THE Ancient, Legal, Fundamental, and Necessary Rights OF Courts of Justice, In their Writs of Capias, Arrests, and Process of Outlary.

And the Illegality, many mischiefs and Inconveniences, which may arrive to the People of England, by the Pro­posals tendred to His Majesty, and the High Court of Parliament, for the abolishing of that old and better way, and method of Justice, and the establishing of a new, by peremptory Sum­mons and Citations in Actions of Debt.

By Fabian Philipps, Esq

Antonius Matheus in Praefat: ad Lib: de Auct [...]onibus,

Arduum est vetustis novitatem dare, novis Autoritatem.

Dira per incantum Serpunt Contagia vulgus.

LONDON, Printed for Christopher Wilkinson, and are to be sold at his Shop at the Sign of the Black Boy in Fleet-street, over against St. Dunstans Church, 1676.



The Contents of the Chapters.

  • Chap. 1. THe many mischiefs and incon­veniences which may happen by an Act of Parliament, if obtained, for the more speedy recovery of Debts upon Bonds or Bills, under the Debtors hands and seals, in the manner as is by some desired.
  • Chap. 2. That the most part of that desi­red Innovation was borrowed from Mr. Els­liot's wicked Invention, and a wild Systeme not long after framed, and from some also now much disused part of the Civil Laws.
  • Chap. 3. The reason and necessity of the more frequent use of Writs of Arrest and Vt­lary, then was before the Statute of 25 E. 3. cap. 17.
  • [Page] Chap. 4. The Ancient use as well as ne­cessity of the Process of Arrest and Outlawry in this and other Nations.
  • Chap. 5. The Process of Arrest and Vt­lary are a more gentle way of compelling men to pay their Debts, or appear in Courts of Ju­stice, then that which was formerly used.
  • Chap. 6. The delays and inconveniences of the Process of Summons, Pone & distrin­gas, were a great, if not the only cause of the disuse thereof.
  • Chap. 7. The Writs and Process of Arrest and Outlawry have increased, preserved, and encouraged Trade, better secured the Creditors Debts, and made the borrowing of Money more easie then it was before.
  • Chap. 8. The pawn and ingagement of the Body, is most commonly a better security then Lands or personal Estate, upon which the borrowing of Money was not only very trouble­some, but difficult.
  • [Page] Chap. 9. The difference betwixt borrow­ing of Money upon Lands and real Estate, and the procuring of it upon personal security; and that without trust and personal security Trade cannot well, or at all subsist.
  • Chap. 10. The way of Capias and Arrest is no oppression or tyranny exercised upon the people, since the making of the Statute of 25 E. 3. cap. 17. or hath been hitherto, or may be destructive to their Liberties.
  • Chap. 11. That the wisest of the Grecian Commonwealths, Athens and Sparta, those great contenders for Liberty and preservers of it, did in their establishments and methods of Justice neither understand or suspect any Ty­ranny or oppression to be in the necessary and mod [...]rate use of the Process of Arrest.
  • Chap. 12. The troubles and seditions of the people of Rome concerning the whippings, scourging, selling for Bond-slaves, and other cruelties used by Creditors in the suing and prosecution for their Debts, and the troubles [Page] and endeavours of the Magistrates and Sena­tors to appease them.
  • Chap. 13. That their Order made to paci­fie a tumult was not perpetual, or so much as intended to extend to an absolute freedom of the Debtors from Arrest or restraints of their persons, until they appeared in Courts of Ju­stice, or gave bayl to do it.
  • Chap. 14. That the Statute of 25 E. 3. cap. 17. which giveth Process of Capias and Exigent in Actions of Debt, and other Acti­ons therein mentioned, is not repealed either by the Acts of Parliament of 28 E. 3. or 42 E. 3. cap. 1. there being no inconvenience or preju­dice to the Publique good in those kind of Law proceedings, which might deserve a repeal by those or any other Acts of Parliament.
  • Chap. 15. That the Nation hath not been base or slavish ever since the making of the said Act of Parliament of 25 E. 3. cap. 17.
  • Chap. 16. An examination of the Opini­ons of Sir Edward Coke in his report of [Page] Sir William Herberts Case, touching the Pro­cess of Arrest used in our Laws; and the many Errors appearing in that Book or Manuscript called the Mirrour of Justice, and the fictiti­ous matters and relations mentioned therein.
  • Chap. 17. That the late incessant needless complaints against our Laws, and the proceed­ings in our Courts of Justice, had in the bot­tom of it a design of overturning Monarchy and Government, and to create Offices, places, imployments and profits to the contrivers thereof and their party.
  • Chap. 18. That neither Oliver Cromwell or his Son Richard, the second Mock-Pro­tector or little Highness, did conceive it to be reasonable, or had any intention to deliver up the Justice of the Nation to those igno­rant, giddy, and ever-changing kind of Re­formations.
  • Chap. 19. What occasioned the contri­vance of the former Projects and groundless Complaints against our Laws, since his Maje­sties happy Restauration.
  • [Page] Chap. 20. That the Proceedings at the Common Law desired by the new way of a pe­remptory Summons, or the old by Writs of Summons, Pone & Distringas, or Writs of Capias at the Plaintiffs pleasure, are not con­sistent or agreeable one with the other; and that Laws being to be binding, are to be cer­tain and positive, not arbitrary.
  • Chap. 21. That it will not be for the In­terest of the King and his people to give way to that Design which may open a passage to other Innovations and Contrivances as much if not more inconvenient and prejudicial.

CHAP. I. The many mischiefs and inconveniences which may happen by an Act of Parliament, to be made for the more speedy recovery of Debts upon Bonds or Bills, under the Debtors hands and seals, in the manner as is by some desired.

THe Suggestions and that which should be the Causes or inducements to such an Act of Parliament are greatly mistaken; or if there happen any such Evils as are pre­tended, they are Raro Contingentia, and do but seldom happen.

And when they do arise, have their origi­nals from other Causes, but not from Arrests in Actions of Debt, which by the shortest ac­count, are and have been of 374. years con­tinuance, by order and approbation of many Acts of Parliament, but may be demonstra­ted to have been of a far greater Age, and equal to that of the Eldest Court or Method of Justice, in this, or any other civilized Na­tion in the world.

[Page 2] The mischances happening by two or three Bailiffs in 20. or 30, jears, killed most com­monly upon the score of their own provocati­on, rudeness and misdemeanors, are when they do so happen in the unruly Suburbs of London towards Westminster, for in the other too vast extent of them, an Age or Century is scarce able to furnish out one of those evil accidents.

And within the City of London, where Cre­dit seems to be the Life and Soul of Trade, and their growing, and already gained Riches there may be reckoned in their two Sheriffs Courts twice every week in the Year, holden no less than two hundred Actions and Arrests weekly, entered and made upon Debts which makes no more disturbance than a quiet put­ting in of Bail, which secures the Debt more than it was before.

And in all the Counties, Cities, and Cor­porations of England and Wales, as well as in the City of London, the death of a Bailiff, Serjeant at Mace or Catchpole, is not to be found in the remembrance of the most aged persons.

And the Writs and Records of the Courts of Westminster, from which very many Writs [Page 3] and Proces do Issue, and are to be returned in­to, cannot shew any frequency of Writs of Rescues, or any assaults made upon the Sheriffs or their Bayliffs, in the Execution of them.

And if the Proposers of this Bill and great Al­teration of the Laws, will not think themselves to be prejudiced if they should speak accor­ding to the Truth, and what every man upon the visible evidence of demonstration and Re­cords, may rationally believe.

It cannot be denied, but if there be in one County or City two Thousand Writs or Actions of Debt, made out in a year to Arrest, not above five hundred of them do proceed or come to Appearance, and that of that five hundred unagreed, there are scarce half of them that are declared against, or make any defence, and not half of that half ever come to be tryed, and that those do also most commonly come to an end or determination.

Where there is no Demurrers, or mat­ters of difficulty in Law, or peevishness in some of the parties to occasion the contrary, within less than a third Term, that many thousands of Actions are both in the Superior courts at Westminster, and the Country and hun­dred [Page 4] court Barons, and the inferior Courts, deter­mined within a few days, weeks, or months, very many in a quarter of a year, and those that remain uncompounded and undispatched, do not survive the contention or trouble of half a year after the Suit commenced or begun.

So that all things considered, if the Laws and Praxis in Scotland, France, Spain, Germany, Italy, Holland, Brabant, and all the other King­doms and Provinces of the Christian world, civil and municipal, shall be rightly compa­red with our more happy, less troublesome, and chargable, they will not be found to afford to their people such a quick dispatch of Justice adaequate, and ready way unto it as ours have done, and will always do, if they be not turn­ed out of their old course and channel.

By an Invention now proposed, which will be as illegal as unparallel'd, and hath no other pre­cedent or pattern then that late way of proceed­ing in Actions of Ejectment hatched in the level­ing or Oliverian times, and hath then and ever since amongst knowing and good men, gained no better an esteem then that of a publick grie­vance, and a monstrum horrendum informe ingens cui lumen ademptum, spawned and bred up in [Page 5] a Rebellion, when Monarchy was Banished, and the word of God and Laws of the Land were shamefully, and as much as they could, be misused.

For that there is an absurdity, confusion, and Hysteron Proteron in it, putting the Cart before the Horse, and making a Declaration which should be after a summons Executed, and Appearance entred to precede the Appear­ance, and at the same time go along with the Summons, with a prefixion but from one Terme to the next, which betwixt Easter and Trinity Terme, being but with an Interval of seventeen days, Sundays not excepted, will be too short, peremptory, and prejudicial to Defendants, and in the Lent Vacation, which is commonly three Months, and the Summer Vacation which is never less than 15 weeks, and sometimes longer, may be as inconvenient to Plaintiffs, who by the ancient and more le­gal prefixions, with the small distance of time of 15 days from return to return, in the Term time might sooner have recovered their Debts, appoints no Tryal by Juries, nor declares by what certain Authority or Court the Sum­mons shall be made, whether by the Parties, [Page 6] Plaintiffs, or otherwise, and gives a promis­cuous Conusance of Pleas to all the Courts of Law at Westminster, when as all but the court of Common Pleas, (some cases of priviledge excepted) have by our ancient Laws, and Magna Charta, no jurisdiction or right therein.

Makes the Summons for a time to come to falsifie the Declaration if at the same time deli­ver'd with it, to suppose it to be already made, and the Declaration which supposeth it to be already made, and is and ought to be a copy of the Record in the Court where­in the Action is pretended to be laid, and intended to be Tryed; to say he was Sum­moned when he was not, the Fieri to be a Fa­ctum, and the future to be a past or present, and will create some contradictions when the inju­red defendant shall come to wage his law, make Affidavit of a non Summons, or bring his action for damages sustained by a false Affidavit or returne

And will be sure enough to produce as ne­cessary effects of causes, very many not easie to be altogether foreseen or enumerated mischeifs and inconveniences.

Overturn and mutilate all our fundamental [Page 7] Laws, upon which the Monarchy of England, the best of Governments, and less arbitrary in the world, and the Justice of our Nation have for above one Thousand years been built and established, and cut and canton both it and our well tempered Monarchy into little pieces, and bring them as near as may be to an unhappy Republique, which will neither fit, or be for the good of the Nation.

Deform, or almost annihilate our long ap­proved Courts of Justice at Westminster, by tak­ing away a great part of the Process,Judges. and excel­lent Formes and Proceedings thereof, as Ado­nizebek is said to have done to his Captive Kings, when he did cut off their Thumbs and great Toes, destroy a great part of the Kings Prerogative which limited and bounded by our Laws and our Kings and Princes Concessions, is no more than his just and necessary means of Government, and in and by his High court of Chancery superintends over all the Courts of Justice in the Kingdom.

And as to the Law and Latine part of it, and granting out of Writs remedial under his Teste meipso, will appear to be a Court as anti­ent as the reason and civility of the Nation, from [Page 8] which all the other Courts of Westminster-Hall, Country-courts, Sheriffs Turns, Court-Leets and Baron, and all other Courts inferior in the Realm, may truly be said to have their begin­ning, the Matrix or Womb of all our Funda­mental Laws, either before or since Magna Charta, which had its birth and being from it, the Repository (under the King in the absence of Parliaments) of Justice in all cases where an appeal to the King or Parliament, or the helps of Parliament shall be necessary, the Custome of the Nation Officina Justitiae, place and work-house of Justice, & Lex Terrae, as it was in the year 1641. alleaged to have been by the then House of Commons in Parliament.

Take away a considerable part of the rights and priviledges of Parliaments, Nobility, Peerage and Parliament Men.

And the Liberties not only of them, but many of the Gentry, and men of great Estates in the Kingdom, some of them very largely extended in the Executing of Process and retur­na brevium, by the Charters of our Kings and Princes, or a long prescription have been gran­ted or permitted, and vested in them, and their Ancestors [Page 9] and Predecessors, and in 52 counties of England and Wales, may after an account but of 20 in a county one with another, amount to no less than one Thousand, and of the Lords also of Mannors in their court Barons, which, accor­ding to the computation but of three hundred Mannors and court Barons in every of the said Counties one with another, will in all proba­bility make a total of fifteen Thousand and six Hundred, Rot. Parl. 33. H. 6. M. 1. if not a great many more, which the Commons in Parliament in the 33. year of the Raign of King Henry the VI. were so unwilling to have invaded by the then undue practise of Attournys, as they did Petition the King for the Love of God, and in the way of Charity, to forbid it under great Penalties, which the King granted, If it be thought to the Judges reasonable, who being thereupon consulted, an Allocatur of that Petition was entered in the Margent of the Parliament Roll.

Overthrow, or put into a Chaos or confu­sion all or much of the long used course and order of Process and Justice in the large and ancient Jurisdictions of the courts of Marshal-sea, Principality of Wales, Dutchy of Lancaster, and country Palatines of Chester and Durham.

[Page 10] And do the like to those great Jurisdictions of the Cinque-ports, and the Admiralty whose business and the ancient course and manage thereof, cannot conform to the designs of such an unpracticable way of getting in of Debts.

Lame and discourage the very ancient and useful, if something better ordered Offices of Sheriffs, Under-Sheriffs, and their Bayliffs, in the Execution of Justice, and the Proces of the courts thereof, by turning much of their business into a worse condition.

Change and inconvenience the Government of the City of London, and Borough of South­wark, and of all the Cities, Boroughs, and Towns corporate of England and Wales, in their several administrations of Justice.

And like a Hurricano whirling, and passed through the Nation, at once spoil or confound all the Courts of Justice, great and little, there­in and abridge or take from them their antient and hitherto justly allowed Rights and Juris­dictions, which to them and their predeces­sors, have with our incomparable Magna Charta, been no seldomer than 30 times confirmed by Acts of Parliament.

[Page 11] VVill be directly repugnant unto, and a­gainst Magna Charta,42. E. 3. cap. 3. and the Statute of 42. E. 3. a branch or limb thereof, which at the request of the Commons, and for the good gover­nance of them, ordained that none be put to an­swer without presentment before Justices, or mat­ter of Record, or by due Process of Law, and Writ Original, according to the Old Law of the Land.

And if any thing should from thenceforth be done to the contrary, it should be void in the Law, and holden for Error.

Be a great loss and damage to the King, in his Fines and Seals of Original VVrits, the Seals of the VVrits and Process Issuing out of his Courts of Kings Bench, Common Pleas, Exchecquer, Principality of Wales, Dutchy of Lancaster, and County Palatine of Chester, and the amercements and Issues forfeited or retur­ned upon Caepi Corpus, Writs of Habeas Corpus, and Distringasses; all which were intended by Law to be assistant to the defraying of his great charges in the Salaries and supports of the Lord Keeper, Master of the Rolls, Judges, and Officers imployed in the Administration of Justice, which taken away, will render him to be in that particular less considered, and in [Page 12] a worse case then Oliver Cromwel was, who by his miscalled Parliaments, and Instrument of an Arbitrary Protectorship, was besides his charge of the Navy, and Horse and Foot Guards, allowed two hundred thousand pounds per Annum, for the charge of the Government and Admi­nistration of Justice.

Take away from the King much of the Law Tax upon the writs and process, which a late Act of Parliament consented unto for supply of his urgent occasions, and bereave him of his never denied Prerogative, and benefit of Utlaries.

Extirpate the Antiently and legally allowed Essoynes de malo lecti, or veniendo, de ultra mare, or in servitio Regio, or any hinderance which might happen to excuse their non-appearance after a lawful Summons in Debt, which by the Laws of Nature and Nations have been in cases of necessity, Inundation of waters, or imploy­ment for the publick never denied.

Turne all, or the most of the proceedings upon Actions of Debt into Surprizes and De­faults, and disturbe the more deliberate, satis­factory, and safe way of Tryals by Juries.

[Page 13] Make a default which no Law ever did, to have the force and effect of a Verdict by Jury when there was none.

And debar the helps of Writs of Error, when all Mankind, as well Judges as Juries, and the parties and their Councel on both sides, may erre, and can have no assurance to be Infal­lible.

Deprive the People of that part of our Magna Charta,9. H. 8. cap. 14. which would have no man amerced for a small fault, but after the manner of the fault, and for a great fault, after the quantity thereof, saving to him his Contenement, and to a Merchant his Merchandise, and that none be a­merced but by the Oath of good and lawful Men of the vicinage, which did not certainly intend a Debtor to be ruined for a small default, or to be debarred of his Tryal by his Peers.

And obliterate the equity of the Act of Par­liament of 13. E. 1. which providing that he that recovereth a Debt,13. E. 1. cap. 18. may Sue Execution by writ of Fieri facias, or Elegit excepteth the Oxen and Beasts of the Plow, and cannot be rationally supposed to favour such a Ruine upon a Debtor, when for want of evidence and witnesses, he shall not be able to escape the fury of such a default.

[Page 14] And likewise that part of Magna Charta which granted that the City of London should have and enjoy all the old Liberties and Customes, 9. H. 3. ca. 9. which it hath been used to have, and that all other Cities, Boroughs, and Towns, and the Barons of the five Ports, and all other Ports, should have all their Liberties and free Customs, and did not take it (as it may be conjectured) to be any reason that a surprize in Actions or Suits for Debts, should by Malice or Tricks, without pleading, or reasonable time given for Defence, destroy them and their Trade, and Families, and all their endeavors before and after.

VVhich the prudent Romans held to be so unjust, as where they gave a Plaintiff but three hours to Plead, they allowed the Defendant nine.

And it is not yet gone out of the memory of Man, that in the year 1642 or 1643, the course of stealing or hurrying of Judgments, now un­happily borrowed from the Innovation of the late wicked times of Usurpation in Actions of Ejectment, was believed by Justice Bacon in the Court of Kings Bench, and Justice Reeve in the Court of Common Pleas, to be such a vio­violation [Page 15] of our Laws, as they Publickly de­claimed against it, and threatned to imprison any Attorney that should practice in such a manner.

And with great authority and warrant of our Lawes, and right reason, for that as it was justly and truely said by the Judges in the Reign of King Edward the first, that non sum­monitus nec attachiatus per Legem terre prejudici­ari non potest, and Fleta an approved Lawyer in the Reign of that King, and King Edward the second his Son hath published it to be a great and known Truth, that the Court of Com­mon Pleas cannot hold Plea in real and per­sonal Actions, without the Commission or Authority of a Writ original out of the Chance­ry, Fleta. lib. cap. 34. and that without it, nec Warrantum nec Juris­dictionem neque Coercionem habent, and our Laws did then and long after not proceed upon such warrant or commission until the Plaintiff had actually given sureties to prosecute and maintain his action, and the Sheriff to whom such original Writ was directed, for to sum­mon or attach the debtor to appear before the said justices had returned that he was sum­moned or attached as the nature of the Action [Page 16] required, or had nothing whereby to be sum­moned or attached.

When but a few years preceding, that well deserved indignation of those two worthy Judg­es, that excellent, most just, lawdable, and ratio­nal course of justice had been endeavoured to have been subverted by one Elsliot of a degree betwixt an Attorney and a Barrister, and a man very bold & able enough to make and contrive tricks and abuses in Law proceedings, who having about the middle of the reign of King Charles the Martyr as a Reprobate and Cast away in the Law shifted himself from England into Ireland, and from thence after some bad prancks there played returning back again with as much poverty as impudence attending upon him, and having a desire to get some money by a contrivance, to gain a sudaine possession of some Lands or houses for one as bad as himself, upon a judgment by default against the Landlord or his Tenant who were to know nothing of it, caused a declaration to be prepared in an action of Ejectment against a feigned Deft. or ejector in the name of a feign­ed Lessee upon a short Lease pretended to be made by his naughty Clyent, and left at the house of the [Page 17] Tenant, who not well apprehending the force and extent of the project, a judgment by de­fault was entred, possession surprized and taken for which upon complaint made to the Judg­es of the Court of Kings Bench, in which Court the action was supposed to have been laid, and examination of the fact, the judg­ment was made void, possession restored, and Master Elsliot the contriver, committed and told by Justice Barkley, that it was a shame that ever he should come or shew his face in a Court of justice.

Howsoever getting himself afterwards enlarg­ed, and the confusion and troubles of the late civil Warrs disturbing and breaking in upon the Law and all the Courts of Justice, Mr. Elsliot; began again to appear to be some­body, & engages in another exploit, which was to gain by the like device, accompanied with force & some other naughty ways, possession of an house and a very considerable estate in Lands in the County of Essex of Sir. Adam Littletons the Father of Sir Thomas Littleton Knight, now a member of the house of Commons in Parlia­ment, who to his great cost and trouble en­deavouring to extricate and free himself and his Fathers Estate from the peril and danger of [Page 18] such a villany, may well remember that a coun­terfeit record was in that pretended suit privat­ly layd in the office of the Records in the Tow­er of London, sworn unto, and offered to be justified, but was at length taken as it ought to be for a Roguish piece of Forgery, and Sir Adam Littleton and his Estate freed from any further disturbance.

Whilst that no smal parcel of Knavery being in great respect with the Agitators of the then called Parliament Army, Levellers & other State moulders, and stiling himself the Esquire at armes, being somtimes a Prisoner in New-gate, and som­times out, wanted not a Liberal maintenance from his Patrons and great Masters, until death shortly after unexpectedly rid the world of him.

From which reasonless and ungodly formula or way of proceeding, rather to be exploded then embraced in actions of Ejectment, and so utterly against the Law (evil examples being oftner followed then good) by some of his pro­selites and the connivance or want of courage in some of the Judges, in the time of the Cromwe­lian usurpation, dum sui non fuerunt, knowing better, but doing worse, the same came again to [Page 19] be revived, and creep into an allowance, with a note indorced by the Attorney in the name of the incognito or casual ejector, directed to the Tenant or Landlord, requiring them to ap­peare and look to the action, and confess Lease Ouster and Entry, otherwise he must and would confess a judgment, or let it pass by default.

As if such a judgment acknowledged by practice and confederacy, could not with a great deal of ease have been reversed by a court that should not be so abused, and the parties contrivant severely punished.

Of which kind of irregularity in the Law▪ and wandring out of the old Paths, never to be justified, the Justices of the court of Kings-bench have been so sensible as they have for some years last past, caused a Writ of Latitat (which antiently was used to be warranted by a VVrit Original of the Chancery) to be a­warded and sued out against the feigned ejec­tor.

And it is not half a yeare agoe, since the Pillory of Westminster proclaimed a Brewer to be more Crafty then wise or honest, when to gain an indirect possession of some houses by Judgments upon defaults, having fudled the Tenants with Drink and Tobacco.

[Page 20] And giving them peices of the declarations as waste paper, when they knew not what had been written therein to give fire to their tobacco thought he had snapt them with judgments up­on defaults when he made oath that he had left declarations at their houses, where they were in that manner made drunk, and could neither say or sware to the contrary.

But unde or from whence soever it came, or if this new manner of Law proceedings could have derived its pedegree from any more No­ble an Ancestor.

It will if every Client and his Attorney who is no member of the court, but only repre­sents his Client, shall be suffered to make the summons or Citations, and to be both Party, Judge, and Sheriff, without an authentication of hand, seal, or stamp, of any Court or their subordinate officers (which no Court of Ju­stice, Christian or Heathen, hath yet ad­ventured to allow) be hugely opposit to the rules and maximes, as well of the Civil as the Comon Law, used for more then one thousand years, that nemo privatus Citare potest, and bereave the high court of Chancery of those Rights which do truly and justly belong unto it, and the Judges of all other the Courts and [Page 21] circuits of England and Wales, who by an act of Parliament made in the thirteenth year of the Reign of King E. 1. and by ancient cu­stom long before used are to have their Clericos Irrotulantes sworn and intelligent officers to record and make their writs and process.13. E. 1. cap. 30.

Frustrate the Antiently well approved power of the court of Chancery in their process upon contempts, when there shall be as there will al­ways happen to be matters of Equity in cases of Fraud, Combinations, Hardships, or Ri­gours of Law fit to be releived by the said court, and a great deale more then were formerly, if the Creditors shall by this new Model of common Law proceedings be let loose to act their own will and furies up­on their insolvent or not punctually perform­ing debtors, and that high court shall upon contempts or disobedience of its process of Attachments or commissions of Rebellion have no power to punish them by arrest or impri­sonment being the only meanes tueri Jurisdicti­onem to maintain and uphold its Authority and Jurisdictions.

The hands of Justice and coercive power & authority of it, will be paralitique manacled & [Page 22] less in the laying by of the Sheriffs and their very necessary under Officers, by whom the Law received its Execution, which is as the life of it, and might as well be made use of in the Summons, Attachment or Process before Judgment, as they are to be afterwards, where there are and may be dangers of killing of men (if ever there were so many as is informed) by how much an execution after Judgment of Body or goods being unbaylable, is more terri­ble, and to be avoided by the debtor, then that which is baylable, and in many cases to be dis­charged by an appearance only to the action, and if the Plantiffs or their servants, the Attor­nies, Clarks, Constables or Porters, must be the Sheriffs or their Bailiffs, there may be more danger of resistance, killing, tumults, and com­motions, then ever there was of Bayliffs, and of more extortion and tricks, in those that are not sworn, then in those that are sworne and bound up by many Statutes and Acts of Par­liament, and the penalties thereof.

Or if arrests and the execution of Justice by the Sheriffs and their subordinate officers could be any primary or never failing efficient causes of the sl [...]ughters seldom happening upon [Page 23] arrests, or that to prevent it there will be any such necessity of laying aside or disuseing that necessary office of Sheriffs in the execution of Justice, as well after judgment as before, that of the raising the posse comitatus in cases of a forcible resistance of their taking possessions or levying the Kings debts, is to be put under the same fate, and neither Sheriff or Constable may arrest a felon, but obey the like method of Summoning him at his house or Lodging, to know if he be willing to be indicted, come to his Trial, and adventure a Hanging.

But no well built or grounded reason being likely to be found to support such reasonless and lawless opinions, the Adorers of such I­magination may assure their disciples that E­lias is to bring the reason, and that until then they must expect it, and may in the mean time do much better to give them leave to believe that.

Such a System of Infamy and Cruelty, and an unmerciful credit, tearing course of summon­ing publickly by papers left at the debtors Houses or Lodgings, or which is worse, fastned upon the outward doores, which the malitious contrivances or tricks of ill affected or violent [Page 24] Plaintiffs, if not prohibited by some severe penal­ties, will too often prompt them unto, and in the consequence bring an Inundation of ruins upon this Nation who do now more than half of them live upon credit, and are so generally in­debted, as they will not be much wide or from the Mark, who do believe that half the Lands and Estates real and Personal of the Kingdom sold to the utmost will not be enough to pay the debts thereof.

And by Suing out as it were Com­missions of Bankrupt against all the Nation, write, Lord have mercy upon us, upon too many mens doors, and now there is so little money left them, take a way the Credit that should help to support them.

Add affliction to affliction to all the Loyal nobility Gentry, and Citizens, that had impo­verished themselves by their Loyalty, and taking part with their King and his Laws, and the Church of England, and leave them to the invisible mercy of those that did help to Rob, Plunder, and Sequester them.

Bankrupt and undo most of the Trades­men, and be a meanes to help the over-hasty Creditors to a composition of four Shillings in [Page 25] the Pound, or a great deal less, when as other­wise, with a little patience, they might have had their whole debts pay'd unto them, and make the unbridled fury of one Creditor, to be a cause of the never payment of other Creditors debts.

When plaintiffs are many times as unreason­able as they are unmerciful, insolent and un­perswadable, where they can either find or keep advantages, and that many an Action as well as many a Plaintiff, may be Malitious, Oppressive, Unjust, and Vexatious, and such a fancied speedy way of geting in debts, may be very instrumental for the advance of evil purposes and knavish designs.

No Inhabitant of Wales where their Laws do already allow them an Iterum summons nor in the Cincque ports or any of the Counties pa­latine of Chester, Lancaster, or Durham, will be able to borrow any money in London, or out of their own Countries upon the best security, when that those who shall be imployed to serve the Summons, being not the Sheriffs offi­cers, may be in danger to be beaten, and can­not be outlawed without several Writs of Ca­pias

[Page 26] Many Tradesmen do only subsist by their credits, and take up great sums of money upon an opinion of their present abilities, or future gain, by which they do commonly give no o­ther security then their Persons, and by the ad­vantages therof do many times by their indu­stry attain unto great Estates, but if the process of arrest be taken away, they can hope no more to be so easily entrusted, for that an At­tachment of the person doth secure the plain­tiffs debt, either by present payment or causing other satisfaction, which the proceedings by summons in this manner will never attain unto.

The fear and disgrace of a Process of Arrest do put a period to many suits before the per­sons be attached, and before apparance, for that as a man will give all for his Life, so he will do much for his Liberty, and when men will either not regard a Summons, or delay to give satisfaction or an apparance, they will make a great deal more hast to prevent an arrest.

Debtors are several times or often called upon by their Creditors, which is asmuch as a Summons made without a Legal Officer, but yet neither that nor a VVrit of summons doth drive the most of them, to any care of [Page 27] payment, until the Process of Arrest do issue forth, which is more compulsory, and will be sure to prove a more speedy remedy for the Creditors then the way of Summons.

And a large and long experience consen­su rectae rationis & totius antiquitatis, and many ages will evidence that the benefit of the process of arrest hath been very great to this Nation, and that the care and wisdom of several Statutes and acts of Parliament who have always provi­ded for the publick before the private, universals before particulars, believed certainties before incertainties, and long and never failing experi­ences before remote probabilities, and have from time to time given a larger extent unto it then before it had, may tell us that for many ages past it hath been the best remedie for the people to recover their debts, and to com­pose other differences that our forefathers in some hundreds of years last past could devise.

And that to give the force of an Utlary after Judgment in a few days upon such a peremp­tory summons betwixt the tearmes of Easter and Trinity, and in the longer intervals, be­twixt the other termes, doth scarcly allow half the time, which our Laws thought reasonable [Page 28] and fit to the bringing of a man to be outlawed, which for its rigour and severity,Bracton. lib. 2. de co­rona. cap. 22. was not by Law as Bracton saith to be over hastened, but to be after three Writs of Capias returned non est inventus and eight several contempts more.

Will settle upon the plaintiff a libertie appropriated only to a special Capias utlagatum, to take both body and goods at one time, which the Law where the body is first taken, although the Lands and Goods of the Debtors, unless in cases of extents, upon Statute, Merchant, or of the staple, and Utlary be otherwise sufficient to answer the debts will not condiscend unto.

When unless it could be probable possi­ble or Imaginable, which a large proportion of melancholy can hardly do, that a personal estate in goods, money, or Chattels, in the debtors house or shop, could be allways ready and enough to pay that and all other his debts (and the King were no Creditor, for his debts are to be first satisfied) there must where a Man owes one thousand Pounds to ten several Credi­tors, of one hundred pounds a piece, and hath but one hundred pounds in estate towards the satisfaction of those several debts, and one of [Page 29] the ten Creditors hath out run the other & seiz'd it, be a necessity of a nihil habet to be returned, & the severest Plaintiffs, must against their wills be constrained to forsake the By-ways of this new kind of summons, and make what hast they can with some repentance into the bargain to return out of them into the plain roads and high-way of arresting the Body, or where there is a haste of the getting in the mony, or there is a suspitio fugae, or his insufficiency, or a necessity (which may often be the case) to outlaw a fugitive, or invisible debtor not easy to be taken or come at.

Bonds given to the Sheriffs, or spetial Bayle before Judges, so many times necessary accord­ing to the old usage and customs of our Laws & Courts of Justice, & fortifying many a debt, will by this new course of proceeding be no more to be hoped for or insisted upon by the Creditor or Plaintiff, who will be put in a worse conditi­on then they were before, and where upon some doubt or mistrust of the debtor or his E­state he might have had two more sureties or Strings to his Bow then he had before, that the Deft. should answer the Action, or yield his bo­dy to Prison, must now be content with what [Page 30] he did not like, when by an arrest he might have had a better security.

Instruct or give warning in a Lent or Sum­mer Vacation to an insolvent or suspected deb­tor, to convey away himself, goods or estate, and by such an unmerciful way of Process and proceedings, will not seldom incumber and ruine their debts and debtors, as many cruel creditors in the times of a more gentle and Christian way of process have done, to the great loss of themselves as well as others, for want of a competent prudence and patience.

Occasion, multiply and increase perjuries, which are already too frequent and in fashion.

And therefore when all is done, and some scores of good Acts of Parliament, without repeal, or any mention of them, and many a lawful reasonable and useful custom and course of the Courts of Justice of this Kingdom shall be run over to prepare a way for this innovati­on, which if it be well inspected and consi­dered, and put in the Ballance of Law and right, Reason against the old, and that he or his po­sterity that is now a Plaintiff, may be hereafter defendants, will certainly appeare to be much lighter than the old, which is the better and [Page 31] more experimented, and not only to be very de­structive to the design held forth, and benefits ex­pected by it, but very disproportionable to the pu­blick good & the Laws & Liberties of the people.

CHAP. II. That the most part of that desired Innovation, was borrowed from the said Mr. Elsliots wicked invention, and a wild System not long after framed, and from some also now much disused part of the Civil Law.

ANd the promoters of the petarre invention, to blow up the Estates and better part of the People (for Usurers, Brokers, oppressors, and such as grind and devour the languishing and wanting part of them, are not like to be malignant to such a profitable engine for their purposes) when they shall have made their accompt with God and Man, for bringing such a desolation upon their fellow-subjects, for some selfended intrests.

Will bring themselves and all to this conclu­sion, that the most part of it was taken from Mr. Elsliots wicked invention, and another part of it framed out of a wild System, not long after thrown amongst a disaffected party of the Peo­ple, to infect those who were mad enough be­fore; and that the little colour and glimmering of reason, that seems to keep them company, was borrowed from a now much disused part of the Civil Law; that in cases of contumacy, the [Page 32] Judge after a citation served, and disobeyed, did mitte [...]e Actorem in possessionem bonorum.

And that even in that Custom of the Civil Law, Clem. 1. de Jud. these Innovators did not consider as they might, that such a citation publick or perempto­ry, Gail. 1. obss. 16. l. ejus sect. si quis ad municip. is by the Civilians themselves acknowledged, to be a deviation à jure communi, & in casibus ne­cessitatis tantum recepta quando alio modo, qui [...] ci­tari non potest. Secondly, Vbi locus non est [...]utus ubi citandus habitat. Thirdly, Si persona est va­gabunda quo casu edictum eo loco affigi debet ubi solita est conversari.

That such a possession is notwithstanding but fiduciary, and the Plaintiff only put in posses­sion, Custodia causa & vice pignoris deti [...]et do­nee reus veniat responsurus.

That a 2d. trial, decree, or sentence, & restitutio in integrum do not seldom afterwards follow.

And that appeals from the lower Courts or Judges, to the higher Commissions of adjuncts and revisions, will never allow that Law to be [...]o desirable, expedite, or little chargeable as our Common Laws are, which our Novellists would perswade us to renounce and abandon.

Of which and the disparity of a great part of the Body of the Civil Laws with those of our [Page 33] cipal and common Laws, the Dukes, Earls, and Barons of England, were so sensible as in the eleventh year of the Reign of King Richard the 2. in the cause and appeal of Thomas Duke of Glocester and others against Robert de Vere Duke of Ireland, 11. R 2. in Rot Pro­cess & Ju­dic contra le duc. d' Ireland & autres. the Earl of Suffolk and others they denyed to proceed to Judgment thereup­on, according to the Law civil and declared que la Roialme de Angliterre ne estoit devant ces Heures ne al intent du Roy & signiours de parle­ment unques ne serra rule ne govern per le ley civil, and our Ancestors more than what they retain­ed of some of the actions rules and directions of reason which that excellent Law afforded,Selden dissert. ad Fletam ca. 9. and was necessary, would not as our learned Selden hath observed constanti adhaesione by a constant perseverance and affection be drawn from that singular reverence and esteem which they had of the common Law, which so long a course of time and antiquity had fitted to their nature and Genius.

In so much as William de la Pole Duke of Suffolk was in the Reign of King Henry the sixth accused amongst other things by the Com­mons in Parliament that he had sought to in­troduce the Civil parl 28. H, 6. m. 19 & ab inde usque 47.

[Page 34] And the great Cardinal Wolsey was in the Reign of King Henery the eight indicted or in­formed against, quod ipse intendebat finaliter anti­quissimas Anglicanas leges penitus subvertere & ener­vare in universum & hoc Regnum Anglie & e­jusdem Regni populum legibus Imperialibus dict. le­gibus Civilibus & earundem legum canonibus subjugare.Trin. 23. H. 8. co­ram▪ rege.

And King James coming from a Kingdom where those Laws were much in use, and seemed to have some inclination to introduce or intermingle some part of it with our Com­mon Laws,King James his Speech in the Star Chamber. did notwithstanding forbear to do it, acknowledging that the Civil Law was not applicable to this government, or fit for it.

And our Innovators that have been so wil­ing to intermingle with their System that part of the Civil Law, which in the cases of contu­macy did allowe a missio bonorum re­pleuisable as aforesaid, may upon a further search and enquiry satisfie themselves and o­thers that for the expedition of Justice put on and perswaded by the increase of trade and insol­vency of debtors the Caesarean or Civil Law hath long ago forsaken their course of grant­ing judgments for not appearing & missionem [Page 35] rum and Seisure, and found the Citatio realis cap­tura & incarceratio, to be the more ready and less prejudicial way of compelling debtors or Defendants to appear in judgment.

For certainly to inforce, perswade or give a libertie to the people in their Law Suits and concernments depending thereupon to circu­late, when they may go a more easy and less ex­pensive way, nearer, more streight and better conducing to their honest ends, will be but to vex and tire both Plaintiffs and defendants, and multiply their charges.

When to draw and prepare the declarati­ons which in Debt and common Actions were until the fourteenth year of the Reign of King James to be entred by the Filacers, and ought yet, if the cause or reason of their remitting that ancient part of their imployment do cease, and be taken away, the Plaintiffs will in this new devised expedient for a quick and Pie-powder Course of Justice, be put to a charge for the drawing of their Declarations before hand, when it may be there will be no need of them, and to pay for the Copies of them, which in a more regular course after apparances entred, were to be payed for by the Defendants.

[Page 36] And to the Trouble and charge of entring judg­ments and the hazard of the loss of charges poundage aud other fees payd to Sheriffs and Bayliffs upon execution, or paying of dama­ges where they are wrongfully or not well ob­tained multitude of Affidavits, pro & con, of motions in Court on the one side and the other many referrences and reports wagers of non-summons, writs of restitution, actions on the case for non summons, or for slander or de­famation brought for malitious contrivances cum muliis aliis which will increase and heighten the Bill of Charges.

And that goods Seized inventaried and sold by under Sheriffs and Bayliffs at half or less value, though it may suffice one greedy and merciless Creditor, will not be unlikely to de­feat another or many others of their more just debts and utterly blast the Debtor in his credit by which he might well have subsisted and survived the disgrace and trouble of so furious a prosecution.

And that the long ago trodden path, or way of compelling or bringing men unto judgment or unto Courts of Justice, would not so fre­quently be made use of in England, the way of [Page 37] Summons Pone and distress being not yet altoge­ther forsaken, and disused as it was formerly) for that betwixt the Reigns of Canutus a Danish King, & the 25 year of the reign of King Edward the Third, and for some ages after, there neither could be any, either frequency of arrest, or neces­sity for it, as there hath been since and is now.

CHAP. III. The reason and necessity of the more frequ [...]nt use of VVrits of Arrest, and Outlawry then was before thi making of the Statute of 25 E. ca. 17.

IN regard that in those former Ages there were more Lands than Tenants, more real Estates, & but little personal, the Trade of the Nation not the fortieth part of what it is now, & so little before the Reign of King Edward the third, as those few Merchants that came hither, had Letters of safe conduct granted unto them before they came; and that the Commerce and Trade, which was in King Edward the Third's time & long after, was only with the Esterlings, and Hanse Towns, Burgundy, Aquitaine, & some Genoese, and Italian Merchants, (the Turky, East and West-Indy, and Affrican trades not then or long after known or used) Usury so horrid and damnable a Crime as it was, a cause of Excom­munication, denyal of Christian Burial, or a [Page 38] 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 [Page 39] 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 [Page 40] 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.

[Page 41] 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 [Page 42] 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 [Page 43] 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 thi [...]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,Numb. 15. v. 32, 33, 34. 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, Levit. 15. v. 39. because it was not declared what should be done unto him,2 Reg. 4. 1. & 7. 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, Proverbs. 6. 1. and 2. thou art snared and taken with the words of thy mouth, Mat. 18. v. 25. 26. 27. 28. 29. 30. that of taking and casting into Prison for debt until the ut­most Farthing was paid, and such or the like [Page 44] coercions to compel men to appear in Courts of Justice and satisfie actions, were long before the Incarnation of our blessed Saviour in use a­mongst the Athenians in their Laws. And the Romans, those great Masters of Libertie, who having their Lictores & Serjeants carrying their Rods and Axes before their Magistrates, expresly ordained that if a man would not or could not come before the Judge, Sigonius de Judiciis, cap. 18. 372. he should give Bail to answer the action.

Metellus one of the Tribunes of the People at Rome arrested one of the Consuls for taking a­way his Horse.

The great Scipio Africanus being called to accompt for moneys received,Livy lib. 24. and refusing to come to his answer, the Tribunes of the People, those great protectors of their supposed Liber­ties,Livy lib. 38. 1007. urged very hard to have him Arrested, and fetched out of his house in the Country and made to appear.

Julius Caesar was inforced to give Bail to his Creditors who were about to stay him when he went Praetor to Spain. Plutarch in vita Julii Cae­saris.

Urgulania a great favorite of Augusta, Tacit. Annales lib. 2. mother of Tiberius the Emperour, being summoned by Piso in an action of Debt, which she disobeying, [Page 45] was Arrested, but rescued and conveyed to Cae­sars house, whereupon a great stir and tumult happening, and Augusta her self complaining that she was injured by it, the mony notwith­standing was afterwards sent and paid by her; nor was such arresting of persons condemned by our Blessed Saviour when he advised Defen­dants to agree with their adversaries before they were by them delivered to the Judge,Mat. 5. 25. and the Judge deliver them to the officer, and they be cast into Prison.

