Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Whether it be consonant to reason, con∣science, or for the good of the Com∣mon-wealth to Arrest mens Persons, and to detain them in Prison for Debt?

I Know this is a case in which ma∣ny men have vented their judge∣ments in publick, and it hath not been without a solemn debate too in

the Parliament; so that there is the less for me to do, and therefore I shall be but short in it.

What reasons induced the Parlia∣ment to continue this Law, I know not, nor is it for me to examine; how∣ever, I beseech you, let it not be ta∣ken amiss that I offer my reasons in it, and leave them to better judge∣ments.

In the first place I shall examine what the old Law was, and when, and how this Law of imprisonment of persons for debt crept in; for it hath not been always used in Eng∣land, and I may say in few other places of the World; and where it is in use, there is care taken that they do not perish in prisō for want of ne∣cessary sustenance, but they and their families to be maintained out of their own Estates; and if they have none, the perverse and cruel Creditor is

to maintain them out of his proper Estate; and not to suffer them to pe∣rish for want of food, as they do commonly in England.

The body of the Defendant was not lyable to execution for debt at Common Law, for which see 13. H. 4. 1. But his Goods, Chattels, and Corn, &c. by Fieri facias, or Le∣vari facias within the year, and by the Stat. of W. 2. by Scire facias af∣ter the year, and by W. 2. cap. 18. an Elegit was given of the moyety of the Land; which was the first Act which subjected Land to the execu∣tion of a judgement.

But the Common Law which is the preserver of the Common Peace of the Land, abhorres all force, as the capital Enemy to it, and there∣fore against those who committed any force, the Common Law sub∣jected their bodies to imprisonment,

which is the highest execution, by which they lose their Liberty, till they had made an agreement with the party, and Fine to the King.

And therefore it is a rule in Law, that in all actions Quare vi & armis, a Capias lies, and where a Capias lies in process, there after judgement, a Capias ad satisfaciendum lies; and there the King shall have a Capias pro fine.

Then by the Stat. of Marlebridge 23. and W. 2. cap. 11. Capias was gi∣ven in an account, for at common Law, the process in an account was distress infinite, and after by the Stat. of 25. E. 3. cap. 7. the like proces was given in debt, as in account, for before this Stat. the body of the De∣fendant was not liable to execution, for the reason and cause aforesaid, all which you shall find in my Lord Cooks 3. Book, Sir William Harberts case.

Here you see the Original of the arresting of mens bodies, and taking of them in execution for debt; which was by force of those few but rui∣nous distructive words in 25. E. 3. like proces in debt as in account; these few words have ruined many, and almost numberless persons and Families; who, had they not been cloysterd up in Prisons, might have lived to have got Estates, and to have been able to discharge a good conscience in satisfaction of their debts, and providing for their Fa∣milies.

For the proces by way of Capias, or attaching of the person for debt, I know it will be said to me, if you will have that course taken away, what other will you provide conve∣nient for gaining of our debts? To this I answer, that that which I con∣ceive most convenient in reason, and

which hath been already proposed to the Parliament, is by way of Sum∣mons, as the Original in the com∣mon Pleas is; and upon that▪ if no appearance be, to have liberty to proceed with all vigour, and to have a judgement against the Defendant for not appearing, as if he had ap∣peared, and judgement had been thereupon obtained against him. Onely this I must observe, that it is of necessity, that the service of the Summons be sworn to, (as it is in case of a Subpoena in the Chance∣ry,) before there be any further pro∣ceeding, otherwise, any man living may be abused, and extreamly suffer by the seisure of his Estate upon exe∣cution, he having had no notice by way of Summons of the said action. And this great advantage to the Common-wealth there will be by the way of Summons, that it will

destroy all priviledged places, for a Summons may be served, where there durst not be an arrest; So that then there will be no protection of men against their Creditours, but that such as have Estates, shall, as in conscience they are bound, pay their debts, and not consume them in a corner, under the guard of any pri∣viledge.

