The ancient, legal, fundamental, and necessary rights of courts of justice, in their writs of capias, arrests, and process of outlary and the illegality ... 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.

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 trou∣blesom, but difficult. (Book 8)

THat the pawn of the Body, and li∣berty 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 consecu∣tiva, and the Collaterales sequelae & appen∣dices, to the Person of the Debtor; and as to what is in his immediate possession, or are other wayes in his dispose or power,

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,)* 1.1 was the Instar om∣nium, the most easie, most certain conve∣nient, and obligatory kind of security.

And must needs be so, when the taking of Pledges or Pawns had such a restraint laid up∣on it, by Gods own most righteous Laws, gi∣ven to his chosen People of Israel:* 1.2 Not to keep the poor mans Rayment or Covering, after the Sun was gone down,* 1.3 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 gi∣ven as Pledges by the Borrower, or violently taken by the Lender; and were the causes of

making many a Law or Constitution,* 1.4 for the taking away of grievances, or abuses happening by it.

As when a Man gave an Horse, or a Ser∣vant for a pledge,* 1.5 he was to pay any dam∣mage which it did in that time; if Gold, Silver, or any other Ornaments were pledged, and happened to be burnt,* 1.6 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 Deb∣tors Oath, and the Oaths of the Neighbour∣hood where he was born, the Party pledg∣ing 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;* 1.7 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 Cre∣ditor 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 a∣gainst the Law,* 1.8 and a Man taken in pledge were killed, or any other dammage were done, the Creditor, and not the Owner of the Pledge,

was to pay it: If any Man took a Free-man as a Pledge by force, and shut him up as a Prisoner,* 1.9 he was to pay forty Shillings pe∣nalty; If the time for the Pawn was expired, and it was not within that time redeemed, he was to bring it before the Judge, whereup∣on an Apprisement made by three honest Men,* 1.10 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 Cu∣stody of the Creditor, had stolen any thing, he was to endure the dammage. If Oxen, Horses, Minuta Animalia, or smaller Cattle, Vest∣ments, Jewels, and Vtensils of Husbandry, remained as pawns with the Creditor, by the space of twelve nights; and they were not re∣deemed, 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 pro∣cure them to be released;* 1.11 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

the Law,* 1.12 give any Man in pawn or pledge without Licence, he was to pay fourty Shil∣lings penalty; And if the Creditor took Hogs in pledge without order, both he and the Dri∣ver were to undergo severe penalties.

And the grievances and inconveniences, did by pawning and pledging grow so high and burdensom,* 1.13 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, ad∣ded to his Lombardy Laws concerning pled∣ging, 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 audi∣vimus mu••••a damna & afflictiones propter hoc Populum nostrum sustinuisse,* 1.14 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

Fidejussor or Surety: For a Debt or Mo∣ney amongst the Burgundians,* 1.15 he That be∣came the Surety, carried home to his house the Debtor, there to remain as his pledge for performance;* 1.16 And where the Surety had not so secured himself, he was Before Witnesses to have three times more than the Debt secu∣red, 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 Ba∣varians 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,* 1.17 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,

if they were any thing suspicious of the re∣turn and payment thereof, did not seldom take an Oath of the Borrower, besides his Bond or Pledges, which gave the Ecclesia∣stical Courts an occasion, or pretence of ta∣king 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. Ed∣ward the 1, 2d. and 3d. where Prohibitions were sent into the Spiritual Courts, by our Kings and their Temporal Courts of Ju∣stice, and Actions were brought upon the disobeying of them by the Parties grieved, as well against the Ecclesiastical Judges, as the Parties therein prosecuting:* 1.18 Quare tra∣xerunt eos in placitum in Curia Christiani∣tatis, in placito debiti contra prohibitionem Domini Regis; And then there was no doubt, but that a Sentence being given for the pay∣ment 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 Defen∣dant;

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,* 1.19 to preserve the Priviledge of his Menial House∣hold Servants, and prevent their Arrests, and Imprisonments upon Excommunica∣tions, held it necessary to make and issue out his Writ, De promulgatoribus Senten∣tiam Excommunicationis in Ministros Regis capiendis & imprisonandis, to take and im∣prison such as excommunicated any of them.

Notes

• * 1.1

  Juxta Gl. in l. 14. & C. de advocat. divers. Judic.
• * 1.2

  Exod. 22. v. 26. & 27.
• * 1.3

  D••ut. 24. v. 10, 11, 12.
• * 1.4

  LL. Ala∣mannorum in Linden∣brogio 86.
• * 1.5

  LL. Wisigo∣thorum lib. 5, §. 2.
• * 1.6

  LL. Longo∣bard. tit. 21. §. 5. & 16.
• * 1.7

  Edictum Theodorici Regis 122, 123, 124.
• * 1.8

  LL. Friso∣num tit. 9. & in addita∣men. sapient▪ Ulmari.
• * 1.9

  LL. Bajuva∣riorum §. 24
• * 1.10

  LL. Wisigo∣thorum lib. 5. tit. 3.
• * 1.11

  LL. Longo∣bard tit. 21. §. 3.
• * 1.12

  LL▪ Baivar. ti••. 12. §. 1. 3, & 4.
• * 1.13

  Constitut. Theodoric. in Goldasto §. 95.
• * 1.14

  LL. Longo∣bardorum tit. 21. §. 26.
• * 1.15

  LL. Burgun∣dionum §. 9. & 19.
• * 1.16

  LL. Bajuva∣riorum tit. 3. §. 24.
• * 1.17

  Purchas Pil∣grimage Tom. 1.
• * 1.18

  Pryns Histo∣rical Colle∣ctions in the Reigns of King John, H. 3. & E. 1.
• * 1.19

  Rot. Pat. 25 E. 1. in∣tus.