Those Roman Laws and Customes being to be allowed for an inducement to our Common Laws to do the like,Selden Di [...] ­sert ad Fle­tam 478, 479▪ & 501. which never refused to take in and borrow from other Nations any thing that might add to its own perfections and excellencies, and could be no strangers unto the Civil and Caesarean Laws brought into Eng­land about 50 years after Christ, when the Em­peror Severus Raigned seven years together at York, and that great Lawyer Papinian as Prae­tor or Lord Chief Justice, governed the Civil affairs and Justice of this Nation under him, and those Laws continued as a Seminary of ma­ny of our Laws & Customs, as may be demon­strated for more than three hundred years after.

[Page 46] By the Laws of Ina a Saxon King Raigning here in England betwixt the years 712 and 727. made suasu & instituto of Cenred his Father, Hedda and Erkenwald his Bishops, & omnium Senatorum & natu majorum & sapientum populi sui in magna servorum Dei frequentia; if the Plain­tiff demanded right to be done unto him by the Judge,In Legibus Inae. 8. and could not obtain it, and the Defendant shew no cause why he should not give him a Pledge or Sureties, the Judg was to be fined thirty shillings, and to do him right notwithstanding within a Week after.

And then there could be no doubt but that he had power to compel him to appear, and to Punish his contumacy, for otherwise the Judge could not be justly fined that had no power to enforce the Defendant to appear before him.

And if a Pledge were required of him that was accused (which as to the giving of a Pledge or Bail was no less then the awarding of a Ca­pias) and he had not wherewithal to do it before the Suit be determined, in Legibus Inae. 63. another might lay down a Pledge for him, upon condition that he remained with him or in his Power (which is a most anti­ent and cleare example) saith that great Anti­Antiquary [Page 47] Sr. Henry Spelman) of being Bail­ed out of Prison or giving Bail to answer the Action.Spel. Gloss. in voce Ball 69. & in verb capital. 140.

By the Laws of King Edgar (who Raigned Anno Dom. 971.) made Frequenti senatu,Lamb. Sax. Laws 62. every man was to have sureties who might have him forth coming to do right.

By the Laws of Canutus made Sapientum consilio,Lamb. Sax. Laws 97. ib. 18. who Reigned in Anno Dom. 1031. no man was to compel another by distraining or taking away Pledges to a Suit in another Liberty,Ex Chron. Jo. Bramp­ton in le­gibus Ca­nuti. §. 62. unless he had thrice required right to be done him within the hundred.

If any one be destitute of Friends, and cannot find Pledges, let him be put into Prison.

In the Hundred Courts,Vide Spel­mans Glos. in voce Carkanū. County Courts, Courts Leet & Baron, which (saith our Learned Selden) have a resemblance of the Customs of the old Germans brought hither by the Sax­ons, Selden. Ja­nus Anglo­rum 43. the Process are for the most part by Sum­mons, Attachment, and distress, or if upon the Summons a nihil habet be returned, that is to say, hath nothing whereby he may be Summoned, then a Capias.

By the Laws of King Edward the Confessor who Reigned in Anno Dom. 1044.Lambert Saxon Laws 138. which were [Page 48] of so high esteem with the English, that after a commission to find them out by the oaths of twelve men in every County of England elect­ed and chosen, they with much a do, Precibus & fletibus, Ibid. 149. & 158. ex Chronico Lichfield­ensi. obtained of William the Conqueror to have them confirmed, and were after so ex­ceeding careful not to loose them, as the obser­vation of those Laws, were by an oath after­wards taken by the succeeding Kings of England at the Coronation, more espetially recom­mended unto them.

Every man that would be accounted a Freeman,Cap. 64. Spelmans gloss. in verbo Friborge. 297. ought to be in Pledge, that the Pledges might bring him to Justice if he should offend, and if he escape, such Pledges should pay what he was Sued for, which (saith our Sr. Henry Spelman in his Glossary resembles our Frank Pledge) and let the Hundred and County (say those Laws) be demanded for him as our Ancestors have ordain­ed.

For say the same King Edwards Laws, it is the greatest and highest security by which all men and their Estates are strongly upheld.

By the Laws of William the Conquerour who confirmed the Laws of King Edward the Con­fessor, omnis homo qui voluerit se teneri pro liber [...] [Page 49] sit in plegio ut plegius eum habeat ad Justitiam si quid offenderit & si quisquam talium videant ple­gii & solvant quod Calumpinatum est, LL. Guli­elmi Con­questor 64. every man who would live or be accounted as a free hold­er is to live in frank Pledge, so as his Neighbour or Pledge may bring him to Justice, if he shall offend, and his Pledges (or Neighbour in the Tithing) are to look unto it and pay that which shall be demanded of him, and he shall be ad­judged to Pay.

By the Laws of Henry the 1 made Concilio Baronum,In leg. H. 1. cap. 29. he which is summon'd to the Hundred Court, and without any just necessity refuseth to come, if he be able let thirty Pence be taken from him, for the first and second time (which seemeth to be a forfeit) and let him be distreined by the Hundred,Linden­brog. glos. in verbo pulsare. but let him be put to Pledges till the day of Pleading.

And he which was brought or compelled by Process before the Judge,In leg. H. 1. cap. 5. and in Capital. Car. & Lodovic. Imp. lib. 7. 283. Gol­dastus Tom. 3. Imperial. Constitut. 30. for so the word Pul­satus in that Law of H. 1. was by the Civil Law, and the Laws of the Longobards com­monly rendred, might appeal if he suspected his Judges, and appealing might not be detained in Custody.

[Page 50] Ranulphus de Glanvil who recorded much of what was the practice of the Courts of Ju­stice in England in his time, and was Lord Cheif Justice in the Reign of King Henry the 2 when (as he saith in his proaemio or Epistle to that Book) the Laws then in use were founded upon reason and antient Customs,Glanvil in proaemio. the King willing to be advised, the Judges, men of great Wisdom and Knowledge in the Laws and Customs of the Kingdom, and Justice so faithfully administred, as the great men could not oppress the Poor.

Writeth, Lib. 10. cap. 3. & 11. that if the Defendant appeared not in an Action of D [...]bt, after he was Summoned, an Attachment was awarded and a Distringas as in other Pleas.

And it was in those times held to be Com­mon Law, Ibid. lib. 8. cap. 5. that where a fine was Levied, and that after 3 Essoynes either of the Parties refused per­ [...]ormance, tunc remanet in misericordia Regis & salvo attachiabitur quous que securitatem in veniret bonam.

In the Reign of King Henry the 3. (as ap­peareth by Bracton a Judge and learned Law­yer of those times, in his book delegibus & con­suetudinibus Angliae, compiled as he saith ex ve­teribus Judiciis Justorum out of ancient records [Page 51] and memorials; if upon the 4th day of the return of the Summons in an Action of Covenant or Trespass, Bracton lib. 5. de Exceptio­nibus 440. 441. the Defendant appeared not, whether the Summons were returned or not, an Attachment was a­warded.

If he came not then a second Attachment was awarded to put the Defendant to better Pledges or securities.

And if he had not Land which might be taken into the Kings hands, or by which he might be distrained, the Sheriff should be commanded to take his Body or bring him, and the Pledges were to be in misericordia quia ulte­rius non sunt summonendi, and if he came not at the day appointed, sed maliciose se subtraxerit & latitaverit quod Corpus inveniri non possit vel forte se transtulerit extra Comitatum & potestatem vicecomitis & vicecomes mandavit quod non fuit in ventus in balliva sua, then in default of his ap­pearance, three Writs of Distringas shall be made out one after another, the first by all his Lands and Chattels, second by all his Lands and Chattels, ita quod nec ipse nec aliquis pro eo nec per ipsum manum apponat ita quod habeat Corpus ejus ad alium diem & si tunc non veniret precipiatur vicecomiti quod distringat eum per omnes [Page 52] terras & Catalla & quod Capiat omnes terras & omnia Catalla sua in manum domini Regis & Cap­ta in manus domini Regis detineat quousque domi­nus Rex aliud inde preceperit & quod de exitibus eorundem domino Regi respondeat.

And for this kind of proceedings cited a Record in Michaelmas Term in the Third year of that Kings reign, which in its use and nature carried along with it a restraint of the Body of the De­fendant, for the Sheriff was by the Writ to distrain the defendant, Ita quod haberet corpus, and it would be in vain to distrain him who per­haps had a small Estate or profit of his Lands to be destrained betwixt the Teste and return of the Writ if the Sheriff did not at the same time restrain or secure his Body to appear be­fore the Justices at the time prefixt, to answer the contempt as well as the Action.

But saith Bracton, Bracton. lib. 5. cap. 31. 9, 6, and 7. if the Plaintiff post tot & tantas dilationes justiciam non fuerit consecutus should not after so many delays obtain Justice, what shall be done, for durum est enim quod placitum suum deserat & infecto negotio desperatus recedat domum, it would be hard that the Plaintiff should go home in despair, and be able to do nothing; and therefore concludes, that if it be a civil or [Page 53] personal action, for mony, or upon any con­tract, it would be good to put the Plaintiff in possession of the Defendants goods and Chat­tels according to the quantity of his demand and summon the Defendant at a time limited to appear, and answer the Action, at which time if he do appear, he shall have his goods and Chattels restored unto him, so as he answer the Action otherwise, he shall never more be heard concerning his goods and Chattels, sed querens extunc verus possessor efficiretur, but the Plaintiffs shall from thence be reckoned the true owner and possessor thereof, si autem cum cor­pus non Inveniatur nec terras habuerit nec Catalla ille de quo quaeritur iniquum esset si Justicia remane­ret vel malitia esset Impunita; But if his Body cannot be found, and he hath not any goods or Chattels, it would be unjust that Justice should be at a stand and not go forward, and that the evil actions of men should remain unpunished, and therefore whether the Action was pecuni­aria vel injuriarum, was in Debt, or for mo­ny or Trespass, the Court was to proceed against him by Process of Utlary, propter contumaciam & inobedientiam factam domino Regi quia nullum majus Crimen quam Con­temptus [Page 54] & inobedientia omnes enim qui in Regno sunt obedientes esse debent domino Regi & ad pacem suam & cum vocati vel summoniti per Re­gem venire contempserint faciunt se ipsos Exleges, for their contempt and disobedience to the King, because there is no greater Crime then contempt and disobedience, for all that are in his Kingdom are to be obedient to the King, and observe the peace and Justice thereof, and being called or Summoned by him, shall contemn it or refuse an obedience thereunto do make themselves Outlaws.

Et ideo Utlagari deberent non tamen ad mor­tem vel membrorum truncationem si postea redierent vel intercepti fuerint cum causa utlagationis cri­minalis non existat sed ad perpetuam prisonam vel Regni abjurationem & a communione omnium ali­orum qui sunt ad pacem domini Regis, Bract. l. 5. de Excep­tionibus cap. 31. §. 7. and there­fore he ought to be Outlawed but is not if he return, or should be taken to be punished by Death, Mutulation or cutting off his Members, in regard that the cause of the Utlarie was not Criminal but he is to be commited to perpetual Prison, or to abjure the Kingdom, be Banished, and forbid the society of all the Kings Sub­jects.

[Page 55] And in those days where a man by Lease had taken an house rendring a certain Rent,Bracton. lib. 2. cap. 28. § 1. Fleta. lib. 2. cap. 59. quid saith Bracton, what shall be done when the Tenant doth not pay his Rent, & nihil in domibus locatis & conductis inveniatur, and hath no goods and Chattels, yet howsoever re­solves the question, recurrendum erit ad corpus conductoris, si autem Corpusnon inveniatur hoc poterit locator suae imputare negligentiae vel imperitiae quod sibi Cautius non prospexit, recourse is to be had to the Body of the Tenant, and if he be not to befound, the Landlord is to impute it to his own negligence that he did not look better to it.

Cum quis ad warrantum vocatus fuerit Christia­nus vel Judaus qui terram non tenuerit in feodo quae capi possit in manum domini Regis per quam di­stringi possint pracipiatur vicecomiti quod habeat corpora eorum, Bracton. lib. 5. de warrant. cap. 6. sect. 13. when any man is vouched to war­ranty be he Christian or Jew, and hath not Land which may be taken into the Kings hands or by which he may be distrained the Sheriff shall be commanded to take his Body or bring him.Bracton. lib. 4. de assisa. vl­tunae. pre­sentationis cap. 9. sect. 3.

And a Bishop being Summond in a quare non admisit cum non venit nec se excusat per nun-nec [Page 56] per Essoniatorem attachietur, when he neither comes, nor sends his excuse, nor essoins shall be attached.

Upon a writ awarded to a Bishop to com­mand him to bring before the Kings Justices a Clark or Minister in holy Orders, refusing to find Pledges because he was in holy Orders, and had no lay Fee whereby he might be di­strained, if the Bishop did not after a Summons pone & Distringas, awarded against himself, cause him to come,Bracton de excep­tionibus 443. the Court did proceed a­gainst the Clark upon the contempt, and cause him to be arrested, nor could the Sheriff or his Bayliffs incur any punishment for doing of it; for the execution of the Law saith Bra­cton wrongeth no man.

By the Statute of Marlebridg made in the 52 year of the Reign of that King, 52. H. 3. cap. 3. if any shall not obey or suffer Summons, attachments, or execu­tions of the same according to the Law and customs of the Kingdom they were to be punished.Vossius lib. 2. devariis glossem in appen­dic. 814. Spelmans glossar [...] in verbo. at­tachiare.

The word Attachment being, saith the learn­ed Vossius, derived from a French word to appre­hend or detain.

An Attachment is to arrest, force or compel a man denying to come to judgement, saith Sir Henry Spelman.

[Page 57] And by Skene a learned Scotch Lawyer is de­fined to be a certain Bond or Constraint of the Law,Skeneus indice ad leges Scoticas. 52. H. 3. cap. 23. Register 35. whereby a Defendant is unwillingly compelled to answer in Judgment to the Party complaining.

In the Statute of 52 Henry the third, where a Capias is given against accomptants, it is said they shall be Attached by their bodies.

An Attachment made for disobeying a Writ of prohibition is in the very form of a pone, 52. H. 3. cap. 23. & the awarding and entry of a pone is that the de­fendant should be Attached.

And saith Bracton the course, or solemnity of Attachments to compel the Defendant to come to the Court to answer his contempt, was not so always observ'd, but in trespas for the greatness of the offence, or in favour of Sol­diers that were going to the Wars,Bracton lib. 5. cap. 33. or of Mer­chants or such as required haste in Actions of Debt (and it is probable that the Actions or Suits of Merchants were most commonly of that nature) the Judges granted an Habeas Cor­pus (which to that purpose was in effect as much as a Capias) whereby the Sheriff was commanded, all delays set apart in regard of such haste and priviledge to bring the Body of [Page 58] the Defendant to answer the Plaintiff in an Action of Debt or Trespas as the case required, with a Clause in the Later end or perclose of the Writ, that the Sheriff should be grievously amerced if he refuse to do it.

By an Act of Parliament made in the 52 year of the Reign of the aforesaid King in a Plea of Common custody or guard by reason of ward, [...]2. H. 3. cap. 7. if the deforcers came not at the great di­stress the Writ was to be renewed twice or thrice within the half year following, and if after the Writ read and proclaimed in open County, the deforceant absent himself and the sheriff cannot take his Body to bring before the Justice, then as a Rebe [...]e shall loose the Seisin of his ward.

By the Statute made in the third year of the Reign of King Edward the first, if any under Sheriff or other do withhold Prisoners replevisha­ble after they have offerd sufficient security, 3. E. 1. cap. 1. 5. he shall pay a grievous amerciament to the King, in which act of Parliament, men committed by the King or his Justices, are excepted and declared to be not replevishable.

By a Statute of the aforesaid King made in the same year3. E. 1. cap. 34. (the title of it being against the arresting of men in Liberties) great men and [Page 59] their Bayliffs (the Kings Officers only excepted, to whom special authority sayeth the Statute is given) were not to attach men passing thorough their Jurisdictions with their goods compelling men to answer before them upon contracts and cove­nants, &c. And the writ of prohibition in the Register awarded upon that Statute,Register 98. is for at­taching a man to answer upon contracts and co­venants.

Britton who wrote his Book by the com­mand of King Edward the first saith, Britton cap. 6. tit. Attach­ment. and cap. 28. tit. Debt. if any man will complain of a debt under forty shillings, let him find Pledges to prosecute his debtor, and if he that is sued in Trespas maketh default, let him be distrained.

And that in an action of debt if there be not a sufficient distress the Difendants might be taken by their Bodies,Tit. At­tachment 51. and Debt▪ 68. be they Clarks or Laymen.

Fleta or whosoever was the Author of the Book so called reciting the then manner of pro­ceedings at law as an old and accustomed course saith, Fleta, lib. 2. cap. 62, 65, 67, & 70. they were by Summons, Attachments and distress in personal actions the entries and awarding thereof upon record being the very same with little difference as they are now used. [Page 60] If a debtor had bound himself to be in default of pay­ment distrained by the Steward,Ibidem lib. 2. cap. 60. Sect, 33. 36. and marshal of the Kings house, then upon security given by the Credi­tor to prosecute, a distringas was awarded against the debtor until he found Pledges, so as he were within the virge, and if he were personally to be found, was to be Attached by his body until he should by Pledges acquit himself, and if he had not Pledges was to be held in Custody until that he answered the Creditor, non tamen in vinculis, or if he found Pledges and after made default, the Pledges were to be amerced and the Defendant arrested and de­tained, and not be bailed or let loose by Pledges be­fore he had answered.

And that not only, Marescallus sub suo periculo omnes captos infra virgam custodire debet, sed de eis coram Senescallo respondere & de Judi­catis plenam facere executionem, Fleta lib. 2. cap. 5. sect. 5. the Marshal should at his Peril keep all that were taken within the virge, but answer for them before the Steward, and ought to take in execution those against whom Judgment should be given, and the Steward did of course command the Clark that keepeth the placita Aulae pro Rege Rolls and Records of the Kings Court to di­rect his writ, Marescallo quod ipsum de quo fit [Page 61] sine dilatione attachiari faciat, to the Marshal that he do without delay attach him of whom any complaint should be made.

In the seventeenth year of the Reign of King Edward the second a nihil habet being returned by a Sheriff upon a Distringas in wast a Capias was awarded by the Justices of the Court of Common Pleas against the defendant.17. E. 2.

And that if a Sheriff return upon a pone a Tarde that the VVrit came so late unto him as he could not execute it,Fleta lib. 2. de mali­ciis Vice­com. ob­viam. cap. 67. and it be averred that the VVrit came time enough, or that the Party was present and might be attached the Sheriff was to be amerced.Mirrour of justice. 79 register. 267.

Personal Actions, saith the Mirrour of Justice, (so much admired by Sir. Edward Coke) have their introductions by Attachments of their Bo­dies, real by Summons and mixt actions.

By Summons and after by Attachment in personal Action. And in the same Kings Reign if a Religious man Professed, had for­saken the house and become vagrant, a VVrit upon a Certificate of the Abbot or Prior issued out of the Chancery to the Sheriff to take him.20. E. 2. Register▪ 267.

In the eight year of the Reign of King Ed­ward the third presentatio facta fuit apud Lincolne [Page 62] contra Thomam de Carleton sub Vicecomitem In­dictatum de extorsionibus & aliis malefactis & inter alia quod mittit homines arrestatos pro debitis in ergastulum strictum & fetidum inter latrones quousque finem fecerint cum illo pro deliberatione sua extra, 8 E. 3. co­rain. rege▪ Ro [...]i 24. &c. Contra formam statuti & pluri­ma alia pro quibus fecit finem cum Rege & postea pardonatur per breve domini Regis eo quod invenit Regi in guerra sua Scotiae tres homines armatos & duos Hobelarios Thomas de Carleton under She­riff of the county of Lincolne was indicted at Lincoln for several Extortions and Misdemea­nors, and amongst other things, for that he did put such as were Prisoners and arrested for Debt in a close and loathsom Prison amongst Theeves until they gave him mony for their better accomodation, against the form of the Statute, and did commit many other Misde­meanours, for which he paid a Fine to the King, and was pardoned for that he furnished the King in his VVars in Scotland with three arm­ed men and two Hoblers or common Soldiers.

By an Act of Parliament made in the 18 year of the Reign of the same King a Capias is to be awarded against such as not having where­withal to live do refuse to serve.Statute of Laborers 18. E. 3.

[Page 63] 22. Ed. 3. It was held for Law, that upon a Judgment obtained for Debt or Damages,Lib. Assis. 22. Ed. 3 [...]. 61. the Body of the Defendant might be taken in exe­cution, and by the opinion of Thorpe and Bas­set Judges where conusance of Pleas is granted,Br. Conu­sans 33. there are also granted all things necessary un­to it, as to proceed by way of Capias, Distres­se, &c.

And it was in those times agreed to be Law that the Judges have Power by Word of Mouth to command a Defendant to be Attached,22. Assis. 43. Brook tit. execu­tion 79. and that he that Bailed a man might by the Law, without Process, Arrest or take the partie Bailed, and bring him into the Court.

All which put together and brought to a due consideration, with the small or no diffe­rence, which is betwixt a Pone and a Capias, as to the Attaching and Compelling of Defendants to appear in the Tenor, and antiently practised, and yet intended use of it may be enough to Rescue us from the imputation of Error or presumption,Coke l. 3. relat. Sir William Herberts Case 25. Ed. 3. cap. 17. if pace tanti viri, we shall take that which hath been said in Sir. Will. Herberts case by Sir. Edward Coke in his third Reports that the Body of a Defendant in an Action of debt was not subject or lyable to an execution before the [Page 64] Statute made in the 25th year of the Reign of King Edward the third, to be no more than an opinion built upon a great mistake, for that Sta­tute was not made only to give Process of Arrest by Capias upon a nihil habet or non est In­ventus upon a Pone or a nihil habet or non est In­ventus returned upon a Distringas by a Sheriff, because it was so before by the Common Law of England (it being altogether improbable that those who had Lands or any visible Estate in Goods or Chattels were before the making of that Statute always Resident, or did never hide or absent themselves for Debt or some other Actions, to avoid a Summons or some Arrest or compulsory way to bring them into Courts of Justice to answer and give satisfaction unto such as had cause to complain of them, or that those who had no Lands or Goods were al­ways to be free and exempted from any re­straint or arrest of their Bodys upon actions of Debt or for any other matters commenced against them.

But was intended only to have Process to the Exigend and Utlary, (which could not be without a Write of Capias) in Actions of Debt, detinue of Chattels, and taking of Beasts, per Ca­pias [Page 65] & Exigend selon retourne du vicecount come home use en breifs daccompt, by Capias and Exi­gen [...] according to the return of the Sheriff,Ro. part. 25. E. 3. as was used in Writs of accompt, and being at the petition of the Commons in Parliament pri­ont les Commons, the King, as the record it self witnesseth, did answer, Il plese ou Roy que ainsi soit & quil soit mys en Estatut, it pleaseth the King that it should be so, and that it be put or form­ed into a Statute.

And the reason of that petition of the Com­mons in Parliament to the King which intro­duced and procured that Act of Parliament, (many Acts of Parliament and good Laws in the former Ages being usher'd in, and obtained by the Petitions of the Commons in Parlia­ment to their King and Sovereign,) may in all probability seem to be, for that they did not think either the former Process of the Law by Summons,Bracton lib. 3. cap. 13. Pone Distringas or Capias to be severe or sufficiently coercive, or so powerful to bring a Defendant to Justice, as the fear of an Utlary, which in the Saxons times were so Terrible as he that was outlawed was ac­compted to be a Friendless or Lawless man and was afterwards so formidable to those, [Page 66] that by the contempt of the Laws incurred in the forfeiture of their Liberties, Goods, Chattels, Profits of their Lands, and Benifits of the Laws, as it might well be believed every man would be careful to avoid so great a danger and trouble.

And therefore in the eighteenth year of the Reign of that King, being but seven years be­fore the making of that Statute, it was deemed to be for the good of the People to have it declared by Act of Parliament in what cases process of Exigend and Utlary should be, that is to say, against such as received the Kings. Wool or Mony, and detained it, such as transported Wool, not Cocquetted or without Custom, against Conspira­tors and Confederates of quarrels such as commit­ed Ryots and brought in false mony, if they could not be found or brought in by Attachment or Distress, and not against any other.

And by another Statute of the same year no exigend was to be granted in trespass but where it was for breach of the Peace, and at this day not­withstanding the Statute of 25. E. 3. ca. 17. no Writ of Capias can be made without a nihil habet returned, nor could a Capias in accompt be otherwise made before the making of that [Page 67] Statute, nor can be since without a nihil habet returned by the Sheriffe, unless the Co [...]t should by their coercive power of punishing contempts and contumacy think fit to do it, as is now done by Attachment in Chancery up­on a Defendants not appearing, and was long before that Statute done by the Judges of our Courts of Common Law, for not obeying pro­hibitions or VVrits Commanding the not Im­pan [...]lling of one above the age of 70 years to be of a Jury, a VVrit to replevin or Bayl a man which was Imprisoned, upon a moderata misericor­dia, against a Steward or Bayliffe of a Manour for amercing too much, against a Sheriffe, for not Summoning or misreturning a Jury (and the like) they being as well enabled to cause a Defendant to be attached or arrested for a de­fault or contempt in refusing to appear before them as they did usually before that statute, and do yet award a grand Cape against the Lands of a Tenant for not appearing in a real Action, make out a Capias pro fine & Imprison, a Defendant for Pleading non est factum to a Bond or other deed after it is found against him, and a Capias to arrest such as shall make a Rescue as they did before that statute, and do yet make [Page 68] a Capias upon a nihil habet returned upon an o­riginal in accompt when the Statute of Marl­bridge 52. H. 3. cap. 23. only gives it upon a Distringas when the Defendant hath nothing to be distrained and as they did before the statute of 25. E. 3. cap. 17, and yet do in actions of Trespass make a Capias upon a nihil habet re­turned instead of a Distringas when the origi­nal Writ out of the Chancery is a Pone or at­tachment.

Otherwise they cannot do Justice to those that complain and their jurisdiction will be useless,Oldendor pius in de­finit. acti­onum 25. 31. & Selden, de Syne­driis in prefat. & 61. & 62. and to no purpose saith Mr. Selden, and therefore where ever there is the one, of necessi­ty there must be the other, and the Judges saith Glanvil in H. 2. time had power to Pu­nish contempts and such as should absent them­selves.

And had no less in the Reign of King Henry 3, Bracton. lib. 3. cap. 1. §. 3. when it was said by Bracton, ex quo eis com­missa est causa simpliciter extenditur eorum Juris­dictio ad omnia sine quibus causa terminari non potest quantum ad judicium & executionem judicii, when they are commissionated to hear a cause, their jurisdiction is to be extended unto that without which the cause, as to the judgement and exe­cution [Page 69] thereof, cannot be determined, and did not want a coercive power in the Reign of King Edward the 1.Westminster cap. 15. & F. N. B. when a man could not have a VVrit de homine replegiando when he is taken by the com­mandment of the chief Justice, and upon all contempts made to any Courts of Record in disobeying the commandment of the King un­der his great Seal, the offender is to be fined and imprisoned,Coke 8. relat. Beechers case 19. E. 3. for jurisdictions saith the ci­vil Law are maintained and upheld by such kind of coercions, and is no more either as to the point of contumacy or when the defendants have not goods sufficient then is now usually done in the collecting the excise or monthly assessements, when the collectors where no di­stress can be found, are impowered to take and imprison the Body, and even the System maker in the time of the late rebellion when the in­closures of the Law and all that supported or savoured of Monarchy were endeavoured to be thrown down, and every discontented or foolish fancy would be a Legislator, and busie it self in the alteration and spoiling of our Laws, could not tell how to avoid the allowing of an arrest or Capias where the defendant had no visible and certain Estate whereby to be Summoned.

[Page 70] And with much more which might be al­ledg'd for the antiquity, legality, rationality, long approbation and usefulness of the Writs and Process of arrest, and Utlary, which have been and are a great part of the power and ancient rights and customs of our Courts of Justice without which they can neither subsist, exercise, maintain or Keep their authorities, or accom­plish the design and ends of justice, and their constitution may inform all those that would not bind or make themselves more than appren­tices to those inconsiderate clamours which since that fatal and unhappy year 1641, have been raised by the mobile & scelestum vulgus, ignorant and plundering part of the People and their new Fangled devices and designs for the banishment or alteration of our Laws which they but a little before had cryed up and pub­lickly professed to be their birth-right.

And by the Extirpation of Monarchy, Kingly and Church government plow up the Kingdom to their own ungodly advantages and profits, and render it to be in a worse and more barba­rous condition then Wat Tiler, Jack Cade or Ket could have brought it unto if their several Rebellions and Clounery had gained their ex­pected success.

[Page 71] That there is nothing to uphold those their reasonless desires of Innovation.

And that our Fore-fathers were so well con­tent with the benefit of that Act of Parlia­ment of 25. E. 3. for the proceedings by Writ of Capias, and by Process of Exigend to the Utlary, in Actions of Debt, detinue of Chattels, and taking of Beasts, (for that may appear to be the only design and purpose of that Statute.)

And did so little believe the Process by way of Capias and Arrest, to be any invasion of their liberties and rights of Freemen, as they did in the said Parliament Petition for, and obtain an Act of Parliament, that no man might be taken but by Indictment or Presentment, or by Pro­ces made by Writ origynal at the common Law, or to be prejudicial unto them or their posterities and in the 38 year of the Reign of that Ki [...]g.

Although great mischiefes did as was complained to that King in a Parliament hold­en in the seven and thirtieth year of his Reign often happen and dayly come,37. E. 3. cap. 2. because that Escheators Sheriffs and other the Kings Ministers did seise the Lands Goods and Chattels of many surmising that they were Out-Lawed, where they were not because they did beare such names as those that were Out­lawed [Page 72] the benefits of the aforesaid Statute of 25 E. 3, for Process of Utlary by VVrits of Capias and Exigend which was made but two years before did so over ballanc [...] that or other inconveniences as might happen in some mens particulars, as the VVisdom of that King and Parliament, could not think it fit to repeal that Statute, or forbid or discourage the right use of it, but did only ordain that if any complained, he should in such a case have a Writ de ldempuitate nominis as had been in time past.

And in the 38th year of that Kings Reign whereas many People were grieved and Attached by their body in the City of London at the Suit of the People of the same City surmising to them that they be Debtors,38. E. 3. cap. 5. and that they Prove by their Pa­pers whereas they have no Deed or Tally, It was assented, that men may wage their Law, upon Debts due upon such Papers.

And the Right use of that Act of Parlia­ment of 25. F. 3. cap 17. did from time to time receive its Allowance and Approbation by se­veral Acts of Parliament made by our Kings and Princes▪ from the makeing of that Act un­til that never to be enough deplored infatuati­on and unruly Giddiness of a rebellious part of [Page 73] the Nation betwixt the year 1641, and his Ma­jesties happy return in the year, 1660.

As by an Act of Parliament made in the first year of the Reign of King Richard the 2,1 R. 2. cap. 12. & 15. it was enacted, that Prisoner upon judgments given in any of the Kings Courtss of Justice should not be suffered to go at large that a fained confession of a Debt due to the King should not delay anothers Execution.

And that Priests should not be arrested doing Divine service.

And in the second year of that Kings Reign, being but about 27 years after the making of that Statute of 25 E. the 3. to proceed to Utlary by way of Capias in Actions of Debt, Rs. parl. 2. R. 2. m. 72, 73, & 74. Robert de Hauley Esquire being Arrested upon an Acti­on of Debt, and upon his Escape pursued into Westminstar Abby Church, where he took San­ctuary, was in a Tumult in the Church, Slain at the High Altar when the Priest was Singing high Mass, and the offence and breach of Priviledg (as it was then pretended to be) complained of in Parliament by the Arch Bi­shop of Canterbury and the rest of the Prelates and Clergy, who prayed that due Satisfaction and amends might be made of so Horrible a fact, [Page 74] It was opposed by the Lords and Commons who Vouched records and called to witness the Justices and others▪ that were Learned in the Laws of the Land, that in the Church of England▪ It hath not been accustomed that the offenders flying to a Church ought to have Immunity for Debt or Trespas or other cause whatsoever, except for crime only, and certain Doctors of Divinity, Canon and Civil Laws being thereupon examined, and sworn before the King himself, to speak the plain truth, said upon mature and sound deliberation, that in case of Debt account or Trespass where a man is not to loose Life or Member, no man ought to have Immu­nity in holy Church, and said further in very high expressions, that, God saving his perfection, and the Pope saving his holiness, nor any King or Prince can grant such a Priveledge, and that if the King should grant such a one, the Church which is and ought to be favoured and nourished, ought not to ac­cept of it, whereof offence or occasion of offence may arise, for it is a Sin and occasion of offence (saith the Record) to delay a man willingly from his Debt or the just recovery of the same.

And so little did that great affray, & complaint of a then Powerful Clergy, for that breach of Priveledge, & the trouble of the King and Parli­ament [Page 75] therein, perswade our forefathers to any dislike of the way of proceedings by way of arrest, 2R. 2. cap. 3. by Capias or Utlary thereupon, as at ano­ther Parliament holden in the same year, for the avoiding of debtors, withdrawing themselves and Flying into Places of Churches Priviledged, It was ordained by the King upon the Petition of the Commons in Parliament, that in such cases after the Creditor had brought an Action of debt, and procured a Capias to be thereupon awarded, and the Sheriff returned that he could not take the defendant because of places of Priviledge, another Writ should be made with Proclamation to be made at the gate of such Priviledged place by five Weeks continually every Week once that such person render himself.

And the Succeeding Kings were so careful not to suffer particular grievances to disappoint the effects of good Laws, made for the genera­lity of the People.

As by a Statute made in the first year of the Reign of King Henry the fifth, 1. H. 5. [...]a. 5. it was ordained that in every original Writ of Actions personal upon which an Exigend shall be awarded, the names of the defendants and their additions shall be men­tioned.

[Page 76] And by another made in the 7th year of the said Kings Reign,7. H. 5. ca. 1. upon the Petition of the Commons as the Statute witnesseth, like pro­cess for the common profit of the Realm, saith the preamble of that Statute shall be had in Writs of forging of Charters or evidences by Capias and Exigend as in Trespass.

By a Statute made in the 23 year of the Reign of King Henry the sixth, 23. H. 6. ca. 10. Sheriffs shall take Bonds securities or sureties for the appearance of such as be Arrested, except upon Writs of Execution Capias utlegatum or excommunicatum,

By a Statute made in the 19th Year of the Reign of King Henry the 7th because there have been great delays (saith the Preamble of that Act) like Process is given in Actions of the Case as in Actions of Trespas or debt.19. H. 7. ca. 6.

By an Act of Parliament made in the sixth year of the Reign of King Henry the eighth, 6. H. 8. cap. 4. Proclamation shall be awarded to give notice unto him that dwelling in one County, shall be sued to an Exigend in another.

By a Statute or Act of Parliament made in the three and twentith year of his Reign, 23. H. 8. cap. 14. because there are many delays in Actions of Annuity for that Process of Utlary, saith that Act doth not lie [Page 77] like, Process was granted by the King in Writs of Annuity as was formerly used in accompt.

Writs of Capias, 34. H. 8. cap. 16. Exigent and Outlawry were allowed in Wales by a Statute made in the 34th year of the Reign of the aforesaid King.

And two several Statutes, the one made in the 1. year, 1. E. 6. cap. 10. and the other in the 5th year of King Edward the 6th, taking notice that for want of such Proclamations, many of the persons Inha­biting in Wales, Lancashire, Cheshire, or Chester, were without knowledg or cause of Suit wrongful­ly and unjustly Outlawed to their utter undoing, did without abrogating the Right use of the pro­ces of Utlary ordain, that upon every Writ of Exi­gend against any Persons Inhabiting in every of the said Counties or Places, Proclamations shall be made and awarded,5. E. 6. cap. 26. directed to the Sheriffs of the several Counties where the defendants inhabit, do give no­tice thereof.

By an Act of Parliament made in the fifth year of the Reign of Queen Elizabeth,5. Eliz. cap. 26. three several VVrits of of Capias with Proclamations, with the Penaltie of 20l a time shall be awarded against an Excommunicate person that cannot be taken by the Sheriff upon the Writ of Capias ex­communicatum granted out of the Chancery.

[Page 78] By a Statute made in the eighth year of her Reign, 8. Eliz. cap. 2. for that many of their malicious minds, and without any just cause did procure divers of the Queens Subjects to be Arrested, it was enacted that the defendants should recover their costs and dama­ges where the Plaintiffs doe delay, discontinue their Suits or be non Suited.

And by an Act of Parliament made in the one and thirtieth year of her Reign, 31. El [...]z. cap. 3. it was for the avoiding of secret outlawries in Actions perso­nal, ordained, that upon every Writ of exigend a­warded against any person, three several Proclama­tions shall be made by the Sheriff of the County or place where such defendant inhabiteth, first at the County Court, the second at the Quarter Sessions, and the third at the Church dore of the Parish where such Person inhabiteth.

And the like to be done in the County Pala­tine of Durham where as the Statute saith many men have without knowledge been outlawed, Ibidem. cap. 6. to their utter undoings, if some speedy remedy be the sooner provided but those misdoings were not not then accompted to be sufficient to be­reave a Multitude or far greater number of the people, of the good which they received by the process of Utlary.

[Page 79] By an Act of Parliament made in the three and fortieth year of Her Reign, the procurers or makers of any Warrant to Summon, Arrest, or Attach any Person by his or their Body or Goods to ap­pear in any of her Majesties Courts of Justice not having before an original Writ or Process to warrant the same,43. Eliz. cap. 6. shall be Imprisoned without Bail or main­prise, and not be delivered until he shall have paid 10l. to the Partie grieved, besides his Costs and Damages, and 20l. a peice for their offences to her Majestie, her Heirs and Successors.

By an Act of Parliament made in the 21th year of the Reign of King James,21. Jac. cap. 24. the Lands of him which Dieth in Execution, shall be Chargeable with the Debt.

By an Act of Parliament made in the 13th year of his now Majesties reign reciting, 13. Car. 2. that by the antient and fundamental Laws of this Realm, where any Person is Sued, Impleaded, or Arrested by any Writ, Bill, or Proces, Issuing out of any his Majesties Courts of Record at Westminster, at the Suit of any Common Person, the true cause of Action ought to be set forth, and particularly expressed: It was or­dained, that where the true cause or certainty of Action is not expressed, in any such VVrit, Bill, or Process, the Sheriff shall take no greater Bond for [Page 80] any Defendants Appearance thereunto, then of the Penalty of Forty Pounds.

Which in such a length of time and appro­bation of many Statutes and Acts of Parlia­ment, and of our Judges in Courts of Justice, in the awarding and allowance of such kind of Writs and Process, which as the Rolls and Records of the Court of Common Pleas in the 17th year of the Reign of Edw. the 2, and of for­mer Kings Reigns do declare, were not granted of Course (as for the ease of the People they have been in later times, by sworn and experi­enced officers) but upon grave and deliberate advice, upon Petitions or motions to the Judg­es, and the names sometimes of the Chief Ju­stice, and at other times of the particular pu­isne Judge that granted them,Trin. 17. E. 2, in communi Banco & in aliis an­tiq. Re­cord & Rotulis e­jusdem Cur. mentioned in the latter ends of the Entries thereof, might if there had been no Vestigia or track of the ne­cessary Process of Arrest, to compel men to appear in Courts of Justice to be found, a multis retro seculis ex longissima experientia observata, in almost all the foregoing ages and wisdom of the Auntients, abundantly serve to recal that humour or desire of novel experiments, or im­posing or practising upon our Laws and Liber­ties [Page 81] and conduct those Sons of Innovation to a better obedience and veneration of our Laws, rules of right reason, and necessity of maintain­ing the indispensable, Antient, Legal power and Authority of Justice, in the blessings of that which we have already received, and may hereafter, receive by its due administrati­on, if we do not give entertainment unto the wild proposalls, of those who in their plenty of Ignorance, Obstinacy, and Interest, would have they know not what.

And bring upon the Nation, and them­selves, and posterities, the many sad effects and consequences it will produce, and may give them to understand, that having such a small assureance of an Infallibility, they may do bet­ter to stop the Carrere of their so causeless pre­judice, against the Process of Capias and Ar­rest, and observe what their Neighbour and o­ther Nations have adjudged to be very necessa­ry and unavoidable in their proceedings in Courts of Justice upon personal Actions.

Who have not so lost or forsaken the Anti­ent Customes and Pathes of their Fore-Fathers but that the same or very like, what is, and hath been so long in use amongst us, may be seen a­mongst [Page 82] many of the most civilized of them, and was so early in the World as it seemes, [...]. Olden­dorpius de definit. actionum 11. 20. 21. saith John Oldendorpius to be deduced from the Laws of God and Nature, Right reason and necessity.

By an Edict or Law of Theodorico, Goldastus constituti­ones Im­perial. 18. cap. 8. Spelman Glossar. in verbo Hinfare. King or Emperour of the Gothes, made in the year of our Lord God 497, Arrests of the Bodies of Defendants, were allowed to be made.

By a Constitution of Charlemaigne, whose dominion extended over the greatest part of Europe, made about the year of our Lord God 780. the houses of those that with-held their Tythes were to be seized, and if they opposed and presumed to enter again of their own au­thority, the Ministers of the Common-wealth were to put them in Custody.

In the Empire of Germany, more especially in famous Mart Towns,Jo. Kop­pen. in de­cision questio­num in Germania qu. 35. §. 1. 2. 4. & qu. 29. § 10. & 15. and Imperial Cities, as Frankford upon the Mayn Lipsich, Norin­berg, &c. (saith John Koppen in Rangensdorff, Chief Councellor to the Elector of Branden­burgh) Arrests for Debt are frequently made, and the Debtors Imprisoned, and this saith he, a vetustissimis Romanorum legibus originem sumpsit, [Page 83] had it's begining from the most Antient Roman Laws, a Clark in holy Orders, and likely to run away, a Debtor that hath no Land, or is likely to remove away his Goods, is a Prodi­gal, or contumatious, refuseth to appear, and cannot give Sureties, may by the Laws and practice of those Countries, & Jure Sax­onico, be Arrested and taken.

In Poland, Cromerus lib. 2. de Polonia. he that will not or cannot give Bayl to answer the Action, is arrested.

In Russia when any of the officers of the Courts of justice,Commen­tar▪ de Russia. do come to a Defendant, if he give not Bayl,Laws of Geneva Printed at London, 1562. he is to be detained in Custody.

In Geneva upon a return or Certificate, that the Defendant hath nothing, he is arrested.

The like course of Arrest and compelling of men to appear in Judgment,Molin. in consue­tud. Paris. tit. 2. gl. 1. Num. 3. is and hath been long ago practised in the Kingdomes of France Spain, Hungary, Scotland, and in the Dukedom of Savoy, Biblio­theque o [...] Thresor. du droit. du France. tit. Ar­rests. 326. and many other Places, who do think that they have a great deal of Liberty, as the Common-wealths of Venice, Holland, and the united Provinces, the Hanse Towns, Switzer­land and Genoa, &c.