The next thing, after the proces, and judgement, that is to be consi∣dered of is, what execution is most just and reasonable, and most agree∣able to conscience, and the good of the Common-wealth in such case? In this we must consider what the scope, aim or end of the Law is in such execution; and that is, the satis∣faction of the debt. Then the next question is, which is the most just and probable way to attain to this end? whether the taking of the bo∣dy,

or the Estate? To this I answer, that certainly the nearest, best, and most conscionable and rational way to attain to that end, yea and most equal too, is by seizing of the Estate.

The most equal it is certainly, and our Law much delights in equalities; for it is not equal justice that the bo∣dy (which is said in Law to be the highest execution, and so without doubt it is, and much more to be valued then all Worldly goods) should be captivated and imprison∣ed, for any Worldly pelf, or ingage∣ment whatsoever, body for body, and Estate for Estate, is the most equal way of justice in the World.

And it is the most rational, the readiest and best way for to get a sa∣tisfaction of the debt, and it is that which must pay it at last, if ever it be paid; for this is but a slender sa∣tisfaction of the debt. And this great

inconvenience he lies under that takes the body in execution, that he cannot, after he hath determined his Election by this way of execution, during his life, take hold of his Estate too. And heretofore it was a great question, whether if the party died in execution, it were not a satisfa∣ction of the debt; and though there were much variety of opinion in it, yet certainly the best was, that it was a satisfaction, so that the plaintiffe could not resort afterwards to, or take out execution upon the Estate; and for my part, I think it was the most just Law, that he, whom no∣thing but the body could satisfie, should have no other satisfaction, this occasioned the making of the Stat. of 21. of King James; which provides remedy against the Estate, notwithstanding the persons dying in execution.

But I say, having thus determined his Election by taking the body in execution, he is upon this great dis∣advantage that the debtors Estate is free, and that which he would not take to satisfie his debt, happens for the most part to be wasted and con∣sumed in prison. 'Tis frequent, that a wilfull creditor finds as stubborn a debtor; and since nothing will satis∣fie him but the body, he must take that for satisfaction; so that it is ap∣parently contrarie to reason and common policie.

'Tis likewise under correction, the most conscionable way too; and the contrarie, which is the taking of the person, the most unconscionable, especially as it hath been practised in England, for either the debtor hath an Estate, or he hath none, if he hath an Estate, it is all the Justice in the World that that should be responsi∣ble

for his debts; if he hath none, what can be more unconscionable or unjust, than to keep his body in pri∣son. Lex non cogit ad impossibilia, the Law requires not impossibilities at any mans hands, why then should one man so exact upon another? Be∣sides, this renders a man utterly un∣capable of ever giving satisfactiō, for by this he is wholly deprived of all possible means of discharging his in∣gagements. Whereas had he his li∣berty, he may through Gods bles∣sing upon his honest indeavour, gain sufficient, not onely to satisfie his debts, but to raise a fortune for his posteritie.

But this will not digest well with such, whose principle is, that if they have it not they will make dice of their bones, (a saying that hath been ever too common in this place) that is, they shall starve and perish in

prison: and whether this be not meer and pure malice in such men, let all the World judge; and if death shall thereupon follow, as too too often God knows it doth, I shall be bold to say, that such a creditor is as absolute a murderer, as if he had killed him with his own hand. For what makes murder, but malice prepensed to kill: and what else can that man have in his thoughts, who resolves his debtor shall rot and die in prison, though he knows he hath not wherewithall to satisfie. To such unmercifull, pittiless, cruel creditors, (yea, and therein most cruel to them∣selves too, had they grace to consi∣der it) I shall say no more but this, that they cannot keep their poor cre∣ditors always in prison, death will at the length take pitty of them, bring a discharge and open the doors and let them out; and there

(through their affliction, working them to true and unfained repen∣tance and amendment of life) I doubt not, ends their captivity: but let these take heed, that they be not one day cast into that black, dismal and infernal Lake, from whence there is no redemption.

