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

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

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Title page

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.

A SVMMARY or COMPENDIVM OF The ACT before-mentioned, FOR PRISONERS That will part with all their ESTATES, both Real and Personal, for the Satisfaction of their CREDITORS.

Objection.

Answer.

Objection.

Answer.

Objection.

Answer.

§

§

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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.

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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 Conq [...]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 [Page] 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 Arrest [...] 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 [Page] 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 [Page] 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 maintai [...]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 [Page] 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 [Page] 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 [Page] 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 [Page] 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 acquainted with their often repeated kindnesses, in the light and shine of their prosperities; and truly, since thousands of known great, and grievous Offenders, (by His Majesty, and His happy Parliaments Mercy, made a large and plentiful Meal, on the Viands [Page] of His and their gracious compassion, whose Carcases otherwise, must (by the known rule of Justice) have fed the Fire and Birds of prey) it goes under, not only more than probable hopes, but a becoming confidence, That all His Majesties good Subjects, that are now indurance, in any Prison of England and Wales, for Debt or Damages, or any thing thereunto relating, or at least all such as will, so as aforesaid, part with all their Estates, both real and personal, for the satisfaction of their Creditors, and such as are so in Prison, and have not Estates of the value of ten pounds) may be participants of His Majesties, and His Parliaments gracious and serene compassion, according to the said Bill so drawn as aforesaid, for that purpose, or by such other Act, Way, or Means, as may best sute and agree with their great Wisdomes, which is, by very great numbers of Prisoners for Debt (now fastned [...] to the several Prisons of England, in diminution, lessening, and even degrading of the Antient, Famous, and Renowned Laws thereof) with all Humility, Duty, and Obedience, not only Recommended, and Presented, but (at their feet) most humbly submitted, prostrated, and laid down,

And with the same most Humble and Dutiful Obedience, of a truly Loyal and Faithful Subject WILLIAM COLE.

A SVMMARY or COMPENDIVM OF The ACT before-mentioned, FOR PRISONERS That will part with all their ESTATES, both Real and Personal, for the Satisfaction of their CREDITORS.

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THat it may be lawful for the Lord Chancellor, or Lord Keeper for the time being (upon Request to him by such Prisoner to be made) to issue out Commissions, to be directed to such Persons as shall be thought fit, authorizing them, (or any three or more of them) in their respective Counties) to Summon and send for the Creditors of all such person and persons, as now is, or are in prison (or at any time during this Session of Parliament) shall be in Prison in any of the Prisons in England, and Wales, upon any Action or Actions upon Measne Process for Debt, Accounts or Trespass; which actions by a prosecution of Law, may come to be Judgements for Debts or Damages; or that have Judgements entered of Record against them, or charged in Execution, or imprisoned upon Attachments for Debts or upon Outlawries before or after Judgements for Debt; or upon Statutes, Recognizances, Extents, or upon any other Action, or any other Process whatsoever, issuing out of any Court of Law, or Equity, for the cause of Debt or Damages or Costs, or for Money ordered or decreed in any Court of Equity, at the suit of any person or persons whatsoever, or upon or by reason of any Process issuing upon them, any or either of them respectively; as well those persons, for whose Debt and Debts the said Prisoner and Prisoners is, and are imprisoned; as all other person and persons, to whom such Prisoner and Prisoners is, or stands indebted: As also to send for such Prisoner or Prisoners, by Summons, to come before them; which Summons the Prison-Keepers are to obey, upon the penalty of 100 l. And (at the same time) to certify the Cause and Causes of such Prisoners imprisonment. And the Commissioners (after the examination of such Prisoner) are to Remand him to Prison.

[Page]That if such Creditor be dead, an Infant, or of Non-sane memory, then to summon the Executors, Administrators, or Guardian of such Creditor; Requiring also such Prison-keeper, to bring such Prisoner to such place as the Commissioners shall appoint, where the said Commissioners shal Treat with such Creditors, touching their Debts; that so a proportionable distribution may be to them made, of the said Prisoners Estate (the Apparell of such Prisoner, and also necessaries for his Trade excepted out of his personal Estate.)

