Legal and other reasons (with all humility) presented to His most Excellent Majesty, King Charles II. and to both his Honorable Houses of Parliament, why the subjects of England, should not be imprisoned for debt or damages, or any thing thereunto relating

Legal and other Reasons, (with all humility) presented to His Most Excellent Majesty, King Charles the Second, and to both His Honorable Houses of Parliament, why the Subjects of England, should not be Imprisoned for Debt or Damages, or any thing thereunto rela∣ting.

IT is evidently and undeniably plain, that (by the Ancient Common Law of the Land) the Bodies of any of the people of England, could not, at the Sute of any Subject, be Arrested, Imprisonned, or any of them Outlawed, for Debt or Damages, (or any thing thereunto re∣lating) as clearly appears, not only by our Antient Laws, but by the Authority of these two great Sages of the Law, the Lord Chief Justice Coke, in his Third Report, fol. 11 & 12. and the Lord Dyer, An. 23 Eliz. 305. b. the which also by Magna Charta, Chap. 29. (that great Ex∣positor of our Antient Laws) was (in affirmation of the Antient Common Law (with great and 〈◊〉〈◊〉 circumspection) provided against, and not only (not as much as thought on before the Conq••est) but was abhorred (in the least) to be practised, from that time, and the time of the birth of that explanatory Law, (which was in the Ninth year of the Reign of King Henry the Third) until many Ages after, there being variety of great, weighty, and pregnant Reasons, for the preser∣vation of that greatest Liberty, and Priviledge of the Subject (the freedome of their Persons from Imprisonment) and as well those Antient Laws before the Conquest, as the Laws until the making of the great Charter, (and threescore years after) were, in that particular, (with all studious and sedulous care) inviolably observed, as an eminent and signal Badge of the immunitie and heroick freedome of the English Na∣tion, who were then deservedly called (libera gens) and lived so, (and in so great an happy Splendor, (to the envious admiration of the rest of

the Christian World, (and to the eternal honor of our Ancestors) with∣out being subject to any such Imprisonment, not only all the time of William the Conquerors Reign, (which was above Twenty years) but one hundred fourscore and forteen years after his death, and until the Statute of Westminster the second, Chapter the 11. (made in the Thirteenth year of King Edward the First, invented a Capias, and a new Process of Outlawry, (which from that time) was full so many years, the Statute of the two and fiftieth of Henry the Third, Chap. 23. (although the first that ever made any English (Mans person subject to such Arrest•• yet it being only against Baylifs of particular Lords) I lay no great stress on, but that breach and inroad being once made into, and upon the Common Law, (by the Statute of Westminster the Second) gave en∣couragement, to the unhappy production of another Statute, made in the twenty fifth year of the Reign of King Edward the Third, Chap. 17. by which it was Enacted, that such Process should be made in Debt, and detinue of Chattels, and by process of Exigent, as was then used in in Writs of Accompt; which were two such keen Laws, that they not only Invaded, but cut in sunder, the choycest Liberty of the Subject, by submitting the persons of the then free people of England, to the cruelty of Imprisonment for Debt and Damages; but the same wise King Edward the Third, of whom the Lord Chief Justice Coke, (in the second part of his Institutes, fol. 29) gives this Character, That King Henry the Second, Edward the First, and Edward the Third, were (all of them) Princes of great Fortitude, Wisdome, and Justice, that governed by their Laws, but that (in the Reign of King Edward the Third) the Laws did principally flourish, who (saith he) was a Noble, Wise, and Wa〈…〉〈…〉 Prince. This prudent Prince (I say) looking deliberately into the Wounds those Statutes had given, to the honor and happiness of the Kingdom, and to that ancient and most venerable part of the Common Law, (which preser∣ved his Subjects persons from Imprisonment) and the very many Kings Reigns and Ages, (without any the least interruption) which that glo∣rious, and famous Liberty, had prosperously continued, and (as it were) repenting of the making of the said bitter Statute, of the twenty fifth year of his own Raign, and he and his Parliament, finding the mischievous inconveniences and dishonor, that it had put upon the people, and resolving, to file those Shakles, from off the Sub∣jects feet, and to reinvest them into the Liberty and freedome of their persons, from imprisonment, according to the common Law of the Land, by that gracious healing Statute, made in the two and fortieth year

