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. 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. (Book 9)

ANd the difference betwixt the bor∣rowing of Money upon Lands and real Estate, and the procuring of it upon perso∣nal 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 me∣mory of man, at first only purposely con∣contrived 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 pu∣blick Records, what conveyance or setle∣ment he should make of his Estate; and by the sad experience of sometimes double or

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 a∣bundance of over-jealous, hard-hearted, thorney Covenants, and unmerciful provi∣soes, 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 In∣cumbrances are upon it, and so embroil that and the residue of his Lands and Estate, with Statutes, Judgments, and Recogni∣zances of great penalties, for the perfor∣mance of those Covenants, as he shall hard∣ly 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

year or two, for the repayment of the princi∣pal 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 Mo∣ney, for he dares not continue it any lon∣ger 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 confir∣mation; but if that will not do his busi∣ness, and accomplish his griping design will exhibit his Bill in Chancery against him, to enforce him to pay the Money, or loose his

equity of Redemption, whereupon a six Moneths, or some not very long prefixion gi∣ven unto him by the Lord Chancelor, or Lord Keeper, he must either upon that short war∣ning 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 af∣fording him but som small parcel of relief, and he being not also at that time able to procure a Redemption, must lie down un∣der his sorrow, and let the Mortgagee enjoy the Land, for scarce half the value.

A due consideration whereof might ei∣ther in equity or compassion become a Court of Equity, in such a case to order the over∣plus 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 Chil∣dren, and be much more agreeable to Ju∣stice

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 af∣fliction to affliction, and strengthen the hands of the Oppressor; which the Prophet Eze∣chiel saith, was one of the crying sins of Sodom, in a time especially when too ma∣ny of the loyal Nobility and Gentry have so abundantly suffered in their endeavours to rescue their King, Country, Laws, Reli∣gion, and Liberties from the pretences and oppression of a factious and disloyal part of the Nation, who by plunder and sequestra∣tions 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 par∣donned, cannot tell how to allow a Chri∣stian forbearance to the sick, and languish∣ing 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

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 procu∣ring of each two thousand Pounds, and walk a great way, besides towards fourty or fifty Pounds Charges more, in the contri∣ving and preparing the assurances; and after many a scruple and Rock of the Lenders, never to be satisfied fulness of security, pas∣sed over many a weeks attendance and charge, in the humoring of his many times purposed procrastinations, to drive him into greater necessities, whereby the ea∣sier 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

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 lively∣hood, will apply himself to as destroy∣ing 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 Cove∣nant, 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,

to borrow any more Money upon what re∣mains unmortgaged. And if the Money could be borrowed of a Citizen of Lon∣don upon a mortgage, it must be of Lands near London, or in some adjacent Coun∣ty, 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 Cre∣dit, 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 here∣tofore 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, bor∣row fifty or one hundred, or two hun∣dred 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

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 mul∣titude of London Merchants, Retaylers, Tra∣desmen, 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 Ser∣vants could not maintain or uphold them∣selves, in their several orbs and stations, with∣ovt a trusting of their Customers; and be∣ing 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, Sea∣men, Retaylers, Farmers, Taylors, Labo∣rers, Husband-men, and all sorts and de∣grees of People in the Kingdom, and other Parts of the World; and even the landed men and Free-holders, who are not the for∣tieth

part of the Nation; and the Copy-holders, when they do not deal for so great Sums of money, as to surrender and en∣gage their Copy-hold Estates, cannot in the multitude, diversity, speed, and mana∣gement 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 Deb∣tors, 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 Lon∣don, 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 In∣terest, 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

are engaged for, by Credit or other∣wise.

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

to be very safely lent without such a secu∣rity. 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 Com∣merce in the Nation, if it should not be driven by personal securities, when our Mer∣chants that do Trade into Persia, the East-Indies, Turkie, the Levant, and Norway, with as much Money as Commodities, ha∣ving 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 un∣to them, and do many times borrow money in their own Countreys, to give day and time of payment unto Merchants, and their Cor∣respondents 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

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 extraordi∣nary 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 accu∣stomed, and very laudable wayes of trust, and confidence in the credit, and punctuality of performance of one another, and not be∣lieve a Bargain or Contract to be well and se∣curely made, or Bills of Exchange safely ans∣wered, without an almost infallible certainty, of the Estates of those with whom they deal or correspond, and in their diffidence there∣of (when as to the Sea and Forreign Trade, the Winds and Tides will not be intrea∣ted 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 cer∣tain engagements of their Bargains, Con∣tracts, Undertakings, or Promises, until

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 Con∣tracts, Charte••, Parties, Agreements, Part∣nerships, or Insurances to be without any, or very little, or seldom hazard or danger, or procure some Perspective glasses to af∣ford them a clear intimacy, or visibility into the Estates of Men, or a possibility of Ac∣cidents, Shipwracks, Piracies, or Sea mis∣fortunes, or the breaking or knavery of Re∣taylers, and render them as safe in their Trade, and adventures against all contin∣gencies, as any moral or worldly probabi∣lity, or security can make them.