And in New England, Gonzale de Suarez. de pas as part. Tom. 81. whether the ignorant and mistaken consciences of many, having carried [Page 84] diverse of our People where they would, make their own Laws, and be independent of the go­vernment of this Kingdom from whence they came they do notwithstanding.

Not want it,decret. U­ladis [...]ai Regis Hungariae Anno. 1492. Art. 91. where for the better expedition, and execution of Justice (as the words of their Laws are,) they do ordain that every Court of Justice, shall have Ministers of Justice to at­tach and fetch, and set Persons before the Ma­gistrates.Edicts. & Arrests. de Savoy. An 1574.

And is likewise in practice in some Nations that are more remote, and have only the light of Nature,Laws of Genoa Printed at Milan. 1576. and some information of Reason to direct them, as namely in the Region of Malla­bor, where if the Debtor do break his Day with his Creditor,Laws of New-England Printed at London. 1641. and often disappointed him, he went to the principal of the Bramenes, of whom receiving a Rod, he goeth to the Debtor, and making a Circle about him, chargeth him in the name of the King and the Bramene, not to depart from thence until he hath satisfied the Debt, and if he do not, he must Starve in the place,Purchas Pilgri­mage lib. 5. for if he Depart, the King will cause him to be executed.

And when that which hath been here so tru­ly▪ and Irrefragably asserted, will never deserve [Page 85] to be thought a Postulatum conclusion or principle begged, but is de facto apud mul­tos & de Jure apud omnes, so done and practised, by very many Nations, and of right ought to be by all.

CHAP. V. The Process of Arrest and Vtlary, are a more gentle way of compelling Men to pay their Debts, or to appear in Courts of Ju­stice then that which was formerly used.

EVery man that would entitle himself to any reason, or not wilfully divorce or separate himself from the company thereof, and shut out that light which the wisdom and practice of former Ages have tendred unto him, may give way to so many cogent Arguments and acknowledge, the course and way of our process of Arrest and Utlaries, to be a more gentle way of pro­ceeding, in the doing and Execution of Ju­stice,Deut. 25. v. 1. & 3. then that of the forty stripes, which in the most righteous Laws of God were in [Page 86] cases of controversie betwixt men, ordered in none of the greatest sort of offences, to be given to him who was condemned by the Judges,2 Reg. 4. v. 1. & 2. then the taking away of the two Sons of the Widdow, of one of the Sons of the Prophets by a Creditor,Matth. 18. v. 25. to be Bondmen for their Fathers Debt, the selling of a Deb­tor and his Wife and Children, and all that he had by the Creditor in use amongst the Jews; or taking them by the Throat, saying, Pay me what thou owest, and Haling him to the Judge, who cast him into Prison, men­tioned by our Saviour Christ; Gellius noct. Attic. the cutting of Insolvent Debtors in pieces, after a Sentence and small limitation of time; and giving e­very Creditor a piece learnt by the Romans, from the Athenian and Grecian Laws, but ne­ver put in practice for the cruelty thereof; the Nexus and taking of Debtors prisoners by the Creditors own authority (until they had by some good Laws been taught a less fierce,Livy. and cruel way of recovering their Debts) and keeping them bound in Chaines in their own houses;Plutarch in vita Luculli & Solonis Dionisius Halicar. lib. 6. the making the Chil­dren Slaves for their Fathers Debts, by the People of Asia, that large Quarter or fourth [Page 87] Part of the World; and the like Customes used by the Athenians and Romans, or the usage of the Longobards who,LL. Longo­bard tit. 21. §. 1. 7, 8. if the Debt were not payed after the third time deman­ded, did suffer the Creditor to pawn the Debtors Body, or take by order of the King or Judge, his Men or Maid-servants Priso­ners; or that of the Wisigothes, LL. Wisigo­thorum in Liudenbro­gio l. 2. cap. 88. the Spaniards Ancestors, whose Laws ordained a penalty of three pounds of Gold to be payed by the Of­fendor, or such as contemned the Kings Com­ma [...]d and Authority, and if he were not able to pay it, was to endure Quinquaginta Ictus Flagellorum, Fifty lashes with a whip; or of the Russians beating with Cudgels their Insolvent Debtors,Fletcher de Republica Moscoviae. upon the Calves of their legs, and bottoms of their feet; or if the Deb­tor be poor, set him under a Crucifix, and cause the Plaintif to take his Oath over his head, that his Debt is true, which being done the Duke causeth the Defendant to be brought home to his house, putteth him to labour, or letteth him to hire until he be redeemed.

Or of the Aegyptians in not permitting the bodies of the Debtors to be buried, but to [Page 88] be left as a pawn to their Creditors,Quenstadt de Sepultur. veter. Valer. Maxim. l 5. cap. 4. & Covarruvias de variorum Resolut. Donec Haeredes Aes alienum integrè solverent, Until their Heirs or Executors paid the Debt, and was so imitated by the Athenians, the wisest Nation of the learned Greece, as the brave Cimon was constrained to yield himself a Prisoner in Chains, as the manner then was, to the end that his glorious Father Miltia­des (who had deserved better of them) dying a Prisoner for a Debt owing to the Publicque, might be buried; And by the Gothes, and some other Nations under their large Dominions, until by a Constitution of Theodorico, Goldastus Constitut. Imperial. King of the Gothes, and some other Princes, Tanquam inhumanum & eru­delitati proximum; It was prohibited under severe penalties (which in these times used to be more then threatned) as Inhumane and too near bordering upon cruelty, and is notwithstanding yet at this day used in some parts of the Lower Germany▪ Philip Al­bert Orthen de Regali Conducendi Jure, cap. 4. 9, 13. Im­press. No­rimbergae Anno 1672. as Hol­stein, Brunswich, and Holland (that great Monopoly as they think of Liberty, when they do but dream of it) for Debts or Mo­ney owing to private Persons.

Or not so rigid or uncompassionate, as [Page 89] the way of prosecution for Debts is, in the vast Empire of the Great Mogul, where if the Debtor do not pay his Creditor, accor­ding to the time limited by the Judge, he is severely whipped, and his Wife and Chil­dren sold for Slaves by the Creditor; or the Merciles manner of poinding Horning, or Outlary,Skeneus Reg. Majest. & Craig. de Feudis. and Caption for Debts, upon short and almost impossible prefixions used in Scotland.

When our Writs of Pone or Attachment, by the favor and unwillingness of Sheriffs, to execute the extremities and rigour of Writs, and Proces of Law, or their kind­ness procured by some other perswasions of rewards or power; were in the moderation of our Laws, and Courts of Justice; which Canutus by his Laws desired to be ad Divi­nam Clementiam temperata, LL. Canuti §. 2. not so exactly executed, or the Defendant enforced to put in real Pledges and Security, as formerly.

And the Distringasses have only small, or little issues returned upon them, nothing near amounting to the Rents and Proffits of the Lands, Goods, and Chattels of the Par­tie prosecuted, betwixt the teste and return of the Writ.

[Page 90] And the Writs of Capias, when made out are very often easily satisfied by an Attor­neys undertaking, to appear to the Action, or if Bond be given to the Sheriffs by two Sureties, for the Defendants appearance, are not one in many hundreds enforced to give special Bail afterwards; and if the demand in the Writ specified, be under 20. pounds, are by the Rules and Custom of the Court of Common Pleas not to be insisted upon, or if above, not at all in the Case of Defen­dants, being Executors or Administrators; and if the Defendant, for want of Bail for his appearance, do continue in Prison three terms, and no habeas Corpus be brought, or declaration given, or further prosecu­tion made, he is to be delivered by a Writ of Supersedeas, made of course upon the ap­parance to the action only, without any spe­cial Bail put in before a Judge, or Bond gi­ven to the Sheriff; and where special Bail is very seldom given, it is but that if Judg­ment be obtained against the Defendant, he shall render his body to Prison, or satisfie the condemnation.

Our Writs of Arrest ad respondendum, be­ing [Page 91] ad Cautionem & custodiam non ad poenam, but to enforce a gage or pledge, or to de­tain, or put a Debtor or Defendant into the Custody of the Law, to the end he may give Bail Judicatum solvere, to abide the Judg­ment of the Court, or if no Bail be required to appear to the Action.

And the Proces of Utlary,LL. Edgari 11. & 67. which although they were not ordinarily used in Actions of debt,LL. Canuti 30 & 61. before the making of the Statute of 25 E. 3.LL. Edwar­di Confessor 45. was notwithstanding in cases of tres­pas for breach of the Peace, and for Contu­macy, and Contempts in not appearing war­ranted,Bracton de Corona cap. 11. by the Laws of King Edgar, Canu­tus, Edward the Confessor,Stamford lib. 3. cap. 35. tit. for­feiture. and the pra­ctise of our Saxon Ancestors borrowed, and deduced from the Ancient Customs of other Nations, is not now so dreadful as it was in former Ages, when, as Bracton, and Stamford do agree, the Partie outlawed did forfeit Patriam, Amicos, & omnia terras & tenementa bona & Catalla sua, all that he could entitle himself unto, was out of the protection of the King and his Laws, and could not bring any action, until he had ren­dered himself to Prison, obtained his Char­ter [Page 92] of Pardon, brought his Writ of Error, and given Bail to answer the Action; but may now without Bail, unless specially re­quired, be admitted to reverse the Utlary before Judgment, upon defect of Procla­mation only, or some small Error without a Writ of Error, or the Record certified in­to the Court of Kings Bench, or Errors as­signed, with other the many troubles and charges which that way produced.

The Plaintifs for fear of obstructing, or narrowing the wayes of Justice, are not put as they were anciently to find real Sureties, to prosecute and make good their actions, or to pay a Fine to the King, if they do not as our Laws do intend they should, or to make Oath of their debts, or de non calum­niando, that the Action is not prosecuted in malice, or upon sinister ends as the Civil Law enjoyned.

And the Statute of Westminster, Westmin­ster 2. c. 18. the se­cond doth in Writs of Execution, against the Goods and Chattels of a Defendant, ex­cept Boves & Affros de Caruca sua, Oxen and Horses of Husbandry, and the Writ imports as much in the tenor of it, the Jud­ges [Page 93] do without any Inquisition or proof, that there were not other goods sufficient to sa­tisfie the Execution, permit for the Credi­tors more speedy attaining to his satisfaction, all the goods to be taken in Execution, which in more Ancient times was so unusual, as a Defendant hath brought his Action a­gainst the Sheriff▪ and the Plaintif for ta­king them in Execution, when there was other personal Estate sufficient: And do also suffer the Plaintiff to prosecute the Sureties upon a Bond, when the Principal hath not been sued, and was sufficient to pay the Debt or dammage, which by the former course, and practise of the Law was not al­lowed.

And our Writs of Exigent, and Outlary were truly, and properly only to be made use of, where the Defendant refuseth to ap­pear in contempt of a Court of Justice, and the Proces thereof is fugitive, or incertain where to be found, taken, or arrested, hath no visible or certain Estate, or lurketh in some Liberty (of which there are many in England and Wales, where the Kings ordi­nary Writs, and Proces do not run, or have [Page 94] any power or force) and a Capias utlega­tum carrieth with it, in the same Writ a Non omittas propter aliquam libertatem, and impowereth the Sheriff to enter into any Liberty, and arrest the Defendant, and by a special Capias utlegatum to seize, and take at the same time all the Defendants Lands, Goods, Chattels, and Estate into the Kings hands, as forfeited for his Contempt; and that seisure transferred into the Court of Exchequer, bringeth the Plaintif an advan­tage, to take a Lease of the King of the Lands so seised, at a very low rent, until the Defendant purge himself of the Con­tempt, reverse the Outlary, give Bail, and appear unto the Action; which being so consonant to the Outlawries Bannes, and proscriptions of Germany, and other Nations, Kings, and Princes in the like Cases, to pre­serve their own Authority in that of their Courts of Justice, and requiring some se­verity, and a more then ordinary Proces hath been all the means, which without force and violence, and a greater disturbance of the People our Laws, and a long Custom, and usage of time have hitherto prescribed, [Page 95] can contrive to bring unwilling Men to Judgment.

CHAP. VI. The delayes, and inconveniences of the Pro­ces of Summons, Pone, and Distrin­gas were a great, if not the only cause of the disuse thereof.

FOr the way and Course of Summons, Pone, and Distringas, so much in use before that Statute of 25 E. 3. was unto Plaintifs as full of delayes as they were of increase of Charges, and trouble which a view of the old Records of the Court of Common-Pleas, before the making of that Statute, by the many Writs of Alias, and Pluries Distringas with issues, forfeited and returned upon them, occasioning a great pro [...]it to the King, and less to the Subjects, and the many Writs of testatum Distringas made into other Countries, where the Plain­tifs averred that the Defendants had Lands, and Estate suffi [...]ient, and Writs of Aver­ment [Page 96] and Enquiry, made out upon too small issues returned, directed unto the Ju­stices of Assize, to certifie if there might not be more issues returned; and such a Writ of Enquiry to be executed in the Lent, or Summer Vacations, could not but cause a more long, chargeable, and troublesome delay, to get better issues to be returned, may help to attest the more necessary, and better use of the Proces of Capias and Arrest and that Writs of Exigent and Outlawry, will in the Cases aforesaid, propter inevita­bilem necessitatem be everlastingly necessary; especially when in the same Parliament of 25 E, 3. wherein Proces of Outlawry in A­ctions of Debt were granted,Rot. Parl. & Petitions in Parl. 25 E. 3. a great com­plaint was made, that the Steward and Mar­shal of the Kings House, or their Deputies did upon Actions attach, and distrain men by ten Marks of their Goods one day, and by as much the next day, to their utter ruine and undoing.

And the Goods and Chattels must be such as the Sheriff can be confident, the Defen­dant hath a property in, for otherwise he will require Bonds, or Sureties of the Plaintif, [Page 97] to be saved harmless; and where the Estate doth lye only in Goods and Chattels with­in an House, the Sheriff may in a Town or City, where are many Inmates or Lodgers, and three or four sometimes in an House to­gether, be not a little puzled, to know in­to whose Room he shall enter, or upon whose property he seizeth, and his Serjeants or Bailifs may be afraid to enter and di­strain, for fear of Actions to be brought a­gainst them: And many of the Goods and Chattels, may be such as the Law doth not al­low to be distrained; or if the Defendant hath Lands & a Distringas issueth out against him, and hath no Stock or Cattle upon it, or they shall be beforehand eloigned, or dri­ven away (as it may often happen) there will be little profit made of the Land, be­twixt the Teste and return of the Writ, espe­cially if it come to be executed in the Win­ter season, or that much of it is in Lease: And then he must do as well as he may to get Tenants, whereby to raise the profits, or let it lye for Crows and Trespassers to raise it for him, for Tenants (such as wish well to the Defendant, or are depending [Page 98] upon him, being not likely to be willing to take or Rent it at all) will be hardly got; and those that do malice or maligne him, will (if they may not have it at cheap Rates) be unwilling to adventure the hazard of a­ctions of trespas, or other inconveniences for a small term or time, which can be no longer then until the Defendant shall ap­pear, or make his peace with the Plaintif; or if the Plaintif should himself take a Lease of it, for such a short term from the King, if he may not have it at a very easie rate, he will be as little a gainer as the Defendant by it, and as far from the recovery of his Debt, as those that had lately Writs of Distringas, against the Company of the Vintners or Gro­cers, in Actions of Debt for very great sums of Money, whose Lands though it was well known they had a great proportion of them, belonging to their several Companies, were so invisible as the Sheriffs or the Bailifs of the County where they lay, could not disco­ver, or would not tell where to find them.

And if they did or could find any Lands, would to avoid the trouble of an Actual E­ecution of the Writs of Distringas, where­upon [Page 99] they were allowed no pondage Fees, return small or petit Issues, and but such as they could easily answer, take off, or procure an Indempnity for, to save themselves harmless.

Or if a Tenant be himself in Debt, and be distrained, and his Stock taken away, he is sure enough to be undone, and his Land­lord not a little prejudiced also by it, when for want of Stock he cannot menage, or hold his Farm any longer, which the Sta­tute of Westminster the 2. made in the 13th. Year of the Reign of King Edward the First, did as well believe as foresee, when it pro­hibited the taking in Execution the Cattle and Utensils of Husbandry, now not at all as to that particular obeyed or observed.

And the Writs and Proces of Distringas will be much more inconvenient, and de­structive to Trade and Trades-men, when they become Creditors, or shall be made Defendants, and be distrained by Proces of Distringas for Debt, or in any other personal Action, for then such a Defendant may sud­denly be ruined in his credit, & not only him­self; but ten or 20. of his Creditors suffer not [Page 100] a little by it: And it may be when all is done, the Action may appear to be but up­on some malicious pretence, or upon Cove­nant, or Action of the Case battery or tres­pas, where in no adjudication of the value of the Action can be, had before a Trial or Writ to enquire of dammages, and one hundred Pounds worth of Goods may be taken or spoiled, upon an Action of less then so many Shillings, for the Sheriff to have enough will not fail to seize more if he can come at it, then the Demand of the Writ or the Plaintifs suggestion a­mounts unto, and the Defendants Estate will thereby become ruined and racked, as far as the greedy, unconscionable, or kna­vish pretences of a Plaintif (for all are not likely to be conscionable or reasonable) shall carry him unto, and after he shall be thus pul­led in pieces, or condemned and executed before he be heard or come to his Trial, or can well know what it is for, will be left afterwards to make himself up as well as he can (which to a Trades-man was ne­ver easie) and seek his revenge or reme­dy, by as many suits in Law or equity, as [Page 101] himself, or his Friends, or necessities shall put him upon.

And when he hath appeared to the A­ction, after he hath been undone a great deal more then the Action comes to, can­not easily restore, or so make himself up a­gain, as to be in the same plight, or condi­tion of Credit which he was in before.

And it is not also unusual to some Trades­men, when they find themselves sinking, or to be in any desperate condition, or likely­hood of breaking, to endeavour more then they should, to be most commonly before­hand with their Creditors, make away their Goods and Wares, lodge them in other Mens hands, cover them under some secret, and never to be discovered trusts, and putting as much Money as they can into their Purses, retire themselves into some Place incognito, shut up their Shops, and leave little or no­thing therein, and assoon as they can make it their business to compound, and give their Creditors for very great Sums of Money ow­ing to them, no better a satisfaction then three or four Shillings in the Pound, and keep the overplus for their labours; and a setting up [Page 102] again, which they could not so unawares or advantageously, to their evil ends, have done or contrived, if they had been arrested.

All which or many more mischiefs, and inconveniences happening to that kind of Di­latory Proces, may appear to be no over nicely guessed or strained consequences, if if shall be but considered what an abundance of hideous, and remediles mischiefs, and in­conveniences, would every day, and long ago have happened to Shop-keepers, and Men of Trade, and Credit in the City of London, and the Suburbs thereof, if the Proces issuing out of the Courts of Common Pleas, and Kings Bench, and the Courts of the City of Lon­don, against them had been not to Arrest Defendants, but to distrain, and seek af­ter their Goods and Wares, when the pro­perty of the Defendants Wares and Goods may be so concealed, or disguised by Bills of Sale, fraudulent deeds or contrivances, (the Wares in a Trades-man Shop being many times other Mens, who upon some allowance of share, have employed or tru­sted them to Trade withal) as there would be a necessity of Suites in Chancery, to discover the right Owners.

[Page 103] Many or some of which inconveniences, being before the making of that Act of Par­liament of 25 of E 3. experimented, or well understood, or foreseen, might cause our Forefathers to forsake, and disuse the former way of Summons, Pone, and Distrin­gas, and betake themselves to the more use­ful, and expedite way of Proces of Arrest or Outlary, which hath been since evi­denced, to be much more accommodate to Trade, and the good and benefit in general of the Nation.

And was not denyed to be truth, and rea­son by Mr. Charles George Cock, who being something of a Common Lawyer, but no­thing at all of a Civil, and advanced in the times of Usurpation, to be one of the Jud­ges, in the then so called Court, for pro­bate of Wills, and granting Administra­tions, could in his Book printed in the year 1651, entituled the Houshold of God upon Earth, or an Essay of Christian Govern­ment, dedicated to the Family of God over the whole Earth, but more especially to them of the Houshold of Faith, in the Com­mon-wealth of England, after a Rhapsody [Page 104] of Whymsical Propositions for Reforma­tion, and Invectives with ill will enough, against the proceedings in the Courts of Ju­stice, Arrests, and Outlaries, delivered his opinion, concerning the Writs of Capias and Arrest,Charles George Cock Essay of Christian Govern­ment in An­no 1651. in these words: That anciently first Goods, then Lands, then liberty was to be seised for Debts, &c. Vpon a just and propor­tionate rule, necessity found wayes to evade, Quaere the Goods, and they were others; Quaere the Lands, and they were aliened; and to run through the difficulties of all those Trials, the burden was found too great, and therefore the Law of Imprisonment at first by Arrest was brought in.

CHAP. VII. The Writs, and Proces of Arrest, and Out­lary have increased, preserved, and en­couraged Trade, better secured the Credi­tors Debts, and made the borrowing of Money more easie then it was before.

ANd therefore the Proces, and Writs of Capias, Arrest, and Exigent, the lat­ter not being able to subsist without the for­mer, having been both of them, in their se­veral kinds, so very beneficial and avanta­gious to the Lawful increase of Trade, now almost every mans desire and concernment, and in that and all other matters, as well concerning Debtors as Creditors, should not be turned away when they have so long, and faithfully officiated in our Gates of Ju­stice, and assisted in the Execution thereof; and although they are now Gray, and hoary­headed, and full of years, are not grown Impotent or feeble, but having a perpetual youth, and spring attending upon their en­deavours, [Page 106] have made the borrowing of Money more easie, and the Creditors bet­ter secured then they were before, the ma­king of that Statute of 25 E. 3. and the more general use of arresting of the Body, or relying upon it, as the better security; and not only in the reason, but the long experimented good effects and use there­of, made good, and verified the design, and expectation of the Act of Parliament, for the increase and continuance of Trade, made by King Edward the 1. at Acton Bur­nel, Stat. of A­cton Burnel 13 E. 1. in the 13th. year of his Reign, which to prevent the loss of Forreign Merchants Debts, which did greatly impoverish them, and caused them to withdraw themselves, for want of a speedy way of recovering their Debts, did ordain the taking of Recognizances, be­fore the Major of the Staple, for the secu­rity of their Debts, and that upon failer of payment, if a Writ of Execution had been sued forth, and the moveab [...]es, and per­sonal Estate should not be sufficient to satisfie the Debt, the Debtors body should be taken, put, and kept in Prison until he had made a­greement, or his Friends for him.

[Page 107] And time and experience have in the change, and vicissitude of the Manners, Cu­stoms, and affairs of the Nation, and the inundations of necessities upon the lower, and poorer ranks of the People, brought them to a very great Assurance.

CHAP. VIII. The pawn, and engagement of the Body, is most commonly a better security then Lands, or personal Estate, upon which the borrowing of Money was not only very trou­blesom, but difficult.

THat the pawn of the Body, and li­berty of a Debtor being so dear and precious, to which the real and personal Estate, if they have any, or shall have any, being as it were annexed and concomitant, are most commonly the Essentialia consecu­tiva, and the Collaterales sequelae & appen­dices, to the Person of the Debtor; and as to what is in his immediate possession, or are other wayes in his dispose or power, [Page 108] are as incorporate and consocate with it, as the Contenta are in, or with the Continens; (the Goods and Chattels being, as it were ipsa vita hominis & tanquam alter sanguis, as the life and life blood,)Juxta Gl. in l. 14. & C. de advocat. divers. Judic. was the Instar om­nium, the most easie, most certain conve­nient, and obligatory kind of security.

And must needs be so, when the taking of Pledges or Pawns had such a restraint laid up­on it, by Gods own most righteous Laws, gi­ven to his chosen People of Israel: Exod. 22. v. 26. & 27. Not to keep the poor mans Rayment or Covering, after the Sun was gone down, D [...]ut. 24. v. 10, 11, 12. for that it was to be his covering. And he that was to take it, was not to go into his house to fetch it, but stand abroad, and the man was to bring the pledge unto him.

And by the necessity of the making of several Laws, by diverse Kings and Princes in other Nations, did appear to have been very troublesom, and inconvenient both to the Borrowers and Lenders, when Horses, Oxen, Swine, Sheep, Men Servants, Maid Servants, and Children, were either voluntarily gi­ven as Pledges by the Borrower, or violently taken by the Lender; and were the causes of [Page 109] making many a Law or Constitution,LL. Ala­mannorum in Linden­brogio 86. for the taking away of grievances, or abuses happening by it.

As when a Man gave an Horse, or a Ser­vant for a pledge,LL. Wisigo­thorum lib. 5, §. 2. he was to pay any dam­mage which it did in that time; if Gold, Silver, or any other Ornaments were pledged, and happened to be burnt,LL. Longo­bard. tit. 21. §. 5. & 16. the Creditor was to purge himself by his Oath, that he was no cause of the dammage; If a Pledge was given, and a Surety with it upon the Deb­tors Oath, and the Oaths of the Neighbour­hood where he was born, the Party pledg­ing desiring to have it again, was to allow the Creditor the curiosity of his choice; of one, two, or three Sureties none were to take Pawns or Pledges;Edictum Theodorici Regis 122, 123, 124. without licence of the Judge; and they which assigned it over unto others, whereby to exact more then was due, were to loose their Debts; and if the Cre­ditor did take more then was pledged, he was to pay four times the value, if he were sued for it within a year; If a Creditor took it a­gainst the Law,LL. Friso­num tit. 9. & in addita­men. sapient▪ Ulmari. and a Man taken in pledge were killed, or any other dammage were done, the Creditor, and not the Owner of the Pledge, [Page 110] was to pay it: If any Man took a Free-man as a Pledge by force, and shut him up as a Prisoner,LL. Bajuva­riorum §. 24 he was to pay forty Shillings pe­nalty; If the time for the Pawn was expired, and it was not within that time redeemed, he was to bring it before the Judge, whereup­on an Apprisement made by three honest Men,LL. Wisigo­thorum lib. 5. tit. 3. he was to be licensed to sell it, restoring to the Owner the over-plus. If Men or Maids were taken in pledge, and being kept in the Cu­stody of the Creditor, had stolen any thing, he was to endure the dammage. If Oxen, Horses, Minuta Animalia, or smaller Cattle, Vest­ments, Jewels, and Vtensils of Husbandry, remained as pawns with the Creditor, by the space of twelve nights; and they were not re­deemed, he might make use of them as his own: And if he that owed the Pawn or Pledge; complained that they were misused, he could have nothing but the Creditors Oath concerning it. If any did pawn a Man or Maid-servant, of another Mans by a mistake, he was to pro­cure them to be released;LL. Longo­bard tit. 21. §. 3. And if the Creditor was questioned for it by their Master, he was to take his Oath that he thought the Debtor had pawned them. If any Debtor did against [Page 111] the Law,LL▪ Baivar. ti [...]. 12. §. 1. 3, & 4. give any Man in pawn or pledge without Licence, he was to pay fourty Shil­lings penalty; And if the Creditor took Hogs in pledge without order, both he and the Dri­ver were to undergo severe penalties.

And the grievances and inconveniences, did by pawning and pledging grow so high and burdensom,Constitut. Theodoric. in Goldasto §. 95. as by Theodorico, King of the Gothes and Italy, the pawning of the Children by their Parents was forbidden. And Charles the Great, or Charlemaine, ad­ded to his Lombardy Laws concerning pled­ging, that he Et ille cujus est causa, the Emperor and the Creditor Would as they please shew mercy; and ordained that No Judge should cause Men to pawn any thing contrary to Law, especially their Oxen, Quia audi­vimus mu [...]a damna & afflictiones propter hoc Populum nostrum sustinuisse, LL. Longo­bardorum tit. 21. §. 26. For that he understood, that his People had lain under many losses and afflictions by it.

And the borrowing of Money by Pawns, and Pledges, and securing of it, tho [...]gh with less usury and Brocage then now, was in the former Ages so very difficult, and upon hard terms, as upon the putting in a [Page 112] Fidejussor or Surety: For a Debt or Mo­ney amongst the Burgundians,LL. Burgun­dionum §. 9. & 19. he That be­came the Surety, carried home to his house the Debtor, there to remain as his pledge for performance;LL. Bajuva­riorum tit. 3. §. 24. And where the Surety had not so secured himself, he was Before Witnesses to have three times more than the Debt secu­red, or gaged unto him; And if the Debt were not paid within three Moneths, was to retain it to his own use. And the Old Ba­varians did use, To take the Bodies of Men for Pledges or Security, and shut them up as Prisoners in their houses.

Nor was the borrowing of Money in the Kingdom of Pegu or Brama very pleasant, Purchas Pil­grimage Tom. 1. where the Wife, Children, and Slaves of the Borrowers are bound to the Creditors, who may carry them to their Houses, and there shut them up or sell them.

And was not with us in the times of greater Charity, which was then believed to be a Scala Caelorum very meritorious, and the most ready way to blessedness, so easie as it is now? when in the Reign of our King Henry the Second, and long before, and sometimes after, the Lenders of Money, [Page 113] if they were any thing suspicious of the re­turn and payment thereof, did not seldom take an Oath of the Borrower, besides his Bond or Pledges, which gave the Ecclesia­stical Courts an occasion, or pretence of ta­king cognisance of Debts, and incroaching upon the Jurisdiction of the Kings Temporal Courts of Justice; as may be seen in many Plea Rolls, in our Kings Courts of Justice, in the Reigns of King Henry the 3d. Ed­ward the 1, 2d. and 3d. where Prohibitions were sent into the Spiritual Courts, by our Kings and their Temporal Courts of Ju­stice, and Actions were brought upon the disobeying of them by the Parties grieved, as well against the Ecclesiastical Judges, as the Parties therein prosecuting:Pryns Histo­rical Colle­ctions in the Reigns of King John, H. 3. & E. 1. Quare tra­xerunt eos in placitum in Curia Christiani­tatis, in placito debiti contra prohibitionem Domini Regis; And then there was no doubt, but that a Sentence being given for the pay­ment of the Debt, an Excommunication was upon the non prrformance denounced, and a Writ de Excommunicatum Capiendo often granted by the Secular Power, to arrest, and take the Body of the Defen­dant; [Page 114] which kind of Writ and Proces was as early as the Constitutions or Parliament of Clarendon, in the tenth year of the Reign of King Henry the Second.

Insomuch as King Edward the First,Rot. Pat. 25 E. 1. in­tus. to preserve the Priviledge of his Menial House­hold Servants, and prevent their Arrests, and Imprisonments upon Excommunica­tions, held it necessary to make and issue out his Writ, De promulgatoribus Senten­tiam Excommunicationis in Ministros Regis capiendis & imprisonandis, to take and im­prison such as excommunicated any of them.

CHAP. IX. The difference betwixt borrowing of Money, upon Lands and real Estate, and the procuring of it upon personal security, and that without trust and personal security Trade cannot well or at all subsist.

ANd the difference betwixt the bor­rowing of Money upon Lands and real Estate, and the procuring of it upon perso­nal security, may by the Borrowers sadly be evidenced.

When, security by Lands is now most commonly by way of Leafe and Release, being a dark way of assurance; and within the me­mory of man, at first only purposely con­contrived by Serjeant Francis Moore, at the Request of the Lord Norris, to the end that some of his Kindred or near Relations should not take notice by any search of pu­blick Records, what conveyance or setle­ment he should make of his Estate; and by the sad experience of sometimes double or [Page 116] treble Mort-gages, hath not appeared to have been so safe as the former, which was more publick and of Record.

And when for a Security of two thousand Pounds, the Borrower must upon strange scrutinies, and almost a Spanish Inquisition (the torture of the Body only excepted) have his Estate, Evidences, and Credit put upon the Rack, and be bound with an a­bundance of over-jealous, hard-hearted, thorney Covenants, and unmerciful provi­soes, and conditions too near of Kin to the Scottish moveable Bonds, mort-gage Lands worth four or five thousand Pounds or more, give his answer upon Oath to a Bill in Chancery, what Judgments, Statutes, or In­cumbrances are upon it, and so embroil that and the residue of his Lands and Estate, with Statutes, Judgments, and Recogni­zances of great penalties, for the perfor­mance of those Covenants, as he shall hard­ly be able to have any more Credit by it, or Money lent upon it; or if the Creditor, who to be sure to keep him in the Chaines, or thraldom of his power and threatning, will seldom give him time for above one [Page 117] year or two, for the repayment of the princi­pal money and Interest, under the severity of a forfeiture, will, if he be a Nabal, more eagerly then he needs or should, call for his Money; upon a pretence of the Interest not being duly paid (of which the back wardness and delay of the Tenants may be many times the only cause) or of his want of the principal Money, which upon a due Examination may appear to have more of a contrivance, then truth in it; or if that will not trouble or disturb the Debtor enough, will do all that he can to affright him, to quit his right in the Land, and permit him to have a cheap bargain of it, by suggesting some flaw and defect to be in the Title; and tells him that otherwise he must call in his Mo­ney, for he dares not continue it any lon­ger upon so weak an assurance: And if he thus gets it at a lamentable cheap rate, can notwithstanding assure himself he hath a very good title, and such as needs no confir­mation; but if that will not do his busi­ness, and accomplish his griping design will exhibit his Bill in Chancery against him, to enforce him to pay the Money, or loose his [Page 118] equity of Redemption, whereupon a six Moneths, or some not very long prefixion gi­ven unto him by the Lord Chancelor, or Lord Keeper, he must either upon that short war­ning sell the Land at low and unreasonable Rates, and great disadvantages and loss to a Stranger, or take what pittance or little Sum of Money the Mortgagee will find a conscience to give him, upon a Release of his claim and interest in the Land, which is twice and many times more worth then the Money lent, upon some short prefixion or time of Redemption allowed; And that af­fording him but som small parcel of relief, and he being not also at that time able to procure a Redemption, must lie down un­der his sorrow, and let the Mortgagee enjoy the Land, for scarce half the value.

A due consideration whereof might ei­ther in equity or compassion become a Court of Equity, in such a case to order the over­plus of the just price or value of the Land, after the principal Money, Interest, and costs of Suite satisfied, to be paid to the poor Mortgagor, and his Wife, and Chil­dren, and be much more agreeable to Ju­stice [Page 119] and good conscience, then to deliver up the distressed Mortgageor, to the greedy appetite or gripes of a merciless Creditor or Usurer bruise the broken Reed, add af­fliction to affliction, and strengthen the hands of the Oppressor; which the Prophet Eze­chiel saith, was one of the crying sins of Sodom, in a time especially when too ma­ny of the loyal Nobility and Gentry have so abundantly suffered in their endeavours to rescue their King, Country, Laws, Reli­gion, and Liberties from the pretences and oppression of a factious and disloyal part of the Nation, who by plunder and sequestra­tions did too well know how to enrich themselves by the ruin of their betters, and having after all their villanies received his Majesties mercy, in being themselves par­donned, cannot tell how to allow a Chri­stian forbearance to the sick, and languish­ing Estate of a Mortgageor, who hath been so much undone by them.

And whether he can be able to Mortgage the residue of his Lands, or sell that which is already mortgaged, must take along with him as new additions to his heart breaking [Page 120] miseries, the fall or enforced abatement of Rents, as much if not more then twenty per Cent, and to give the fuller weight or measure to his troubles, be constrained to sell it after that abated Rate and Rent at sixteen years purchase, when it would before have yielded eighteen or twenty, and could neither procure two thousand Pounds [...]pon the former Mortgage, or the latter, if he could attain unto it without one hundred Pounds, given for the procu­ring of each two thousand Pounds, and walk a great way, besides towards fourty or fifty Pounds Charges more, in the contri­ving and preparing the assurances; and after many a scruple and Rock of the Lenders, never to be satisfied fulness of security, pas­sed over many a weeks attendance and charge, in the humoring of his many times purposed procrastinations, to drive him into greater necessities, whereby the ea­sier to procure his unjust advantages, and render him the more patient to endure that Strappado, may, being bound hands and feet, and abundantly wrapt in Sheep-skin, engagements, and incumbrances, sit down [Page 121] at Weeping Cross; and wonder there was no express Prayer in our Litany, against unmerciful Creditors, and such as make more necessities then they find, with a good Lord deliver us.

And if that now over trodden way be not taken, to dig down and demolish the Borrowers Estate, and foundations of lively­hood, will apply himself to as destroy­ing a course, by extending the mortgaged, and all other Lands which the Debtor hath at a low rent; and keep it so in his possession, and a careless management, and with so great a loss to the Debtor, as the fiftieth year of Jubile may come, before the Lands by the unjust accompt of the mean profits, be able to shake of that burden, and bring an Action also against him, and imprison him for the not performance of his Cove­nant, to pay the mortgage Money, or for breach of some other Covenants in the deed of mortgage; and if he hath any other Lands of his own, or his Wives, that can escape the fury of such a Creditor, shall not by reason of the former incumbrance, be able, without great difficulties and cost, [Page 122] to borrow any more Money upon what re­mains unmortgaged. And if the Money could be borrowed of a Citizen of Lon­don upon a mortgage, it must be of Lands near London, or in some adjacent Coun­ty, otherwise his Nicetyship will by no means be intreated to lend any Money upon it; but he must be as unlikely as a poor Schollar or Poet, or borrow any more Money, and may dream of a Cre­dit, and believe he hath a right unto it, when he is never more like to come in sight of it.

When a Country Gentleman, whose Credit hath not been tainted, could here­tofore with ease enough sometimes upon his own single Bond, or at the worst with a Friend or two, and one of them but his Taylor joyned in the Bond with him, bor­row fifty or one hundred, or two hun­dred Pounds; and the Farmer or Country-man wanting Money to pay his Rent, could upon a short warning procure fourty or fifty Pounds, upon his own Bond or Bill; and a Citizen of London, or some other trading Town, can with a small Estate in Money [Page 123] and no Land, but a great care of his Credit and performances, be trusted upon his Word, Bond, Bill, or personal Security, with ten or twenty times more then he is ever likely to be worth.

And it is very well known, that a mul­titude of London Merchants, Retaylers, Tra­desmen, and Artificers, in or about that vast City, and the overgrown Suburbs thereof, being in their number about six hundred thousand Men, Women, Children, and Ser­vants could not maintain or uphold them­selves, in their several orbs and stations, with­ovt a trusting of their Customers; and be­ing trusted themselves, or a confidence on both sides in personal Securities, Bargains, Contracts, and Promises; which is very often done, and necessitated to be done without Pawns or mortgage, security in the course of Commerce and interchange of affairs one with another, by all Merchants, Sea­men, Retaylers, Farmers, Taylors, Labo­rers, Husband-men, and all sorts and de­grees of People in the Kingdom, and other Parts of the World; and even the landed men and Free-holders, who are not the for­tieth [Page 124] part of the Nation; and the Copy-holders, when they do not deal for so great Sums of money, as to surrender and en­gage their Copy-hold Estates, cannot in the multitude, diversity, speed, and mana­gement of their almost daily and hourly business one with another; and at Markets and Faires, and elsewhere, avoid the taking or giving of personal Securities or Contracts, which cannot primarily affect those that have Lands, or concern their real Estates, but are to follow the Persons of those that are Deb­tors, for the performance thereof.

So as it would be no Probleme, or Criple assertion, to aver that the forbidding of trust or giving dayes of payment, by which the Citizens and Trades-men of Lon­don, do gain more then they should do by enlarging their price, and Items to a very great excess, and in some, as it may be feared, to more then a double or larger In­terest, and the taking of huge Sums of money with Apprentices, now more then formerly, become a part of their Trade; and a publique Registring enjoyned of all money and debts, which they do owe and [Page 125] are engaged for, by Credit or other­wise.

Would quickly manifest how Trade would be undone, if it were not for trust upon personal securities, and performance, and the benefit, and necessity of Writs of Arrest, enforcing their Debtors to make payment, or to be the more careful of it.

And by so speedy a way of enforcing a Defendant to appear to the Action, make the Merchants and Trades-men so punctual in their payments, whereby they do get great Credit and Riches, and have given a confidence to all Trade and Commerce, which since the Reign of King Edward the 3. hath been hugely encreased, makes the poor man, which hath no great Stock or Estate, to be as good security for what he undertakes, as those who have greater; and gives us the reason, why those that do lend Money unto Country Gentlemen, or Men of great Estates do usually require a Citizen, though he have but a very weak and small Estate, and is more in danger of breaking then the Gentleman, to be bound with him, and do think their money not [Page 126] to be very safely lent without such a secu­rity. And that great City and Emporium, which sitteth upon many waters, and stretcheth out her lines to the utmost ends of the Earth, would certainly languish and decay, if she should be deterred, or bound up from trusting, or being trusted; and there would be none, or a very little Trade and Com­merce in the Nation, if it should not be driven by personal securities, when our Mer­chants that do Trade into Persia, the East-Indies, Turkie, the Levant, and Norway, with as much Money as Commodities, ha­ving neither Pawns nor Lands to morgage, do not seldom deal upon personal security; Forreign Merchants being in that manner contented, to do as they would have done un­to them, and do many times borrow money in their own Countreys, to give day and time of payment unto Merchants, and their Cor­respondents in other Countries.

And there would not be wanting, very great and many mischiefs, inconveniences, delayes, disturbances, and obstructions in the universal Trade, and affaires of our Nation, both at home and abroad, if that great and [Page 127] daily manage of our Commerce at the Royal Exchange of London, for vast sums of Money or the value thereof, twice every day, in every week, of every year, Sundays, great Festivals, and publick and extraordi­nary dayes of Fast, or Thanksgiving only excepted, should by a jealousie and distrust, in all Merchants and Men of Trade therein every day concerned, and the Actions and Estates of one another, forsake their accu­stomed, and very laudable wayes of trust, and confidence in the credit, and punctuality of performance of one another, and not be­lieve a Bargain or Contract to be well and se­curely made, or Bills of Exchange safely ans­wered, without an almost infallible certainty, of the Estates of those with whom they deal or correspond, and in their diffidence there­of (when as to the Sea and Forreign Trade, the Winds and Tides will not be intrea­ted to tarry, and opportunities of vent and benefits, if not suddainly laid hold on, cannot be easily or at all times met withal, or gained) adjourn the conclusions, or cer­tain engagements of their Bargains, Con­tracts, Undertakings, or Promises, until [Page 128] they could consult with their Lawyers of some of the Inns of Court, some not easily to be satisfied, Conveyancers, Scriveners, or Men of scruple, how to make their Con­tracts, Charte [...], Parties, Agreements, Part­nerships, or Insurances to be without any, or very little, or seldom hazard or danger, or procure some Perspective glasses to af­ford them a clear intimacy, or visibility into the Estates of Men, or a possibility of Ac­cidents, Shipwracks, Piracies, or Sea mis­fortunes, or the breaking or knavery of Re­taylers, and render them as safe in their Trade, and adventures against all contin­gencies, as any moral or worldly probabi­lity, or security can make them.