of the Reign of the same King Edward the Third, Chap. 1. those two Raizor metled cutting rigorous Laws were (as to such Imprisonment as aforesaid) by the opinion of many, and by the general construction of Law, and the true intendment hereof) Repealed, which declared, that the Great Charter should be holden, and kept in all points; and (if any Statute be made to the contrary) that it should be holden for none, which said last mentioned Statute, was (according to common construction) intended fully to restore the brightness and luster, of the ancient Common Law, and to support and maintain the strength and vigor of that Standard, of Law and Justice (the Great Charter) which not only asserts His Majesties just Rights and Prerogative Royal, but de∣fends and preserves the Freedom and just Liberties of the people, which (as the same Author in his Preface to his second Institute) tells us, hath been confirmed, by two and thirty Acts of Parliament, and not only so, but (by the Statute of the twenty fifth of Edward the First) the same is to be taken, as the Common Law. But the seting up, and creation of the great numbers of Offices and Officers, and the herds of persons, which those most severe Laws Westminster the Second, and the Statute of the twenty fifth of Edward the Third) had most ad∣vantageously preferred, almost in every City, Town, and Village of the Kingdome, had so fix'd, fastned, and rivited such Multitudes of persons (many of them of very great and eminent quality and interest) in places of great and tempting gain, which had made so deep an impres∣sion, upon the minds of that prevalent and powerful part of the King∣dome, (who had thereby plentifully enricht themselves) that notwith∣standing the said Statute, of the two and foroftieth Edw. the Third, so intentionally composed as aforesaid, for the manumitting of the peo∣ple of England, (as 〈◊〉〈◊〉 from the thraldome of a Prison, as otherwise to preserve their Liberty) they went on to Imprison the Bodies of the Subject, which hath ever since been practised, not only (by vertue of those two Laws, Westminster the Second, and the twenty fifth of Ed∣ward the Third) but that of Acton Burnell, and the Statute de mercato∣ribus, touching Arrests upon Statutes, Staple, and Merchant, and by other Laws built upon them, which (contrary to the antient Common Law, (as is very plain) doth continue the invassilation of Imprisonment against, and upon, all the free born Subjects of England, except the Lords, and they themselves (in some case) as the Law by some is holden to be) are not exempted neither: for if a Nobleman be Outlawed (as it is holden) he may be arrested and Imprisoned, and (until the Outlawry be reverst, is not only incapable to sit in the House

