereof and that for such only as are now Prisoners and no other as aforesaid which if it be not an equal purely fair and just proposal I leave any impartial and unbyast person to judge For the perfecting of which a Bill preparatory to an Act of Parliament is drawn and humbly desired by many thousands of Prisoners that the same may pass or some such other for their Relief and Releasement as to the Wisdome of the Parliament shall seem more apposite and convenient And if the meanest sort of Prisoners that could not pay any thing at all towards the satisfaction of their Creditors did by Vertue of the ten pound Act come so far under the just and merciful consideration of the Parliament as to be freed from their Imprisonments certainly such Prisoners as can pay some part of their Debts and are ready and willing to part with all their Estates both Real and Personal that so a proportionable Divident may be made thereof to and amongst all their Creditors do hope they may with much more reason have leave to think themselves as well obliged to believe as to desire that they may by His Majesty and both His Houses of Parliament be freed from their Imprisonments before the remainder of their Estates be totally swallowed up by the Fees and other the inevitable great charges of a Prison and they thereby be put into the same low and deplorable condition together with those who took the benefit of that Act by means of which their Creditors will inevitably loose their Debts and such Prisoner and his be reduced to extremity of want and the Kingdome unfurnisht and deprived of very many persons whose endowments are sublim'd and heightned with so great natural and acquired parts as may speak them as advantageously useful to their King and Countrey as any other of their fellow Subjects very few excepted many of whose liberal and ingenious useful Excellencies deserve much rather to be cherisht and encouraged then deprest And shall our great and gracious Monarch and his greatest Council think it too much that after all the before mentioned Judgments which have been so iterated and repeated upon such Prisoners and which have merged and sunk their sometime flourishing Estates that they should now at length be discharged from their Imprisonments but that they should for ever remain so buried without a resurrection from the Dead Death and Grave they are in and under whilst their deprest parts are even starved and stifled in a Prison and yet in the condition they now stand are left fit only to have the remainder of what is theirs pluckt and rent from them and not in the least capacity to help themselves nor their Creditors and all this not only to satisfie the appetites of their obstinately resolved Creditors whose Money such Prisoners out of pure necessity are compelled to spend but to suffer under be wyre-drawn squeezed and run down by the subtilties and variety of Frauds even of such who have been intimately and beneficially
the Commissioners to expedite and execute the same it be lawful for the Lord Chancellor or Lord Keeper for the time being from and immediately after the remanding of such Prisoner to Prison by the said Commissioners to grant unto such Prisoner a Habeas Corpus or Habeas Corpus's for such length of time as he shall think necessary and conveneint in that behalf to the end that such Prisoner may be in a condition personally to attend the said Commissioners and to be otherwise instrumental in giving of a speedy dispatch to the Sale and Disposal of his Estate as aforesaid Provided That if any Prisoner shall set forth to the said Commissioners or to any three or more of them as aforesaid the Debt of any Creditor of his that is beyond the Seas to be less than in truth the same is such Prisoner shall thereby forfeit and lose the benefit of this Act as to such Creditor and every such Creditor his Executors Administrators and Assigns making his Debt to appear to be more than such Prisoner shall have declared the same to be before the said Commissioners such Creditor is hereby impowred and authorized again to proceed and take the said Prisoner in Execution and thereupon to imprison him or otherwise to prosecute him at Law or in Equity as to him shall seem best or to indict and prosecute him at the Common Law for breach of his Oath or upon any Statute or Statutes made against Perjury This Act or any thing herein contained to the contrary thereof in any wise notwithstanding Objection To these Heads of a Bill perhaps there may be several Objections As first That in what is here proposed for a Bill there is no provision that in case the Prisoner happen to have an Estate after he is discharged that such Estate shall be Subject to his Debts Answer To which is answered That the Prisoner parting with all his Estate voluntarily it will seem very severe that he should not be capable of a Legacy or other Gift from any Friend and Relation but that it must of necessity be upon the matter devised or given to his Cerditors Or that he who by remaining in prison could never in the least have advantaged his Creditors yet being discharged and at liberty all his labours should be exposed to his Creditors mercy Objection Secondly And which is a very great objection That by the heads of this Bill although Mortgages are to be paid first yet Judgements Statutes and Recognizances are thereby but in the same degree with Bonds and to be paid equally although the Law gives them a priority in payment Answer To which it is answered That in this case if a Judgement Statute or Recognizance should according to the rule of Law be paid before Bonds then as this Case is there cannot be as it may fall out a proportionable Divident of the Estate nor indeed any Divident at all for one Judgement Statute or Recognizance may swallow up the whole Estate besides it is plain that by the Statute made against Bankrupts Judgements Statutes and Recognizances are equally and proportionably paid with Bonds and no otherwise so that in that case they are in pari gradu with Bonds and oâ—her Debts and may much rather so be in this case than in the Statute of Banckrupt especially considering that this is not a standing Act but for the discharge of such only as are now in Prison begotten out of the several fatal accidents which have happened in this age more than in any former by means whereof many thousands more then formerly are now clasp'd and shut up in prisons Objection Thirdly That the Proviso that the Prisoners shall have a twentieth part of his Estate for his present maintainance may seem unequal in regard as hath been urged That then a Tradesman or any other in credit may get twenty thousand pounds into his hands and then go into a Prison and be sure of One thousand pounds Next That in regard his whole Estate will not pay his debts without abatement it is not reasonable that he should have a twentieth part Answer To which it is answered That if there shall be any one such person as would or could designedly to gain 1000 l. get twenty thousand pounds into his hands the which upon a due and deliberate consideration of the thing is not easily to be imagined ever will or can be done yet the villany of one Man it is hoped shall not be put into the Ballance with the good of many hundreds Next it 's true it may seem hard that the Prisoner should have any thing out of his Estate when all will not pay his debts and it is equally as hard and harder that after he hath spontaneouslâ—â—evested himself of hiâ— Estate he should be turned naked into the World without any thing at all to give him a present support or some small foundation for future living That if due consideration be had of this intended Act or if not of this if care be taken for passing such another Act as may effectually operate to the same purpose it will be found to be a great good and weighty work although some persons of whom better things might justly be expected little regard or consider it for it is of such consequence to relieve the oppressed to study and effect such works of Piety and Charity as concerns all the Prisoners and Prisons of England and Wales that it will as is hoped deserve some of the oleum opera of every good Patriot that loves his Countrey to whom it is seriously recommended by this or some such other Act to perfect a work although with difficulty and pains so incumbent upon all person of spacious and publick Souls especialy weighing that not any former age hath left a trace or memory suitable to the great variety of sufferings as in this FINIS