And that their great concernment, and height of reputation, guarded by the wake­ful Eyes of publick Notarial Protests (which is sometimes tromped upon them, by some of their Forre [...]gn Factors or Correspon­dents, inadvertencies or over charging them, is of so britle and tender a nature, as a small gust of misfortunes, or adversities, over­turns, and sinks it; or a malicious or foolish report of being broke, or likely to break, [Page 129] shatters it all in pieces, and puts the not long before prosperous Owner of it, to re­cover as well as he can the dammage su­stained by it, and the Shipwrack of Credit can be no otherwise then exceedingly omi­nous, and dreadful to men that are to make much of their livelyhoods, and hopes to raise their fortunes by it; when besides the many other disasters attending and lying in Ambuscado, the Statute of Bankrupt made in the Reign of King James, doth in the Character of a Bankrupt 21 Jas. ca. 19. (amongst other things declare, any Merchant, Retayler, or any other seeking to get their living by buying or selling, to be a Bankrupt, who being indebted to any Per­son, in the Sum of one hundred Pounds or more, shall be arrested for the same, or lye in Pri­son two Moneths or more, for that or any other Debt, or afterwards escape out of Prison, or gets forth by common or hired Bail, shall be accompted and adjudged a Bankrupt to all purposes and intents: And provide that such a one should have his Goods and Estate seised, and divid [...]d amongst his Creditors pro­portionably to their debts, and be liable to the [Page 130] 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 [Page 131] 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 [...]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 [Page 132] 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 Arti [...]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 [Page 133] wont to be by Bonds, Bills, or personal Se­curity, now be turned into a way of Pawns and Bro [...]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 [Page 134] 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, [Page 135] 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.

[Page 136] 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, Bracton lib. 3. de actio­nibus ca. 3. Fleta lib. 2. ca. 6. §. 22, 23. 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 [Page 137] 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,Fleta. saith Fleta, have in them Vinculum Juris such a Bond or O­bligation, as ties us to the performance of [Page 138] them,Bronkhorst tit. Reg. Ju­ris, & Com­mentar. ad loc. Bracton lib. 1. ca. 5. 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:Grotius de Jure Belli lib. 2. ca. 6. 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, [Page 139] 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, Scottish Re­cords in the Tower of London, whilst they were there imprisoned by Oliver Cromwel, & Parl. James the Sixth in Anno 1600. 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, John Cop­pen in Ran­gensdorf in Decis. quae­stion. 33. 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, [Page 140] 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 before­hand, of the benefits of Law in general and particular;Butrigarius in Tract. de Renuncia­tion. 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, [Page 141] 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 [Page 142] 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 manage their Trade, and by taking too great, and in for­mer Ages unheard of Sums of money, to teach them their Mystery of gain, will find it to be as inconvenient to themselves, in that their new way of Prentice Trade, as trou­blesom to the Parents of the Apprentices, if they were to be satisfied with nothing but a mortgage, by Security of Lands, or Pawns, or Pledges to be given by them [Page 143] for their Childrens honesty, many times dearly discharged, when as now their sin­gle Bonds or Covenants will suffise.

And they ought not surely to be accomp­ted too Sanguine or over credulous, who shall give entertainment to an opinion, that if all the money which hath been borrowed in the times of our English Troubles, lately past or long ago, or in the now times of our unparrelled pride, prodigality, and luxury, had been to have been borrowed only upon Mortgages, Pawns, and Gages, the vitious and foolish part of the People of this Kingdom, which are the far greater number, would have long ago suffered their follies, to have brought them into the sad condition of the Egyptians, in the time of the more thrifty and forecasting Joseph, Genesis 47. when in a famine only of Bread, progno­sticated to continue for seven years, they were in the first year of it constrained, when money failed them, to take bread in Ex­change for their Cattle, Horses, Asses, and Flocks, and after their Bodies offered as pledges upon the like occasion, and neces­sity to give up their Lands for necessary [Page 144] (but no wanton) supplies.

And although the first pawn or pledge, that is mentioned in the Book of God, the most Ancient and best of Records, to have been given in the Fore-noon of the World, was that of Judah's Signet,Genesis ca. 38. Bracelets, and Staff to his disguised Daughter Tamar, for a security of what his Amours, and unlawful Contract had promised; yet shortly after his Brother Simeon became a personal secu­rity to his Brother Joseph, for the bringing unto him his youngest Brother Benjamin, and was in the mean time bound and kept in Prison; and Reuben upon his return to his Fa­ther Jacob, to remove him from his unwil­lingness to send his beloved Benjamin into Egypt, Genesis ca. 42. offered his own two Sons in pledge, that he would safely return him unto him again: And when that could not prevail, Judah, without being bound or kept in Prison the while by his Father, became a Surety for him as it were body for body, and that of his own hand he should require him. And the after Ages have found so great a benefit, as well as a necessity of personal security, as here in England long before the Statute of [Page 145] 25 E. 3. the Bodies of men, as well Nobi­lity as others, have to the great advantages of the Kingdom, and upon great and weigh­ty reasons and occasions of State, been gi­ven and taken as Sureties and Hostages, for and to diverse of our Kings and Princes.

And by our Laws agreeable in that and many other particulars, not only to the Civil and Caesarean Laws, but of the Law of Nations the Plaintiffs, when by our Original Writs, made out of the Chancery in A­ctions of Debt, impowring the Justices of the Court of Common Pleas, to make proces and hold plea thereupon,Sigonius de Judiciis lib. 1. cap. 21. the Sheriff to whom the Writ is directed, when he doth sum­mon the Defendant to appear before the said Justices, being commanded to take Sureties of the Plaintif, that he will prosecute and justifie the Action, was to take it by personal security, and not by any pawn or pledge.

So as if there were not so many irresisti­ble Arguments, Reasons, Examples, proofs, and necessities for the ancient, long conti­nued use of the Writs of Capias and Outlary, beyond a prescription and memory of man, and many ages.

[Page 146] That which hath in all Ages been allow­ed, as the best expedient to secure from doing or suffering wrong, in case of lesser or greater Crimes, as Trespas, Felony, Man­slaughter, Murder, Treason, or suspition of either, where the less favours are to be shewed, propter atrocitatem criminis, for the horridues of the Fact, until Offenders can be brought to Judgment: For whom Plegii sint donec se defenderunt Carcer & Gao­la, Bracton lib. 5. de excep­tionibus ca. 8. 31. The Goal and the Prison were to be Se­curities, saith our old and learned Bracton.

And that old rule of Law not used, to be denyed, kickt, or spurned at eadem ratio eadem lex, that a parity of reason in one Law or Case, may be the foundation of a like Law in another; and that other maxime of Law, Qui non habet in Aere [...]uat in cor­pore, Where a man hath nothing in his purse to answer the Law, he ought to suf­fer for it in his Body, the punishment of Contempts of the authority of Courts of Justice; and the securing of mens Debts, where there is A suspitio fugae, Any suspition, likelyhood, or signs of the Debtors running away (which the old Almans were so care­ful [Page 147] to prevent, as that rather then fail they suffered the Plaintiffs themselves to take and imprison them) may be called in as Assi­stants, to maintain the right reason and ne­cessity of Writs of Capias, and Outlary in matters of Debt, and other the like personal Actions.

And those very good effects of our said English Law proceedings, and the conse­quences thereof, and benefits ad [...]rewed there­by, are and may be demonstrable by the less difficult way of borrowing money, more safe lending of it, and more speedy way of recovering, and getting it in with little dam­mage and loss, when in this last Century, and present Age of about one hundred and fifty thousand Capias, or Proces of Arrest and Outlary, sued out or prosecuted in a year, there are little more then one housand of them if so many so arrested or unbailable, as to be carried to Prison, or being destitute of Friends or Money, do remain in Prison a quarter or half a year at the most; or if any do continue any longer, they are so very few in respect of the far greater number, which were threatned or might have been [Page 148] there; as if the Prisons of the Fleet, Kings Bench, Marchalsea, Ludgate, the Compters in London, Newgate, the Gatehouse at Westmin­ster, and the Counties, and every other City Goals, or Prisons belonging to Liberties in England and Wales, shall be truly searched and examined, either as to those who are actually in every of those Prisons, or are out upon Writs of Habeas Corpus; or how many new Prisoners are every year, half year, or quarter of a year brought in upon Actions of Debt, Trespas, or other Civil A­ctions? And how long or little while they did or do there tarry the product of that ac­compt, may truly testifie that the terrors, and continual affrights, and trouble of Arrests, with the Tristis poenae expectatio paena molestior, often sad apprehensions of the many incon­veniences of imprisonment, which do inevi­tably follow as to the Charges, loss of Estate and Credit, do so summon and call together all their cares, and so gently and best of all conduce to the ends of Justice; and those that seek it, as it verifies and gives us the benefit and right use of that moderation, and care of our Laws in that rule and maxime of it, [Page 149] to threaten more then execute ut metus ad omnes poena ad pauco [...], that the punishment of a few may operate as much as if all did partake thereof; the affright being most commonly that which makes the suffering to be so disproportionate, and less then what was necessarily or otherwise threat­ned.

For if four thousand Writs of Exi­gent be awarded, and issued out of the Court of Common Pleas in the year 1674. which is very near an exact accompt ta­ken thereof, not much above one thou­sand of them do come to be returned, fi­led, or outlawed: But the residue, and those very many which are not, are either stayed by Agreements, or Retraxits, and Complyance betwixt the Attorneys, or in order to appearances upon new Originals, without returning and filing the Writs of Exigent: And may be taken to be no fan­cied Calculation, when the number of all the Capias utlegatums, special or general, made by the Clark of the Outlaries in the year 1674. were no more then 1034. the Outlaries reversed no more then 27. [Page 150] And the Outlaries certified into the Ex­chequer no more then sixteen. And all the Prisoners that were for Debt, and other actions not Criminal, in the Prison of the Kings Bench (being the greatest in England and Wales) either in the Prison or the Rules, or abroad by Writs of Habeas Corpus, the third day of May 1653. were under the hand of Sir John Lenthal Knight, Marshal of the Court of Kings Bench, with the several times of their Commitments, certified upon the special order and com­mand of the then miscalled Parliament, to be no more then three hundred ninety one; of which there appears to have been com­mitted in the year 1616,—but—one. In the year 1631-one. In the year 1633 —one. In the year 1636—one. In the year 1637-one. In the year 1638-one. In the year 1639-one. In the year 1640 —nine. In the year 1641—five. In the year 1642—two. In the year 1643— three. In the year 1644—four. In the year 1645—seven. In the year 1646— fourteen. In the year 1647—fiveteen. In the year 1648—twelve. In the year [Page 151] 1649—fourty-six. In the year 1650— thirty-two. In the year 1651-fourty-one. In the year 1652—one hundred thirty. And in the year 1653—fourteen.

And it must needs then be a wonder, and none of the smaller sort or size of wonders, how or upon what ground, cause, or rea­son, that so very ancient, rational, legal, necessary and useful way of Capias, Proces and Outlary, derived and deduced from the Laws of God, Nature, and Nations, should either deserve or come into so ill an opinion with some of the People, or that it should be called or understood to be an Illegal, Iron sharp and cruel, Law, a Tyranny, thraldom, mischief, slavery, lamentable bon­dage, terror, and sorrow of heart, and utter ruin [...] of the free born People of this Nation, founded upon a misconstruction, and inad­vertency of the genuine sense of the Common Law it self, and contrary to thirty Acts of Parliament, made in Confirmation of Magna Charta; or should be repealed by the Act of Parliament, made in the 28th. year of the Reign of King E. 3. ca. 3. and by the Statute of 42. E. 3. [...] 3. Or should [Page 152] now in its old age have no better a title then a grievance; and those unjust Rab­sheka railing reproaches, (when it hath been helpful to multitudes of men in several Ages) cast upon it.

CHAP. X. The way of Capias and Arrest is no oppres­sion or Tyranny exercised upon the People, since the making of the Statute of 25 E. 3. ca. 17. or hath been hitherto, or may be de­structive to their liberties.

WHen as Tyranny in the known and general definition and understan­ding of it, is a cruelty or power executed by one or more at pleasure, contrary to Laws Divine and Humane, and inconsi­stent with the Laws of that Place or Coun­try wherein it is exercised: For Laws do or at the least should intend to prohibit things unjust, and to order things good and use­ful, for that People and Nation unto which they are applied: The intent of a vir­tuous [Page 153] and good Lawmaker being as Ari­stotle saith, To make the People good, and conduct them to virtue.

Or how it can be called Tyranny, when it is no less then right reason, which should be the Parent and Director of all Justice, when as God himself the most just and ra­tional Law-giver, the Watch-man of Israel, and the Keeper of the liberties thereof,Exodus 22. 7, 8. that gave unto Mankind a reasonable Soul, and that great blessing of reason, which is the Divini luminis radius, A beam or ray of his own Excellency, did in the Laws, which he gave to Moses when he talked with him, enact and ordain, That if a man shall de­liver unto his Neighbour money or stuff to keep, and it be stoln, and the Thief be not found, the Master of the house shall be brought unto the Judges to see whether he hath put his hands upon his Neighbours Goods (which was nothing less then an Arrest.)

The Law of Nature that giveth every man leave, and enjoyneth them to work rather then to be idle and want, allows them not to hinder publick good, or di­sturb the Rules of Civil Society, and work [Page 154] within the City of London or the Liberties thereof, if they be not thereunto authorized as Free-men of the said City; or was it an oppression by an Act of Parliament, as King Edward the 3. did in the 25th. year of his Reign? to limit Artificers, Labourers and Servants wages; or as Queen Elizabeth did by an Act of Parliament, yet in force and unrepealed, made in the 5th. year of her Reign; or when King Henry the 8th. did limit the price of Victuals and Houshold Provisions by an Act of Parliament, made in the 25th. year of his Reign; or an oppression of the People by Sumptuary Laws for Ap­parel, made in his Reign, and of his Daugh­ter Queen Mary's, which otherwise in a pri­vate man according to the bent and rules of Nature, giving every one a liberty In rebus licitis & non prohibitis, in thing law­ful, not sinful and consistent with the Laws of publick good and Civil Society, would have been within the freedom and dispose of his own will.

Neither do the People of Spain and Ita­ly, in their submission to a Banda or Rate, imposed upon the Sellers of Victuals and [Page 155] Houshold Provisions; or the Natives of France, Spain, and the elective Kingdom of Sweden think themselves to be too much, or any thing at all abridged of their na­tural liberty, by yielding for publick good a just obedience to their Sumptuary Laws, lately made and ordained.

For there is no Law extant of this Na­tion so made, but the Subjects might chuse to incur the penalty or hardship of it, or if they should happen to be too severe or unfit, or not so necessary, convenient, or useful, as was intended or expected; or like unto some of the Laws of the Medes and Persians, which were said to be ir­revocable, but the People had by the grace and favour of the Soveraign, a reme­dy by Parliament to abrogate, repeal, ex­plain or amend them by substracting of some clause, or adding some other unto it; for liberties are both by Civil and Common Law defined to be of things not forbidden,Bracton lib. 1. ca. 6. otherwise vaga liber [...] as may quickly come to be misera servitus, and bring those that would use an unbounded liberty, where it shall meet either with Laws or a greater [Page 156] force, into a most miserable slavery.

And therefore just liberties do by our Common Laws,Coke 2. part. Institutes 47. saith Sir Edward Coke, sig­nifie the Laws of the Land: And that which is the Law, cannot be called Tyranny; nor that which is against the Law, liberty: And that ancient manner of Trial for those who were criminally accused, called Fire ordeal (which ordained the Partie suspected to walk blindfold over certain Plow-shares of Iron heated red hot, laid at a distance one from another,Verstegans Antiquities ca. 3. and if the Party did not touch any of them, or treading upon them received no harm, he was declared to be innocent) coming into this Land with the Eazons; and the Law of Trial of Titles by Battle or Duel, continuing here long after the Norman Conquest, and to this day in force in certain doubtful cases, though they had very much of blood and cruelty in them, could be suffered to wear out into better Laws, and yet be obeyed as Laws, whilst they were such; the Law of tortu­ring or pressing such men to death in case of Felony, as will not plead [...] or do refuse to be tryed by a Jury, to be so many houres [Page 157] in dying,Stamfords Pleas of the Crown. and have no other drink but Ken­nel-water▪ hath enough of horror in it to be found fault with, if it were not the Law, and the only means to preserve the Autho­rity of Laws and Judicature, and there were not toom enough for men to avoid that direful way of punishment.

For there was never since the blessing of Laws, Magistracy and Government came into the World, any legal liberty not to appear in Judgment, or not to be compel­led to do right one unto another by Judges, and those that were in Authority commis­sionated by their Superiours And if ever there had been such a liberty, it may be renounced or released by our own Acts, as in the entring into Bonds and Contracts one with another, wherein we oblige our selves to the performance of any thing, which the Laws of God and Nature do demand of us,Oldendor­pius in diffi­nit. Actio­num. the Obligees may dispense with it: And if the Law of Nature could have gi­ven us such a vast liberty, as some would pretend a right unto, the same Law of Na­ture doth in civil Conversation and Society give us a power sufficient to restrain it, and [Page 158] make that which at the first was merae vo­luntatis in our own wills, to be postea ne­cessitatis a necessity, and out of any sup­posed freedom of our own wills or the pow­er thereof.

Neither can any man by any rule of Law charge our Laws with oppression, because positive, or made in terror, or binding to strict rules, to avoid arbitrarines or oppres­sion in the Judges, or rigour and severity (as in some particular mans case, they may happen to be by an abuse of them) but the fault is rather to be laid at the doors of those who do violate and break them.

For an unlimited or absolute liberty, and the liberty of the Subject are each unto o­ther contradictory, and there are no Laws but do retrench, or take away some liber­ty which People had or took to do ill, or might be inconvenient to the publick good: For God the greatest and wisest of all Le­gislative Powers, did put the Jews who were, as he saith himself, as the Bracelet upon his arm, and the signet upon his right hand, under a Law of fourty stripes, and of death if they disobeyed the Sentence of the [Page 159] Judge. And yet we do find them in their Generations above two rhousand years, af­ter in such an opinion of their freedom, as they thought nothing could be added unto it; saying they were of the Seed of Abra­ham, and under no Bondage, and are yet above sixteen hundred years since bragging of those their Laws.

When David had slain Goliah, and might justly have expected the reward, of having his Fathers House to be made free in Israel, as some of the promised rewards, he did not when he durst not lift up his hand against the Lords Anointed,1 Sam. ca. 17. v. 25. believe it to have been such a freedom, as might exempt him from the duty of a Subject. When our King Athelstan by his Charter gave Lands to St. Wilfrid, Dugdales 1. part. Mona­stic. 172, 173. & Blounts No­molexic in verbo Frod­mortel. and the Church of Rippon in Yorkshire, in the words, Als frelich as I may, and in all things be als free as Hert may think, or eych may se. And King William the Conquerour granted the Earl­dom of Chester, Spelman Glossar. in diatriba de Comitib. to his Nephew Hugh Lu­pus, Tenendum sibi & haeredibus ita libere ad gladium, sicut ipse totam tenebat Angliam ad Coronam, to him and his Heirs, to be [Page 160] holden as freely by the Sword, as he did himself hold England and the Crown there­of: Those very large Grants did neither free the Lands so given to St. Wilfrid, and the Church of Rippon, and that Earldom to the Earl of Chester unsubject the Owners, or give either of them (as our Records and Law-Books in the course of the after Ages will testifie) any liberty not to appear up­on any Summons to the Courts of Justice, of our Kings and Princes: For legalis & li­ber homo, Spelmans Glossar. in verbo lega­lis. saith Sir Henry Spelman, hath in our Laws no other signification then, Qui stat rectus in Curia non exlex, seu utlagatus non excommunicatus vel infamis, &c. sed qui in lege postulet vel postuletur, who standeth right in the Kings Court is not outlawed, excommunicated or infamous, but may at Law sue and be sued.

And it cannot be denyed, but that in or­der to Justice a Summons or citation only might be sufficient, and would certainly be most consonant to the ease and liberty of the People, if they were or could be so of one mind or inclination to Justice, as to obey the first Summons, either of the Parties [Page 161] complaining, or the Courts of Justice com­manding, or not make excuses or delayes, hide themselves or run away, or be loath to come to it, be so of one kind of affaires and business as never or seldom to be ab­sent, so alwayes provided of their Coun­cel, Witnesses and Evidences, as not to need any further time to make their neces­sary deffences, and to be of so much suffi­ciency of estate, as to have wherewithal to make a speedy answer or satisfaction: And that there were no such pravity or in­certainty in the wills and actions of men, as that the Creditor would be alwayes sure to demand no more then what should be just, and shew as much mercy, if there should be occasion for it, as the Debtor should have need of, and that every man would be as willing to do right one unto another, as it should be asked or demanded of him.

But that being not to be found in too many of the Sons of men, or the smallest Societies, nor was alwayes or is likely to be in the subluna [...]y and lapsed condition of mankind, some kind of compulsion was [Page 162] necessary, and a lesser then what is now, or hath been most anciently practised, could not be to any purpose, unless we could con­tent our selves, and take that to be a hap­piness (which would certainly never prove to be any to have Justice (which next to the Creation, and the mercy of all mercies, the Redemption of mankind, and the Di­vine Protection and Providence, is one of the greatest blessings which was ever impar­ted by God unto it, and as to the continual guard and preservation of our lives, liber­ties and estates is more necessary, and less to be wanted then our food, apparel, houses or places of rest, and is the great support of the being, and well being of all humane Societies) to be a meer speculation or em­pty word, for Schollars only to dispute of in the Schools of Ethiques; Or sit like Old Ely in a Chair, with Why do you so my Sons? and permit every man to deceive, & mischief one another, and render the Justice of the Nation to be nugatory, for the restraint now used of the Body of a Defendant, refusing to appear voluntarily, or upon a Summons or Citation, is not in vinculis or Cippis, [Page 163] in Chains or Fetters, not ad poenam but ad Cautionem, and in so moderate and gentle a manner, and lessening of their liberty as it is but temporary, and when so done, is but after many delayes, threatnings, warnings and forbearings, and most commonly oc­casioned by their own default, or some long abuse of the Plaintiffs patience, and such a remedy or course taken, is no more, if rightly interpreted, then what common and right reason, necessity, and endeavour of right to be done did require. And when it is but Majoris mali vitandi causa, to avoid greater evils, is so little in derogation of publick liberty, as although it may for a time be something prejudicial to some par­ticular man, it proves many times to be a special help unto many men, to recover their Debts or Money due unto them, the want whereof might otherwise be a cause of their own imprisonment.

And so long as any man is a Member of a Common-wealth,Bacons Hi­storical Dis­course of the Govern­ment of England. his liberty is to attend or depend upon the good of that Common-wealth, otherwise he may claim a liberty as a Free-man, but not as an English-man.

[Page 164] Nor could our Fore-fathers in the neces­sity of bringing, or compelling men to ap­pear in Judgment, as well as of the preser­vation of the alwayes very necessary Power, Authority and Jurisdiction of Courts of Justice, which do order and direct it ever, tell how to imagine that it should be un­derstood to be a Tyranny, to arrest, attach or imprison such as should refuse to appear upon the Summons, or Proces of a Court of Justice, or be fugitive or like to run away, or that it ever was or can be deem­ed to be an oppression, to enforce such Persons in a legal and orderly way to pay their Debts, and do that which God com­mandeth them to do, and hath no less Ju­stice or conscience in it, then to be con­strained to do right one unto another,Psalm 15. per­form Covenants and Promises, and obey Magistrates and Laws in force, when the Book and Dictates of God himself, do ac­compt a Man wicked, that borroweth and payeth not, and the wilful deceiving of Men, in the not paying of Money due un­to them, or not performing of Promises, is by good Divines and Expositors con­ceived [Page 165] to be a kind of theft, and reckoned to be within the meaning of the Eight Commandment,Ursinus Ca­thechisme, & Majer upon the [...]8. Com­mandment. and to be numbred a­mongst the breaches and transgressions of it; and it is no Tyranny by the Law of Nature, for a Man to stay or lay hold of one who is running away with his Mo­ney or Goods, or for a Judge by the Com­mon Law of England, to commit such as misbehave themselves by word or gesture, in their presence or a Court of Justice, or for a Creditor by the Civil Law, to Arrest or stay his Debtor, if he be running away before he can get a Warrant or Proces from a Judge.Laws of War. To punish Souldiers with death by the Law Military, for running a­way from their Colours, stragling in their March, or going above a Mile from the Army without licence; to Arrest or Im­prison such as resort to unlawful Games,23 H. 8. ca. 9 until they shall find Sureties, no longer to use or haunt any place where such unlaw­ful Games are used; or to imprison Colle­ctors for the Poor, refusing to accompt: And Sir Edward Coke in his Commentaries upon that part of Magna Charta, Coke 2. part. Institutes 52. saith that [Page 166] a Watchmans arresting a Night-walker, or one that hath dangerously wounded an­other, or that keepeth Company with a notorious Thief, whereby he comes to be suspected is lawful, and no breach of Magna Charta, 14 Eliz. ca. 15. although it be done without the Warrant of a Writ.

By what rule of right reason then shall so gentle, and necessary a course or way of compelling Men by Proces of Arrest, to appear in a Court of Justice, in order to a Sentence or Judgment, when he may be bailed, be styled a Tyranny or Oppres­sion? When it shall not be so called or esteemed, to take a Man in Execution for not obeying or performing a Judgement, where he cannot be bailed; or shall it be Tyranny to Arrest a Defendant, to oblige him to appear in a Cause or Action Civil, and none at all in a Criminal? An Oppres­sion or Tyranny to Arrest a Defendant, to constrain him to appear in an Action of Debt, and none at all in an Action of Tres­pas? Nay, rather is it not an Oppression, to endeavour to defraud and injure Men, detain their Estates and Livelyhoods, with­hold [Page 167] from the Poor and needy their right, and undo the Widdows and Fatherless, by keeping away the Money which should feed or keep them from starving, without making satisfaction? or shall it be no Ty­ranny to do the wrong, but a Tyranny in a legal and ordinary manner, or way to seek to be reliev [...]d against it?

Or how can it be justly accompted to be a Tyranny, when no whereelse it hath been so esteemed? but was so little believed to be a Tyranny or Oppression by other Nations, or any thing less then right rea­son, as they have not only made use of the Proces of Arrest, and Imprisonment of the Body in Actions of Debt,Sigonius de Repub. A­then. lib. 3. ca. 4. and other the like Personal Actions in these later Ages, but long before the Incarnation of our blessed Saviour.

The Athenians had their Bailiffs,Rous. Ar­cheologia Attica lib. ca. 4. Ser­jeants, and Apparitors to bring Defen­dants into their Courts of Justice, and the Plaintiff might himself hale or draw the Defendant by force into the Court, if he would not willingly come; but if he could put in two sufficient Bail [Page 168] or Sureties, he was dismissed.

And howsoever there were at the first amongst them, and the Men of Sparta some harsh and cruel way of scourging and whipping of Debtors, and other punish­ments and levetities used; and their Law-makers and Magistrates were much trou­bled, to appease and reconcile the interests of the Creditors, and necessities of the Debtors, they could notwithstanding very well content themselves, and think their li­berties to be sufficiently provided for, by this gentle and secure way of Proces, to compel Defendants Judicio fisti, to appear in Judgment.

CHAP. XI. That the wisest of the Grecian Commonwealths Athens and Sparta, those great Conten­ders for Liberty and Preserv [...]rs of it, did in their establishments and Methods of Ju­stice, neither understand or suspect any Tyranny, or Oppression to be in the neces­sary & moderate use of the Proces of Arrest.

FOr the Usury being very great and ex­cessive,Plutarch. in vita Solonis. the Poor plowed the rich Mens Lands, and yielded the rich Men a sixth part of their Crop, for which cause they were called Hectemory, and Ser­vants, borrowed Money at Interest upon Gage of their Bodies to serve it out; and were by Law, if they were not able to pay them, delivered to their Creditors, who kept them as Bond-men and Slaves in their Houses, or sent them into strange Coun­tries: Many for poverty sold their Chil­dsen to their Creditors, or were inforced to forsake their Country; Parellel in many [Page 170] things or something near to that the Chil­dren of Israel had long before in Custom, (for from the Phenicians, or their learned Mens travails into Egypt, they might have borrowed it) in the borrowing and len­ding of Money, and forcing Men to per­form their Contracts.

So as there arising at Athens a great Se­dition amongst the People, to set the men indebted at liberty, redeem those who were adjudged to be bond, make a new division of Lands amongst them, and to trun up the whole State and Government. Solon one of the wisest Legislators that many Ages before or after had met withal, a contemporary with Jehojakim, King of Juda or living very near the time of his Reign, though unwilling to meddle, or endeavour the appeasing of it, because he feared the covetousness of the one part of the People, and the arrogancy of the other, was not­withstanding at the Request of the wisest Men of the City content to intermeddle in it; and therefore after he had refused the Kingdom, for fear of the name of Tyrant, and was chosen Governour, to be the Re­former [Page 171] of the rigour of the Laws, and to be the Temperer of the State and Com­mon-wealth▪ by consent and agreement of all Partier ordained, That all manner of debts past should be cleared; no man should ask his Debtor any thing for the time past; nor lend Money to Usury upon Covenants, for the Body to begaged for it, and raised the value of the Money and the Pound of Silver, which was seventy-three Drachmes, up to a hundred.

Which offended the Rich, because they were enforced to cancel their Bonds, and the Poor because all Lands and Possessions they gaped for, were not made common; yet notwithstanding shortly after having some tast of the benefits of his Ordinance, they chose him General Reformer of the Law, and of the whole State of the Com­mon wealth, without limitting his Power; whereupon he having made many good Laws, but finding some to praise them, oehers mislike them, and some coming daily to him to expound his meaning▪ and considering therefore how it would get him envy or ill will, either to refuse or yield [Page 172] unto it, resolved to get himself out of the People, and to shun their groanings and complaints, betook himself to be a Master of a Ship, asking licence, to retire himself for ten years beyond the Seas.

But in his absence a great Sedition ari­sing, Pisistratus a Tyrant was made choice of by some of the People; and the City notwithstanding they kept Solon's Laws and Ordinances, desiring a change, either Parties hoping their conditions would mend by it, and that every of them should be better then their Adversaries. Solon re­turning, speaks unto every one of the Heads of the Faction apart, and tryes if he could reconcile them together; but though he was much honoured and reverenced by the People, seeing the Poor tumult, and the Rich fled, for that Pisistratus coming into the Market-place, and feigning himself to be wounded by his Adversaries, for that he stood with them about the Government of the Common-wealth, had put the Peo­ple into an uproar, and obtained a Guard of fifty Halbardeers, and a Mace to be [Page 173] carried before him, and aspired to be King, went home to his House, took his Weapons laid them before his Gate in the midst of the Street; said, He had done all he could possible, to defend the Laws and Liberties of his Country; and from that time forward betook himself unto his ease, and never more after dealt in matters of State of the Common-wealth.

Very long after that (there being it seems no way or expedient in the mean time found out to take away that severity) upon complaints made to Lucullus, Plutarch. in vita Luculli. who was Governour and Captain General for the Romans in those Parts, that the Fathers were driven to sell their Sons & Daughters to pay Interest, and yet were in the end adjudged to be Bond­men, and Slaves to their cruel Creditors, who imprisoned them set them on a rack, or in the Stocks, or upon a little brasen Horse, and made them stand naked in the heat of Summer, or cold of Winter; He abated the Monethly Usury or Interest to a hun­dreth part of the principal Debt, and or­dained that the Usurer and Creditor should enjoy the fourth part of the Profits and Re­venues [Page 174] of the Debtor, till he was satisfied; and that they which took Usury upon Usury should forfeit the whole: Which was reckoned, saith Plutarch, to be as a great refreshing, and deliverance of the People, who all this while were not found to be complaining against the Law of Ci­ting and Compelling men to appear in Judgment; being a part of the Laws of the Ten Tables, which Solon is said to have compiled, but observed it as a Law of publick use and necessity, giving no manner of disturbance at all unto it.

CHAP. XII. The Troubles and Seditions of the People of Rome, concerning the Whippings, Scourg­ings, selling for Bond-slaves, and other cruelties used by Creditors, in the suing and prosecution for their Debts, and the Troubles and endeavors of the Magistrats and Senators to appease them.

ANd was so little believed by the Ro­mans to be a Tyranny, as when some Seditions and Commotions had been a­mongst them, occasioned by the greatness of Usury, cruelty of Creditors, Whipping, Scourging, Slavery, and villanous Usage of imprisoned Debtors they did acquiesce, and submit to the use of the Proces of Arrest, to enforce Men to appear in Courts of Jn­stice.

And when at Rome two hundred fifty-nine years after the building of that City, being about four hundred ninety-two years be­fore the coming of Christ, an old Captain [Page 176] or Commander coming into the Town-house or Market-place, with the Arms or Ensigns of his Ancestors, ragged Cloaths, a pale famished and meager countenance,Livi Dec. 1. lib. 2. his beard and hair overgrown and baring his breast, shews the wounds received in the Wars, tells the People he had lost all his Goods and Estate, Taxes had impoverished and brought him into Debt, and he had been carried of his Creditors not only into Bon­dage, but into Prison and a place of Tor­ment, and shewed his back wounded and gored with stripes.

Whereupon a great Tumult and Sedi­tion arising amongst the People, the Senat were afraid to sit, and upon the News of an Invasion of the Volscians, were by the Peo­ple bid to fight for themselves: But upon promise, that no Creditor should take a­way their Goods, or Sell them, or Arrest or take away their Children, as long as they were in the Camp, they were listed and pacified; but that War ended, and another shortly after with as good succes, they that were bound before, were deli­vered over to their Creditors for Debt, as [Page 177] also others that were not bound or impri­soned before.

Shortly after the People seeing a Deb­tor sued, and brought to the Bar, flock to­gether, and make such a clamor as the Con­suls Sentence could not be heard, and sin­gle out the Creditors and misuse them, so as the fear of the loss of liberty was transla­ted from the Debtors to the Creditors, and the People being discontented refuse again to muster; whereupon the Consuls, by advice of the Senat, seek to force them; but one of them being summoned by the Consul to appear, stood still and refused, the Con­sul sends to attach him, the People rescue him; the Senators cry shame of the indig­nity, and run down from their Seats to as­sist the Serjeant: Yet for all this stir, saith Livy the Prince of Historians, it was not thought convenient to take away all keep­ing of Credit with the Creditors. But Va­lerius being chosen Dictator, upon a pro­mise much like that they had before, pro­cured them to muster: Those Wars ended, the Dictator moved the business again in the Senat, concerning those that were bound in [Page 178] Prison for Debt; but they refusing to order any thing in it, gives up his Dictatorship, and the People thinking he did it for their sakes, follow him home with praises: The Sedition increaseth again, and was laid a­side; after that they mutiny again, and withdraw out of the City into the mount Aventine, and begin to fortifie; but upon Menenius Agrippas Oration, and compari­son of the mutiny of the several parts of the Body against the Belly, they come to an agreement, and amongst other condi­tions it was granted, that they should create two Tribuns of the People, to assist them against the Consuls, and that their autho­rity, by an Oath to be taken amongst them, should be sacred aud inviolable.

About fifty years after, the Tribuns of the People were at discord with the Consuls, for that the Commons were not suffered to make Laws, and though both sides agreed it,Livy lib▪ 3. 109. to be a matter most equal for their li­berties, that Laws should be made by the Commons and Senators, yet they differed about the legislative power: Whereupon Embassadors were sent to Athens and Sparta [Page 179] (when they had agreed of some Laws, but could not accord who should be the Law-makers) to learn and get copies of the ex­cellent Laws of Solon, Dionis. Ha­licarnassaeus lib. 10. Livii Decad. 1. lib. 3. Pomponi­us de origine Juris lib. 2. §. 4. Isido­rus 5. orig. and the Laws and Customs of other Cities of Greece; after whose return, and much rejoycing for the bringing of the Copie of Solon's Laws, the Twelve Tables by them, and others well skilled in those Forreign Laws, were framed four hundred & forty years before the com­ing of Christ, by Ten Men or Magistrates, created by the People as a Committee to peruse those Laws, amongst which was that Law brought from Athens.

Qui petebat debitorem conveniebat atque ut se in Jus sequeretur admonebat,Sigonius de Judiciis lib. 4 1. ca. de in jus vocatio­ne Aulus Gellius At­tic. noct. lib. 20. ca. 1. Cujacius lib. 10. ca. 10. st is sequi noluisset eum in Jus ducebat, sive rapiebat verum no in juriam facere, videretur ante ali­quem ejus actionis testem faciebat capta, scili­ce [...] hominis forte intervenientis aut pre [...]entis auricula nogahat eum licetn [...] antestari, id est, possum ne testem sumere si responde [...]at licet, tum adversanium frustrantem, aut fagientent injecta m [...]n [...] ad Praetorem trahebat atque hoc faciebat auctoritate XII. TABVLARVM, Sic [...] i [...]iis erat SI IN IVS VOCAT [Page 180] QVEAT NIT ANTESTAMINO IGITVR EM CAPITO SI CALVITVR PEDEM­VE STRVIT MANVM ENDO JACI­TO:Gothofre­dus in frag­men 12. Ta­bularum. If a man had summoned or demanded of another to do him right, and to appear in the Court; if he refused to follow him, nulla interposita mora, immediately or with­out delay, he might, least he should seem to do him wrong, take Witness of the next man he met, manum injicere & per vim in jus rapere, lay hands upon him and inforce him; which the Laws or Authority of the Ten Tables did warrant. But if he was sick or aged, and not able to go, then he which summoned him was to provide him an Horse or Wagon; those Laws directing, that SI MORBVS AEVITASQVE VI­TIVM ESCIT QVI IN JVS VOCABIT JVMENTVM DATO SI NOLET AR­CERAM NE STERNITO;Sigonius de Repub. A­then. lib. 1. de judiciis. Gothofredus in Fragmen. 12. Tabul. That if he was sick, or so aged as he could not go, he was to have a Horse provided for him to ride upon; Gellius lib. 20. and if he should refuse that way to go, he was to be put up in a close Wag­gon, and carried whether he would or no.

Which the Romans those grand Assertors [Page 181] of liberty, and the most suspiciously im­patient of any thing, which might disavan­tage or prejudice that high esteem which they had of it; neither did find any fault with, or had any reason so to do, when as those Laws of the Ten Tables (of which that above mentioned de in [...]jus vocatione, or de necessitate in jus eundi, of constraining men that refuse to appear in judgment was one) were freely chosen and allowed of by the People of Rome before they were en­acted, and with the greatest freedom of choice that any Laws could possibly be. For,Livii Decad. 1. lib. 3. saith Livy, Ingenti hominum expecta­tione Populo ad concionem advocato, & quod bonum faustum felixque Reipublicae ipsis libe­risque eorum esset ire, & leges legere propo­sitas jussere se quantum decem hominum inge­niis providere potuerit, omnibus summis infi­misque aequasse: In a huge expectation of the multitude, the people being called to­gether or assembled, they were with wishes and prayers that it might be good and hap­py for the Common-wealth, and for them and their Children, required to go toge­ther and read the Laws which were propo­sed [Page 182] unto them, which they (meaning the Decem viri, or then Magistrates, of which number were the three which had been sent to Athens and Greece to learn their Laws) had so far as Ten men with all their wis­dom could foresee and provide, indifferent­ly devised for all men: Sed quia plus pol­lere multorum ingenia consiliaque in animis versarent secum unamquamque rem agitarent deinde sermonibus at que in medium, quid in quaque re plus minusve esset conferrent eas leges habiturum populum Romanum quas consensus omnium invasisse, nec jussisse latas magis quam tulisse videri posset. But for as much as the wits and heads of many men might see fur­ther, and better advise, they gave them leave to consider and ponder every particu­lar, and to reason together from point to point, and deliver their opinions openly, what was short, wanting, or superfluous in every Article;Sigonius & A. Gellius Attic. noct. and what Laws an universal consent of the people should bring in, those should be enacted and none other, that it might appear they were not so much to ap­prove of them, & give their assent after they were propounded, as to propose & prefer them [Page 183] their own selves:Livii lib. 3. 110. Cumque ad rumores hominum de unoquoque legum capite edito satis correctae, viderentur Centuriatis Comitiis decem Tabula­rum leges perlatae sunt, qui nunc quoque in hoc immenso aliarum super alias acervatarum le­gum cumulo fons omnis publici privatique est Juris. And when as they were thought to be sufficiently corrected, as every one spake to the Titles and Chapters thereof, in an Assembly of all the Centuries and degrees of men, the Laws of the Ten Tables were enacted and established; which even at this day, saith Livy, amongst that infinite num­ber of Laws heaped one upon another, are the very Well-spring and Fountain of all Justice, both publick and private.

But the next year after, the people find­ing the Decem viri growing insolent, to de­termine matters at home before they gave Sentence openly, and usurping Kingly Go­vernment, begun to repent themselves, of putting the power of appeal out of them­selves, tumult and protested against the Decem viri, or Ten which they had cho­sen; saying, They had created them Magi­strates, only for the publishing and enacting [Page 184] of certain Laws, but they had now no Ju­stice in the City: And Appius one of the Ten, having ingrossed into his hands the power and disposing of his Partners, helps on the Tumult by a business that happened, upon his lusting after a young Maid, the Daughter of L. Virginius, a Commander of good note in the Army, and setting Mr. Claudius to claim her as his Bond-woman, who laying hands on her in the Market-place,Lib. 3. 117. cited her to appear, and comman­ded her to follow him, otherwise he would force her; the People flock together, but the Plaintiff tells them, they need not trou­ble themselves, for he proceeded according to Law, and would do nothing by force, cites her again to appear before Appius, and the People perswade her to follow, where the cause by reason of the expostu­lation of Icilius to whom she was betrothed, not coming to hearing; that day she was bailed and suffered to go under Sureties till the next; but the second day, Appius with­out hearing the Defendant or her Friends, decreed that she should be a Bond-woman to Claudius, who going to seise her finds the [Page 185] People resisting him, Appius sends a Ser­jeant to assist him, Virginius in a rage kil­leth his Daughter, that she might not come into the Oppressors hands, and a great up­roar happening by the People, Kindred, and Friends of the Maid, Appius cites Ici­lius, the Spouse of the Maid, as an Author of the Tumult, and for his contumacy in not coming, caused him to be attached and carried to Prison; but Valerius and M. Ho­ratius, two popular and powerful Senators, thrusting back the Serjeant, said, If Ap­pius had any thing to charge him with by order of Law; they would Bail him; but if he went about to offer violence he should meet with his match: After that Appius himself is arrested, who desiring to be bailed, and not to be put in Prison or lye in Chains, by all the Friends and pittyful speeches he could make, could not obtain it; For that he had, saith the Father of Virginia, so much against all order of Law denyed the bailing of her, who therefore commanded him to be carried to Prison, as a person attaint and convict: The Tribun of the Commons set him a day to plead for himself and make [Page 186] his answer, but Appius before that day kil­led himself, his Goods were confiscated by the Tribuns; the rest of the Decem viri fled and were banished, and all their Goods confiscated: And the Ten Tables having two more added to them, by the appoint­ment of the Tribuns, are set or hung up openly to be seen, engraven in Brass.