And that their great concernment, and height of reputation, guarded by the wake∣ful Eyes of publick Notarial Protests (which is sometimes tromped upon them, by some of their Forre••gn Factors or Correspon∣dents, inadvertencies or over charging them, is of so britle and tender a nature, as a small gust of misfortunes, or adversities, over∣turns, and sinks it; or a malicious or foolish report of being broke, or likely to break,

shatters it all in pieces, and puts the not long before prosperous Owner of it, to re∣cover as well as he can the dammage su∣stained by it, and the Shipwrack of Credit can be no otherwise then exceedingly omi∣nous, 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 Per∣son, in the Sum of one hundred Pounds or more, shall be arrested for the same, or lye in Pri∣son 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 pro∣portionably to their debts, and be liable to the

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, compul∣sion or disgrace, all Commerce and Traf∣fique 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, Con∣tract, 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

them; or if they have, it must be upon such other Cautions or Security, as may starve, and take away the hopes of their prefer∣ment.

Moneys given to Charitable uses (as they are many times) to be lent upon se∣curity to poor Tradesmen, or young Be∣ginners, 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 be∣ing likely to be had) for otherwise it can∣not be done, but to such as are rich already.

No Merchant, or whole Sale-men, will adventure to trust or sell to Retaylors, up∣on one, two three, or ••ix Moneths, as they shall be able to make or return it; nor Re∣taylers to Retaylers, as they do often use to do, if they do not give personal Secu∣rity, 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 Mer∣chants; no man shall know how to do good to a Friend or Servant, or set up a young

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 com∣fortable subsistance, by retailing under o∣ther Tradesmen; nor any Mariner, Soul∣dier, or Servant be trusted, because they have nothing but their Bodies to be answer∣able 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 Batche∣lors or single Men, all or the most part up∣on 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 per∣sonal 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

wont to be by Bonds, Bills, or personal Se∣curity, 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 di∣sturbances called home; and that the mo∣ney Current in the Kingdom, is by no very random computation verily believed to be scarce enough to pay the Interest of the Ca∣pital, of what is owing by the People one unto another; and if the course and way of Credit should be now stopped, and tur∣ned 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

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 pro∣claim the great benefits of trust and Cre∣dit, and that, which not seldom happens, by the only employ and advantage of an∣other mans money: And the sad & in∣eluctabile fatum dismal, and not to be over∣come 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 oppor∣tunities 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,

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 A∣braham Dawes, one of the Farmers of the Customs, in the Reign of King Charles the Martyr, able to take of those who volun∣tarily offered it, one thousand Pounds at a time upon his single Bond or Bill, which to support he did alwayes (as he himself ac∣knowledged) 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 re∣plenish 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 en∣ticed almost all the money of England, in∣to 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.

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 Lin∣colnshire, 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 warn∣ing, 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 Cau∣tions 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,* 1.1 in their Divisions of Actions into real, personal, and mixt▪ have informed us, do inducere Actionem in perso∣nam, make an Action to be personal, for that the individual and very same money is not, nor can by the Plaintiff be expected

to be restored, but the value of it or dam∣mages; 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 Re∣cognizances in Chancery, or elsewhere ta∣ken, do when they do carry in them a con∣dition upon default of payment, to leavy the money upon Lands, Goods, and Chat∣tels, 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, & Administra∣tores 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 Per∣sons of men; for Bonds or Contracts do bind, and engage the Person as much, as if he did thereby undertake to pawn his Bo∣dy, and subject it to an Arrest or Com∣pulsion, to appear in Judgment, if he should fail in the performance; for all Contracts and Promises,* 1.2 saith Fleta, have in them Vinculum Juris such a Bond or O∣bligation, as ties us to the performance of

them,* 1.3 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:* 1.4 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 up∣on 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,

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, se∣vere, 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,* 1.5 which may be proponed to the contrary, and all Pri∣viledges 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, accor∣ding to the Obligees own modification, decla∣ration of conscience or discretion; and ten Pound Scotch money for Ilke shilling Scotish Money, which shall be unpaid of the Princi∣pal; nor so fierce as in some Parts of Ger∣many,* 1.6 where the Creditor, if he suspected the Debtor to be poor, will take Jurato∣riam Cautionem, make him swear that he would pay the money again; amongst whom and the Italians there were Ostagia or Un∣dertakings,

to give entertainments to the Cre∣ditors 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 before∣hand, of the benefits of Law in general and particular;* 1.7 as there is by Butrigarius rec∣koned up no less then fifty three several sorts of Renunciations, which the cruelty or diffidence of Creditors did in their Con∣tracts 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 e∣nough constant form of Bonds and Obliga∣tions 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 there∣of,

but it hath been its greatest prop, and support in the for many years long and bloody Wars, betwixt the two great con∣tending Houses of York and Lancaster, when Estates in Land were little worth, and where they were of any value, or en∣joyed any quiet from the furies of War, or disturbance of Seisures, Attainders, or Con∣fiscations were until the 27th. year of the Reign of King Henry the 8th. and the 27th. year of the Reign of Queen Elizabeth co∣vered, and protected with secret and undis∣cernable uses, many of which were frau∣dulent, 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 ta∣ken for security for money, or moneys worth, or the value of it, which in matters of Trade