of Peers, but all his personal Estate is forfeited, and his Lands in the same condition, with any other Subject. So that it is indispu∣tably clear, how great an Intrenchment the Imprisonment of Mens persons, is, upon the honor of the antient Common Law, of which, as the Lord Chief Justice Coke saith, the Great Charter, is but de∣claratory, and as a late Writer, (from good authority) tells us, did not grant any thing de Novo, but that thereby our antient Laws and Li∣berties, were only repeated and confirmed, and indeed all those our Ancestors maintai••ed, not only with indefatigable prudential care and industry, but with the vast expence of Blood and Treasure, wit∣ness the more then twenty years intestine Bloody Civil War, in the Reign of King Iohn, and in the end, the confirmation of those Laws, and Liberties (by the same King) in the face of the Nobility, and other the great Men of the Kingdome, and of an infinite multitude of o∣ther the free people of England, as saith Brittaine, fol. 219. So that there wants nothing to make it fully demonstrable, that by our Ance∣stors magnanimity, and resolved courage, (in maintaining the antient Common Law) they and their Posterity were not only establisht in their just Rights, but were preserved from such Imprisonment for Debt or Da∣mages (or any thing thereunto relating) two hundred and fourteen years after the Norman Conquest, which now is inflicted, upon many thou∣sands of His Majesties Good, Loyal, and Faithful Subjects, to the utter ruine of them, their Families, and Relations, whilst those (who have lined their Iron Consciences, with nothing but their profit, and their Chests throughout, with the Wealth of the Kingdome, (which they have gotten by the late unhappy differences and troubles) smile to see those, who have sacrificed their Bloods, nay themselves, and theirs, in and to His Majesties faithful Services) 〈◊〉〈◊〉 up (by many of them) in disconsolate and loathsome Prisons, and thereby made useless nothings, to the World and themselves. Whereas, (if we cast our eyes back, into the Reigns of the Saxon Kings, we shall find, that (those Martial, Wise, and Wary Princes) King Ina, King Echelston, and after them, all the Saxon Kings, (according to the anci∣ent British Laws) were so very tender of the Imprisonment of Mens persons, that they did not punish their very Bond-Men with it. And King Alfrede, displaced and Imprisoned one of his Judges, for daring so to do, and (when the Government devolved, and came to the Nor∣mans) William the Conqueror, William Rufus, and Henry the First, took such exact care to preserve this liberty, un-infringed, that (in their Reigns) not any person was Imprisoned, (although for mortal crime

it self) unless he were first attainted, upon the Verdict of twelve Men. And (additional to all this) many ages after the Conquest (by the anci∣ent Common Law) the Writ de Odio & Atia, was given to a Man that was Imprisoned, although for an hainous Crime, (for the death, of a Man) yet the Law (in that golden age) in favor, and out of an high esteem it had of the Liberty of a Man, and that his Body should not be detained in Prison, until the Justices in Eyre should come) he might sue out this Writ, directed to the Sheriff; and although the offence (for which he was committed) was not baylable by Law) yet the ancient Common Law, did so highly hate and abominate, the long Imprisonments of Men, that it gave him this Writ for his relief, which appears by Bracton, in his third Book, fol. 121. and by Fleta, in his first Book, Chap. 14. And with whom also Glanvell agreeth, in his forteenth Book, Chap. 3. And the Myrror of Iustice (a Book of great Antiquity and Estimation in the Law, as well as the Books before cited) Chap. 5. Sect. 1. complains of the Imprisonment of Mens Persons, as an abuse, although it had been for breaking of a Goal. Now, for that it is clear as the light, how highly valua∣ble, and dearly precious, the Liberties of Mens persons were (by the Common Law of the Land) it is (in most humble and submissive man∣ner) proposed, that (as well for the general good of all His Majesties Subjects, as for Prisoners) the antient Common Law may be resto∣red, and that great Liberty of the Freedome of all the Sub∣jects of England and Wales, from Imprisonment (for Debt or Da∣mages) may (by the Grace and Favor of His Majesty, and of both His Honorable Houses of Parliament) be again retreived, and brought back with Honor, to the people of this Kingdome; and that the an∣cient forms and ways for recovery of Debts, may be (as for several hundred of years it was) by Original Writ, distress infinite, Fieri fa∣cias, and Levari facias; and as (by the ancient Common Law) it con∣tinued (with great and happy peace and tranquillity) for such great length of time as aforesaid. And certainly great reason it is, that it should be so, all Debts and Damages being to be properly had out of the Estate of the Debtor, and not his Person. It is said, by the Lord Chief Justice Coke, in his third Report, fol. 11, 12. that the Common Law hath, and had its foundation laid and built, upon the true grounds of Reason, and that being granted, (as of necessity it must) then it will consequentially follow, that it were an Act of as much Honor, as Justice, to restore to the people of England, the possession of the Inheritance and birth rights, which they all have in, and to