The Romans having long before the com­piling of the Twelve Tables,Pomponius lib. 2. de O­rigine Juris. used to Ar­rest and compel Men to appear in Judg­ment, as is manifest by their manner of gi­ving Bail, before such time as Appius de­nyed to take Bail, in the case of the Daugh-of Virginius; which was ex veteri Jure, an Old Law and Custom amongst them, saith Pomponius.

And this grand Commotion of the People having nothing at all in it the while of com­plaint or action, against the Laws of citing and compelling men to appear in Judg­ment, and a putting them to Bail in the interim, but a confirmation or allowance rather of them.

Threescore and five years after that Mar­cus Manlius Capitolinus, so named because [Page 187] he had saved the City of Rome, and the Capi­tol from ruine and spoil, growing ambi­tiously discontented, & not contenting him­self to deal in the Laws Agraria about the Division of Lands, which had alwayes mi­nistred occasions of Seditions, began to in­termeddle between the Debtors and Credi­tors;Livii lib. 6. 225. and to overthrow, saith Livy, all keeping of Credit.

And seeing a Centurion condemned in an Action of Debt, and carrying to Prison upon an Execution, with a rout and crew of his Followers, rescues and takes him from the Officers, and crying out that his me­rits in saving the Capitol had been to little purpose, if he could abide to see his Fellow-Souldier carried away captive, did in sight of the People pay down the Debt, set to sale his own Land, and caused it to be o­penly cried, that as long as he had one foot of ground, or any thing else rest, he would not see one of the People condemn­ed, & upon Execution carried to Prison, and stirred up such a Sedition in the City as the People followed him as the protector of their Liberties; whereupon the Dictator [Page 188] being sent for from the Army, assembled the Senate, caused the Ivory Chair of State to be set in the Common-Hall, and sent a Ser­jeant for Manlius, who with a great reti­nue of his party presents himself before the Tribunal; and tells the Dictator, that now he saw he was created Dictator not against the Common Enemies,Livii lib. 6. 226, 227. but himself and the Commons of Rome, for he did see well that he professed to maintain and bear out the Usurers against the Commons: Where­upon, after many insolent speeches, the Di­ctator commanded him to be carried away to Prison; Manlius cryes out, O ye Gods and Goddesses that inhabit the Capitol, suffer ye thus your Knight and Defender to be mis­used by his Adversaries? But, saith Livy, though every man that saw it was greatly moved, the City as most patient of all other Cities, to abide any just and lawful Commandment of the Magistrat, so con­tained her self, as neither the Tribuns of the Commons, nor the Commons them­selves durst intermeddle in it, though many of them did put themselves in mourning, let their heads and beards grow in their grief [Page 189] and mourning for it, and with sad and heavy chear kept commonly about the Goal-door; but after a while threatned to break the Prison, continued or rather increased their Sedition,Livii lib. 6. 228, & 229. and never left till the Se­nate released him: Whereby the Mutiny was never the more ended, but rather a Captain given them to maintain it, the People hope to be rid of Usury, Manlius calls them home to his House, exhorts them to maintain their Liberty, and to hinder and cry down Dictatorship and Consulship, and Proces and Course of Law for Actions of Debt; the Senat and Tribuns in Con­suls Authority,Livii lib. 6. 230. and the Tribuns of the Commons also, seeing that in the loss of the publick liberty their own power likewise would come to an end, being much trou­bled at it, by advice of the Senat resolve to Arrest him, and thereupon send and serve Proces upon him, to answer at a day ap­pointed; which being come, he produ­ceth four hundred men, for whom he had laid out Money gratis, saved their Goods from Port-sale, and kept them from the Bondage of their Creditors after they were [Page 190] condemned; reckoned and shewed openly the Spoils of Enemies by him slain or dis­armed, to the number of thirty, gifts be­stowed on him by Generals to the number of forty, whereof there were two mural Garlands for scaling of Walls, and 8 Ci­vick Coronets, for saving the lives of Citizens in danger, presented many in person whom he had rescued out of the Enemies hands, nominated Servilius, at that instant General of the Hosse-men, stript his breast bare shewed the scars received in the Wars, looked towards the Capirol, and praid to the Gods, to give the People the same mind to help him as he had to help them; but the People notwithstanding being called out by the Tribuns, and drawn out by Centuries or Wards, into a place where they might not behold the Capitol, for otherwise it was thought impossible for them to get leave of their love and pity to him to find the Indictment against him: And the accusation prevailing more then compassion, he was condemned for Sedi­tion, holding Conventicles with the mul­titude, and his over much largess, to be [Page 191] thrown down the Rock Tarpeja, Livii lib. 6. 231. & Plu­tarch in vita Camilli. where himself had won so great glory by defen­ding the Capitol; his own Kindred ma­king also a Decree, that none of that Race should after bear the name of Marcus Man­lius.

The Tribunes after that complain, that the Senate sought to avoid the exhibiting of publick Records and Books,Livii lib. 6. 236. which gave testimony of the valuation of every mans substance to the worth, because they would not have the Sums of Debts to be seen or shewn, which might shew that the one part of the People were eaten up and devoured by the other, and that if the Com­mons would call to remembrance their An­cestors liberty, they would not suffer any Citizen of Rome to be awarded to Bondage for Debt, nor any musters to be taken un­til a view were made, and just accompt had of every mans Debts, that each man might know what he had of other mens Goods, what remanied of his own, whether his bo­dy were left free, or at the mercy of his Creditor to lye in cold Iron or baleful Pri­son; on the other side the Censors alled­ged, [Page 192] that the Debtors cautelously would not then keep their Credit and make pay­ment: Which hire and salary or reward of Sedition, saith Livy, shortly after stirred up a mutiny, for that when many were adjudged to be kept bound by their Credi­tors, the Tribunes would not suffer those that were condemned to be led to Prison, nor the younger sort of the Commons enter their Names in the Muster-masters Book: Howsoever the Wars coming on they leave their mutinies; but after the Wars ended, Tribunes Military with Consular Authority were equally chosen, from out of the No­bility and Commons; And the year follow­ing begins with Discords, Seditions, and Broils (for no better were they then term­ed) concerning Debts, for the true In­quisition whereof, and to know to what Sums they amounted, Sp. Servilius, Pris­cus, and Q. Claelius Siculus were made Cen­sors, but stopped by occasion of an Inva­sion of the Volscians, notwithstanding the fear and terror whereof; so little were the Civil Discords appeased, as the Tribunes of the Commons extended their power with [Page 193] more violence, to hinder the leavy of Soul­diers until they had indented and capitu­lated with the Senate,Livii lib. 6. 239, 240. that so long as the Wars lasted, no man should contribute or be charged with any Impost, or be sued in any Action of Debt, whereupon the Commons are content to muster, two new Legions were levied and enrolled, and to War they go with the Volscians their Neigh­bours; but as soon as all was quiet from Enemies abroad, they began a fresh to be sued and troubled by their Creditors at home, and having small hope to be relea­sed of their old Usury, fell into a new Se­dition, by reason of a Contribution im­posed by the Censors for making of a Well, which they had set out to be made of square Ashler stone; but being forced to yield thereunto, and to go to War against the Volscians and Latines, after several Vi­ctories obtained, and the Armies returned to Rome, the calamities of the Commons grew every day more and more, for they wanted means and were not able to pay for the Interest, that needs must be paid; and when nothing was to be had to make satis­faction, [Page 194] out of their Goods were adjudged and awarded to satisfie their Creditors in their Bodies. Which gave occasion to M. Fabius Ambustus, Livii lib. 6. 241. a man of much repute with the Commons, upon the proud dis­content of a younger Daughter, not being married so well as her elder Sister, whose Husband was a Tribune Military, plots with his unpreferred Son in Law and L. Sextius, who hoping to compass some alte­ration in the State, by reason of the exces­sive Debts that men were grown into, got themselves made Tribunes of the Commons; upon which advantage C. Licinius, the Son in Law of M. Fabius Ambustus, and L. Sex­tius propose Laws touching Debts, that when so much was defalked and deducted out of the Principal, as had been paid for the use and Interest, the residue should be paid by even portions in three years; that no man should hold in possession above five hundred Acers of Land, and that there should be no election of Tribunes Mili­tary but of Consular; with which the Se­nate being much troubled, could find no other remedy but the negative voice of some [Page 195] of the Tribuns to step between, and had wrought some of their own Brotherhood to do it, who as soon as they saw the Wards or Tribes, called forth by Licinius and Sextius to give their Suffrages, would not suffer those Bills to be read or pass by the Commons; whereupon when the Nobles began to choose the Tribuns Military, L. Licinius and Sextius crossed them, so as there was no election at all, but of Aediles and Tribunes of the Commons,Lib. 6. 242. for Lici­nius and Sextius being chosen Tribunes a­gain, suffered no Magistrates of the Chair, or of State to be created; After that other Wars ensue, and with much ado an Army is levied, Sextius and Licinius the publishers of those Laws were the eighth time made Tribunes of the Commons, and Fabius also a Tribune Military, five in eight of the Tribunes of the Commons ernestly, and like men bestraught of their wits, urge for to have those Laws enacted; Sextius and Licinius with part of their Tribune Brethren, and M. Fabius the Military Tri­bune being, saith Livy, their Craftes Mai­sters, and knowing well enough by so [Page 196] many years experience, how to manage the minds of the Commons, demand of them how every one of the Senate, and other Rich men, could in equity hold the Land well near of three hundred Citizens, and a Commoner have hardly ground enough to build him a House upon, and to serve for a place to bury his Dead, whether the Commoners oppressed with Usury should yield their Bodies to bear Irons and suffer Torments, unless they pay the Inte­rest before the principal? and that daily they should in whole Companies be had away from the bar, and condemned to thraldom, and alledge that the Commons could never be relieved, until they make one out of their body a Consul, who might be equal in the Soveraign command and power of the Sword, and maintain and protect their liberty. The next year the Legions being returned home, the same Tribunes of the Commons are chosen, and the same Laws again proposed; the Senate when they saw the Tribes called, and none of the Tribunes step forth to stop their proceedings,Lib. 6. 243. began to be exceedingly a­fraid, [Page 197] and choose a Dictator; the Tri­bunes of the Commons call a Common Hall, & summon out the Wards to give their voices; whereupon after the Laws were propounded, and some of the Tribunes denyed them Camillus the Dictator, their good old successful General, formerly the Saviour of their Common-wealth against the Gaules, a man of undoubted honour and integrity, and the Darling of the Peo­ples, sided with the gain-saying Tribuns, and stickling to maintain their intercession and gain-saying authority, sent his Li­ctors and Serjeants to command the Com­mons to depart, threatning withal that if they proceeded thus like Conquerors to give Laws, he would take a Military Oath of all the younger sort, and presently lead an Army forth of the City, which put them and their Captains and Ringleaders in so great a heat of contention, as the Di­ctator terrified with some unlucky signs of the Birds, gave up his office; mean while in an Assembly of the Commons summon­ed by the Tribunes, the Laws were passed concerning Lands and Usury; howbeit [Page 198] shortly after it was found that Licinius had a great many more number of Acres of Land than his own Laws permitted. Af­ter this another Dictator was chosen, who nominated Licinius General of the Horse-men,Livii lib. 6. 245. who with Sextius at the next Ele­ction day for the Tribunes of the Commons so demeaned themselves, as seeming to be weary of the place, they were the more eagerly desired by the Commons, and al­ledged thereupon, that the Commons them­selves were they that hindred their own good, who might presently, if they would, have their City, their Common-Hall, and places of Assemblies freed from those Cre­ditors, and their Lands recovered again from the unjust Landlords; that it stood not with the modesty of the People of Rome, to require to be eased themselves of Usury, & set in possession again of the Lands with-held from them, and to leave those old Tribunes, by whose means they had gained those commodities to shift for them­selves without honour or hopes thereof; and that if the Commons should not re­solve to speak affirmatively to those Laws, [Page 199] it would be to no purpose to choose any Tribunes, neither would they accept of the Tribuneship, neither should the Commons have those Laws ratified, which were already granted:Livii lib. 6. 247. But upon an Oration or Speech of Appius Claudius a Senator, setting forth the inconveniences of what was propounded, and that by what had been already wrested by the Tribunes, All Credit in borrowing and lending, and taking and putting forth of Mo­ney would be abolished, to the destruction of all humane Society, Commerce and enter-course whatsoever. The matter was adjourned, and the publication of those Acts cut off and deferred; but the same Tribunes Sex­tius and Licinius being chosen again the Tenth time, got a Law enacted, that of the Decem viri for Church & Ecclesiastical mat­ters some should be elected of the Commons, with which they were so well content, as they laid aside the business of Tribunes Consular,Livii lib. 6. 248. and gave way for the creating of Tribunes Military; and the Venerable Camillus being almost fourscore years old, is the fifth time chosen Dictator, but after the Wars ended with the Gaules, who had invaded them, [Page 200] is welcomed home with a hotter Sedition in the City; where after many sharp bicke­rings and contentions, the Senate and Di­ctator were forced to accept of the Tri­bunes Laws, and Sextius was created Con­sul out of the Commoners; but by reason that the Nobles refused to give their con­sent, that Camillus should leave his place of Dictator, the Tribunes of the Com­mons, as Camillus was set in his Chair in the Town-hall hearing of causes, sent a Serjeant to him, who commanded him to follow him, and laid violent hands upon him, to carry him away by force; Which made an uproar, saith Livy, was never before seen in the Common-hall or Town-house, Ca­millus Friends driving the Serjeant behind the Chair; and the People crying out from beneath to the Serjeant, to pull him out: Notwithstanding all which he would not resign up his Office, but taking with him those Senators which were about him, went towards the place where the Senate was wont to be kept, but before he could go in, he returned back again to the Capitol, and made his prayer to the Gods, that it would [Page 201] please them to bring his Troubles again to a quiet, and made a solemn vow and pro­mise, if those Troubles might be pacified,Plutarch. in vita Camilli. to build a Temple to Concord. And the matter coming after to be debated before the Senate, there hapned such an hot contention and diversity of opinions, as the easier way carried it, which was to grant the Common Peoples desire, that a Commoner should be chosen Consul with a Noble Man, and it was agreed, that the Common People should be content that the Nobles might out of the Patricii create a Praetor, or Lord Chief Justice for Oyer and Terminer in causes with­in the City, which being by the Dictator published to the People, they were so joy­ful as they brought Camillus home to his house, with great shouts of joy and clap­ping of hands; and being the next mor­ning assembled in the Town-house or Mar­ket-place, decreed, that the Temple of Concord should be built at the Common­wealth's charge, that some Festival dayes should be solemnized, and Sacrifices made unto the Gods in every Temple of the City, to give them thanks, and that the People [Page 202] should in token of joy wear Garlands upon their heads for this reconciliation.

About nine years after upon a new Sedi­tion of choosing of Magistrates, and for want of them an Interregnum happening, the Commons lost their Consulship again, and two of the Patricii began to govern, who thinking to continue it as formerly in the Nobility, had the trouble of another Sedi­tion, wherein the People after many stirs and meetings not prevailing, two other Confuls of the Nobility were elected. And though the Usury or rate of Interest was much abated, yet the poorer sort of the People being over-charged with the pay­ment of the principal, became bound and thrall to their Creditors, in so much as the Commons, in regard of their private streights which they were driven unto, never trou­bled their heads at all any more with the making of Consuls.Livii lib. 7. 262.

In the end of the next year after,Ibid. 263: the contention betwixt the Senate and the Common People brake forth, concerning the Election of the Consuls; whereupon the Tribunes of the People stifly denyed to [Page 203] suffer any Assembly to be holden, unless they might have one of the Consuls to be chosen out of the Commons, according to the Law Licinian: And the Dictator as stoutly bent to denye it, the Election was adjourned, and the Dictator leaving his Office, the matter grew again to an Inter­regnum, and the Interregents finding the Commons to be alwayes maliciously set a­gainst the Senators, succeeded one after an­other until the Eleventh Interregnum, when the discord and variance still continuing, the Tribunes called on hard for the Law Licinia; the Commons had an inward grief that struck nearer to them, upon the ex­cessive Usury that still increased, and each mans private care and grievance brake out in their publick contentions and debates; the Senate thereupon weary of such Trou­bles, commanded L. Scipio the Interregent for the time, being for concord and unity sake, to observe the Law Licinia, in the Ele­ction of the Confuls, so as P. Valerius Publi­cola had joyned with him in fellowship of Government, Cajus Martius Rutilius one of the Commons.

[Page 204] Who labouring to ease the matter of Usury, being that which hindred the ge­neral agreement, set a course to do it, so as the long or old debts, which were more intangled rather in regard of the Debtors slackness and negligence then want of ability, the City out of the common Stock crossed them out of the Book, by setting up cer­tain Counters or Tables, with ready coin in the publick Hall, provided that good Security were given to the City, by Sure­ties put in beforehand, or else the Goods of Men valued at indifferent and reason­able prices were to discharge the Debts, so as a great number of Debts, without the complaint of either Party, was satisfied and paid.

Two years after the Ancient possession,Livii lib. 7.] 267. saith Livy, of the Consulship was restored to the Senators; and about two years after that, the Usury coming but to half so much as it was formerly, the payment of Debts were dispenced, and ordered to be paid in three years by even portions, so as a fourth part were paid beforehand, some of the Commons being for all that pinched there­with, [Page 205] for that the Senate had more care to see Credit kept with the Chamber of the City, then of the difficulties of private Per­sons, which was the better born in regard of the forbearance to muster Souldiers, and call for Tribute.

About seven years after that, upon a mu­tiny of the Souldiers, in the Camp a Law was published by a Tribune of the Com­mons, that Usury should be made altoge­ther unlawful; and after many nnreasonable demands, saith Livy, the insurrection of the Souldiers, who compelled their Com­manders to march against the City, was upon a Capitulation made as once before (saith that learned Historian) the Commons,Livy lib. 7. 279. and a second time the Army had done with the Senate, that their mutiny and insurre­ction should not be made use of to their danger or dishonour, it was appeased.

About sixteen years after, being three hundred and thirteen years before the Incar­nation or coming of Christ, Papirius Publius being bound for his Fathers Debt,Lib. 8. 301. & having consigned himself a Prisoner to the Credi­tor, who supposing that he might abuse [Page 206] the young mans Body for Interest of his Money, began to tempt him with fair words and promises, afterwards to threaten him, and when that would not serve, command­ed him to be stript naked and whipt; whereupon the young man all wounded and torn ran forth into the Street, and com­plained to all he met, of the filthy lust and cruelty of the Creditor; and thereupon a great company of People moved with the injury of the Usurer, and pity of the young Man, as also in regard of their own case and their Children, gathered themselves into the Market-place or Town-hall, and from thence towards the Senate-house; and the Consuls being upon this suddain uproar Coacti, saith Livy, compelled, to assemble the Senate; the People as the Senators entred in the Senate-house lay prostrate at their feet, as they passed by shewed the young mans back and sides; whereupon the Con­suls were commanded to propose to the People, that from hence forward no person whatsoever, unless guilty of matters Crimi­nal or Trespas (for noxa, the word used there by Livy, and Noxales actiones are [Page 207] by the Roman and Civil Laws, and our Bracton also interpreted, to be matters and actions of Trespas as well as greater crimes) until he were condemned to punishment, should be bound in Fetters or Chains, and that the Goods of the Debtors, not the Body, should be obnoxious to the payment of the Money borrowed (which might bet­ter be ordained there than with us, or many other Nations, for that the Romans by their Censors did keep publick Registers of every mans Lands, Estate, and Lands; so they that were in Bondage became released and enlarged; and order war taken for the time to come,Livius in 4. Edit. apud Francofurt ad Moenum Anno 1568. p. 411. ne necterentur, saith Livy, that the Debtors should not hereafter be bound or chained in Prison: Which if any shall mis­interpret to be an absolute freedom of the Persons of the Debtors from Arrest, the Roman Records and Histories will be agains [...] them.

CHAP. XIII. That this Order made to pacifie a Tumult was not perpetual, or so much as intended to ex­tend to an absolute freedom of the Debtors from Arrest or restrainte of their Persons, till they appeared in Courts of Justice or gave Bail to do it.

FOr a Plebiscite or Law of the People, it could not be for they were not 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;Sigonius de Antiquo Ju­re Roman. 120. 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:Joannes Sa­rius Zamos­cus de Ro­man. Ant. Augustinus de S. C Rom. Bodin lib. de Repub. 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 [Page 209] or Ordinances: Which bound not the Common People (Ordinances or Decrees of the Senate (saith Dionisius Halicarnasseus, Dionis. Ha­licar. lib. 4, & 7. 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,Bodin de Repub; 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,Paulus Ma­nutius de Legibus Ro­manis. and to pacifie and bring to their wits again the inraged multitude.

But whatsoever it was, it extended not [Page 210] 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 [Page 211] 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 [Page 212] 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 [Page 213] 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,Livy lib. 9. 339. 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,Livy lib. 38 [...] ▪ 1017. 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 [Page 214] 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,Plutarch. in vita Scipio­uis Africani. when some of Scipio's Friends had appealed to the Tribunes of the People for their help, and remonstrated the many merits and services of him and his Family; the Praetor or Lord Chief Justice opposed, and said. That for his part he could not do with all, but if the Sum where­in he was condemned was not brought into the Common Treasury. He knew no other remedy nor what else to do, but command him as a condemned Person to be apprehended a­gain, and had away to Prison. And when the Tribunes of the People, all but Titus Gracchus, pronounced alone that they would not interpose, and that the Praetor might execute his Office and Authority, all the favour which Gracchus one of the Tri­bunes thought fit to do him, was to decree, that as touching the Sum wherein L. Scipio was condemned,Livy lib. 38. 1022. he would not be against it nor hinder the Praetor, but that he might use his power according to his place, and [Page 215] take it out of his Goods as far as they would stretch; but would never consent, that he who had subdued the mightiest Monarch of the world, and extended the bounds of the Ro­man Empire as far as the utmost ends of the Earth should lye in Prison and Irons. Be­sides how little that pretended Law, gain­ed by a Tumult, prevailed against the Im­prisonment of Men in Chains or Irons, after Judgment in Debt or other Civil Actions, or a bare Imprisonment without them, plain­ly enough appears, in the Customes and Usages of those times, held forth in the Oration made by Publius Scipio Na [...]ica, an­other of those famous Brothers, made to the Tribuns of the People in the behalf of L. Scipio his Brother, to keep him from going to Prison, clearing up unto us the usage of those times, notwithstanding that pretended Law; for there we may find him saying, That which cannot be made of the substance and Goods of L. Scipio, they will make good on his Body.

So that it will be abundantly evident, that all the before recited Tosses, Commo­tions and Troubles of that grand Common­wealth [Page 216] of Rome, and that People's humors and ignorance in that Popular Government, which made them to be restless as the Waves of the Sea, tormenting and inquiet­ing themselves and their Magistracy; which continued until that Republique had, as Tacitus saith, tired it self Civilibus discor­diis, and gained a rest from those publick disturbances in the Government and Mo­narchy of Augustus Caesar, Tacit. An­nal. were more in re­gard of an horrid Usury & their Debts, and being constrained at the same time to pay Tributes, Muster, and fight for their Coun­trey then of their being imprisoned, and more for the chains and cruel manner of Usage, then for the Imprisonment it self, or restraint of their liberty upon actions of Debt, which without a renouncing of Ju­stice, and all the hopes and benefits there­of could not be forsaken; And were there­fore without the former severities of Bon­dage, Chains and Fetters, to be reckoned amongst the most necessary & excellent rules of Justice,Cicero lib. 1. Tusc. quaest. & Strabo lib. 14. void of all Tyranny. And was so liked and approved by that conquering and great Nation, as Hermodurus an Ephesian, [Page 217] who had been Assistant to the Decem viri, in the Interpretation of Solon's Laws, had his Statue erected in the Forum or Place of Justice; and were so continued & commen­ded to after Ages, as in Tully's time, which was almost four hundred years after the publick and universal consent of the People and their Magistrates gained, and likewise after the pacification of the People's complaints of their burdens of Usury, & the merciless usage of the Creditors, those Laws were had in so great a reputation & veneration, as that part of them de in Jus vocando, Cicero lib. 2. de Legibus. constraining Men to appear in Courts of Justice, was, as he saith, a Parvis learnt and sung by him and other Children; and after that he came to be that great Orator and Lawyer, whose just praises and commendation the many Ages since, and a long course of time have taken a delight to remember, could have no other opinion of those Laws, then that if all the learning and Libraries of the World were searched, those of the Twelve Tables, Si quis legum fontes & capita vi­derit, & auctoritatis pondere & utilitatis ubertate superarent, If any would enquire [Page 218] into their reason and original, their au­thority and benefit considered, they would appear to be the best of all Laws.

And were so generally by after Ages well liked,Ammianus Marcellinus lib. 11. as Ammianus Marcellinus long after speaking of them saith, That Solon adjutus Aegypti Sacerdotum satis justo mode­tamine legibus Romano quoque Juri maxi­mum addidit firmamentum, By the just and equal Laws, which he had made by the as­sistance of the Egyptian Priests, was a great means of the establishing of the Roman Laws.

And if they could have been truly char­ged with any Tyranny or Oppression, or so much as a Suspition of either of them, that Law de in Jus vocando, being a part of the Twelve Tables, could not as well as the rest have gained as it did, the con­stant approbation and good liking of the World, and come as it hath done from ge­neration to generation unto these our pre­sent Times.

And it is a thing not unworthy of obser­vation, and pertinent enough to be here remembred, that the Romans abhorring the [Page 219] cruelty of the Diaco or Athenian Laws, or­daining the Debtor after a Sentence or Judgment given against him, and a cer­tain number of dayes limited, and a failer of payment to be cut in pieces and distribu­ted to the Creditors (which cruel Law, saith Quintilian, Quintilian lib. 5. ca. 6. Mos publicus repudi [...] ­vit, The kindness of Mankind one un­to another could not endure to be put in Execution) did in lieu thereof, ap­point a seisure or Execution against the Goods of the Debtors, and that in the course and Process of Arrest: It was by a Constitution of the Praetor or Lord Chief Justice ordained (which unless in Cases of Writs of Outlary, and where the Dores are not open is to this day observed in our Laws) Ne quis ex domo sua in Jus vo­cari vel pertrahi posset; Ritterhu­sius Com­mentar. ad 12. Tabul. cl. 1. Go­thofr [...]dus ad Tabul. de in Jus [...] That no man should be arrested or forcibly taken out of his House.

And the Civil or Caesarean Law, when ac­cording to the Custom of some Countries, in Towns or Places of Trade, as in Holland and the Vnited Provinces, Arrests in A­ctions of Debt were at the first not much ac­customed, where the Debtor hath a Domi­cilium [Page 220] or fixed Habitation, doth not withstan­ding in the notion or interpretation of a Suspectus de fuga, warranting a present in­carc [...]rstion or Arrest of a Debtor, if he be not a Free-holder or Man of a very visible Estate, appear to be so willing at this day to gratifie and secure the fears and jealousies of Creditors, & avoid those Circulations, Incon­veniences & Delayes, which would otherwise happen if they should tarry, as they do some­times under that Law, to receive the de­bate before a Judge, whether the Debtor was a Free-holder, likely to run away, de­serving to be arrested, or to have his Body to be secured, as it hath allowed no less then 20. Exceptions, against a Debtors not being to be exempted from it, viz. First, That he hath no Free-hold or ability to pay the Debt. 2. Is a Forreigner, Incerti La­ris, or a Vagabond. 3. Hath made his Estate to be notoriously worse then it was formerly.Peregrinus Janninius Tract. de Citat. real. lib. 1. ca. 2. ab §. 141. ad 199. & lib. 2. ca. 1. 4. Accepit Pecunias sub gravibus Vsuris, gave too great Interest or brocage to borrow Money. 5. Keeps ill Company. 6. Hath met with some great misfortune since his Debt contracted. 7. Is a great [Page 221] Liar and Deceiver, and suspected to be a Bankrupt. 8. Doth wast his Estate, and intendeth to defraud his Creditors. 9. Is a Gamester. 10. Hath all the signs of a suspitious Person. 11. Makes use of many Men to be bound or ingaged for him. 12. Engageth himself in many business. 13. Is looking out or providing for ano­ther Habitation. 14. Is turned Informer. 15. Keeps his Shop shut up. 16. Is a Man of ill life or conversation. 17. Or hath been so formerly. 18. Hath been an Offender in Criminal matters. 19. Lod­geth his Goods in some secret place. 20. And is packing up to be gone.

But they that can dream of Tyranny and Oppression in our Proces of Arrest and Outlawry, and know not how to prove it, will rather then miscarry in their design of Metamorphosing our Laws, and putting them into as many new fashions as the variety [...] vanity of their Cloths and Habits, w [...]ll, if those accusations must vanish and never be able to make them any good return, seek out some other way to alter or abrogate those kind of Law proceedings, and there­fore [Page 222] to pretend that the Statute of 25 E. 3. ca. [...] ▪ giving Proces of Capias and Out­lawry in Actions of Debt, is either by the Act of Parliament of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. repealed.

CHAP. XIV. That the Statute of 25 E. 3 ca. 17. which giveth Proces of Capias and Bxigen [...] in Actions of Debt, and other Actions there­in mentioned, is not repealed, either by the Acts of Parliaments of 28 E. 3. ca. 3. or 42 E. 3. ca. 1. there being no ind [...]ve­nim [...] or prejudice to the publick good in those kind of Law proceedings, which might deserve a repeal by those or any other Acts of Parliament.

WHen it cannot come within the virge of any probability, that the said Statute of 25 E. 3. ca. 17. should in the same Parliament (those grand Assemblies being then & long before usually shout, and of no long continuance) be made when the Sta­tute [Page 223] of 25. E. 3. ca. 4. was made▪ That none should be taken by Petition or Suggestion to the King or his Councel, 25 E. 3. ca. 4. but by [...] Indictment, Present­ment, or Proces made by Writ original. If it had not been believed to have been consi­stent with it, or the meaning of our Magna Charta ca. 29. or if the Statute of 25 E. 3. ca. 17. had been repealed by the shortly after following Statutes of 28 E. 3. or 4 [...] E. 3. ca. 1. such a repeal should not be taken notice of, by those that lived in those times or near unto them; or that if there had been any grievance found or perceived in that Statute of 25 E. 3. ca. 17. or that the said Statute of 28 E. 3. had repealed it, the Statute made by the aforesaid King E. 3. in the 36. year of his Reign,36 E. 3. ca. 1. would have ordained the Confirmation of the great Charler, and the Char [...]er of the Forrest, and commanded that the other Statutes mode in his time, The Oath of a Freeman of London, and Acts of Par­liament for confirmati­on of their Liberties. and in the time of his Progenitors, be well and surely holden and kept in all points; or that the Citizens of London, who in their Courts of Justice in their City, have for so many Centuries of years last past, to their very great advantages made use of the [Page 224] Proces of Arrest as a lawful and beneficial Custom, and constrained all that were to enjoy the largely comprehensive Freedom of that City, to take an Oath to maintain the Franchises and Customs thereof, would have made it their business to get many an Act of Parliament to confirm them, if they had supposed it to have been preju­dicial to them: And that the People of England should, in so many several Ages since those pretended Acts of repeal, not only have petitioned for several Acts of Parliament, for Proces of Arrest and Outlawry in several Actions, but through so many past Ages and Generations Ar­rest and imprison one another in the way to Justice, and not at all think themselves guilty of betraying their own Liberties, and never complain of it: Or that the Ju­stice of the Nation should in all that long course of time be so sleepy or mistaken, as to continue and put in Execution an Act of Parliament repealed, and maintain and continue a grievance.

O [...] that our Ancestors, who were not all restrained by that Statute of 25 E. 3. [Page 225] ca. 17. from the former more usual course of proceedings in Actions of Debt,In Archivis in albo Tur­ [...]i London, & in recept. Thesaurat. Scaccarii post 25 E. 3. by Writs of Summons, Pone, and Distringas (for there were Writs of Summons, Pone, and Distress made use of in Debt and Ac­compt after the making of that Statute, where there was such a visibility of Estate, as the Sheriff could not safely return, that the Defendant had nothing whereby he might be summoned (it having been in Ea­ster Term,Pas 22. E. 1. London rot. 3. in the 22 year of the Reign of King Edward the 1. declared to be a con­stant rule in Law, Quod nullus qui habet terras debet arrestari per Corpus, ad redden­dum compitum set per terras cum habeat suf­ficientiam. No Man that had Lands suffi­cient was to be arrested by his Body, in an Action of Accompt) as there may be at this day if the Plaintiffs have a mind unto it, and would rather procede by a longer way about then a shorter.

And should of themselves have made an Election of the way of Capias, Arrest or Outlawry, and continue it for above three hundred & fifty years without any thing like a complaint against it, if they could have [Page 226] believed that that Act of Parliament of 25 E. 3. ca. 17. had been repealed, and a long and undeniable experience had not informed them, that it was a much better and expe­dite way of bringing Men to Justice, or that if the Writs of Pone and Distress had been the better way, the Statute made in the Seventh year of the Reign of King Henry the Fifth,7 H. 5. ca. 1. which was sixty-nine years after, to give Proces of Arrest and Outlawry in Actions or Writs for forging of Charters or Evidences, would have esteemed it to be for the Common good of the People to have enacted it; or if after the making of that Statute, the course of Capias, Arrest, and Outlawry had not been believed to be the most beneficial, the Statute made in the 19th. year of the Reign of King Henry the Seventh,19 H. 7. ca. 6. for giving of Proces of Arrest and Outlawry in Actions of the Case, which was made 84. years after, would have de­clared the way of Pone and Distress to have been the Cause of great delays, or that the Act of Parliament made in the 23th. year of the Reign of King Henry the Eigth,23 H. 8. ca. 14. for giving Proces of Capias in Writs of Annuity, [Page 227] which was made twenty-eight years after the making of that Statute, would have said, there were many delayes in Actions of Annuities, because no Writ of Capias did lie in that Action (Acts of Parliament in those dayes, and long before & after, having by our Kings been granted upon the Petitions and Request of their Subjects, and penned, advi­sed or carefully perused by the Reverend Judges of the Land, and Councel in Law of our Kings and Princes, before they were passed and ratified) and that so many of our Fore-fathers, who for so many years and Ages have in every year been arrested, or voluntarily put in Bail to appear and a­void it, should be so senseless as not to understand the said Act of Parliament of 2 [...] E. 3. ca. 17. to have been repealed, if any such thing had been, or deem it to be a grievance to be compelled to appear in a Court of Justice, or that all the Plain­tiffs in those kind of Actions should be so wicked, as to continue that course and kind of Proces:Trin. 21. E­liz. rot. 113. in Banco Regis. If they could have under­stood it to have been a grievance, the Dean and Chapter of Lincoln would not [Page 228] have prescribed for a Liberty in their Court, to Arrest in all personal Actions, and the Lievtenant of the Tower of London the like, nor the Judges have allowed those prescrip­tions, and all Cities, Burroughs, and Cor­porations where they have connusance of Pleas,Old Book of Entries tit. false Impri­sonment fol. 320. would not upon a nihil habet re­turned, (for that is so alwayes done of course in Cities and Corporations to war­rant their Arrests) have claimed and exer­cised a power to Arrest as well Inhabitants as Forreigners coming thither; or that the Judges of the Admiralty, in Sea-faring and Maritime Causes would have permitted, as they have anciently done, Arrests to be made upon Debts, Contracts, Charter par­ties or the like, or have been allowed to do it, if it had deserved to have been cal­led a grievance,Welwade Sea-Laws 27. 63. or that it ought not to have been done by the aforesaid supposed Acts of Repeal.

And that none of so many thousand, or more then ten hundred thousand Defen­dants should by Pleas, Demurrers, or other­wise signifie so much, or so many Advo­cates, and so many learned Judges, Serjeants, [Page 229] and Sages of the Law, which have been since the making of that Statute of 25 E. 3. for the giving of Proces of Outlawry in A­ctions of Debt, should not of themselves have found out or have sought it from our Kings and their Parliaments some re­medies, or would not have forborn the granting or acting by such kind of Process, if they had conceived that the Act of Par­liament of 25 E. 3. ca. 17. had been re­plealed, or that such kind of Process had been a grievance.

And that more then one hundred thirty and seven Parliaments, which have been since the making of that Statute.

And so many Parliaments and Assemblies of Wise Men, before and at the making of that Statute, which met only to be wise, and find out fit helps and remedies for grievances, and things amiss should not foresee it to be a grievance, or be so care­less as not after to procure some Law or Act of Parliament, to give the People ease in it, or a fuller notice of the repeal thereof.

When in the Parliament of the 38th. year [Page 230] of the Reign of King Edward 3. the Com­mons did pray,38 E. 3. ca. 1. that the King would not grant Protections, whereby Men could not reco­ver their Debts; which was as they alledged, A thing to the destruction of the People, and against Common right.

Or that in so many Petitions in all those so many Parliaments for the redress of Grie­vances, made and committed by Sheriffs,Petitions Parl. 38 E. 3. Under-Sheriffs, and their Bailiffs, and that all Estates might enjoy their Liberties, if no Law be to the contrary saving to all Men their rights, and the justly denyed Petitions a­gainst the payment of Fines upon original Writs, issuing out of the Chancery; nor in that of the Commons in Parliament, in the 46th. year of the Reign of that King,Rot. Parl. 46. E. 3. that Writs of Trespas in the Court of Common Pleas, although long before then used, might be made as well by that Court as by the Court of King Bench; for that the Court of Kings Bench was removeable at the Kings pleasure; and that the Great Charter, and the Charter of the Forrest, and all other Statutes made by the King and his Progenitors, for the amendment of the Realm and tranquillity and [Page 231] ease of his People, might be kept and duly put in Execution in all points▪ Or in the Petitions of the Commons of the County of Kent, to that King in the Parliament,Rot. Parl. 50. E. 3 in the 50th. year of his Reign, against his Officers of the Castle of Dover, for arresting by their Catchpoles out of their Jurisdiction; or in the before mentioned great Complaint of the Clergy, made in Parliament upon the death of Robert de Hauley, in the 2d. year of the Reign of King Richard the 2d. slain at the High Altar in the Church of Westmin­ster Abby, when he being arrested and pur­sued by Bailiffs, had taken Sanctuary there, and the great debate thereupon before the King,7 H. 4. ca. 13. or at the making of the Act of Par­liament, in the Seventh year of the Reign of King Henry the Fourth, that impotent per­sons outlawed might make their Attor­neys, and the Acts of Parliament, made in the 10th. and 18th. years of the Reign of Henry the 6th. upon complaints,10 H. 6. & 18 H. 6. ca. 9. That Men were outlawed, and could not know where to find either the Plaintiffs or their Attorneys, and remedies ordained; Or in the Petition in the Parliament, in the 33th. year of the [Page 232] Reign of King Henry the Sixth,Inter Peti­tiones Parl. 33 H. 6. n. 57. against the multitude of Attorneys in the City of Nor­wich, and Counties of Norfolk and Suf­folk, for their inciting and stirring up the People to suites in Law, there should be no mention of that supposed grievance by the Writs of Capias and Proces of Outlawry, if it had then been thought or believed to have been one.

And that in the thirty times petitioning in several Parliaments of our Kings and Princes, for the Confirmation of Magna Carta (which as to that part of it, in the Chapter or Article twenty-nine, is the most excellent and the best of all our Laws. The People of England should not under­stand the aforesaid Act of Parliament, made in the 25th. year of the Reign of King Ed­ward the 3. for giving Proces of Arrest and exigent in Actions of Debts, and other A­ctions therein mentioned (if it could be interpreted, to be any violation of it) or that in all their Petitions for redress of grievances, and procuring of good Laws to be made, there appears nothing at all to have been alledged, That by the Common [Page 233] Law the Person of a Debtor was not arrestable or that there is no positive Statute Law in force, for the continuing of the Capias and Exigent, against Persons in Debt and meerly Civil causes, since the fancied repeal of the said Act of Parliament of 25 E. 3. ca. 17. by the said Statute of 28 and 42 E. 3.

But they who are so loath to part with their causeless affrights or are so unwilling to loose the content of being the Founders of a change, or alteration in the Body po­litique, be it never so dangerous or of most certain evil consequences, and are willing enough that their Fellow Subjects, of whom they pretend to take so much care, should 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 [Page 234] 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,Cokes 2. part. Insti­tutes 50, & 51. 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 [Page 235] 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,Posthuma Grotii in E­pistola qua­dam. 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 [Page 236] 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; Plowdens Comment. 363, 369, & 469. 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, Ibid. 46, & 467. 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, Cokes 5. Report. 2. part 5, & 6. 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,Cokes 3. Re­lat. Case del fines. nor doth a latter Act with Negative words, say our Laws, take away a former, if it be not contrary in matter: [Page 237] 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. 5 Eliz. ca. 4.

The words and meaning of the Statute 28 E. 3. ca. 3. being no more then, 28 E. 3. ca. 3. 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; 42 E 3. ca. 1. 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 [Page 238] 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 [Page 239] 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 which Statutes will be best ex­pounded by Sir Edward Coke, Coke Com­ment. super Magna Chart. who in his Exposition and Comment. upon Magna Carta ca. 29. and all the other parts there­of (for out of that most commendable Law those two Acts of Parliament of 28 E. 3. ca. 3. and 42 E. 3. ca. 3. do seem to have been drawn, and are but as Confirmations [Page 240] of it) saith that by the Law of the Land, is to be understood, the Common Law, Sta­tute Law, and Customes of England; which though they be in the Negative, have no re­ference or contrary matter unto that of 25 E. 3. ca. 17. and do not prohibit the for­mer allowed, and due Proces of the Law, or declare them to be contrary to Magna Carta, or any Article or point thereof, nor have any express words, or so much as any preamble, which may signfie any purpose that they had to repeal it; for all that is forbidden by those two Statutes of suppo­sed repeal, is to prevent the mischiefs com­plained of by suggestions to the King and his Councel, and that no man be disinheri­ted, put to death, or out of his Land taken, imprisoned, or brought to answer, but by due Proces [...]f the Law, according to the old Law of the Land. 37 E. 3. ca. 18. And the Statute of 37 E. 3. ca. 18. giving an order of pursuing a Sug­gestion made unto the King, doth men­tion the great Charter, and the words there­in contained, That no Man be taken, nor imprisoned, nor put out of his Free-hold with­out Proces of the Law. For if our Records [Page 241] and Law-books, and the reason thereof, and all that hath been learned and believed hitherto do not fail us, those Statutes or ei­ther of them cannot be interpreted, to in­tend to take away any lawful and necessary Arrests, and Imprisonments in Actions of Trespas, which were in use long before the making of Magna Carta, or the arresting or restraining of the persons & liberties of De­fendants, in Actions of Debt and the like; or for a Contempt of the King or his Courts of Justice, in not appearing when they were summoned or cited, or when they had no visible Estate to satisfie, or were likely to fly or run away, the true intent and meaning of those Statutes of 28 E. 3. and 42 E. 3. tending rather to confirm and establish that Act of 25 E. 3. ca. 17. then to repeal or take it away, the main scope or purpose of them being only to restrain any arbitrary Government, or any Law­less proceedings of the People one against the other; for it is impossible by any sense or reasonable Construction of those Sta­tutes, to conclude any the least design in them, or either of them to take away [Page 242] or alter a Law or Custom of the Nation, which was not then at all so much as com­plained of, when by forbidding to do that which was against the Law, they must of necessity be understood, to allow of that which was the Law or consistent with it.