That if any of the Creditors shall refuse or neglect to come before the said Commissioners (or some for them,) having had twenty days notice inclusive and Oath made thereof) the said Commissioners to be impowered to finish such alottment, such Creditors absence notwithstanding.

That the said Commissioners be impowered to examine the said Prisoner upon Oath, for the discovery of his Estate, and to send for such Books, Evidences, and Writings, as they think fit, and to examine Witnesses upon Oath, to the end, that they may make a true discovery of the Prisoners Estate, which is so to be done, within six Kalender months after their first sitting, or sooner if it may be.

That the said Commissioners be authorized to apportion all such Estate amongst the Creditors proportionably, by sale of the Estate, or otherwise; which sale, or other disposition shall be good against the Prisoner's Heirs, Executors, &c. and to be divided within three months after the end of the said six months (or sooner if it can be done) And that the said Commissioners be impowered to assign the Debts and Estate of such Prisoner to such Persons as they shall think fit, for the use of the Creditors, a twentieth part (so to be sold) to be allotted to the Prisoner, for present maintainance, and for some small foundation for future living.

That Mortgages shall be first payed by the Estate so Mortgaged.

That (after the apportioning of such Prisoners Estate) the Prisoner shall be discharged; and that such part of the Prisoners Estate as shall be allotted to the Creditors shall be in full satisfaction of such Creditors Debt.

That such Creditors as shall not appear before the said Commissioners (or some for them) before such Divident be made (having had such notice as aforesaid, and Oath made thereof) shall be utterly, and for ever, precluded from the recovering of his said Debt, against the said Prisoner his Executors, &c.

That a Writing under the Hands and Seals of the Commissioners (expressing the discharge of such Prisoner) shall be a full Discharge to him against his Creditors, and another Writing, (signifying such Prisoners Discharge) directed to the Prison-keeper shall be a sufficient Warrant for him to discharge such Prisoner; which he is to do within two days, without payment of any Fees; but the Prisoners Chamber-rent is to be paid out of the Estate so to be sold, or so much thereof as the Commissioners shall think fit.

That if any Action of Escape shall be brought against the Prison-keeper (for the discharging of such Prisoner) he may plead the general Issue, and give this Act in Evidence; and if the Plaintiff shall be Non-suted, or a Verdict shall pass against him, he is to pay the Defendant double Costs to be Taxed by the Court, where the Action shall be brought.

That for the expediting the sale, and other the disposition of such Prisoners Estate (in order to the satisfaction of his Creditors) without whose personal aid and assistance, it will be of far the greater difficulty for 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 [Page] 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 o [...]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.

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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 spontaneousl [...] [...]evested himself of hi [...] 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.

Information about this book

Title statement

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

Cole, William, 1615 or 16-1698.

Edition statement

1675

Publication

Publisher

Text Creation Partnership,

Place of publication

Ann Arbor, MI ; Oxford (UK) :

Date

2004-05 (EEBO-TCP Phase 1).

ID [DLPS]

A33726

ID [STC]

Wing C5034

ID [STC]

ESTC R214940

ID [EEBO-CITATION]

99826982

ID [PROQUEST]

99826982

ID [VID]

31394

Availability

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.

Series

Early English books online.

Notes

(EEBO-TCP ; phase 1, no. A33726)

Transcribed from: (Early English Books Online ; image set 31394)

Images scanned from microfilm: (Early English books, 1641-1700 ; 1882:25)

Source

— 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, Cole, William, 1615 or 16-1698..

Extent

16 p.

[s.n.],. London :: printed in the year MDCLXXV. [1675]. (Signed on p. 11: William Cole.) ("A summary or compendium of the act before-mentioned, for prisoners that will part with all their estates, both real and personal, for the satisfaction of their creditors" has caption title on p. 13; register and pagination are continuous.) (Reproduction of the original in the Bodleian Library.)

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