the ancient Common Laws of England, and of which they have so long and unhappily been diseised, who indeed have too long already groaned under the very miserable alteration thereof, by such the Im∣prisonment of Men as aforesaid. And indeed, the very large, vast, and sufficiently known great Prudence, truly wise Apprehensions, and Princely compassion of His late Majesty, (of ever precious and glo∣rious memory (now in Heaven) towards his Subjects) were such, that it is eminently known, (that had not the unhappy eruption, of the late Civil War, prevented it) the bent of his full resolutions were, to have intimated his recommends to the Parliament, for the discharge of all Prisoners for Debt or Damages, and the absolute taking away of all Arrests and Outlawries, upon some reasonable compensation, to be made for the emoluments that thereby came to his Crown, which was then hoped would have gone under no great difficulty, to have been done, and is now (with as great facility and ease, (as is concei∣ved) by the Wisdome of the Parliament) to receive a full and perfect consummation; and as his said late Royal Majesty was pleased to say, (in the Court of the Highest Injustice, the Christian World ever knew) that he thought he understood the Laws of England, as well as any Gentleman of his Kingdome, (whose profession it was not) so (by this intentional Act of his (had it succeeded) he had made it fully and clear∣ly evident, to all his people, that (by restoring the antient known Law of the Land herein) to its pristine and original just strength, and vertue) he would thereby, as well have compelled their ignorance to understand, with how great and profound knowledge, (in the very antient Laws of the Kingdome, as the more modern) he was largely and plentifully furnisht, as by his un-enthrawling, new and fresh enfran∣chising his Subjects herein, and by calling them, (and his and their an∣cient Laws) out of the dark Caves and Dens of Prisons, (where for so great length of time) they had lain Sepulchred together. And tru∣ly it is a Solicisme, that may be justly thought on, that the Law which is so kind and merciful to my Horse, as to take provisional care for a Replevin to inlarge him,, and yet that I my self, should be reteined in¦durance, under a perishing condition, nay and without as much as any difinitive time (by Law) set for my releasement, and for years, that may tell steps, to the last stand of my life, there to melt and burn out my time, by a kind of every days death. And I can (in no sort) doubt, but that Wise and Prudent Men, will seriously, and deli∣berately perpend and consider (as elsewhere I have said) that this is the case of almost every English Subject, for (let him be crammed with

never so much Wealth, (yet he knows not, (nor is it possible for him to know or foresee) how soon he may be in a Prison himself, or if not himself, yet his Widdow, Child, or Children, near and dear Relations, Kinred, or intimate Friends. And notwithstanding all this, if it shall be thought too great a boone, that all Imprisonments for Debt or Da∣mages, should (now and for ever hereafter) be taken totally away, and the blessed antient Laws of England, be thereby fully and hap∣pily restored, to all persons in general (as is hoped and desired it may be) it is then humbly recommended, to a serious and deliberate di∣gestion, that (taking into due consideration, the late direful miseries, which (like raging and tempestuous Waves) have (one in the neck of another) rowl'd in upon those that are now in Prison, and their Estates, by the several great and calamitous Judgments of the late Civil War, Plague, Fire, and Dutch War) if it may not come with∣in a just and conscientious commiseration, to free and discharge all such as are now Prisoners, in the several Prisons of England and Wales, from their Imprisonments; and yet notwithstanding (such their discharge) that their Creditors may have their just and antient Remedies, such as by the antient Common Law, they might have had, for recovery of their Debts, out of such Prisoners real and personal Estates, by such way and means, as the same antient Law prescribes, and as (herein before is set forth and declared; which most modest Proposal, being only on the behalf of such, as are now Prisoners; and being not propo∣sed as a standing Act to continue, and discharge Prisoners in future) is hoped, will find a gentle and smooth passage, to its desired end. But if this must be also thought an Act of Grace, too large, yet certainly it cannot be apprehended, less than a perfectly honest, and truly con∣scientious offer (in lieu of their being dischardged from their Imprison∣ments) to be ready and willing to part with all their Estates, both real and personal, for the satisfaction of all their Creditors; and not only to submit themselves, but any Witness or Witnesses, to be examined up∣on Oath, for the true discovery thereof, and that (for such only) as are now Prisoners, and no other as aforesaid, which if it be not) an equal, purely fair, and just proposal) I leave any impartial and unbyast person to judge. For the perfecting of which, a Bill, preparatory to an Act of Parliament is drawn, and humbly desired (by many thou∣sands of Prisoners that the same may pass, or some such other, (for their Relief and Releasement, as to the Wisdome of the Parliament, shall seem more apposite and convenient. And if the meanest sort of Prisoners, (that could not pay any thing at all, towards the satisfaction