For it hath been said and never denyed, to be a rule in our Common Law as well as in the Civil Law, that Exceptio firmat regulam in Casubus non exceptis, The ex­ception or saving doth preserve and allow of that to be the Law which is excepted, other­wise if the exception should be (as certain­ly it is not) nugatory and serves for nothing, the meaning of our Magna Carta it self, and all those very many Statutes of Confirma­tion afterwards enacted, must be (as they can never be rightly taken to be) that be the matter or cause Civil or Criminal, Trea­son, Murder or Felony, no Man is at all to be disseised, or put out of his Lands, ar­rested, imprisoned, or compelled to ans­wer, and the King, who is sworn to admi­nister Justice to his Subjects, must by Mag­na Carta it self be denyed, and debarred the use of means to do it, and the People there­by [Page 243] put into a condition not to be able to ob­tain Justice one against another.

And if no Laws concerning Proces in Debt, or other personal Actions, which have been enacted or allowed by Acts of Parliament, subsequent to those before mentioned, and supposed repealing Acts of Parliament, made in the 28. and 42 E. 3. or derived by necessary deduction from rea­son (which ought to be the Soul and Con­stituting part of all Laws) shall not be al­lowed or taken for Laws, the Parliaments of England (wherein all manner of grie­vances, and many times very small and in­considerable, were seldom omitted to be complained of or petitioned against) have by making of the Statute of 7 H. 5. for gi­ving Proces of Arrest and Capias in Actions of forging of Charters of 9 H. 7. in Actions of the Case and 23 H. 8. in Actions of An­nuity not only not remedied but enacted grievances, and all our other Laws which have been since made, concerning the ta­king or imprisoning of Mens Bodies, in A­ctions of Debt or other Civil and personal Actions, or been put in Execution have [Page 244] been no other then abuses, and transgres­sions of the Law, and all that so many lear­ned conscientious and Reverend Judges of the Law, and sworn to judge according to it, have since those times done or permit­ted to be done, in pursuance of those latter Laws, have been but as so many great mi­stakings to the oppression of the People.

And the Parliament of 3 Car. primi, whereof the very learned Selden, and that great Lawyer Sir Edward Coke, and many very worthy Men and Lovers of our English Laws and Liberties were Members (some of which had not long before made them­selves Prisoners to secure a pretended Li­berty) would have been guilty of a great oversight and inadvertency, in not getting better Provisions in the Act of Parliament, made upon that which was called the Peti­tion of Right, wherein that aforesaid part of Magna Carta ca. 29. and the Statutes of 37 E. 3. ca. 9. 17 R. 2. ca. 6. and the very Act of 28 E. 3. ca. 3. now so much insisted upon, are confirmed. And the Acts of Parliament of 37 E. 3. ca. 18. 38 E 3. ca. 9. 42 E. 3. ca. 3. and quoted in the margent of the said [Page 245] Act, are declared to be good Laws and Statutes of the Realm; and it was ordained, That no Offender, of what kind soever, be exempted from the proceedings to be used, and punishments to be inflicted by the Laws and Statutes of the Realm.

All those Acts of Parliament being then expounded and understood, to be only intended against the Imprisonment of Men, by the King or his Councel, with­out cause shewn; and the same Parliament did then procure diverse Acts of Parliament to be repealed, but not that of 25 E. 3. ca. 17. which neither was repealed in that nor any other Parliament, in Terms or words intelligible, or by implication or o­therwise, and did never yet deserve to be so since the making thereof.

Nor would that Parliament, labour­ing so much for liberty, have at the same time allowed of that Act of Parliament of 25 E. 3. ca. 17. for the Proces of Capias, and Exigent or Outlawry in Actions of Debt, if it had been a grievance, or not understood as it ought, to be a legal and necessary part of the Laws of the Land, or have omitted [Page 246] so often and daily happening Concernments of themselves and their Posterity, if they could have thought that way of Proces [...] and proceedings at Law, either was or could have been a grievance, when as they did then so much believe all the grievances of the Nation, to be by that abundantly satis­factory Act of Parliament, made upon that Petition of Right, to be banished and their fears quieted, as they caused publick rejoyc­ings and Bon-fires to be made for it.

And if it had not been so understood, by the Reverend and Learned Judges, and Sages of the Law, who were then in being, and have been since entrusted with the Ad­ministration of Justice, such Proces and pro­ceedings would never certainly have been made when the Petition of Right prayed, That in the things aforesaid all his Majesties Officers, should serve him according to the Laws and Statutes of this Realm, as they would tender the honour of His Majesty, and prosperity of the Kingdom; and the King in his answer thereunto, and giving it the life and pow­er of a Law, did will that right should be done according to the Laws and Customes of [Page 247] the Realm, and that the Statutes be put in Execution, that His Subjects may have no cause to complain of any Wrong or Oppression, Petition of Right in 3 Car. primi. contrary to their just Rights and Liberties.

For it must be a more then an ordinary Hypochondriacal Melancholy, that can per­swade any Man to think, that if the Process of Arrest or Outlawry could by any fore­sight or prospect have been believed, to have been either a grievance, or illegal, or any Seminary of ill Consequences, that ever to be lamented unhappy Parliament begun in November 1640. would in that fatal Remon­strance of theirs, published to the People the 15th. day of December following, wherein they were so willing to amass every thing that might but look like a grievance of the People, and were so effascinated in their evil pur­poses, as they crowded in amongst them ma­ny essentials and necessaries of Government, have omitted such an important and of­ten happening grievance (if any could with any colour of Law or reason have be­lieved it; or that in the nineteen high and mighty Propositions sent by them unto him in June 1642. or in the Message or [Page 248] Committe of the Lords and Commons then remaining at Westminster, sent unto him at Oxford in Anno 1643. by the Earl of Nor­thumberland, William Peirpont Esquire, and others; or in the Treaty and Propositions at Vxbridge for Peace, betwixt the King and that misnamed Parliament in the year 1644. such a necessary, if it had been thought to have been one, should have been negle­cted; or in the Message of the Lords and Commons, in the then so called Parliament, sent unto him when he was a Prisoner at Ho­limby in the year 1647. with propositions for Peace, nothing should have been desired to prohibit Arrests; but on the contrary an Act of Parliament was required, for confirmati­on of all Customs, Charters, Liberties, and Franchises of the City of London, which for many hundred of years before had been ap­proved: Or that in the Bills and Propositi­ons sent unto Him in the same year to the Isle of Wight, when he was there a close Prisoner:Vide Act of Common Councel. Or in an Act or Ordinance, made by the Lord Major and Common Councel of London in the year 1660. for the better regulating of that Cities Courts [Page 249] at Guild-hall, in which notice was taken of their ancient Customs, and diverse abuses committed by Serjeants at Mace and their Yeomen, in arresting of Men, there should be no mention made of any original Grievances or Illegality by or in the Proces of Arrest, nor any orders made or desired to be made against it.

Until therefore this invisible and untelli­gible repealing Act of the Statute of 25 E 3. ca. 17. shall be pleased to appear and shew it self, the Founders of that fancy may do well to build no further upon it, but si­lence their causeless out-cries against it: And when such or the like imaginations shall offer themselves, think rather that Acts of Parliament (according to the advice and opi­nion of the Judges in Doctor Foster's case) which have been established with so much so­lemnity, wisdom, Cokes 11. Reports Doctor Fo­sters case. gravity, and universal con­sent for the good of the Weal publick, ought not by any strained construction or ambiguous words (if there had any been) in any sub­sequent Act to be laid aside, disused, or abrogated; and that doubtful aequivocal words (if there had been any) ought ac­cording [Page 250] to the rule in Gregories Case,Cokes 6. Re­ports. to be in­terpreted in the better and more likely sence.

And not trouble themselves as they have lately done for before the year 1640 and 1641. (when Liberty ran mad, and the Fa­ctious part of the People did too much read the Books of Plunder and Sequestration, and admired the Models and Contrivances of Hugh Peters, Huson the Cobler, Pride the Drayman, and every Mechanick and Trades­man, and every Mercenary Red-coat Rebel-Souldier, who would by his indigested con­ceptions be a Solon or Licurgus) they did not to subvert, as they endeavour'd to do, our long experimented & approved Laws & Customs, to make room for their own ungodly advan­tages, and sordidly ignorant alterations, and at the same time allow the Caption and Horning of that by them Conquered and once illegally Covenanting Scotland to be lawful.

Nor vex themselves and others, as they have done with the Chymeras and phancies of that never to be found repealed Sta­tute of 25 E. 3. cap. 17. and their so much mistaken Gorgons head, and af­frights of their Liberties being likely to [Page 251] be lost by that or other our Laws, when our Laws and the due Execution thereof are and have been by our Kings and Princes, and their just authority the only means un­der God to preserve them.

Or be so over-lavish in shooting their Bolts, in undertaking to assert, That Eng­land is impoverished more then a Million of Money Sterling every year by Sheriffs, Bailiffs, Serjeants, Marshals-men, Proces-makers, Ha­beas Corpus, Rules, Writers, &c. (As a late Anonimous Champion of those kind of Li­berty mongers terms them) for which he would decoy as many inconsiderate People as he could, into an opinion and belief, that the Creditor is not the better one Peny for it; which is as impossible to be proved or be lieved, as that Bears are enabled by Nature to fly and usually do it; or that the Mountains of Mountains the Alpes, those highest Hills of the Christian World, do usually at every Jubile leap to Rome, to obtain an Indulgence or Pardon from that Holy Father, for being so high-minded.

And what ever far lesser Sum of Money those Officers Fees (which as to the Pro­cess-makers [Page 252] are very small and dearly e­nough earned) do amount unto yearly, it will be very difficult for that Man of con­fidence, whosoever he be to prove that none or very many of the Creditors did not re­ceive satisfaction of their Debts and charges, or more then a Peny, or were not the bet­ter for it (for the Defendant, where there is any ability to answer and pay them, do most commonly bear the burden of them) and that the Defendants Charges in a year do amount to a Million of Money Sterling, or any such vast Sums of Money, as his monstrous and incredibile guess, bewixt sleeping and waking, hath cal­culated it, and will be as wide of any truth or probability as if he had said, That he had in a Forreign Country seen two Phae­nixes rosted, and brought to eat in a dish, and had been in a colder Climat, where the extremity of cold was so great as the words spoken over night did freeze, and were legibly to be read in the Air the next Morning.

And those Sons of Rapine, who are so given to change, and doe make it their business [Page 253] to hunt our Laws, like the Ermyns for the booty of their skins, may better employ their time in a sad and serious repentance of that dirt, and many scandals which they have most injuriously flung upon them, & in throwing amongst the People those, though foolish, yet infectious tales and opinions, that There are now ten thousand Men in Prison for Debt, and that the Proces of Outlawry have done more mischief to the People of England, then the Writs of Capias (which neither he nor any other can ever prove to have been primarily or causally and per se guilty of it) or then the Bills of Middlesex or Writs of la­titat, which must either be done in his hu­mour or natural of telling rampant or im­possible tales, or on purpose to cast those legal Process and proceedings, into an Odium or hatred, and will appear to be as much misled by his ignorance, as he was before in his overhasty Arithmeticque, when he adventures to say, that a noble Man, by being outlawed, is made incapable to sit in the house of Peers, a Clergy-man may forfeit his Bene­fice, or a Lawyer be made incapable of plead­ing at the Bar, when our Laws do remem­ber [Page 254] no such matters; and a Noble man and Peer of Parliament cannot in any Ci­vil action, or ordinary Trespas by our Laws be outlawed; and although some other Persons may by abuse or error happen to be outlawed, when they should not be outlawed, and by some evil accident ne­ver be able to find the Plaintiff or his Attor­ney, whereby to recover his damages, yet it is so seldom as it is very rare; and our Laws as they did never undertake to prophesie, or to have a prescience or certain knowledge of things to come, so they never provided against raro contingentia, things seldom hap­pening, or of little consequence, neither can our or any other Laws be able at all times, to prevent all the tricks and evil a­ctions, which the deceitfulness of mens hearts do too often put in practise. And that nameless Author may, upon his better acquaintance with our Laws, inform him­self, and those for whom he so much busieth himself, that if an Outlawry should, as he surmiseth, be indirectly gained, the Court out of which it proceedeth do, when dis­covered, never fail severely to punish such an [Page 255] Offender, and give what remedies they can unto those that do suffer by it; and that there is a Statute, which was made in the Tenth year of the Reign of King Henry the Sixth,10. & 18. H. 6. ca. 9. and renewed in the 18th. year of the said Kings Reign, yet unrepealed to prevent and remedy it.

And is as much out of the way when he saith, That Tenures in Villenage were re­pealed by Act of Parliament,Rot. Parl. 5 R. 2. when in the Parliament of the fifth year of the Reign of King Richard the Second, the Manumissions of Villaines, which had been extorted from that Kingby Wat Tiler and his rout of Re­bels, were declared to be void, and the wearing out of that Tenure, in the many Intestine Wars and Troubles of the Nation, and the favour and indulgence of our later Kings and Princes, and the Nobility and Gentry of this Kingdom, is to be ascribed more thereunto, and a desuetude & length of time, then unto any thing else, which hath so washed many a jolly Gentleman that would be, and Men of great Estates, whose Extractions and Originals (were at the first lodged in those Tenures) in the Waters of [Page 256] Lethe and Oblivion, as there are now very few or none to be found of them.

And is as little to be excused when he saith, That the Mortmaines of Abbies were taken away by Acts of Parliament, unless that he means by the total dissolution of them, which hapned long after those Mort­maines, and is as wide from the mark, in his impertinent Accompt of the Money or profits of the Bishops Courts, as he is of any proof or certainty, that they are a burden, and can hardly instance any one Attorney (but certainly not many) that hath in one Writ of Priviledge, named or sued one hundred Defendants, and held them to special Bail, whereas such a vexa­tion would have been remedied by an Ap­peal unto any Judge of the Court, out of which such Writ issued, who had by the Law a power in his discretion, to order whether any special Bail should be given, as the case required.

CHAP. XIV. That the Nation hath not been base or slavish, ever since the making of the said Act of Par­liament of 25 E. 3. ca. 17.

ANd is to prove, when he can, that ma­ny Men have languished to death for fear of an imprisonment; for some one or few melancholick Persons, may in their re­tirements, sad apprehensions or multiplied fears, have indangered their healths, which makes not the Justice or Laws of the Nation to be any more guilty or cause of it, or de­serve to be abrogated: Then the sacred Scripture is to be blamed, for that some Per­sons have by the reading of it, or hearing of it preached, been so disturbed with an af­fright of conscience, as they have been di­stracted, or laid violent hands upon them­selves.

Or that His late Majesty of glorious Me­mory (if not mis-informed by the conceal­ed Author of such frivolous, feigned and false [Page 258] complaints, or by some of his Proselites) had so deep a sense of his Subjects sufferings, by such Writs and Process as he intended the inlargement of Prisoners for Debt, and the abolishing of all Arrests and Outlawries for the future, by the then Parliament, if he could have received any recompence for the remitting of all forfeitures, and other profits arising to His Crown; nor doth give us any evidence for such wild imaginations, nor ever will be able to do it; or that the Nation hath been base and slavish since the said Act of Parliament of 25 E. 3. ca. 17. and other Acts of Parliament since made, which our Laws, Records, and Histories; will abundantly confute, and our Neigh­bour Nations envying our Glory, Freedom, Peace and Plenty, may decry as an ingrate­ful and horrid falsity, deserving to be had in everlasting detestation.

Unto which bundle of untruths, and fea­verish deliriums, are likewise to be added those giddy Assertions; that the People are unsecure in their Estates, and that their good and welfare depends upon their being ma­numitted and enfranchised in their persons, [Page 259] and made Noble and free by Abolishing of the Process of Arrest and Outlary. And that such an Act of Grace will be accompted by all goodmen and their posterities, a suffici­ent recompence for all the Subjects past suf­ferings, and be the greatest mercy that ever any King of England extended to his Sub­jects, since they were a Nation.

Which should it take effect, may be as little successful to the pretended Advocat and his Party, and the Trade and Inte­rest of the Kingdom; as the Eagles carry­ing in another Case, the burning Cole in the Apologue to her Nest: And until they could have been sure of a better, which they are never like to be, might have for­borne their Snarling and Barking at our Laws, of which that Act of Parliament of 25. E. 3. ca. 17. Was accompted to be a part, which until the Distemper which seized upon a seditious part of the people, in the unhappy year of 1641. were▪ so well beloved and deservedly commended, as Thirning, Coke in pre­fat' 8. Re­port. Chief Justice of the Court of Common Pleas, publickly declared in the 12th. year of the Reign of King Henry the [Page 260] 4th. that the Laws of England were in the Reign of King Edward the 3d. In the great­est perfection, that ever they were the Judges Sage, and learneds and the pleading, the great­est Honour and Ornament of the Law, were in that Kings Reigne of that excellency as those of former times were but feeble unto them. Fortescue de laudibus legum An­gliae. Sir John Fortescue Knight, Lord Chief Justice of the Court of Kings Bench, in the Reign of King Henry the sixth, by comparing of our Laws and Government, with the Laws and Government of France and other Nations, hath in his learned Book! Written on that Subject, proved and demonstrated that our Laws of England, Do deserve the Preheminence over all other Laws, and do more secure the People in their Estates, Liberties, and Properties then those of France, or any other Nation.

Queen Elizabeth, who made it her con­stant and usual Charge to her Judges, to do Justice, and not to disturbe or delay it. Governed her people by her Laws, in Plenty, Peace, and Prosperity, to the Worlds admiration, Terror of her Ene­mies, and the Comfort and Support of her [Page 261] Friends and Allies; did so after her death Reign and live in her peoples hearts, as they in or about London have to this time, from the Coronation or beginning of her happy Reign, now above one hun­dred and sixteen years ago, in a grateful ac­knowledgment of it, never omitted to Cele­brate that day, with the Ringing of Bells, some legacies having been given in some places also,Cokes 2. Re­lat in pre­fat. for the perpetuating thereof; King James had a great care of the expedi­tion and execution of the Laws, in whose peaceable and plentiful Reign, ten years have passed without any Tax or Assessment of the people: And King Charles his Son, made a great part of his Coyn to wear the Inscription, that he fought against a Rebellious part of his Subjects, to maintain the Laws, priviledges of Parlia­ment, and liberties of the people, and dyed a Martyr, because he would not be­tray, or deliver them up to a Lawless, un­limited, and ever to be dreaded Arbitrary power.

So as that seducing Author, might have found a better imployment, then to throw [Page 262] dirt at our Laws before he understands them, and might have been able to have given a better accompt of his time, if he had followed the advice of Sir Edward Coke; Who was so much a welwiller to the Proces of Arrest and Utlary, as whilst he was Chief Justice of the Court of Comon Pleas, he did never dislike or refuse the putting his name and Teste to such kind of Writs, un­der the Kings Seal entrusted to his custo­dy; and being afterwards made Lord Chief Justice of the Court of Kings Bench, had so good an opinion of the Process of Ar­rest, and the necessity and usefulness thereof, as that to maintain and support the Writs of Latitat and Bills of Midlesex in Actions of Debt, and other personal Actions then too often made by that Court, which had no Ju­risdiction or Conusans thereof; but in Case of a Defendants present imprisonment, or of priviledge of some of their Members to hold Pleas in such kind of actions, he feigned a pre­scription to be made and used in the decla­rations thereupon, that the Defendant was in Custodia Marr' Marescalli Curiae and actual­ly a Prisoner, when he neither was so at the [Page 263] time of the making of the said Writs, or the time of the Defendants giving Bond for his appearance to the Sheriff, or at the time of the Plaintiffs declaring against him, as he did publiquely declare in Print, That e­very man ought, next to his duty to God and his King, to yield a due reverence and obe­dience to the Common Laws of England, for that of all Laws humane they were most equal, most certain, of great antiquity, least delay, most beneficial, and easie to be observed; And That he could defend them against any Man, that is not malicious without understanding, and make it manifest to any Man of judgment and indifferency, by proofs pregnant and demon­strations, and by Records and testimonies lu­culent and irrefragable.

Which just and due value and estimation of our Laws may well be credited, when if a Jury of the Subjects of our Neighbour Na­tions, Kings and Princes, or of the Repu­blique of Holland, that Corporation of Kings, were impannelled and fitted with the know­ledge, and understanding of the excellen­cy of them, they could not either as to the imposing or payment of Taxes, or to any [Page 264] other particulars, refuse to give a Verdict upon Oath, that our Laws and Customes do in their perfection, and right reason ge­nerally far excel those by which they are governed, aud that the Subjects of England and Wales are by the happiness of a well tempered Monarchy, and our Laws as secure from any danger of arbitrary power as any people under Heaven.

And he would find it to be a difficulty in­superable to ptocure our Merchants of Eng­land, or any of those who do undertake to insure the hazardous adventures of those that do go or send to Sea, and see the wonders of the deep and adventure their personal E­states upon the cholerick waves thereof, not seldom accompanied with humerous and ra­ging winds, to give him an assurance and cer­tainty, that the people shall not be ruined by that his goodly indigested project, which in its folly and inconveniencies, as to the credit, reputation and Justice of the Nation, exceeds that of Jack Cade, that great Master of Ignorance, who had perswaded his Rable-rout to believe, that it would be an excellent piece of Reformation, and [Page 265] much for the good of the people, to sup­press all learning and dispatch all business and affaires by the help only of the Score and the Tally.

And will howsoever be as incertain of the success, which none but mad Men, and such as the Turks and Men of Mecha do usually adore, can believe to be answerable to the end of publick good; as he may soon­er adventure to make an Affidavit, if any credit could be given unto it, of the possession infallible of the imaginary Elixir or Philosophers Stone, the only Essay of the gaining whereof, hath undone and emptied the Purses and Estates of many more learned then ever he will be, then that the People of England have either lived in Slavery since the making of that Statute of 25. E. 3. ca. 17. or that there will such an happiness and mercy arrive or redound, as he pretends un­to them, by the abolishing of the Process of Arrest and Outlawry, when seven parts of eight, the whole to be divided into no more, shall be ruined in their present Estate, and future hopes of a better for want of credit and trust: And all the Men of Money lent out [Page 266] and trusted, which are the smaller number, shall be in danger enough of loosing it; And the Free-holders of Lands, which compara­tively, are far the smaller part of the Nation, shall be only the Men, and perhaps not half, or a quarter of them, that may be trusted or compelled to appear to any Actions of Debt, or for Money which shall be commenced or brought against them; And the Trade of the Nation which is now not so much out­ward as it either should or ought to be, shall be very little stocked, or driven with ready Money for want of trust, or such a Process as may with any certainty, or expedition com­pel the performance of it.

Or that His late or now Majesty, when our Kings and Princes were wont in many of their Writs and Rescripts, to acknowledge that they were Debitores Justitiae, Debtors to their people in matters of Justice, & Astricti, bound and obliged unto it by their Corona­tion Oaths, could ever think it to be agree­able to their interests, or correspondent to their Oaths, and other obligations to God and Man, to throw the Justice of the Land, with which they have been by God intrusted, [Page 267] into a Chaos and confusion, to gratifie the humors of a smali or inconsiderable number of his Subjects, the quondam Rebells, and most factious and ignorant part of them, and ruine the multitude, who are as much com­mitted to their cares as the other, Ne cum parti alicui placeant reliquas deserant, Least when they seek to please a few, they do for­sake and abandon those who are much the major part, and greater number.

Howsoever let Sir Edward Coke say and write all that he can, in the never to be denyed just praises and commendations of our Laws, those that without any cause or knowledge do too much maligne and hate them, adore a resolved infatuation, and believe their Fort of Phansies to be impreg­nable, and out of the danger of any Assaults, or being taken, will by their good wills, ra­ther then forsake their designs, and the hopes they have of some new employments, ob­lige and tye him to his former mistaken o­pinions, delivered in the aforesaid Sir Wil­liam Herberts Case, and likewise in his Com­ment▪ upon Magna Carta ca. 29. That the Imprisonment of the body for Debt, unless in [Page 268] the King Case, was not by the Common Law before the making of the Statute of 25 E. 3. ca. 17. although in all his Reports and Com­ments, and other his learned Writings, he hath not at all inveighed against the Process of Arrest and Outlawry in Actions of Debt, or other personal Actions, or declared or made any mention, that they were either il­legal or a grievance: And when he said, That Imprisonment of the body for Debt, unless in the Kings Case, was not before the making of the aforesaid Act of Parliament, did no where say, that it was not before that time, upon Contempts of Courts of Justice, or the Writs or Mandates thereof, or upon a pro­bability of a Defendants running away; and are the more pertinatious in it by Sir Ed­ward Coke's being so much enamored on a Manuscript, called the Mirror of Justice, which as to the Copie, which he follows and cites in his aforesaid Comments upon Mag­na Carta, and that so called Mirror of Ju­stice, which was afterwards printed and pu­blished in the year one thousand six hundred forty-six, by William Hughs of Grayes-Inn Esquire, Flagranti bello, when the Laws and [Page 269] Liberties of the People were by a wicked Rebellion, under a pretence of Reformation of Religion for some years before endea­voured, to have been destroyed, and said to be translated out of an old French Copy, which hath been justly suspected, & in many impor­tant matters proved to be fictitious, & to Men of Learning, and those that have traced the paths or fields of Learning and Manuscripts, and observed the contrariety, omissions, ad­ditions, transcriptions, mistakings, interpolati­ons, annotations, impostures and words, there­in creeping out of the margent into the Text; and those many counterfeit Books and Ma­nuscripts, which even in the primitive times of the Church and after Ages, have been im­posed upon Posterity, and too often are and may be seen; will administer no matter of wonder.

They therefore who do so cherish and de­light in the novelty of opinions, and are most pleased with those which are likeliest to ans­wer their expectations of gain and profit, or may serve to engage the protection and favour of some hopeful and prevailing Partie and Faction, may do an Act of Justice to [Page 270] themselves and others, to pause a while and look a little more, into the afore­said opinions of Sir Edward Coke, although he must be acknowledged to have been a very great Rabbi in our Laws, and consider well the Grounds, Authorities and Reasons, upon which he hath founded them, before they do Jurare in verba Magistri, and espouse or build upon them.

CHAP. XV. An Examination of the opinions of Sir Edward Coke, in his Report of the said Sir William Herberts Case, touching the Process of Arrest used in our Laws, and the many Errours ap­pearing in the Book or Manuscript, called the Mirror of Justice, and the fictitious matters and relations mentioned therein.

FOr although in Criminalibus & Capita­libus causis, in Criminal and Capital causes, an Arrest or real Citation, as the Ci­vil Lawyers call it, is and hath ever been used by the Laws of God, Nature and Nations: [Page 271] There shall not be such gentle Process or Proceedings, by way of Attachment as is usual in other Cases, but such Malefactors are presently to be arrested, and the Goal or Prison is to be their Sureties, until they defend or clear themselves; yet▪ those kind of necessary proceedings can have no other original or ground to support or warrant them, but what proceeds from the before recited grounds or causes, or some of them; because until the Fact be tryed, it is but an accusation, and not alwayes so much as a probability, but a change or suspition that it was done by him that is accused, and there will be alwayes a magis and minus, and variatioe of Circumstances in such kind of Offences, which may either lessen or heigh­ten them; Nor do those Rules which are given by Bracton▪ for the reason of Arrests or Restraints of liberty in personal Actions before judgment, that a Habeas Corpus, which amounteth in effect to a Capias or Re­straint of the person or his liberty,Bracton lib. 5. ca. 33. is pre­sently to be granted propter privilegium eruce signatorum & mercatorum, in respect or fa­vour of those that were to go to the Holy [Page 272] War, or were Merchants; or propter causam sive necessitatem, for some urgent cause or necessity of dispatch; or in Trespas, prop­ter atrecitatem injuriae, the horridness or evil of the Offence, or propter personam contra quem injuriatum est, ut si injuriatus sit Do­mino Regi vel Reginae, vel eorum liberis, vel Fratribus, vel Sororibus, vel eorum Parenti­bus & Propinquis, in respect of the Person against whom the wrong is done; as the King, Queen, their Children, Brothers, Si­sters, or their Parents or Kindred; come up to the Rules of Justice for urgency of Af­fairs, necessities, or occesions, considerations, or respect of Persons, can of themselves be no cause of making Justice, which is not to be a respecter of Persons to be Eccentrick, or go a step out of her way, or to do any thing in one case, which should not or ought not to be done in other Cases, having the like ground of reason and justice, attended with the same circumstances; neither can atrocitas facti vel injuriae, the grandeur and oughli­ness of the offence, be the sole cause or ground of Arrest, in common or petty actions of Trespas, or for words, if there could pro­perly [Page 273] be any atrocitas or hainousness in them, or where it is done involuntarily; as in Cases of Trespass, or damage done by a mans Cattle, for Trespass may be greater or lesser; and if every Trespass could be understood to be of the greater size or magnitnde, and so horrid and enormous; yet there can be no reason to make the Caption or Arrest to be in part of Corporal punishment, before the Judge or Magistrate be ascertained of the guilt of the Party, or instructed how to keep the order which the Laws of God, Nature and Nations, and our Magna Carta have en­joyned; that is to say, to punish only secun­dum quantitatem delicti, according to the na­ture of the offence.

And that supposed ground or reason gi­ven by Sir Edward Coke, will be as deficient that the Common Law of England, abhorring all force as the capital Enemy to it, subjects the body to imprisonment until it hath made a­greement with the Party, and fined to the King, bring any better reason with it.

For if the King shall (as he conceiveth) punish force by a Capias to Arrest the body before the party be permitted to defend him-or [Page 274] a Tryal had by Jury, whether he be guil­ty or not, that would be more against Mag­na Carta, then any Process of Capias or Ar­rest in Debt can be dreamed or fancied to be, and a Capias pro fine, after a Tryal and finding guilty, will either shew that it was not the arresting of the body in Trespass, which was intended or inflicted for the pu­nishment, but the Capias pro fine; and if both, the Capias in Trespass before Judge­ment, and the Capias pro fine after Judge­ment, should be inflicted for one and the same offence.

They would not be secundum modum sive quantitatem delicti, proportionate to the of­fence, and the Capias to Arrest would be be­fore the King or his Courts of Justice, could be ascertained that there was an offence.

Nor will that other cause or ground given by him in the Report of the said Sir William Herberts Case, that the King may by the Common Law arrest the body of the Deb­tor, for that Thesaurus Regis est vinoulum & bellorum nervus, The Money and Treasure of the King is the Bond of Peace, and Sinuwes of War obtain the conclusion which he aims [Page 275] at: For that were to make a King or su­pream Magistrate, which ought to be Lex viva, and Justice it self, to destroy that which he was sworn to protect, and give him licence to break Laws, who is not in ordinary Cases against the Rules of Justice, and right reason, to give such a liberty to himself or any others, or to do an act for an advantage or necessity, which the even and adequate Rules of Justice, common right, or right reason cannot allow.

So as by the favour of so great an autho­ [...]ty in our Laws as Sir Edward Coke is, and with as much reverence as is or can be due to so great a lover of the Laws of England, and the veneration which he justly merits: I must of necessity, by what appears in the Cabi­net and Treasury of time and Antiquity, and what is clearly to be perceived in those pure streams, which the Fountains of Justice and right reason have imparted unto Man­kind, assert what I have done, and con­clude that he was a man, and hath as the best Authors may in their Books sometimes do, which are not Scripture and Canonical, er­red in averring that there was no Process of [Page 276] arresting the body of a Debtor, either be­fore or after judgment, until the Statute of 25 Ed. 3. which gave Process of Outlawry in Actions of Debt.

When in allowing Process of Arrest in debt in the Kings Case, as he doth in Actions of Trespass, he must acknowledge the same reason and necessity, (which is a just and ra­tional coertion to appear before the Tribu­nals of Justice, and of caution to be given to abide their judgments, to be in Actions of Debt, and other personal Actions.

And he himself in many of his Books and Writings hath as well as the Civil Law, and our Common Law, and the Law of Nations affirmed, that the same Reason may claim the like Law; For the reason that Joseph would have imprisoned his Brethren, upon a suspition that they were come to espie the Land,Genesis 42. v. 16, & 36. and kept Simeon a Prisoner until their words (and denials) were proved, gives us the reason, necessity, and justice of arresting in personal Actions and Debt, as well as Trespass, until cause or caution be given of appearing in Courts of Justice, and perform­ing the judgments.

[Page 277] And that learned Judge could, if he were now living, very well remember, that he hath often said as well as found, that many of our Acts of Parliament are but declaratory of the Common Law, and that which was long before used, and understood to be as it was reasonable.

That the matter or thing excepted in an Act of Parliament, is not included in any purvieu or provision of it, but is out of the reach and gun-shot thereof; and that when in the Statute of Magna Carta made in 9 H. 3. ca. 29. it is said, That no Freeman shall be taken and imprisoned, or be disseised of his Freehold or Liberties, or free Customes, or be outlawed or exiled, or otherwise destroyed, but by lawful judgment of his Peers, or by the Law of the Land. And by 25 Ed. 3. ca. 4. That no Man shall be taken by Petition or suggestion, but by Indictment or Presentment, or by Pro­cess made by Writ original at the Common Law.

He is in his Comment upon Magna Carta, Sir Edward Coke in Mag. Chart. 50, 51, 53. and that Statute of 9 H. 3. of opinion, that the words Per legem terrae, do refer to all the procedent matters in that Chapter or Statute, [Page 278] that that Statute was but declaratory of the old Law of England, That a Commitment by Law­full warrant either indeed or in Law is ac­counted in Law a due process or proceeding of Law, and by the Law of the Land as well as by force of the Kings writ: and that if a man be suspected, and he flyeth or hideth himself, it is a good cause to arrest him, that in many cases a man may be by the Law of the Land taken and imprisoned by force of the Kings writ upon a suggestion made; and that against those that attempt to subvert and enervate the Kings Laws there lyeth a writ to the Sheriffe in nature of a Commission ad capiendum impug­natores juris Regis, Register 64. Rot. pat 21. E. 3. part 1. & ad ducendum eos ad Gaolam de Newgate, to arrest the Impugners of the Kings Laws, and to bring them to the Gaole of Newgate, and if he had not been of that opinion, the words of Magna Charta in that Statute of 9. H. 3. can if they were put upon the rack and tortured, bear no other genuine sense or interpreta­tion then that no man shall be taken or impri­soned but by lawfull judgment of his Peers, or by the law of the land, And those words of the Statute of 25. Ed. 3. ca. 4. that no man [Page 279] shall be taken by petition or suggestion, but by indictment or presentment, or by process made by writ original at the Common Law can receive no other construction, but that a man may be taken by process made by writ original at the Common Law, of which nature are the process or writs of Capias in the Court of Common Pleas at Westminster, which are made upon original writs issuing out of the Chancery, have been in use upon occasion, and are matters of record before the Ju­stices in this Kingdom, long before the mak­ing of those Statutes. And such an univer­sal approved Ancient long and continued Praxis founded and fixt upon the Laws of God, Nature and Nations, in order to the preservation of Faith and Justice; those grand Supporters of humane Societies, should need no Advocate to plead and justi­fie the necessary use thereof, but be suffici­ent to perswade the opponents to acquiesce in the reason and legality of it.

And that great Lawyer Sir Edward Coke, might have had more lawrels to have en­compassed and grown up by his urne, and had not so much Eclipsed that great reputation [Page 280] which he had gained in his Studies, and Profession of the Laws as he hath; if he had not without a due and serious exa­mination so much taken upon trust, Ca­ressed, Magnified, and recommended to posterity that Manuscript, called the Mirror of Justice, and some other Manuscripts so of­ten by him appealed unto, and vouched in his 2. part. of the Institutis, or Comment upon Magna Charta: In which Consarcination called the Mirror of Justice, that Mirror of Justice, Maker or Deviser dreameth truly to have recited some exemplary Judgmeets, or direful punishments inflicted by King Alured, or Alfred, upon 44. Judges of his; times for supposed Errors and Misdemeanors by them committed, And hanged them, who with great probability may be believed not yet to have been hanged by that King or any other, for that if any such remarkable things or Examples of Justice, had ever been done by him, they could not in all likelihood have escaped our old Historians, Symeon, Dunel­mensis, Ailredus Abbas Rievalensis, John Brompton, William Malmesbury, Henry Hunt­ington, Roger Hoveden, Henry Knighton, [Page 281] Matthew of Westminster, Ingulphus, and all our other Ancient times, Remenbrances, nor would have been unrecorded by Asser Men­vensis,, who for the fame of his Learning being sent for out of Wales, to come and live with him, was preferred by him and made a Bishop, and residing in his Court, Wrote his life and recommended to Posterity, his most memorable Actions, excellent Qua­lities and Endowments, but was so far from the Registring of any such Severeties, as on the contrary he doth make mention of the extraordinary clemency and lenity of that Virtuous Prince, who although he was a most diligent inquisitor of any male ad­ministration of Justice by his Judges; yet saith Asser Menevensis, Leniter Advocatos aut per scipsum, aut per alios suos fideles quoslibet Interrogabat quare Ita, nequiter, Judicassent utrum per ignorantiam aut propter aliam ma­levolentiam: id est utrum pro aliquorum amore vel Timore, Asser Mene­vensis de Al­fredi rebus gestis 21. aut aliquorum odio aut etiam pro alicujus pecuniae cupiditate. Gent­ly calling them to him, he did by himself or others whom he might trust demand of them: Wherefore they had given such [Page 282] Judgments, whether ignorantly or for any ill will, or for love, fear, hatred, covet­ousness, or love of Money, Denique si illi Judices profiterentur propterea se talia Ita: Ju­dicasse eo quod nihil rectius, de his rebus scire poterint tunc ille discrete, & moderanter, illo­rum imperitiam, & insipientiam redarguens aiebat; Ita inquiens nimirum admiror vestram hanc insolentiam eo quod dei dono & meo, sapientium gradus usurpati sapientiae autem studium & operam neglexistis. But if those Judges did confess that they had so Judged, or done because they knew no better, then he did discreetly and moderately shew them their ignorance, and say unto them, truly I do very much wonder at your folly; for that by Gods guist and mine, you have taken upon you the degree of my wise men and Judges, but the study of the Laws you have neglected. Qua propter aut terre­narum potestatum ministeria quae habetis illico, dimittetis aut sapientiae studiis multo devotius docere & studiatis impero: Wherefore I command you either suddainly to leave your places, or give your minds more unto study. Quibus auditis verbis perterriti veluti pro [Page 283] maxima vindicta Correcti Comites & praepositi ad aequitatis discendae studium totis viribus se vertere nitebautur, ita ut mirum in modum illiterati ab infantia Comites pene omnes pre­positi & ministri litteratoriae arti studerent ma­lentes insuetam disciplinam quam laboriose, discere quam potestatum ministeria dimittere. Whereupon they viz. His Earles and sub­ordinate Judges, being as much terrified as if they had been actually punished, did wholly addict themselves to the study of the Laws, so as to a wonder the Earles and Judges aforesaid; many of whom from their youth were ignorant and illiterate, did by study endeavour to make themselves more able, choosing rather the hardship thereof then to be put out of their places.

And the names of those Judges, which were said to have been hanged, do if there were any such very much favour of later times, or if any of them were Earles (for so most of the provincial Judges then used to be) should if guilty, by the custome of this and other Nations, unto which this of ours may in that and many other things be found not to have been altogether a stranger, not in all likeil­hood [Page 284] have been subjected to so vile and vulgar a punishment, and the offences for which those imaginary Judges are by that Author said to have been hanged, were such of which there were then for ought appears no Laws, in being to make them guilty of the breach thereof.

For all the Laws of King Ina, which have come unto us who reigned here in the year of our Lord 712. and next preceeded King Alfred, LL. Inae ca. 6. and most of the Laws of King Alfred and the Saxon and Danish Laws of their several Kings, which reigned after him did ordain and inflict their punishments by pecuniary mulcts with relation to their Capi­tis estimationes valuation of their Qualities and Estates, and there were certain known and appointed Rates for the redemp­tion of Lahshlite or Manbote for Man­slaughter, or the death of a man, he which killed a Stranger forfeited 2. partes of esii­mationis Capitis to the King, and the 3. part to the Children or kindred of the party slain. Theft was punished by the Laws of King Alured, who reigned in the year 871. ratione 60. hidarum, so as if the offender had [Page 285] been the owner of 60. hides of Land he which stole any thing out of the Church was to pay the value of the thing,LL. Alured cap. 6. [...]3. and to have his hand cut off and there was a Capitis estimatio, for a Nun taken by force out of a Nunnery, or Killing a woman great with Child, a man having for some Criminal of­fence forfeited his liberty, or being adjudged to be a Slave for Felony was not to be hang­ed untill the 2. offence,LL. Inae. ca. 23. and it was in the ac­cusers option or choice to have him only beaten; of which book compiled out of many fragments, the Author doth not seem; to be well pleased with our Magna Charta, and appears to be a great fault finder and com­plainer of the abuses of too many things in the Laws of the time wherein he lived, and doth not well agree with himself in some of his own positions: as where he saith it was forbidden that none should be distrained by their move able Goods, Mirrour of Justice cap. 1. §. 3. and cap. 5. §. 5. and Articles upon the Statute of Westud. 2. but by their Bodies or Fees. In another place concludeth that the Imprisonment of the Body of a man is an offence if not for tortious Judgments. That no man is imprisonable for Debt, and none to be utlawed if not for mortal Felony and men­mentioneth [Page 286] the use of Justices in Eire when Sir. Henry Spelman saith,Mirrour of Justice ca. 5. §. 2. the Justices Itine­rant, or in Eire, Spelmans glossar' in verbo Justi­cia & Eire. were not here instituted untill the reign of our King Henry the 2.

And might have remembred if he had been so conversant, as he pretended with King Alfreds Laws,LL. Alured cap. 1. that Imprisonment of the body in Civil actions was not unusual in the time of his reign; For that by one of his Laws, if a man had given a pledge upon oath and pro­mised (which was not then infrequent) quod juste & legitime praestare potuisset neque prestiterit arma fortunasquae, suas omnia amicorum fidei concredito ipse in custodiam Regiam per 40. dies mittitor subiturus sup­plicii quod ei Episcopus pro meritis imposuerit sin spatio haud plene confecto fugam agitarit fugientem que ante verterunt per 40 dies in Car­cerem ut quidem antea fieri oportuit conjicitor verum si fuga elapsus fuerit ab omni legis pa­trocinio destitutus habetor: atque in omnibus Christi Ecclesiis Anathema esto. Quod si quis­quam alius pro se fidem dederit penas fide jussonis violatae dato & imperatum subito. That which he might justly, perform, and did neglect, and not do it, his armes and [Page 287] all his Estate and Fortunes should be se­questred into the hands of his friends, and himself imprisoned in the Kings Prison, by the space of 40. dayes, there to undergo such punishment as the Bishop according to his desert shall impose upon him, but if be­fore that time elapsed, he shall escape and be taken again, let him be imprisoned for 40. dayes as he should before, And if he shall again escape, then let him be out of the protection of the Law, and excom­municate, but if any have been his surety let him pay the forfeiture.