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 disfur∣nish, 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 hun∣dred Pounds may be borrowed upon a Bond with one or two Sureties? and how readi∣ly, 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 for∣mer 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 trou∣blesom 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

for their Childrens honesty, many times dearly discharged, when as now their sin∣gle Bonds or Covenants will suffise.

And they ought not surely to be accomp∣ted 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,* 1.8 when in a famine only of Bread, progno∣sticated to continue for seven years, they were in the first year of it constrained, when money failed them, to take bread in Ex∣change for their Cattle, Horses, Asses, and Flocks, and after their Bodies offered as pledges upon the like occasion, and neces∣sity to give up their Lands for necessary

(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,* 1.9 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 secu∣rity 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 Fa∣ther Jacob, to remove him from his unwil∣lingness to send his beloved Benjamin into Egypt,* 1.10 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

25 E. 3. the Bodies of men, as well Nobi∣lity as others, have to the great advantages of the Kingdom, and upon great and weigh∣ty reasons and occasions of State, been gi∣ven 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 A∣ctions of Debt, impowring the Justices of the Court of Common Pleas, to make proces and hold plea thereupon,* 1.11 the Sheriff to whom the Writ is directed, when he doth sum∣mon 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 irresisti∣ble Arguments, Reasons, Examples, proofs, and necessities for the ancient, long conti∣nued use of the Writs of Capias and Outlary, beyond a prescription and memory of man, and many ages.

That which hath in all Ages been allow∣ed, as the best expedient to secure from doing or suffering wrong, in case of lesser or greater Crimes, as Trespas, Felony, Man∣slaughter, 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 & Gao∣la,* 1.12 The Goal and the Prison were to be Se∣curities, 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 cor∣pore, Where a man hath nothing in his purse to answer the Law, he ought to suf∣fer 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 care∣ful

to prevent, as that rather then fail they suffered the Plaintiffs themselves to take and imprison them) may be called in as Assi∣stants, to maintain the right reason and ne∣cessity 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 conse∣quences thereof, and benefits ad••rewed there∣by, 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 dam∣mage 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

there; as if the Prisons of the Fleet, Kings Bench, Marchalsea, Ludgate, the Compters in London, Newgate, the Gatehouse at Westmin∣ster, 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 A∣ctions? And how long or little while they did or do there tarry the product of that ac∣compt, 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 incon∣veniences of imprisonment, which do inevi∣tably 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,

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 threat∣ned.

For if four thousand Writs of Exi∣gent be awarded, and issued out of the Court of Common Pleas in the year 1674. which is very near an exact accompt ta∣ken thereof, not much above one thou∣sand of them do come to be returned, fi∣led, 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 fan∣cied 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.

And the Outlaries certified into the Ex∣chequer 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 com∣mand of the then miscalled Parliament, to be no more then three hundred ninety one; of which there appears to have been com∣mitted 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

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 rea∣son, 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 bon∣dage, terror, and sorrow of heart, and utter ruin•• of the free born People of this Nation, founded upon a misconstruction, and inad∣vertency 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

now in its old age have no better a title then a grievance; and those unjust Rab∣sheka railing reproaches, (when it hath been helpful to multitudes of men in several Ages) cast upon it.

Notes

• * 1.1

  Bracton lib. 3. de actio∣nibus ca. 3. Fleta lib. 2. ca. 6. §. 22, 23.
• * 1.2

  Fleta.
• * 1.3

  Bronkhorst tit. Reg. Ju∣ris, & Com∣mentar. ad loc. Bracton lib. 1. ca. 5.
• * 1.4

  Grotius de Jure Belli lib. 2. ca. 6.
• * 1.5

  Scottish Re∣cords in the Tower of London, whilst they were there imprisoned by Oliver Cromwel, & Parl. James the Sixth in Anno 1600.
• * 1.6

  John Cop∣pen in Ran∣gensdorf in Decis. quae∣stion. 33.
• * 1.7

  Butrigarius in Tract. de Renuncia∣tion.
• * 1.8

  Genesis 47.
• * 1.9

  Genesis ca. 38.
• * 1.10

  Genesis ca. 42.
• * 1.11

  Sigonius de Judiciis lib. 1. cap. 21.
• * 1.12

  Bracton lib. 5. de excep∣tionibus ca. 8. 31.