of their Creditors (did by Vertue of the ten pound Act) come so far under the just and merciful consideration of the Parliament, as to be freed from their Imprisonments) certainly such Prisoners as can pay some part of their Debts, and are ready and willing, to part with all their Estates, both Real and Personal, that so a proportionable Divi∣dent may be made thereof, to and amongst all their Creditors) do hope they may (with much more reason) have leave to think themselves, as well obliged to believe, as to desire) that they may (by His Maje∣sty, and both His Houses of Parliament) be freed from their Impri∣sonments, before the remainder of their Estates be totally swallowed up, by the Fees, and other the inevitable great charges of a Prison, and they thereby be put into the same low and deplorable condition, together with those who took the benefit of that Act; by means of which, their Creditors will inevitably loose their Debts, and such Prisoner, and his, be reduced to extremity of want, and the King∣dome unfurnisht and deprived of very many persons, whose endow∣ments are sublim'd, and heightned with so great natural and acquired parts, as may speak them as advantageously useful to their King and Countrey, as any other of their fellow Subjects, (very few excepted) many of whose liberal and ingenious useful Excellencies, deserve much rather to be cherisht and encouraged, then deprest; And shall our great and gracious Monarch, and his greatest Council, think it too much, that (after all the before mentioned Judgments, which have been so iterated, and repeated upon such Prisoners, and which have merged and sunk their (sometime flourishing Estates) that they should (now at length) be discharged from their Imprisonments, but that they should for ever remain so buried, without a resurrection, from the Dead, Death, and Grave, they are in, and under, whilst their de∣prest parts, are even starved and stifled in a Prison, and yet (in the condition they now stand) are left fit only to have the remainder of what is theirs, pluckt and rent from them, and not in the least capa∣city to help themselves nor their Creditors? and all this, not only to satisfie the appetites of their obstinately resolved Creditors, whose Money such Prisoners (out of pure necessity) are compelled to spend, but to suffer under, be wyre-drawn, squeezed, and run down, by the subtilties and variety of Frauds, even of such who have been intimate∣ly, and beneficially acquainted with their often repeated kindnes∣ses, in the light and shine of their prosperities; and truly, since thou∣sands of known great, and grievous Offenders, (by His Majesty, and His happy Parliaments Mercy, made a large and plentiful Meal, on the Viands

of His and their gracious compassion, whose Carcases otherwise, must (by the known rule of Justice) have fed the Fire and Birds of prey) it goes under, not only more than probable hopes, but a becoming confidence, That all His Majesties good Subjects, that are now in¦durance, in any Prison of England and Wales, for Debt or Damages, or any thing thereunto relating, or at least all such as will, so as afore∣said, part with all their Estates, both real and personal, for the satis∣faction of their Creditors, and such as are so in Prison, and have not Estates of the value of ten pounds) may be participants of His Majesties, and His Parliaments gracious and serene compassion, ac∣cording to the said Bill so drawn as aforesaid, for that purpose, or by such other Act, Way, or Means, as may best sute and agree with their great Wisdomes, which is, by very great numbers of Prisoners for Debt (now fastned 〈◊〉〈◊〉 to the several Prisons of England, in dimi∣nution, lessening, and even degrading of the Antient, Famous, and Renowned Laws thereof) with all Humility, Duty, and Obedience, not only Recommended, and Presented, but (at their feet) most hum∣bly submitted, prostrated, and laid down,

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