CHAP. XVI. That the late incessant needless complaints against our Laws, and the proceedings in our Courts of Justice, had in the bottom of it a design of overturning Monarchy and Government, and to create offices places and employments, and profits to, the contrivers thereof, and their Party.

BUt there must be somthing else that hath made all this stirre and inquie­tude, in the minds of those Causeless kind of Murmurers, and hath so far transported themselves out of themselves, as to forsake the reason of mankind; for otherwise it cannot easily get admittance into any mans apprehension and belief: That Land-Souldiers, Seamen, Mariners, Merchants, Mechanicks and, some Tradesmen for of some of every of those sorts were too many, of our late Church and State, and Law reformers composed, should if they would [Page 289] not be at leasure to consider that publique utility and neeessity, do in many Cases both by the Laws of God Nature and Nations, sometimes Curbe restrain lessen or take away the free use of properties, so patient­ly and willingly without any mutining en­dure the rigorous penalties, forfeitures and severities of the Laws of War and Navi­gation, and the arbitrary exactions and im­positions of their Companies, and Go­vernours of Trade; And not at all reare the cry of Oppression and Invasion of their Liberties, and yet so kick and wince at the legal and far more easie Rules of Justice, and may therefore require some search to be made for the fountain and rise of that popular Frenzy and distemper, and that so much mistaken late outcry against the Writts, and Process of Arrest, and Out­lawry, when the arguments which are framed and brought by that vulgar and leveling race of people, do abundantly declare that they have not much troubled themselves with the reading and true un­derstanding of those Laws, which they do so labour to scandelize, and the Records [Page 290] of the nation who do bear witness of them.

In the Inquest whereof the late pious Martyr King Charles, hath pointed out the way unto a more full discovery of their de­signes, when he did foresee it, as in a De­claration published for the better satisfacti­on of his people, in December 1641. After that the house of Commons had made their aforesaid unhappy Remonstrance, he did not omit to give them to understand that he feared that a malignant party in that house did go about by discountenancing the present Laws, Exact Col­lection of the Kings Speeches & Declarati­ons. to loosen the bonds of govern­ment; to the end, that all disorder and confu­sion might breake in upon him.

And in his answer to the above men­tioned 19. propositions sent unto him by both houses of Parliament the 2. of June 1642. Declared unto them that those that had the conduct of that affair, Ibidem. thought fit to remove a troublesome rub out of their way, viz. (the Law) to the end they might undermine the very foundation of it.

Which every day after grew more and more visible, when they being called to­gether [Page 191] to council and advise him, could not by their Votes, which they would make as binding and obligatory, as if they were Laws made and established by their Soveraign, wrest and take from him the Militia, or Sword wherewith he should protect and defend his people; took it to be not a little advantagious to their purposes, to ravel and dislocate the me­thod and proceedings of his Laws and Ju­stice; By which his Throne was established, that by overturning the long approved Laws and Customs of the Kingdom, upon which the best Monarchy in the World was built, they might open a passage to let in that gain and Anarchy which they aimed at, which being once made known to their Emissaries, and so much encouragement given by their members of that which was then untruly called a Parliament, who ra­ther then fail of Petitions unto them from the sons of Zerviah and Shimei out of every Countrey, City, Corporation, and Market Town, caused Printed Bills to be affixed upon the Posts and Corners of the Streets in London, whose multitudes of Inhabitants [Page 292] in Masters, Apprentizes, Tapsters, and other Illiterate and Vulgar kind of people could readily afford them good store of such, as had been borne or lived in every County, City, and Corporation of England and Wales, to give a meeting at a place ap­pointed to some Members of Parliament, for the framing of Petitions unto it; And thus the Hounds being uncoupled and let loose to chase the Royal Hart, and the Pres­byterian Ministers like Huntsmen busied in the ha loo, lo ho, ha loo loo, so ho. Whoop­ing and following to cheer and set them on, and busying themselves to remove all things that might hinder the pursuit of their Petiti­ons, for the presenting whereof Pulpit Grana­do men were employed to procure them to be brought with 100 or 200 or more of the factious on Horseback, with the Petitions ready printed, or Tackt to their Hats or Hatbands, with Swords by their sides: The London Porterswere set on to Petiti­on against the Militia, when they were only told it was against the Watermen for carrying Trunks and other Burdens by Wa­ter. And a Schoolmaster at Stamford, was [Page 293] so wickedly Ingenious as to make his Boyes subscribe a Petition to that Parliament a­gainst Episcopacy▪ as if their Parents had actually done it.

In the mean time, the Diurnals, News Books, and seditious Pamphlets the Sta­tioners: Arrowes and Artillery were day by day shot to wound him, and incense the people against him; and some of the Parliament men were heard to say, That they could not do their work without them; And the design was carried on so prosper­ously, as too many thought their time best of all bestowed, to pull down or take in pieces either all our old Laws, or such a part of them, as might not only under­mine the frame and constitution of the Monarchy, but innovate and introduce so much of their own Modells and Inventions, as might either directly lead to a republique, or some new devices of Anarchy.

A Book called the pollution of Univer­sity Learning, printed in 1642. Marched in the van, together with another Book called the Observator and his Jesuitical prin­ciples, Quod efficit tale est magis tale, and that [Page 294] the King was singulis Major, but universis Minor, and those kind of Engines, were greatly incouraged in their attempts by a Book; of Junius Brutus, his vindiciae contra Tirannos, translated out of Latine into English, to infect the people with Treasonable Doctrines. And a Book intituled Maxims Vnfolded, That the Election of the Kings of England; ought to be by the consent of the people. The Royal and politique power in all Causes, and over all persons, is properly the Parlia­ment The Oath of Supremacy, binds not in Conscience to the King against the Parliament, but the Pope: And another book written by Mr. William Prynn,Prynns so­veraigne power of Paliar­ments. an utter Barrister of Lin­colnes Inne; Entituled the Soveraigne power of Parliaments and Kingdoms, Printed at London in the year 1643. Wherein with heaped quotations, and much Learning, and reading the wrong way, he was willing to invite his Readers to believe that the Court of Parliament had a lawful power to question the Kings Patents, Charters, Commissions, Proclamations, Grants, Warrants, Writts, and Commandments, whether they be legal, and [Page 295] to Cancell and repeale them that be illegal or mischievous and onerous to the subject, not only without but against his consent. It is lawful for the people submitting themselves to prescribe the King and his successors, what Laws they please; the Sheriffs of every County were antiently elected by the Free­holders, and had power to raise the Militia, that the Navy, Ammunition, Armes, and Revenue of the King, though they be in his possession, are the Kingdoms; That Kings and their great Officers, Counsellors, and Justices, were at the first created and elected by the people, that the King hath an absolute Negative voice in the passing of Bills of com­mon right and Justice for the publique good, that the Parliaments present necessary defensive war is just and lawfull, both in point of Law, Divinity and Conscience, and no Treason or Rebellion: the Parliament hath a right and Ju­risdiction to impose Taxes and Contributions upon the subjects, for defence of the King in case of the King his wilfull absence, or Arming against them. Seconded by a Book en­tituled Lex Rex, written as believed by one Rutherford a Scottish Divine, Printed at Lon­don [Page 296] by John Field, and published in the year 1644. By the then usurped authority, wherein he falsly endeavoured to main­taine against all the grounds and funda­mentals of Law and Religion: That Kings and their Families have no calling to the Crown; but only by the people, Royalty is not transmitted from Father to Son,Ruther­fords Lex Rex. if the people may limit the King, they give him the power, who is the servant of the people, both objectively and subjectively, and is in­feriour unto them; who cannot make away their power, but do retain the fountain power of making a King, that to swear non self pre­servation, and to swear self Murther, is all one: The King is a Fiduciary Life-Renter, not a Lord or Heritor, the conscience of the people is immediately subordinate to God, not to the King mediatly or immediately, the Judges are the immediate Vicars of God, not of the King; The Parliament hath more power then the King, The Crown is the Patrimony of the Kingdom, not of him who is King or of his Father: The Parliament are not Judges by derivation from the King: Who cannot make or unmake Judges Inferior Judges, are [Page 297] more necessary than a King: Parliaments may conveen and Judge without a King: Are co­ordinate Judges with him, not advisers only. Subordination of the King to the Parliament, and Co-ordination are both consistent: The King transgressing in a hainous manner, is under the coaction of Law: Defensive Wars are lawful: And there may be a distinction betwixt the Kings person and his Royal power. The Physical act of taking away the life of offending persons, when commanded by the Law of self-defence is no Murther. Wars rais­ed by the Subjects and Estates for their own just defence, against the Kings bloody Emissa­ries are lawfull: Parliament power, is a foun­tain power above the King: Who is but a noble Vassal of the Kingdom: Is not head of the Church. The people in some Cases may convene without the King: Subsidies are the Kingdoms due rather then the Kings.

And thus provided, and the scaling lad­ders made ready to storm the Laws, which were the Forts and Bulwarks of the King and Government, and heretofore made it their business to give help or shelter to the King, the Deformers rather then Reformers, do hasten [Page 298] one another to be up and doing. And therefore in a Pamphlet entituled Liberty vindicated against Slavery. Printed in the year 1645. the Author declared that Im­prisonment for Debts, is against the founda­mental Laws of England. Propositions were shortly after made unto that com­pany of Monarchy underminers, called the Parliament for the laying aside the six Clarks in Chancery, and the imploying their un­der Clarks at Cheaper Rates.

In the year 1646. Mr. John Cooke of Grayes Inne, who sufficiently deserved to be hanged, drawn, and quartered, as he was afterwards as a Traytor, in a Book dedicated to the most high and most ho­nourable Court of Parliament, the supreme as he calls it Judicatory of the Kingdom, saith that the alteration of fundamental Laws, as Sir Edward Coke saith, produces many in­conveniencies, as in that statute of imprison­ing mens bodies for Debt. And there must needs be good work in that their sport of pulling down and setting up, when it hath been as truly said as verified, that the Kings Parliament began in 1640. and con­tinued [Page 299] with some freedom of Votes, un­till December 1641. From thence it was governed by the City of London and their Tumults, Propositions, and Petitions, unto December 1643. And from thence by the Scots and their rebellious League and Co­venant, unto the Month of June 1647. When the Presbyterians had the ascendant and predominancy, and that was not un­justly called the Apprentises Parliament; And after that Sir Thomas Fairfax his Par­liament, which was governed by his Army, and their Addresses, Declarations, and Pro­posals, wherein the Independant party were Superior, and ought to be called the Agi­tators Parliament.

The King in the mean time, in his great desire of peace with those whose wicked designes never intended it, not making that right use which he otherwise might have done, of the successes which God had given him in the just defence of himself and his Loyal Subjects, and the Laws, Li­berties, and Religion of his People, tired with the treachery of those that too often betrayed, and sold his just advantages, and [Page 300] overpowered with an Army of Covenant­ing Scots, who came to assist their brother Rebells of England, and believing himself to be somthing safe in their Oaths and Pro­mises, and flying to them for Succour, was by a party of them contrary to the Laws of God and Nations, sold to the English Rebells, for two hundred thousand Pounds Sterling, Too great a summe of Money to be restored again, as Judas did the thirty pence, the wages of his sin for the betraying of our Lord and Saviour, and by tricks and devices carried Pri­soner from place to place, untill he was barbarously Murthered. And the Heire and Royal Issue driven out of their In­heritance, and then every Mechanick head was set on worke to frame a new Govern­ment, in which there were as many diver­sities of opinions, as there were Igno­rances and Sinister ends, to advance their particular ambitions or advantages, and a mart being kept of Whimsies, some being much in love with the Balletting box used at Venice, others with the Rota and Mr. Har­ringtons Oceana, and all or too many thus [Page 301] busied, Sedition and Ignorance sat in their Triumphal Chariots with the Laws▪ Learn­ing and Religion of the Nation like so many Captive Kings in Chains attending, all which did not fully correspond with the Votes and expectation of the Presbyterians, when as Cromwell the g [...]at Encourager of the Independents or Fanatick party, then the more numerous, feeling his own strength and having a prospect of a better design of establishing himself, did so delay and trifle with the Parliament his Masters in their de­sires of disbanding the Armies, as the Pres­byterian Souldiers in the mean time selling their Debenturs, the wages of their Rebel­lion and wickedness, at 16 d. or 18 d. a pound, with a long Interest, to the Indepen­dents, who were thereby easily enabled to buy King, Queen and Princes, the Bishops, and Dean and Chapters, Nobility and De­linquents Lands, as they mis-called them; and that party being so well gratified, were not afterwards unwilling to Lacquey after his hypocrisie, and permit him to frame and make his own Instrument and method of a more arbitrary Government then our Laws [Page 302] permitted, or any of our Kings or Princes exercised, and to be as a single person Pro­tector of all the Knaves and Fools in Eng­land, Scotland, Ireland and Wales, withall their fancied and supposed Liberties, which as they used them were but to hunt and chase all that were loyal and honest, and thought they might do any thing to the Amorites, Moab and Amalek, and that all the Scrip­ture was contained in Gain, being [as they supposed] Sanctified into a pretence and outward semblance of Godliness.

In the later end of the year 1648. some thousands of Well-affected, as their Sediti­on perswaded them, inhabiting the Cities of London and Westminster, Borough of South­wark, and Hamlets, supposing the Time to smile upon their purposes, did Petition that which when the King was murthered was no Parliament, that they would consider the many thousands that were ruined by perpe­tual imprisonment for Debt, and provide for their enlargement.

In the year 1649. one Thomas Faldoe of Grays-Inne Esq was so loth to have his Conceipts and Opinions lag behind, as in a [Page 303] Pamphlet entituled, Reformation of Proceed­ings at Law, published on the behalf of him­self and the Commonwealth of England, he complained, That the Law of Property was depressed and useless, by the colour of the Sta­tute of Imprisonment, and sacrificed to all the Birds of prey, even to Covetousness the mother of Cruelty, in the several Offices and Instru­ments of Justice.

And in the same year came out a Repre­sentation of divers as they called themselves Well-affected persons in or about the City of London, petitioning the Parliament, That all tenures in Capite, and all inferiour Juris­dictions, being great grievances and oppressi­ons, might be taken away, the Laws translated into English, the Six Clarks, Head Registers, Masters of Chancery, and the Petty-bag, Affida­vit Office, Prothonotaries, and all other grand Monopolies and Patentees, might be abolished, no mans life taken away for Felony, unless ac­companied with Murther; that the eldest Sons in every Family might have a double Portion in the Fathers Estate, and the rest be divided amongst the younger Children; that no Fines be paid to any Cursitor, or upon any Original Writ, [Page 304] but may be quite abolished; that no mans per­son might be imprisoned for Debt, but his E­state made liable to satisfie the same: it being more suitable to the Turkish or Heathenish pra­ctice, then to Christian English Professors of the Gospel, to rack and grind the bodies of men in prison.

At the heels whereof was brought to that Assembly at Westminster, (who named them­selves a Parliament, and to cherish such do­ings seldom failed by their Speaker to give thanks in the name of the House to all Peti­tion and Declaration-drivers) a Petition of the Well-affected in the County of Bucking­ham, said to be a Representation of the middle sort of men within the three Chil­terne Hundreds of Disborough, Burnam and Stoke, and part of Alesbury Hundred, decla­ring, That they had waited eight years in the pursuance of their just Rights and Freedom, with which God had invested them and the whole Nation, kept from them by Arbitrary power and Tyrannical factors of the Nobility, Courtiers, Episcopal Priests, cheating Lawyers, Impropriators, Patentee men, Lords of Man­nors, and all illegal Courts, and other diaboli­lical [Page 305] interessed parties, and desire that all Licences, Commissions, &c. and Grants from the late King, whose first predecessor was that Outlandish Bastard William the Conqueror, from whence proceeded the original of all their slavery both in Tenures, Laws, Terms, Cu­stoms, &c. in an Outlandish tongue, the Law­yers being the chief Instruments of their mi­sery, might be abolished; and protesting against all arbitrary Laws, Terms, Lawyers, Impri­priators, Lords of Manors, Priviledges, Cu­stoms, Tolls, Tithes, going to the Terms at Westminster, payment of Heriots, Quit-Rents, Head-Silver, Lawyers Fees, and the whole Norman power, being a burden too intollerable to bear; did invite all men to enter upon Commons, and cut and fell the Wood growing thereon, and desired (which they would not be willing to do if they had been Lords of Manors, and other the parties struck at) to go by the golden rule of Equity, viz. to do as they would be done by, not to tyrannize over any, or to be tyrannized over.

Another Pamphleteer feared he should be taken to be ill affected to the babe of Sedition, if he also should not be doing [Page 306] somewhat, in a Modest Plea as he terms it, dedicated to the High Court of Parliament, which he would have to be the Supreme Authority of the Nations, prayed, that there might be an equal Commonwealth a­gainst Monarchy; wherein there is a Lift a­gainst the Vniversities, Colledge Lands, Te­nures, Hereditary Nobility, Church Revenues, Churches and Bells, Mercenary Lawyers and Tithes, with an Apology for Younger Bro­thers, and desires a restitution of the Te­nures in Gavelkind.

In the same year, the Lord General Fairfax, Lieutenant General Cromwell, the Lord Mayor of London, Colonel Harrison, Mr. Francis Allin, Colonel Mar­tin, and others, were impowred to place and displace any Judges of the Courts at Westminster, and all Officers thereunto be­longing, and all Sheriffs and Justices of Peace.

Mr. John Hare being unwilling to stay behind such Company, in a Pamphlet sent out upon that design, desired, that the Nor­man yoke might be taken off; and saith, that the Norman Innovations are destructive to [Page 307] the honour, freedom, and other unquestionable Rights of the Nation.

In the same year, the Officers and Soul­diers in the Regiments of Colonel Scroope, Sanders and Walton, and the Souldiers in the Garrisons of Arundel, Rye and Chichester, did petition the Lord General Fairfax, that the abuses in the Courts of Justice be refor­med, that there be a Registring of Deeds and Contracts, Tithes abolished, Six Clarks in Chancery taken away, and their Clarks sworn Attornies.

Mr. Sadler a Lawyer, and a man in such favour with the Usurper, as he was by them made one of the Judges for the proving of Wills and Testaments, in his Book entitu­led, The Rights of the Kingdom, and Custom of our Ancestors, saith, that the Writs of Capias as now used were very mischievous, did not lye at the Common Law in Actions of Debt; cites Sir Edward Cokes opinion in Sir William Herberts Case, and declared, that in Debt the Mirrour of Justice did pronounce the Outlawry to be a great abuse.

In the year 1650. S. D. then an Attor­ney, (but since his Majesties happy Restaura­tion [Page 308] and the altering of the Scene, Knighted and put into several places of Honour and Trust,) having convened and gathered together some Tides-men, and small under­standing Clarks and Attorneys, that were well inclined to set their Watches by Crom­wells new Court-Dial, did in order to the Regulation of the Law, propound a Law to be made against Fines to be paid upon Original Writs, for that (the best reason that they could give against it) it was against the reason of the Fundamental Laws of England, which never imposeth any Fines but against offen­ders; and the like against Vtlaries, which were unnecessary, and did tend only to Charges and delay; and that a second Summons being served upon a Defendant and left at his house, and by the Sheriff or his Officer retorned upon Record, the first Summons being made seven days before the day of Apparance, in which time the Plaintiff may enter his Declaration in Court, and if no Apparance entred within eight days after, then a new Summons in the nature of a Scire facias to be awarded upon the Imparlance roll, to summon him to appear at a certain day to come, when not appearing and pleading [Page 309] within eight days after Judgment shall be given by default.

Mr. John Jones of Nayoth in the County of Brecon, in a Book printed and published in the same year, entituled, Judges Judged out of their own mouths, or the Question resolved by Magna Charta who have been Englands Enemies, King-seducers, and the Peoples destroyers, from King Henry the 3d. to King Henry the 8th. and before and since, stated by Sir Edward Coke late Lord Chief Justice of the Court of Kings-Bench, where­in that mighty Cambro-Britain in his own opinion doth with as little Law as Reason charge the Judges and Professors of the Law, with the destruction of honest men whom it should save, and the saving of all those whom it should destroy or punish for unlawful re­spects and considerations, tending to their own profits and ends: And that by Prerogative Statutes devised by mercenary Lawyers to steal from the people their Birth-right, con­trary to Magna Charta, and the Common Law of England, they are become an intollerable mischief to the Commonwealth, and do deserve exemplary punishments; and cites the said [Page 310] Sir Edward Cokes opinion in his Comment upon Magna Charta, cap. 29. that the Cu­stom of England declared by Magna Charta doth not extend to the imprisonment of any Debtors but the Kings.

And assisted those his wicked and false Rabshakesmes with another little Book, cal­led the Cry of Bloud, dedicated to Oliver Cromwell, General as he stiled him of the puissant Army of the Parliament of Eng­land, wherein charging the crime of Mur­der, and of the bloud of the righteous Abel, as he is almost frantickly pleased to fancy it, upon the Process of Arrest and Out­lawry, and that innocent and most necessa­ry way of compelling men to Justice, he stileth them a course of Sin, and the Offices of those who do make them the gift of the Devil, and the Lawyers liars; although Mr. John Cooke of Grays-Inne, before the Devil had entred into him and ingaged him to be a prosecutor of his Soveraign, even to the Murder of him, did in his Book printed in the year 1646. entituled, A Vindication of the Professors and Profession of the Law, dedicated to the then Parliament, declare, [Page 311] that he was confident that the Common Law­yers of England are as understanding rational men, as any Practisers of any Profession what­soever in the world; and he durst say, that there are more Godly religious Lawyers, At­torneys and Sollicitors in England, then in all that habitable part of the world called Christendom.

Mr. William Leach of the Middle-Temple proposed, that no Defendant should be enfor­ced to appear unto any Action, before a Poenal Summons, and a Declaration first filed, un­less in case of likelihood to depart the Land, or to make away his Goods; and in such case, upon an affidavit to be made before a Justice of Peace by any Officer to be arrested.

Isaac Pennington the younger, the Son of that man of Faction his Father, offered in a Pamphlet to assert, that the Rights, Liber­ties and safety of the people were in them­selves, and derivatively in the Parliament their Substitutes and Representatives, and that the people ought well to look to their rectifying right, that it may have its free current.

Mr. Henry Robinson in his publick Pro­posals [Page 312] for a cheap and easie distribution of Justice, would have a publick Country Regi­stry for Lands, and another for Debts, and that in every City, Corporation and Division in each County, Judges may be appointed with an yearly Salary.

By a Petition of many calling themselves a Free-people, promoted by John Wildman and John Lilburne Gent. they do require that all the Laws, Process and Inrolments of England be written in English, and a Ro­man or Secretary hand.

Hugh Peters, a Prompter at a Play-house long before he was a my mick Preacher and the abuse of the Pulpit, having made many a Renegado Voyage from England to Hol­land, thence to New-England, and from thence in the company of other Birds of Prey pearching here again in England, was so unwilling not to be as busie in the ruine of his Country, as other men of the Trin­kets and new Fangles were, as in his Book entituled, Endeavours (as he saith) aiming at the Glory of God, that Peace and Truth may meet together, undertaketh to prove, that Government by succession from Father to [Page 313] Son was none of Gods institution in the first and purest Times, that Custom hath worn out Truth, but we were to enquire for the old and good ways, and Christ saith it was not so in the beginning.

And in June 1651. in his Book entitu­led, Good Work for a Good Magistrate, would have Registers to be setled in every Parish of all Mortgages,Heugh Peters Good Work for a Good Magistrate. Alienations, &c. and from thence transmitted to the County or Shire-Town; that in every County every Hundred do choose three men to be Peace-makers for a year, to determine all common controversies without Appeal; Wills and Testaments to be acknowledged before two next Justices, and entred in the Parochial Registries; five or seven in every Town or Hundred to be yearly chosen to determine all Debts or Strifes, whereof three to give sentence without Appeal; that Summons instead of Arrests may be left at mens houses, none to distrain for Taxes or Debts, but the Debtors outward doors to be taken away and carried to the Town-house, and as many other new doors as shall be set in the place; every man plead his own cause, and if he think himself too weak, let him [Page 314] have liberty to take a Friend or Neighbour to plead for him, but no Advocates or Seriveners to plead for any man; if any Lawyers be con­tinued, let them be allowed and paid by the State; all Suits in London and great Cities to be determined in a week. Which being done, it was very advisable to burn all the old Records, even those in the Tower, the monu­ments of Tyranny.

And had so in a short time after haled on his design of destroying all the Records and memorials of the Laws of England, to make way for his new contrivances, as a Serjeant at Arms of the then miscalled Parliament, or one of their Mock-Majesty Mace-bearers, had an express order (happily diverted by some other affair when it was ready to be put in execution) to throw all the Records remaining in the Treasuries at Westminster into the River of Thames.

And the Law that it might the better be baited and abused, (as if no Foreigners could ever have occasion to read, under­stand, or make use of them) must with its Writs, Records, Process and Proceedings, [Page 315] for the time to come be written in English, many of the Law-books being in order thereunto, by the factious and greedy ava­rice of many of the Book-sellers and Statio­ners, procured to be mercenarily translated into English, and exposed to the rude eyes and hands of the ignorant, and the little reason that the Owners of it do use to have, whereby to make it a Ludibrium, and the wonder of their lesser Intellect, which might easily happen where they wanted the keys and assistance of other Learnings; and every thing their shallow apprehensions could not reach or fathom, was by them supposed to be Norman slavery, Antichri­stian, or Idolatry; the Records must no more be written in the long-lasting and durable Court and Chancery hands, or manner of writing, made out of the old Saxon, Gothick, and Reunick Characters, as they were wont to be, and had been for many ages before, but in a Secretary hand, not that strong and legible hand heretofore used, but a kind of Jack-an-Apes hand, composed of Antick frisking undistinguish­able letters, so written with the side of a [Page 316] Pen and small slit, as that scratching rather then writing hath been often seen, not to be able to keep company with the Parch­ment it was wrote upon, the small period of Oliver Cromwells wickedly usurped Do­minion.

Which needless change and novelty, with other the doings of the Factious and Re­bellious, so wrought upon the minds of the ruder sort of the people, to the joy and comfort of those who thought themselves to be specially Godly, as the Lawyers could not pass in the Streets without many reproaches, and not always without the scorn of being asked if they had any Latin, by those that did never understand it, or were ever likely or in a capacity to do it. And Pride the Drayman, turned by an ac­cursed Rebellion into a Colonel, could say, that he hoped shortly to see, or it would never be well untill the Lawyers Gowns were like the Scottish Colours hung up in Westminster hall. So great was his and his partisans malice and hatred to those Laws, which once they seemed to be so much in love with, professed and covenan­ted to maintain.

[Page 317] In the same year that so remarkable Tho­mas Elsliot, calling himself a member of Jesus Christ, and of the English Common­wealth, a free-born person of the English Nation, Esquire at Arms, Conquerour of the Gentlemen of the Long Robe, now or late the Satan of the Commonwealth, in his Book entituled The true Mariner, with his Metaphorical and Hieroglifical Ship de­monstrating the way to Paradice, dedicated to Oliver Cromwell, saith the Prothonota­ries and Registers in the Courts of Justice are immense Foxes, the Attorneys and Clarks Kindle-coals, the Bum-bailiffs, Serjeants at Mace and Marshals-men, Serpents, Toads, Rats and Mice.

James Stocall Colonel of a Regiment of fifteen hundred men in the Isle of Jersey, proposed, that if a man be overbur­dened with Debts and imprisoned, and his Estate not able to pay, he ought if he come into Court and affirm it upon his Oath, to be freed of all his Creditors, so as he do leave them what he hath whereby to satisfie every Creditor according to the priority of every mans Debt.

[Page 318] Shortly after followed Proposals by some Chancery Clarks, aiming to hurt their Ma­sters the Six Clarks in Chancery, and make what benefit they could for themselves, that twelve ancient practising Clarks to be chosen two out of every Office, by the major votes of the Clarks, and presented to the Lord Keeper, Lord Chancellor, or Lords Commissioners of the Great Seal, and out of them to be chosen some Overseers or Superintendents, and to have an Annual stipend; the Subpoena Office to be nulled, and those Writs to be made by the Chancery Clarks; the Affidavit Office to be taken away, Lawyers Fees to be ascertained, and none to take any more Fee in that Term for any particular Cause, and no matters to be referred to Masters of Chancery but Accompts.

Charles George Cock would have Vtlaries abolished, and no Arrest, and that there be only a Summons without a Writ or attaching the person, and if twice summoned let him be proceeded against upon his Goods.

In the year 1652. Gerrard Winstanley published his opinion, that the Kings old Laws cannot govern a free Commonwealth, [Page 319] and it is not possible for a people to be too free; and in a Book entituled, The Law of Free­dom, or true Magistracy restored, complain­eth, that Tolls in the Market are a burden, that the Gentry do oppress the Common people, live idly upon their labours, and carry away all the comfort and livelihood of the Earth; that the powers of Lords of Manors do remain still over their Brethren, requiring Fines and Heriots, beating them off the free use of their Commons; the Commoners have cast out the King, therefore they are in equity free from the slavery of that Lordly power, and that it will blast the power of the Parliament and Army to see the Government of the Commonwealth to be built upon the Kingly Laws and Principles; and that all slaveries and oppressions which have been brought upon mankind, have been by Kings, Lords of Manors, Lawyers, Landlords & Divines, who ought to be cast out; and pray­eth that there may be a Judge in every Shire, Peace-makers in every Town, Overseers and a band of Souldiers attending them.

Another proposeth, that instead of an Ar­rest a Summons might be sufficient, and if no Apparance Judgment and Execution to pass.

[Page 320] In the year 1653. in a Book entituled, a supply to a draught of a Systeme proposed by a Committee for the Regulation of the Law, it was desired, that none be arrested, attached, molested or troubled by any Original or other Writ.

And thus whilst too many addle-headed Reformers were labouring to establish wick­edness by a Law or Authority, and the ma­jor part of the Members of the miscalled Par­liament having as they thought rear'd their designs to that height and nearness of accom­plishment, that they took themselves to be Officers of Righteousness, elected and chosen to do wonderfull things, that Gods will might be done on earth as it was in heaven, that every one might be holy, and the Pots, yea the Bells upon the Horses, as they were pleased to phrase it, might be holiness unto the Lord, and that God might reign and be all in all; they (did in that hurry and fit of Zeal, without any solid or rectified reason, cause or consideration, without the hearing of any defences to be made against their supposed to be infallible Judgments, (Vote that the High Court of Chancery, and all [Page 321] the other Courts at Westminster-hall, should be dissolved and no more made use of; and a Member of that Society, and a Burgess for the Town or University of Cambridge, who might have done well to have disswaded his Election until he had learned more wit, was so willing to have the Civil Laws here used to be destroyed, or set packing with the Common Laws, as he could not forbear crying out, Mr. Speaker, one word I beseech you, for Jesus Christ let the Civil Law also be put down. But that not well according with the sentiments and purposes of Crom­well their man of Sin, who had designed to trepan them to deliver up their fan­cied Parliamentary Government, and to bless God for the yoke and Instrument of his own making, whereby he as a single per­son had with many curbing contrivances a future absolute lawless and unlimited po­wer and Authority, he did for the better preserving of the Justice of the Nation, for the administration whereof he intended to make himself an allowance of Two hundred thousand Pound, per annum, and well un­derstood to be as necessary in a Common­wealth [Page 322] as it had been in the best of Monarchies, and some other his rea­sons of State, whilst those Dreamers of Godly Reformations had upon his Sum­mons and Command refused to dissolve or come out of their opinionated Senate or Parliament-house, cause some of his Janisa­ries or Red-coat Souldiers to pull them out of the House, and lock up the doors.

And their ungodly and particular inte­rests having thus enticed the vulgar and less considerate part of the people, too many of them made all the hast they could to pull in pieces the frame, and the noble ever to be admired constitution of our Govern­ment, where they could be sure of hopes of gain, and losing nothing by it, and joyning with some Lawyers of the smaller size that wanted Practice, and expected imployments by a Renverse of our Old Laws and setting up New, the finews and foundations of our Laws were endeavoured to be cut, Monar­chy, Justice and our Laws enforced to dwell in the Tents of Mesech and Kedar, and lying amongst the Pots, and the Wolves made the Guardians of the Sheep and Lambs; [Page 323] the Tenth Commandment in the Deca­logue was bid to stand off, and not trouble it self with their business, until they could be at more leisure to talk with it or un­derstand it; every one was rooting up the foundations, and like those that are too bu­sie in breaking bulk, or taking the spoil of a distressed wreckt Ship, the wild Boar brake into the Vineyard, and the Swine in­to the Garden and Bed of Spices, unto whom the Rose of Sharon and the Lilly of the Vallys, the charming Hyacinth and Tu­lips, and gloriously adorned other flowers, and the filth of a Dunghill were in their grunting capricious sense of an equal if so much value and estimation.

And Mr. John Dury a Scotish Minister, who had before in the reign of King Charles the Martyr by good approbation of divers of our Bishops and Learned men of this Nation, and many learned and worthy of the Reformed Churches beyond the Seas, endeavoured a better agreement betwixt the Lutheran and Calvinists, had no time or labour spare to bring his Countrymen and their mad Brethren of England into [Page 324] their wits again, but for some Preferment had or promised was so well contented to ring the Changes with them, as he could not let such things pass without some bles­sing or Grace said unto them, or a box of what he took to be a more special Balm of Gilead, bestowed upon them for the ease and comfort of such a small number as should be troubled with tender and puling Consciences, as he did in his Re-proposals licensed by Mr. Joseph Caryl, declare, that God by an extraordinary way of providence had shaken the foundations of this Kingdom,Mr. Jo. Du­ry's Re-pro­posals. and turned in into a Commonwealth, believed that the just Judgment of God had brought it upon those who without any respect to tender Consciences, did press the ensnaring former Oaths of Allegiance and Supremacy, and the Covenant, and laid them as stumbling-blocks before their Brethren; conceived that the re­quiring a general promise from Subjects, to perform an undeniable and unquestionable du­ty to the Commonwealth wherein they live, by those that have the power of affording or refu­sing Civil protection, is not in the same nature with those former Oaths and Subscriptions: [Page 325] And that he should pray and intercede for such as are under the trouble of their own Spirits, and fear of sinning, that the many years experience of their quiet behaviour and faithfull services may be accepted towards a [...] just degree of security and assurance for future peaceableness.

In the same year Mr. [...] Gray, a priso­ner in the Compter of Woodstreet in London for the not payment of Tithes, would per­swade as many as would be so foolish as to believe him, that Tithes were a curse to all Nations but Cana [...]n, and a vexation to all people but the Hebrews.

In the year 1654. Mr. John Rogers, once a Minister of the Church of England, but afterwards a fiery zealot of Rebellion, by his Book fuller of railing then truth or rea­son, entituled, Mr. John Rogers Sa­grir. Sagrir, or Doomsday drawing nigh with Thunder and Lightning, in an Alarm for New Laws and the Peoples Li­berties, from the Norman and Babylonian yokes, wherein he calling the Lawyers Ty­rants and Locusts, saith, that it is high time and more then time for the people to know their Rights, Priviledges and Freedom, that [Page 326] all that are past Children and Fools should call for them, and that it concerns all to write, print, publish and declare against the Norman Tyranny of Laws and Lawyers, and that he doth it with as much assurance and confidence as if he had a halter about his neck, and were to endure the penalty of the Locrian Laws for failing in what he should alledge against them; that the Lawyers are Antichrists State Army of Locusts, and that the people have been robbed of their Rights to this day by the Income of corrupt Laws and Lawyers, the true rise of their interest, Innes of Court, and trades by Sin; that none are suffered to plead but Lawyers, or such as are brought up in their Courts and Innes, in their trade, cheats and tricks, to sell the Law at a large rate to Chapmen called their Clients; and would make it to be no small grievance, that▪ men are imprisoned for Debt, every man may not plead his own cause, and that there are not County Judicatories to hinder the great charges put upon the Nation to prosecute their Suits at London and Westminster.

Mr▪ Boone an Attorney, or something of a Lawyer, with his name wrapt up in an [Page 327] Anagram, in his Book entituled Exa­men Legum Angliae, published in the year 1656. whose reading of good Authors mentioned in his Quotations might have better informed him, and made him of an­other opinion, will not allow of any of our Laws that do not agree with the Mosai­cal, or were not derived from them, or of any which were made or allowed of in the times of Popery, Boons Exa­men Legum Angliae. ca. 3 4, 5, 6, 8, 10, 11, 12, 13. but saith, that the Law of England as it is now in use is a departure from the Law of God, and a taking of a Law from Heathens and Idolaters; that the whole body of Popery is in a manner comprehended in Littletons Book so much commended by Sir Edward Coke, and that the old Statutes made in the affirmance of the Common Law, and the Books and Entries whereof he makes mention, are stuffed with all manner of impie­ties & errors, that Magna Charta & Charta Forestae do not appear to be any Acts of Par­liament, although they be so called; that chief­ly therein was intended the advancement of the Romish power in a Tyrannical Govern­ment; that the Statutes of Marlebridge, Westminster the first, and the rest of the old [Page 328] Statutes said to be declaratory of the Common Law, do savour of the power of Antichrist, and do contain in them manifold impieties and superstitions; that the Statute of 24 E. 1. concerning Ecclesiastical Judges, and the Sta­tute made in 9 E. 2. concerning Prohibitions, Clarks convict, Prelates, Spiritual Courts, Excommunications, Abjurations, power of the ordinary Fees of the Church, Superstitious Houses, Monasteries, Parsons, Parsonages, containing sixteen Chapters, are nothing else but Popery, and the advancement thereof; and the like may be said of 25 E. 3. ca. 3, 4, 5, 7, 8, 9. concerning lapses of Benefices, Clarks convict, Ordinaries, &c. that such causes as do chiefly require remedy in a Court of Equity, may easily be determined by Judges in Courts of Law; Common Recoveries for assurance of Lands, are nothing but a pack of lies; that the Theory of the Common Law, and some of the Statutes now in force, do con­tain matters repugnant to the Law of God; that most of the old Statutes, as well such as are said to be in affirmance of the Common Law, as others introductory to new Laws, do contain in them great oppressions and wrong to [Page 329] the people, and ought to be amended; that the general execution of the Laws, as it is now practised, is an oppression to the whole Na­tion; that trivial and impertinent Suits are brought out of the Countries to Westminster, and thereby all inferiour Courts are destroyed: and proposed a publick Registry to be in every County of all Entails, Mortgages and Statutes, that before any cause or Action [...]e entred in any Court, or come before the Judges, peace he offered by the Plaintiffs, and that wise men be appointed to take up Contro­versies; that all the Tithes and Glebe Lands with other things called Church-duties, may be sold, and a competent means provided for the Ministers of the Gospel.

In a Book entituled Englands safety in the Laws Supremacy, and published in the year 1659 it was amongst other things re­quired as a Law including the people [...] Li­berties, that no man be imprisoned for Debt, but that all Estates real and personal be liable for discharge of Debts.

In the same year in a Pamphlet entituled, the humble desires of a Free Subject, it was desired, that not any of the free people of the [Page 330] three Nations and Territories thereunto be­longing, should not be molested or imprisoned, or have any violence offered to their persons, but shall have full power and liberty to seek for their redress unto the Law, and the Courts of Justice, according to the ancient constitu­tions of the Laws of the three Nations.

In another owned by one Mr. James Freez, entituled, the outcry and just Ap­peal of the enslaved people of England, to be delivered from the insupportable op­pression of lawless yokes of misery, it com­plains, that thousands of people are ruined and robbed in their Estates, Liberties and Lives, by Arrests and Outlaries, and prayeth that the Writs of Capias may be abolished, and the imprisoned set free, which would work the total downfall of Satans throne of Injustice, cruelty and oppression, even of the four Fairs kept in Westminster-hall by the ingrossers of pretended Justice, where and by whom men are daily bought and sold in their Estates, Rights and Liberties.

Some of the Inhabitants of Hull did pe­tition, that the Laws by which the Common­wealth is to be governed, may be those holy, [Page 331] just and righteous Laws of the great and wise God; and declaring, that the Nobility are the Pillars and Buttresses of Monarchy, and Citadels of Pride and Tyranny, ought to be only during life; that the Divines, the Lawyers, and hereditary Nobility, are irrecon­cilable Antagonists to a Free-State; adviseth an Agrarian Law, that the proportion of Lands be stinted, and a rotation of all Of­fices and imployments, that those which are capable may tast of rule, as well as sub­jection.

In a Book called A Rod for the Lawyers, they are called the grand robbers and decei­vers of the Nation, greedily devouring many millions of the peoples money; and it alledgeth, that there are in England & Wales of Judges, Lawyers, Officers, Clarks, Attorneys, and So­licitors, above 30000, (a quarter of that number, at the largest reckoning, being not to be found of them) which admitting that each of them do get 250 l. per annum, (very many of them not getting 100 l. per annum, many not 50 l. per annum, and ma­ny not 10 l. per annum, or so much as the Rag-gatherers in London-streets do, who [Page 332] take it to be an ill week that yields them not 10 s.) it will saith that Calculator amount unto seven millions and an half per annum, besides the charges of riding to and from London; whereas if ever there were such a number to be proved, there are greater numbers of Carpenters and Smiths, who do yearly gain as much as the smaller sort of the Law Profession do by their as necessary labours.

In a Declaration and Proclamation of the Army (as they called themselves) of God, published in the same year, they did declare and resolve, Declaration of the Army in Anno 1659. by the help of God that there should be liberty of Conscience, but not of Sin; Godly Laws to be enthroned, but not the Jews; Judges to be in every City, but not imposed; Prison doors should be set open, to let out Debtors to labour towards the payment of their Debts; and look'd upon it as the voice of God calling upon them, and giving them an opportunity; and therefore desiring assist­ance in so great an enterprize, by as many per­sons of note and ability as God hath made willing and able, together with themselves, to put in sufficient security for the performance [Page 333] thereof, did intreat them to send in their names to Mr. Livewell Chapman, Book-seller in Popes-head-alley by the Exchange, who hath promised to keep them secret untill by sober and frequent meetings the matters may be di­gested fit to be presented to the Parliament and chief Officers of the Army.

Where if the Propositions do prove accepta­ble, there will be a sum of 500000 l. ready towards performance of the same.

And in the Plea called the Armies Plea it is alledged, that the peoples safety is the chief Soveraignty of all Laws, Statutes, Acts and Ordinances, Covenants, Engagements, Pro­mises, Subscriptions, Vows, Oaths, and all manner of obligations and expressions thereof, and are only binding to the Publique safety, and not to the persons of the Governours or forms of Government, but with reference thereunto, and as principles of truth and right reason brought to light by the late Parliament.

