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. X. The way of Capias and Arrest is no oppres∣sion 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 de∣structive to their liberties. (Book 10)

WHen as Tyranny in the known and general definition and understan∣ding of it, is a cruelty or power executed by one or more at pleasure, contrary to Laws Divine and Humane, and inconsi∣stent with the Laws of that Place or Coun∣try wherein it is exercised: For Laws do or at the least should intend to prohibit things unjust, and to order things good and use∣ful, for that People and Nation unto which they are applied: The intent of a vir∣tuous

and good Lawmaker being as Ari∣stotle 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 ra∣tional Law-giver, the Watch-man of Israel, and the Keeper of the liberties thereof,* 1.1 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 de∣liver 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 di∣sturb the Rules of Civil Society, and work

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 Ap∣parel, made in his Reign, and of his Daugh∣ter Queen Mary's, which otherwise in a pri∣vate man according to the bent and rules of Nature, giving every one a liberty In rebus licitis & non prohibitis, in thing law∣ful, 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 Ita∣ly, in their submission to a Banda or Rate, imposed upon the Sellers of Victuals and

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 na∣tural 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 Na∣tion 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 ir∣revocable, but the People had by the grace and favour of the Soveraign, a reme∣dy by Parliament to abrogate, repeal, ex∣plain 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,* 1.2 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

force, into a most miserable slavery.

And therefore just liberties do by our Common Laws,* 1.3 saith Sir Edward Coke, sig∣nifie 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,* 1.4 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 tortu∣ring 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

in dying,* 1.5 and have no other drink but Ken∣nel-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 Autho∣rity 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 compel∣led to do right one unto another by Judges, and those that were in Authority commis∣sionated 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,* 1.6 the Obligees may dispense with it: And if the Law of Nature could have gi∣ven us such a vast liberty, as some would pretend a right unto, the same Law of Na∣ture doth in civil Conversation and Society give us a power sufficient to restrain it, and

make that which at the first was merae vo∣luntatis in our own wills, to be postea ne∣cessitatis a necessity, and out of any sup∣posed freedom of our own wills or the pow∣er 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 oppres∣sion 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 o∣ther contradictory, and there are no Laws but do retrench, or take away some liber∣ty which People had or took to do ill, or might be inconvenient to the publick good: For God the greatest and wisest of all Le∣gislative 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

Judge. And yet we do find them in their Generations above two rhousand years, af∣ter in such an opinion of their freedom, as they thought nothing could be added unto it; saying they were of the Seed of Abra∣ham, 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,* 1.7 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,* 1.8 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 Earl∣dom of Chester,* 1.9 to his Nephew Hugh Lu∣pus, Tenendum sibi & haeredibus ita libere ad gladium, sicut ipse totam tenebat Angliam ad Coronam, to him and his Heirs, to be

holden as freely by the Sword, as he did himself hold England and the Crown there∣of: 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 up∣on any Summons to the Courts of Justice, of our Kings and Princes: For legalis & li∣ber homo,* 1.10 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 or∣der 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

complaining, or the Courts of Justice com∣manding, 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 ab∣sent, so alwayes provided of their Coun∣cel, Witnesses and Evidences, as not to need any further time to make their neces∣sary deffences, and to be of so much suffi∣ciency of estate, as to have wherewithal to make a speedy answer or satisfaction: And that there were no such pravity or in∣certainty 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

necessary, and a lesser then what is now, or hath been most anciently practised, could not be to any purpose, unless we could con∣tent our selves, and take that to be a hap∣piness (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 Di∣vine Protection and Providence, is one of the greatest blessings which was ever impar∣ted by God unto it, and as to the continual guard and preservation of our lives, liber∣ties 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 em∣pty 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,

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 oc∣casioned 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 par∣ticular 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,* 1.11 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.

Nor could our Fore-fathers in the neces∣sity of bringing, or compelling men to ap∣pear in Judgment, as well as of the preser∣vation 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 un∣derstood 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 deem∣ed to be an oppression, to enforce such Persons in a legal and orderly way to pay their Debts, and do that which God com∣mandeth them to do, and hath no less Ju∣stice or conscience in it, then to be con∣strained to do right one unto another,* 1.12 per∣form Covenants and Promises, and obey Magistrates and Laws in force, when the Book and Dictates of God himself, do ac∣compt a Man wicked, that borroweth and payeth not, and the wilful deceiving of Men, in the not paying of Money due un∣to them, or not performing of Promises, is by good Divines and Expositors con∣ceived

to be a kind of theft, and reckoned to be within the meaning of the Eight Commandment,* 1.13 and to be numbred a∣mongst 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 Mo∣ney or Goods, or for a Judge by the Com∣mon 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.* 1.14 To punish Souldiers with death by the Law Military, for running a∣way from their Colours, stragling in their March, or going above a Mile from the Army without licence; to Arrest or Im∣prison such as resort to unlawful Games,* 1.15 until they shall find Sureties, no longer to use or haunt any place where such unlaw∣ful Games are used; or to imprison Colle∣ctors for the Poor, refusing to accompt: And Sir Edward Coke in his Commentaries upon that part of Magna Charta,* 1.16 saith that

a Watchmans arresting a Night-walker, or one that hath dangerously wounded an∣other, or that keepeth Company with a notorious Thief, whereby he comes to be suspected is lawful, and no breach of Magna Charta,* 1.17 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 Oppres∣sion? 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 Oppres∣sion or Tyranny to Arrest a Defendant, to constrain him to appear in an Action of Debt, and none at all in an Action of Tres∣pas? Nay, rather is it not an Oppression, to endeavour to defraud and injure Men, detain their Estates and Livelyhoods, with∣hold

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 Ty∣ranny 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 rea∣son, as they have not only made use of the Proces of Arrest, and Imprisonment of the Body in Actions of Debt,* 1.18 and other the like Personal Actions in these later Ages, but long before the Incarnation of our blessed Saviour.

The Athenians had their Bailiffs,* 1.19 Ser∣jeants, and Apparitors to bring Defen∣dants 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

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 punish∣ments and levetities used; and their Law-makers and Magistrates were much trou∣bled, to appease and reconcile the interests of the Creditors, and necessities of the Debtors, they could notwithstanding very well content themselves, and think their li∣berties to be sufficiently provided for, by this gentle and secure way of Proces, to compel Defendants Judicio fisti, to appear in Judgment.

Notes

• * 1.1

  Exodus 22. 7, 8.
• * 1.2

  Bracton lib. 1. ca. 6.
• * 1.3

  Coke 2. part. Institutes 47.
• * 1.4

  Verstegans Antiquities ca. 3.
• * 1.5

  Stamfords Pleas of the Crown.
• * 1.6

  Oldendor∣pius in diffi∣nit. Actio∣num.
• * 1.7

  1 Sam. ca. 17. v. 25.
• * 1.8

  Dugdales 1. part. Mona∣stic. 172, 173. & Blounts No∣molexic in verbo Frod∣mortel.
• * 1.9

  Spelman Glossar. in diatriba de Comitib.
• * 1.10

  Spelmans Glossar. in verbo lega∣lis.
• * 1.11

  Bacons Hi∣storical Dis∣course of the Govern∣ment of England.
• * 1.12

  Psalm 15.
• * 1.13

  Ursinus Ca∣thechisme, & Majer upon the ••8. Com∣mandment.
• * 1.14

  Laws of War.
• * 1.15

  23 H. 8. ca. 9
• * 1.16

  Coke 2. part. Institutes 52.
• * 1.17

  14 Eliz. ca. 15.
• * 1.18

  Sigonius de Repub. A∣then. lib. 3. ca. 4.
• * 1.19

  Rous. Ar∣cheologia Attica lib. ca. 4.