And one being willing to come on as fast as he could, and keep company with those goodly assertions, saith, that it is not lopping the branches, or cutting off the Top branch of [Page 334] Monarchy, that will deliver a Nation from bondage, unless the Axe be laid to the root thereof, to the evil root of bitterness whence springs all our misery, to the root of every usurping and domineering Interest, whether in things Civil or Divine.

The number of Freeholders being much in­creased, hath had a natural and strong ten­dency towards a Commonwealth; no Govern­ment can be fix'd in this Nation, but accord­ing to the Ballance of Land; that Prince that is not able neither by his own or the publique Revenue, in some measure to counterpoise, if not over-ballance the greater part of the peo­ple, must necessarily be Tenant at will.

Another in his Arguments and fancied Reasons against the office and title of King­ship, published in the year aforesaid, saith, that the Office of a King makes way for an Act of resumption, and the unsetling of mens Estates; that the abolishing of Episcopacy and Peerage, and the establishing of Liberty for Tender consciences, were not the ground of the Wars, for nothing appeared at the first but the Militia, the Negative voice, and the remo­ving of Evil Counsel, the other things were [Page 335] brought into the quarrel in the progress of the contest, by an higher hand of providence then mans purpose.

One of the same company and School of contrivances desired publickly, that no man should be imprisoned for Debt, except such as are doubted to be running away, and then not above three days, and to be maintained by the Plaintiff at 3 s. a day in the mean time.

In a Book stiled the Good Old Cause dressed in its Primitive lustre, said to have been written by R. Fitz-Brian, it was in­sinuated, that the distempers of the Nation being so great, as they could not admit of a redress and conserve still their old frame things must unavoidably wheel about and fix themselves upon another Basis; Providence united the honest party of the victorious Army, so as it was resolved that the poor who had nothing to pay their Debts, should be freed from the bondage of a perpetual Confinement; the corruption of the Laws were become at once both the shame and impoverishment of the Nation, and some Expedient was to be had for the freeing of it from so horrid a Cheat; Divine providence did by degrees [Page 336] 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 [Page 337] 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, [Page 338] 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 [Page 339] 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 [Page 340] 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, w [...]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 [Page 341] 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, and 40 s. for every page more; for all Leases, Mortgages, Jointures, Dowers or Debts, 10 s. for the first page, and 20 s. for the following pages, including the Fees for the Certificates; for all Entries of Inheritances in Fee in the Provincial Registry, 10 s. for the two first pages, and 20 s. for every page more; for all Leases, Mortgages, Jointures, Dowers or Debts, 7 s. 6 d. for the first page, and 15 s. for every following page, Certificates included; for the entry of every Inheritance in Fee in the Subprovincial Registry, 7 s. 6 d. for the first page, and 10 s. per page for every page after; and for all Leases, Mortgages, Join­tures, [Page 342] Dowers or Debts, 5 s. for the first page, and 7 s. 6 d. for every following page; for the entries of Inheritances in Fee in every Pa­rochial Registry, 5 s. for the first page, and 7 s. 6 d. for every page more; and for all Leases, Mortgages, Jointures, Dowers or Debts, 2 s. 6 d. for the first page, and 5 s. for every following page: And in case any of the Entries of Debts, Leases, Mortgages, Jointures or Dowers, shall not exceed 6 lines Registerially wr [...]t in the Parochial Registry, the Fee thereof shall be but 1 s. the Fees for the Certificates excepted; the Fees for Entry and Certificate of every Birth, Christening, Death, Burial, in the Parochial Registry, if it exceed not 6 lines, to be only 6 d. as also for the retainer of any Servant or Apprentice; but if it shall exceed, the [...] the Fees to be ac­cording as was allotted per page.

No money shall be recoverable upon any Bargains or Contracts whatsoever, unless the same be entred in the Registries as aforesaid, within: he times limited; the Fee of the Seal of the National Registry, in all cases of settle­ment of any Estate, Lease, Mortgage, Jointure or Dower, to be 5 l. in all cases of Debt, not [Page 343] exceeding 2000 l. the Fee to be 50 s. other­wise 5 l. the Fee of every Provincial Seal in the cases aforesaid 50 s. in all cases of Debt 25 s. and in all cases of Debt, Mortgages, &c. to be 12 s. 6 d.

In the National Registry 3 4th. parts of the Seal shall be to the Commonwealth, and a 4th. to the Register, and his assistants and Clarks, for all entries of each two first pages of every particular Entry, and for all the following pages an 8th. part only; in each Provincial Registry 3 4th. parts of the Fees for the Entries, and for Seals also, to be to the Commonwealth, and the 4th. to the Regi­ster, his assistants and Clarks; in the Subpro­vincial Registry 2 parts of 3 of the Entries and Seals to be to the Commonwealth, and the 3 to the Register; in the Parochial Re­gistry 2 parts of 3 of the Seal to the Com­monwealth, and the 3 of all the Fees of En­tries to be to the Register, his Clarks and De­puties.

Every Clark, Assistant or Deputy of the National Registry, shall have six sworn At­torneys or Messengers, whose care shall be to transmit his several Certificates to the seve­ral [Page 344] Registries of the Provinces, solicit the causes in the said Registerial Court, and have for every cause in every Court-day, besides all charges, 7 s. 6 d. and no more; every Clark assistant in each Provincial Registry shall have 3 Attorneys or Messengers, who are to officiate as in the National Registry, and have for every cause in which any of them shall be imployed 5 s. for Fee and no more, besides charges and expences; each Subprovincial shall have 2 Attorneys, who shall do the same work, and for every Court day shall have for Fee in every cause 4 s. besides all charges; each Parochial Registry shall have 2 Attor­neys, (which according to the number of 9725 Parishes in England and Wales, will make almost 20000 Attorneys, besides their Clarks, which with Solicitors and their Clarks added unto them, will more then three times exceed the number of Attor­neys, Solicitors and Clarks, if truly accom­pted, now in being) whose Fee shall be for every Court day 3 s. besides charges, and shall do the like as is before directed; every Attorney shall be punished for fraud or neg­lect, and make satisfaction to the Client for [Page 345] all damages; and if not able to do it, shall be dismissed of his place, another chosen, and the Client restored to his former condition; the Clarks assistants to be chosen by the respective Registers, upon security to be given, and they are to give directions unto them, and be re­sponsal for them; each Clark assistant in the Provincial Registry shall make choice of one Attorney, and the Register of two.

The Judges in the several Parish Courts shall be the Register, the Minister, and the Constable and Churchwardens for the time be­ing, whereof in all hearings two to be present, with the Register or his Deputy; the several Courts to be kept every Thursday fortnight, and all matters to be brought to hearing the 3d. Court day, and to hold pleas of all Debts not exceeding 10 l. principal, and all Estates under 10 l. per annum, lying in the same Pa­rish; 12 Judges learned in the Law to be appointed by Parliament to attend the Natio­nal Registerial Court; 21 Judges be appointed to attend every Provincial Registerial Court, where one Judge at least is to be present, with the Register and one Clark assistant, when all matters are to be [...]eard; every month shall [Page 346] be a Court Provincial, upon the Tuesday in every week, the Subprovincial Court every Friday 3 weeks, and the Judges to be the Register and his Assistant, and the Minister of the Parish.

All Summons to be granted upon motion of the party or his Attorney, (giving security to defray the charges of the party to be S [...]m­moned, if his Action he not good, or cause just) by the respective Registers, their Clarks Assi­stants or Deputies, in writing under their hands, unto which of Apparance shall be given either in person or by Attorney, the Cause is to proceed; but if no Apparance shall be given, a second Summons is to be granted un­der the seal of the Register, to which if no Apparance shall be given, Judgment shall be given the second day of Apparance, and en­tred in the Court Registry; and if agreement intervene not before the next Court day, and be entred with the Register, Execution shall be granted, and the Registers seal put there­on, not to be reversed or any appeal ad­mitted.

Two Vacations in the whole year to be in t [...] National Registry, as to the trying of Causes, [Page 347] the one from the first of December to the 10th. of February, and from the last day of May to the first day of September.

But that Chaos-maker or good man, if any one could find any cause or reason to call him so, or some of his Partisans, when they shall have remembred it them­selves, or have heard it from others, that the Noble and innocent Earl of Strafford was by false witnesses and accusations; re­mote and improbable inferences, strained constructions, and never like to happen consequences, hunted to death upon a supposition of subverting the Laws, when if it had been either possible or true, it could upon an Accumulation of all [...]his pretended Crimes have extended no far­ther then an endeavour to subvert one of our Fundamental Laws, may be their own Judges, convict and justly con­demn themselves for unpardonable faults, in seeking to subvert so many of our Fundamental Laws uno Ictu, with one stroke, and at once, which they them­selves [...]ave sworn to maintain and de­fend.

[Page 348] Notwithstanding all which Oliver Crom­well did so well understa [...]d his own interest and single-personship.

CHAP. XVII. That neither Oliver Cromwell or his Son Richard, the second mock Protector or little Highness, did conceive it to be rea­sonable, or had any intention to deliver up the Justice of the Nation to those ignorant giddy and ever changing kind of Refer­mations.

ANd that the administration of Justice was a great end, and one of the prin­cipal parts of Government, and remem­bred that the men of Westminster (of which he was too great a member and director) calling themselves after the murther of the King,Declaration of Parlia­ment 9 Feb. 1648. a Parliament, did the 9th. day of February 1648 declare, that they were fully resolved to maintain, and should and would uphold; preserve and keep the Fundamental Laws of this Nation, for and concerning the [Page 349] preservation of the lives, properties, and li­berties of the people, Declaration of the Par­liament of England 17 March 1648 expressing the grounds of their set­ling the present Go­vernment in the way of a Free-State. with all things incident thereunto, and required all Judges, Justices, Sheriffs, Officers and Ministers of Justice to proceed in their respective places and offices accordingly; and did the 17th. day of Mar [...]h then next following, declare, That our Laws being duly executed, are the most just, free, and equal of any other Laws in the world, and that they were very sensible of the excellency, great antiquity and equality of them, and that the liberty, property, and peace of the Subjects were fully preserved by them, did so little believe it to be for the good and honor of the Nation to hearken or yeild unto the product of those wind-mil, giddy, and vertiginous brains; or by the perswasion of some idle and ridiculous Pam­phlets, written and contrived by such as would for their own advantages plow up the Laws and reasonable customes of the Kingdom, to settle and set up a Weather­cock Government ridiculous to all other Nations, as he did in his Speech to that which he called his Parliament upon his Dissolution of them the 12th. day of Sep­tember [Page 350] 1654. declare, that in every Govern­ment there must be somewhat fundamental, Cromwel's Speech to his Parlia­ment upon his Dissolu­tion of them the 12th. day of September, 1654. somewhat like a Magna Charta that should be unalterable, that some things are Funda­mentals, which he should deal plainly with them may not be parted with, but were to be delivered over to posterity, else every succee­ding Parliament would be disputing to change and alter the Government, and we shall be as often brought into Confusion as we have Parliaments; and he and his Parliaments in the time of his hypocritical Government did so little relish the taking away of the process of Arrest and Utlary, as they orde­red only prisoners to be discharged out of prison, if they made Oath that they were not worth five pounds after their Debts paid, and undertake to pay their Debts when they should be better enabled, which to procure their liberty, made many lustily to Forswear themselves, and had no great cause to be in love with their pretended Reformations, when the fiery Mr. John Jones of Nayoth was after his abusing and rayling upon our Laws found guilty of deceits, and committed by them a prisoner to the Fleet.

[Page 351] And when in the year 1653. or begin­ning of the next ensuing,Remon­strance of the pri­soners for Debts to the Par­liament concerning the injustice of the Com­mittee fit­ting at Sal­ters-Hall in London for relief of Creditors and Priso­ners. by an Act of Parliament had for the relief of Creditors, constituted a Committee for London and the Suburbs thereof to sit at Salters-Hall, and several other Committees in all the Coun­ties of England and Wales, and impowred them to be the only Judges, though not Sworn, to hear and determine matters of Debt, and escape to fine for breach of trust and concealments, imprison, set at liberty, remaund to prison, adjudge to the Pillory, or house of Correction, grant, lease, or sell the Estates of the prisoners, were to admit of no legal forms, but proceed in a summary way, and to be responsible to none but the Parlia­ment, and sell dead prisoners Estates as well as if they were living, whether the Lands were Entailed or not. It was upon complaint of some prisoners of Note and Worth, alledged and offered to be proved that one of those kind of Judges at Salters-Hall having two Brothers practising before that Committee, the one as a Solicitor, and the other as a Councellor at Law, would bring his party with him, whisper unto his Fellow-Judges, [Page 352] arise from the Bench, and go and sit by the Clark, and make the Orders as he pleased and liked those his doings so well, as he was heard to say he did not doubt but to make his place worth 1000 l. per Annum unto him before he had done with it, and might be in good hopes of it, when besides those his ungodly Extraordinaries, large Salaries were allowed to him and his Brethren of that Committee for their Sons and A­gents, and the gain which they and their Confederates might have by the sale, or in­direct purchase thereof in other mens names, that Committee were to have di­stributed amongst them two pence in the pound upon the sale of any prisoners Lands or Estates.

The pretending Gospel-Improvers in South-wales had shut up most of the Churches,The distres­sed conditi­on of the Inhabitants of South-Wales. and gathered in the mean time one hundred & fifty thousand pounds into their private purses, and therefore both Oli­ver, and Richard Cromwel, & their Councel & Parliaments did only receive those un­quiet Innovators Petitions, and as they did in the determining of what should be In­cumbrances [Page 353] fit to be put into a publick Registry, or the taking away of Tythes make a shew of intending great matters, when they only hung them upon long de­lay's, and an everlasting deliberation, ne­ver to be brought to any conclusion.

And our Laws having thus long fought with Beasts like St. Paul at Ephesus, might by his Majesties happy Restauration have given them no small assurance that they should have deserved some rest and tran­quility; but it seems as the wrongs done unto them were unrepented, so were their patience and sufferings to be prolon­ged.

And the professors of our, or any other good Laws should not be so contemptible, when that blessed Apostle could be no less than a Lawyer, when he sate and had been Educated at the feet of Gamaliel, and was afterwards by his Apostolical Office, and great Endowments in all manner of Learning, such a darling and beloved of God Almighty, as he had in his life-time the inexpressible joyes and wonders of the Third Heaven communicated unto him, [Page 354] when they were before, and that time, and long after in better Ages of such an esteem and usefulness amongst the wiser and bet­ter sort of man-kind, as they were justly called Sacerdotes Justitiae, Ministers that sa­crificed for the people at the Altars of Justice, their Houses were as Oracles, to which they came for councel and ad­vice, and were accounted to be Laudabile genus hominum, Linwood in constitutio­nibus Otho­boni. a praise-worthy kind of men, and being secular men, did in Campo Justitiae tanquam Athletae militare, as their Champions labour to obtain Justice for their Clients; but those abusers of our Laws and Lawyers were too much in love with their projects to forsake them, and like.

CHAP. XVIII. What occasioned the continuance of the former Projects, and groundless Complaints a­gainst our Laws since his Majesties happy Restauration.

THe Snakes had but cast their skins, either for that the Fancies which had brooded in the heads of these troublers [Page 355] of our Israel had as lesae Imagi [...]nationes usu­ally do in men opprest with Melancholly, stuck so fast, and brought them to such a habit or custom as they could not easily re­move them, or had a desire to maintain and uphold an heretofore contracted or e­spoused error, or to add wrongs to wrongs, least they whom they had so much abused should after seek to bring them under the censure and justice of those Laws which they had so much injured, or were vexed that they had so unexpectedly lost their prey, and the opportunities of building up again their Bethel, where their Calves were well fed & worshipped for their sediti­ous bleatings, and were the more embold­ned by his Majesties over-easie pardoning the wickedest Rebellion that ever was hatched in Hell, and permitting all but some few not only to enjoy all their former re­al Estates, and all their personal Estates, which had been gotten by Blood, and the Rapine and Depraedation of all the honest people in his Three Kingdoms, but to creep into most of the profitable Employ­ments of the Kingdoms of England and [Page 356] Ireland, (which would better have been managed by his more honest and loyal Subjects) eat the Childrens bread, and get all that could be any wayes gained or co­zened from them.

And too many of them have grown so impudent as to offer to palliate their wick­edness by a base and senceless Equivocati­on to cover their Woolvish doings by the putting on of sheeps cloathing, and make as many as could be so mad to believe it, that they were always for the late King the Martyr, and loved and honoured him; as if those their great Armies that fought a­gainst him in the bloudy Battels at Edge­hill, Marston-moor, and Naseby, took his Towns, Castles, and Garrisons, Imprisoned and Murdered him, were some invisible Fairies phantasms, or spectres; and became so much Elated in the success which they met with, by getting as much or more by counterfeiting of Loyalty after their Rebellion, as they did before in their acting and height of it as they hoped that they had now an opportunity put into their hands of accomplishing their wicked­ly [Page 357] designed works of Reformation prepa­rative to a Republique, some of their par­ty being at this time, so more then they should be confident of it as they keep in the expectation of their Good Old-Cause as they do dreamingly call it, the Conveyances and Grants which they lately had of the Usurpers of the Kings, Queens, Bishops, Deans and Chap­ters, Nobility and Loyal Gentries Lands, as any other Evidences of their Estates, and do think it to be no bad exchange or bargain too, give double or treble the value of some of Oliver Cromwell's gold or silver-Coyn as precious Reliques to put them in mind of that great Stork, who if he had lived longer, would have taught the Frogs what they were to expect of him; & too many of that Tribe or silly perswasi­ons have lately been emboldned publickly to offer to maintain the lawfulness of those their ungodliest of all Wars, and might sup­pose themselves to be in no bad condition, when they were not like the Gibeonites af­ter they had deceived Joshua with their mouldy bread,Josh: 15, rent and tottered garments, [Page 358] with old shooes▪ put to be ho [...]ers of Wood, and drawers of Water for the House of God; but whilst they were inwardly in their hearts and endeavours the greatest Enemies of it, did eat of the [...]at of the Flock, and enrich themselves with the most profitable Offices and Preferments of the Kingdom, and not only deceive the Kings loyal Sub­jects of their Blessing due to the Birth­right of their Allegiance, and a priviledge inheritable to prosecute their actions and suites at the Common Law, Calvins's case in Cokes 7 Reports, and Lord Ellesmeres post nati Mic: 12 E. 4. 22. but of the be­nefit of their antient, good, and equitable Laws, which is another part of their Inhe­ritance, and did therein worse then Jacob did by his Elder Brother Esau, who did not loose all, but had a Mess of Pottage for it.

Or did in the pursuance of the former evil designes of themselves or their phan­tastical well-willers think it necessary to persecute our Laws by false suggestions, out-cries, scandals, and clamours, as Boyes have used to do in their hunting of Squir­rels by noise and shoutings, and to speed as well therein as they, or many of the Re­bellious [Page 359] rout did in their designes against Episcopacy, & the Militia, and to pull in pie­ces the Royal and ever to be approved Monarchical Government. Or some of the Stationers having some of those Pamphlet projects and squibs against Mo­narchy and Regal Government lying upon their hands unsold, did to put them off in some approaching or sitting Parliaments of his Majesty, cause a new date or Year of our Lord to be instead of that which was before (some of that society or company being so egregiously wicked, as many Books have been sent abroad in a Masquerade in six or seven several Disguizes, or new Dresses and Titles to abuse the people and cozen them of their money; and a Primer­hinder & a Stationer may be named if an undertaken, to be proved Information do not prove to be otherwise, that have cau­sed the Pamphlet that carried the Device of Summons, and banishing Arrests and Out-laries which had been long before published, to be re-published or printed, which like some Paper-kite with a lanthorn & candle in the taile or end of it had not [Page 360] long before made the men of Novelty and Ignorance stand at a gaze at it. And it hath since his Majesties happy Restauration been often observed, that too many of that Trade and Faction have been very dull in the preferring as they c [...]ll it, or offering to sale any Books which concerned the vindi­cation of any of his Majesties Rights, or the real good of his Subjects, but have been nimble enough to promote the vent or putting off any Books which tended to Fa­ction, or the unhinging of the Govern­ment.

Or the Witchcraft of their Rebellion had with their Ignorance so captivated their understandings (if ever they were Masters of any that tended to good) as to make them to be like too many of the Lap­landers, who are said to bequeath their De­vils, or evil Spirits to their Children, Shefferus History of Lapland, cap: 11. or any who should succeed them, more willing then they should be, to transmit their sins and unquietness of Spirit unto all that would make any Title to their rude and indige­sted Opinions.

Howsoever from some or all of these [Page 361] Causes, not a few of the former wicked and never to be justified Principles, ignorant and unwarrantable endeavours and com­plaints have since Monarchical Govern­ment, and our Laws and Liberties were so happily restored, sprung up again; and no sooner was our David brought back over Jordan, but many a railing, cursing, and re­bellious Shimei that had done more then cast stones against him and his Royal Fa­ther, made haste, and came with the men of Juda and Loyal party to meet him, and as if they had not remembred all the mischiefs which they had done unto him, his Brethren, Royal Father, Family, and good people, pretended that they had been greatly instrumental in it, and having gain'd a very large and extensive Act of ge­neral Pardon and Oblivion, (which as to treason, murder, felony, faction, and rebel­lion, the Loyal party needed not) an Act of Parliament for confirmation of what their abusive Courts of Justice had done in mat­ters of Judicature betwixt party and party in the inter regnum, and times of Usurpati­on; and another Act of Parliament to [Page 362] make honest & free many Parents on earth from Adultery or Fornication, and legiti­mate and un-bastar'd▪ many of their Chil­dren begotten in a wrong way of Marri­age solemnized in despite of the Laws and our Church of England, before a Justice of Peace, not in a Church, but an Hall, Par­ler, or Chamber, where that kind of Magi­strate was a Knight, or Gentleman, or many times in a Shop when he was a Trades-man, which the Kings faithful Subjects abhorred; and some of them ha­ving warmed themselves by the Farming of the Kings Revenue and those grand and e­ver to be detested Artifices of Advance and defalcation, which have so much can­kred, decayed, and ruined it; and others that li [...]ed their consciences with plundrings and sequestrations, and Committee, ungod­ly Emoluments did fall again to their former Trade and Engines of subverting our Laws, and turning the Justice of the Kingdom into their Abortive projects, and new-found Politiques, and hoped in the end to recompence the loss of their pos­sesion of the Lands of the King, Queen, [Page 363] Prince, Nobility, Gentry, Bishops, Dean and Chapters, which they having purchased at an easie rate, were ta­ken from them, and enforced to be resto­red; and their hopes of gaining the Lands and Endowments of the Universities and Colledges, which by a failing of Provi­ders, and some mistakes as they wickedly thought of Divine Dispensations, or some Errors of their new lights they had un­expectedly lost.

And therefore summoned & got together their mis-apprehensions and Invectives a­gainst that antient, very legal & rational cu­stom of Fines to be Pay'd upon Original Writs where the Debt or Damage excee­ded Forty Pounds, which from the Year 1651. unto his Majesties happy Return unto his Throne, had by their Rebellions and ungrounded clamors against the pay­ment of them, to make a mis [...]lead people the more willing and able to continue and contribute to a War against their consci­ences and eternal happiness been taken a­way, or laid to sleep.

In order whereunto in a Book Entituled [Page 364] the Wants of England Printed in the year 1667. it was among other things offered to the consideration of both Houses of Parliament, that according to the law of God and other Christian States, Christian clemency, gentleness and mercy, and the anti­ent Laws and Customes of this Kingdom, no person be for any new debt cast in prison, but be left at liberty to work out his Debt by industry.

In the year 1669. a Petition was exhi­bited to the King and both Houses of Par­liament, that in Actions of Debt there may be no Arrest or Imprisonment of the Debtors Body, but a Summons made at his House, or hung at his door, and for want of an Appea­rance his Goods and real Estate to be seized, and the like in the year 1671. And in the same Year a Bill for an Act of Parlia­ment was with great Importunity desired for the Registring of all Incumbrances of Land, and of all Debts and Ingagements, then which nothing could have more un­done the greatest part of an Impoverished Nobility and Gentry by the late Wars, and Taxes nor any thing more have Bankrupted [Page 365] Citizens and Trades-men, whose Estates do consist in a great deal more in Credit and Opinion, than in reality and substance. But the promoters of those Innovations who endeavoured to pull in pieces our wellesta­blished Laws concerning Arrests and Outlaries, did in those their Attempts speed no better then Balaak the King of Moab did by sending for Balaam to curse the children of Israel, when notwith­standing his Erecting of several Altars, and all his solicitations and promisses of Re­wards, he could not hinder him from bles­sing instead of cursing them, for the wis­dom of the King and Parliament, and his Privy Councel did think it to be more for the good of the people to suspend their desires and Devises, until the King might understand that there could be any reason, cause, or ground to alter or forsake the old Fundamental Laws, so for many Ages well approved to comply with their humors & ill designes, but being willing to give what reasonable content he could to that small complaining part of the people without pre [...]judice & damage to the universality & grea­ter number of his Subjects, did as the fittest expedient, and all that the Law could [Page 366] permit, and his reason and Soveraignty perswade him to do for the allaying that distemper which had seised upon a sort of ignorant, seditious, & unquiet spirited people whom no reason can satisfie, but would set up their new devices which are never like to perform their Promises and Intend­ments. And needed not (as touching the taking away of the Process of Arrest & Ut­lary) to have troubled his Majesty and Parliament, and themselves and others with such unwholsom and improbable Reme­dies for that which their Ignorance and Vain Imaginations only told them were Grievances, but should rather have acqui­esced in a due consideration that his Ma­jesty did not hold it to be agreeable to Justice to abolish the Process of Arrest or Outlary, or to change or take away the Fundamental Lawes which established or allowed of those Antient and legal kindes of Law procce­dings as grant in the Year of our Lord 1664. by the advice of his Privy Councel his Commission for the relief of Poor and Distressed Prisoners, under the Great Seal of England to the Arch-Bishop of Can­terbury, Bishops of London, Winchester, Ro­chester, [Page 367] Lord Mayor of London for the time being, Judges and Justices of the Courts of Kings Bench, Master of the Rolls Judges of the Court of Common Pleas, Ba­rons of the Exchequer, Chancellor of the Dutchy of Lancaster, Masters of Requests, and Chancery, Attorney and Sollicitor-General, and Attorney of the Dutchy of Lancaster, Deans of St. Paul, & Westminster, Lieutenant of the Tower of London, Bi­shops, Chancellors, with the Advocats of the Court of the Arch Bishops of Canterbury, and Bishop of London for th [...] time being, &c. and divers other Commissioners therein named, to call before them such Pri­soners and their Creditors in and upon Actions of Debt, Gase, Trespasses, Trover, Detinue, or other Personal Actions, Judgements and Executions whatsoever thereupon, and to treat for Compositions and Agreements, (some of the Judges of the Court out of which such prisoners have been committed to be privy to such Compositions and Agreements) to the end that the said Prisoners night be relieved, and have such reasonable years, dayes and times of payment for such debts and damages [Page 368] as they shall not be presently able to satisfie, and with such Security for payment thereof, as in equity and good Conscience, having re­spect to the ability of the Prisoners, and charge of Wife and Children, and other incidents to pious Cases considered: And if any Creditor should refuse to appear before them, the Com­missioners were impowred to punish them, and take such Order for their Appearance as they should think meet, and to use all law­ful wayes to make them take such reasonable Compositions as to any Three or more of them should be thought meet. And his Majesty therein Declared, that his meaning was to be aiding and assisting with his Grace and Fa [...]vour to the misery and calamity of such as be truly poor and distressed; and not unto such as lye in Prison rather of wilfulness and obstinacy, and out of a resolution to retain large and ample Estates to themselves, and therefore straightly charged the said Commis­sioners to be very vigilant and circumspect therein; and did in the said Commission mention that Queen Elizabeth did upon the supplication of the Prisoners in the Pri­sons of the Fleet, and Kings Bench in the [Page 369] Eight and twentieth Year of her Reigne Authorize certain Commissioners under the Great Seal of England for the ordering and compounding of the Controversies and Causes between the distressed Prisoners and their Creditors, and such others by whom tbey were detained Prisoners, or in Execution, and contined the said Commission nntil her De­cease. And that King James being informed that certain Clauses in the said Commission were Derogatory to the Common▪ Laws of England, and that by colour of the said Commission which was intended for the Cha­ritable relief of poor, miserable, and distressed Prisoners, certain refractory and obstinate Debtors which rather wanted will then meanes to satisfie their just Debes, took occasi­on to molest and trouble their Creditors, did to prevent all occasions of Inconveniencies to his loving Subjects, especially such as tended to the breach of his Laws, forbear for many years to renew the said Commission; and finding that his forbearance had wrought a good effect by discouraging obstinate and wil­ful Debtors that sought nothing more then Evasions to avoid the payment of their just [Page 370] Debts, so also that for want of that, or some other charitable course for the relief of such as were truly and indeed poor, distressed, and miserable, and wanted meanes to satisfie their Creditors, it had been occasion to pester and fill his Prisons with the bodies of such persons whose punishment could no way ava [...]l their Creditors, but rather was an hindrance to the satisfaction of their Debts, for that du­ring the time of their restraint they were no wayes able to go about or attend their lawful business, but must of force consume themselves and that little that they had miserably and in Prison, did by his Commission under the Great Seal of England in the Sixteenth Year of his Reigne, by the advice of the then Lord Chan [...]cellor of England, and also of divers of his principal Judges of his Courts at Westmin­ster, authorize the Commissioners therein named to proceed according to the Tenor of the said Commission for the relief of the said poor Prisoners in the said Prisons; and afterwards being informed that his said Com­mission had not taken that good Effect which was expected, renewed the said Commission, and thereby prescribed and directed such a [Page 371] moderate course as that neither the Insolence of wilful and obstinate Debtors should be thereby incouraged to the derogation of his Laws, nor yet his Grace and Clemency be wanting unto such to whom it should be meet to Extend the same, did upon the humble suite of the distressed Prisoners in the Prisons of the Marshalsea and other Prisons in and about the Cities of London and Westminster, and the places near adjoyning to the same, whose Cases were as much to be commiserated and lamented, as the said Prisoners in the said Prisons of the Kings Bench, and the Fleet, by another Commission under the Great Seal of England in the Two and twentieth Year of his Reigne authorize certain Commissioners therein named for the Ordering and Compoun­ding of the Causes of the distressed Prisoners in the Prisons within the places aforesaid; and that his Majesties Royal Father did by Two several Commissions under the Great Seal of England, the one bearing Date in the Fourth Year of his Reigne, and the other in the Sixth, impower divers Persons therein named, to the same or the like purpose.

[Page 372] Nevertheless the Good Old Cause (as they are pleased to mis [...]name it) with all its hypocritical tricks of State must not by any meanes be abandoned, but they which did so much adore that Empusa or Witch called the Publique Faith which (like the Golden Calf made by the Idolatrous chil­dren of Israel) helped them to great store of money▪ plate, and Rings, to furnish out and maintain a Rebellion, could not now forbear to be as violent as they could to pull Down the ever to be re [...]spected and honoured better Publiqe Faith and Justice of the Nation, and Disturb his Majesty & his subordinate Judges & Ma­gistrates in the administration thereof, and therefore some Synon or Trojan horse was of necessity to be made use of or introduced under a colour of publique Good, or some stratagem or mine prepared to accomplish that by cunning and circumvention which by suit or force of Law, reason, and argu­ments they could not before be able to ob­tain, and for that had as they thought a pattern or way cut or chalked out by the before-mentioned S. D. and some [Page 373] of his levelling Clerks and Attornies associating with him in their afore­said proposals presented to the Committee for Regulation of the Laws in the year 1650▪ wherein they alledged that what they had proposed was not that the Writ of Capias should be taken away first, Proposals of S. D. and divers At­orneys of the Court of Common Pleas to the Committee for the Re­gulation of the Laws 24 May 1650. but humbly conceived that it would be better by finding out nearer and cheaper wayes to bring the old road to be neglected▪ then to deprive the suitors of the Old before they can have experience of the new; and it was only proposed by way of supplement not to take away the antient course of proceeding [...] by way of Capias, and [...] ­igent if the case shall require it.

CHAP. XIX. That the Proceedings at the Common Law de­sired by the new way of a peremptory Sum­mons, or the old by Writs of Summons, Pone, and Distringas, or Writs of Capias at the Plaintiffs pleasure are not consistent or agreeable one with the other, and that Laws being to be binding are to be certain and positive, not Arbitrary.

BUt such a State Essay, Bill of Compre­hension, or rather Contradiction, whe­ther the antient legal and rational usage and custome of proceedings in the Law by Writs of Summons, pone and Distress to be legaly executed by Sheriffs where the Defendant hath a visible and certain E­state, which for Expedition of Justice, have by alteration of Times, Increase of Trade, and a necessity of Law and Reason not been so much used as heretofore it was, and is not yet forbidden by any Act of Parliament, or Rule of Law, and the process of Capias [Page 375] and Arrest which▪ for many Ages past have not only been allowed and approved by this Nation, but the greatest (if not all) of the civilized part of Mankind as a princi­pal incident essential and necessary sine qua [...] non in the distribution of Justice where the Defendant hath not a visible Estate to se­cure him from the Sheriffs Return of a Nihil habet is a Fugitive, or likely to be such a one, or is not to be found, and hath no­thing but his body to be a pledg or security, that he will Judicio sis [...]i & judicatum solve­re, or that the process of Exigent in order to an U [...]ary, which without [...] causing the U [...]ary it self, do offer a lesser violence to the person of a Defendant then the Writ of Capias doth, can by any rule of [...] reason be ex­changed for peremptory Summons and sei [...]ures, or can be for the good of the people, to cause them to tear and tire one another [...] abundance of charges delayes, and [...] in a Cirque or Circle of Law contentions, who will certainly when they shall find the sad ef­fects or event of it not think themselves [Page 376] well used to be decayed, or inticed to a­bandon their own good Laws for such new and troublesom devices▪ which may be to as little avail as to renounce skilful, able, and honest physitians to drive a trade with ignorant Empericks and Mountebanks when they are not sick, or need them, and may time enough believe that such a Novel way of peremptory Summons hath so many symptomes or markes of Evil upon it, and so easily discernable as their gaine by it will be no more then to receive a Scor­pion instead of a Fish, or to have Co [...]quin­tid [...] put into their pottage pot; and they that are so fond of it, and willing to pro­ [...]uce such a mischief rather then a blessing for their fellow-subjects might have fore­casted that evils are most commonly accor­ding to corrupt Nature better welcom, and more likely to receive entertainment then good, and do by their novelty or corres­pondence with bad humors, designes, our interests too often seize upon or inveagle the greatest and less prudential part of the people when cheapness or a pretence of ex­pedition shall be some of the perswaders [Page 377] unto that which can arrive to no better a construction or event then to make the Law-maker and Soveraigne advising with his Two Houses of Parliament so incertain of the [...]equel or product hereof as to make one part of the Law rep [...]al another at the pleasure of every particular man, and to Enact it as Adiaphorous, or indifferent this way or that way, whe [...] a very long course of time and experience [...] and the approba­tion of so many Laws and Ages past do re­cord and witness the excellency of that which some busie [...] would have to be exchanged for [...] and se­minary of not to be expressed Inconveni­ences and Mischiefs, and such a device or fancied alteration cannot with our a Pro­phenity [...] it perswade▪ the most sanguine and easily credulous that it can be equally and fully as good as the o­ther, or render it to be indifferent, or give any absolute or infallible assurance▪ that those likely hopes will ever bring them to their promised success, and if it be not to be ranked amongst the indifferents, must be either better then the former antient [Page 378] courses which none have yet experimented, or worse, and then not at all to be Impo­sed upon the people.

For Laws being R [...]cti praeceptiones & pr [...]i depulsiones alwayes intended by God and good men to advance that which is good, and suppress that which is bad, Ae­quum ab iniquo & licitum ab illicito separare, and to discern and divide betwixt good and evil, and said to be Laws a ligando, and to be properly no Laws if not Obligatory and binding, are to be certain and positive, not Arbitrary as unto those which ought to obey them, and as much as right reason will permit Immutable, especially if dedu­ced from the dictates of nature, as that of the preserving the Authority of Courts of Ju­stice and their administration of it, are to those that seek for help in the maintaining or recovery of just rights and Properties, but not to be ambiguous in certain latitudi­narian or indifferent, for although there may be many who would be well enough content to be Judges of their own Causes, and the Executioners of their own De­crees, or if that would not be allowed, [Page 379] would be [...] to hale men to Justice, or by open clamours cry harow as the People of Normandy were antiently said to have done to their Duke Rollo when they cryed to him for Justice who was wont never to fail them, which after a long process of Time gave us the Original of the word Hue and Cry yet much in use amongst us in matters of Felony. And the like was in the early days of the world not unusual amongst other Nations in their seeking to their Kings and Princes for redress of Wrongs before the more happy way of Establishing a fixed rule and course by Courts of Justice.

Yet those their unfitting desires for such an Arbitrary Act and Indifferent Law ought to be allayed, and the more safe and sure paths of Justice kept according to the patterns and direction of the best of Presi­dents, for that God himself the wisest, grea­test, and best of Legislators when he gave his righteous Laws to his people of Israel, and commanded that a Neighbours rayment taken for a pledge should be restored unto him before the Sun go down for his covering to Exod. 22. v. 26. [Page 380] sleep in, or the Command not to [...] the sentence of the Judge under no less penal­ty then the loss of life, Deut. 17. 12. (from whence the reason and equity for every man to be obe­dient to the Authority of Courts of Justice in their legal Process may deduce its Ori­ginal) was not left as a matter indifferent but absolute and positive.

Where the Statute of Westminster [...] which giveth a Plaintiff his Election to [...]ake his Execution upon a Recovery of a Debt by Writ of Fieri Facias, 13 E. 1. Ca. 18. or Elegit, the plaintiff taking out his Elegit, [...] en­ter it as he ought upon Record, for that [...] should be then debarred of any other re­medy against the person of the Defendant by Capias [...] a [...]iendu [...], & a man cannot by Law have Two Writs of Scire [...] at once in a Common persons case,1 H. 4. 6. whereby to have Damages twice recovered against him. After an Elegit, although the She­riff return that he hath neither Lands or Goods,15 H. 7. 14, 15. the plaintiff shall not have an Exe­cution against the Body, a Capias ad satisfa­ciendum doth not lie after a Fieri Facias, 45 E. 3. 19. until a Nulla bona returned, nor a Fie­ri [Page 381] Facias or Elegit after Imprisonment of the Defendants body.

A Writ of Annuity purchased pending another,34 E. 3. Br. 922. was abated where two brought Writs of Quare Impedit one against the o­ther returnable at one and the same day,Pas. 22 E. 3. 4. the one was discontinued, and they plea­ded upon the other,Jones Re­ports, 255. 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 Wast [...], 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:Bracton lib. 5. c. 17. 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 [Page 382] 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.

[Page 383] 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,Zeiglerus dicastice sive de Judicum officio con­clus. 40. §. 1, 9, 46, 53 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, & [Page 385] 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 [Page 386] 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,Cic. Offic. as he was of opinion, that nulla res ve­hementius rempublicam continet quam fides, that nothing more concerns a Common­wealth then the keeping of Faith & Credit, & therefore adviseth it by all meanes to be [Page 387] 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 world not to continue and make use of it, when time and a long usage have upon so great and undeniable grounds of right rea­son adjudged the process of Arrest and of Utlary also in case of reiterated contempts to be necessary not only to Trade & Com­merce, but to the supplying of mens ne­cessities or occasions, or the borrowing of money upon the pledge or pawn of the bo­dy, or liberty, and it hath through the greatest part of the world been ab om­nibus, l. 37. ff. de Legibus, l. 34. l. 114. ff. de Reg. Jur. Tob. Paurmester de Jurisdict. lib. 2. ca. 6. num. 119. & semper, & ubique in praxi & observatione. Et cum consuetudo sit optima legum interpres & observantia cum praxi subsecuta, when custome and long and constant experienced practices have follow­ed the process of Arrest and Utlary may certainly deserve an Approbation, which [Page 388] to alter, or take away, or turn out of the course or Channel in which it hath so long and happily ran, can never answer the ends proposed, or be valid and sufficient to per­swade his Majesty and his Parliament to suffer so essential and great a part of the justice and happiness of his Kingdom to be sullied and exposed to all the designs, fan­cies and mistakes of every one, who by di­slocating good and antient constitutions, would furnish out their hopes of procu­ring new Offices or Imployments, and de­liver it up as a prisoner to all the Knavery and Folly of every one who shall be either willing to deceive, or hath an Ignorance and Credulity easie to be deceived, especially when he shall thereby give opportunities and advantages to the rich to oppress the poor, and such as are in a weak or sinking condition of Estate, put the Lamb under the merciless paws of the Bear or Lion, snbject every mans credit by which he li­ved, thrived, and was snpported, to the domineering and tyrannical humours, pre­tences, designs and cruelties of Usurers, Brokers, or stony-hearted Creditors, who [Page 389] upon the advantage of some bargain, con­tract, or rigour of Law, would rather ruine men and their wives, children and families, then give a little time of respite by a Chri­stian patience and forbearance.

Nor is it to be expected that his Majesty would be willing to kindle and continue contentions, assist the knavish contrivances, malice or revenge of such as shall seek to enrich themselves by working upon the fears or necessities of men indebted.

And disparage the Wisdom of former Princes, Parliaments, and Ages, and his own Authority, to grant an alteration of so profitable and well approved constitu­tions and customs, in order to the gratifi­cation of no body knoweth whom, why, or for what, or what is designed to be the effect of such alterations, by those who by a wicked combination with other Innova­tors, may by a choice of severally mana­ging the grand design and first intention of changing the Government, make it their business to promote this as a part of it, and an inset to the other designes and desires of the rest of the promoters of that which [Page 390] they called the Good Old Cause, when it ne­ver deserved to be so accounted: And a Warwickshire Rebel, and Gentleman of a good Estate and Quality, before he was one of the murderers of his Majesties Royal Father, was after that horrid fact committed, heard publickly to say in the presence of a witness whose testimony is unquestionable, that he thanked God that he had lived to see the ruine of Monarchy, for it had been his design and endeavour for eight and thirty years then last past, ever since he came from Geneva; and another of that wicked party was not ashamed to say, that they fought not for Religion, but Estates; and hath so sadly as he hath understood the secret and restless machinations of that kind of people, and that his Blessed Father suffering mul­titudes of sorrows, and troubles, and a Martyrdom because he would not sacrifice the Laws of the Kingdom, and Liberties of his people to an Arbitrary Power of his Murderers, [...], § 4. in his Solilo­quies upon the 19 Pro­positions. had reason enough to back and Fortifie his Resolution, when he declared that he w [...]uld study to satisfie his Parliament [Page 391] and People, but would never for fear or flat­tery gratifie any Faction how potent soever, for that were to nourish the Disease, and op­press the Body. ‘Est enim virtus constans & perpetuum quid quod Justitia appellatur & quod per­versis & deprevat [...]s hominum moribus & consuetudinibus nec potest,Varsevicus de legato 22. nec debet un­quam mutari.’


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