But I know that it will be objected to me that debtors may conceal, or secretly convey over their Estates to cousen their creditours, which can∣not be discovered; so that if their persons may not be imprisoned, cre∣ditors shall be wholy without re∣medy.

To this first I say, that it is a rule in Law, that Nullum iniquum est in lege praesumendum, presumpti∣ons of fraude or deceite are not per∣mitted in Law, that is so just, that it conceives all men to be just likewise, till there appear something to the

contrarie: and why should our thoughts be otherwse? but it is so, men of corrupt lives, judge all others like themselves.

I answer further, that such as are resolved to be dishonest, it is not im∣prisonment will make them other∣wise; and in such case if you take their persons, you are further from gaining of your debt than before, for you cannot then fasten upon their Estates; and let not the innocent suf∣fer with the nocent, the willing and unable, with those that are able and unwilling.

Besides, how often is imprison∣ment made a meer cheat, even by the prisoners themselves to defraud their creditors, they willingly sub∣mitting themselves to a prison, to preserve their Estates.

But it is further objected, that if imprisonment of mens persons for

debt should be taken away, it would be a great hinderance to trading, which is, as it were, the soul of every Common-wealth, for then men would not dare to trust one ano∣ther.

To this I answer, trading driven upon credit seldom thrives; And I may safely say, that many men, who are now beggers, had been rich men, had they had less trust and confidence, little profit without, is more than great with hazard and danger. I know no reason that any man should be trusted who hath not wherewithall to pay; and certainly men in general, then thrive best, when they trust least; and for my part, I judge that man worthy to lose his debt, who trusts to the secu∣rity of a mans person onely.

Again, Lex respicit finem, the Law hath an eye to the end of all

actions; and as this is not the next way to get mens debts by the impri∣sonment of their creditors persons, (as I have said, and proved before,) So I beseech you to consider, who it is that gains by it? it is certain the creditor, seldom, if ever, gains his debt the sooner.

Why, the onely gainers are, She∣riffs, Bayliffs, Serjants, Goalers and Keepers of prisons, &c. these are they that grind the faces of the poor, that add affliction to affliction, and live upon the ruins of others; these are the mala necessaria, the bloud∣suckers, the leeches of the Common∣wealth; evils they are, and great ones too, I am sure of it; but did I say they were necessarie? I must re∣call that word, otherwise, I must of necessity approve of the Devil and his cursed instruments; and Hell and a prison have no small resem∣blance,

onely there is more hopes of getting out of the one, than the other. A silver key, so long as a man hath it, will unlock the prison doors, and set him at liberty; but if he shall make default in payment of his rents, or other extortions ex∣acted of him, by the keeper, and his bloud-hounds, he shall quickly be hunted after, and fetched in again, and there remain untill he hath satis∣fied them; that being done, he shall be restored to his former liberty; but if his purss be not of considerable magnitude, it will soon be emptied; and then, no longer pipe no longer dance; the creditor shall be sure then to find him, and now nothing remains but the body, which the creditor so unwisely made choice of, for satis∣faction of his debt. This I know to be the constant course of many Keepers of prisons; and the condi∣tions

of their prisoners; and whether this be the way for creditors to get their debts or no, let any sensible understanding man judge.

But lastly, it hath been said by some, that it doth indeed stand with reason and conscience, that where a man becomes unable, through the Act, or hand of God, without any Debauchery or default of his own, to satisfie his debts, that in such case he should not be detained in prison; but if through his own default, in such case he deserves no mercie.

To this I say, under favour, that though he be so impoverished through his own default, it is very hard, and to me unreasonable, that he should so suffer; First, because that this is not Gods Method or way of dealing with poor sinfull man, for if God should inflict the severity of his Justice upon us, but for one of

a thousand sins that we commit against his Divine Majesty, no flesh living could be saved, why should we then so exact one upon another, as not to forgive one fault or trans∣gression of our Brother; are we not required to be mercifull as our hea∣venly Father is mercifull? and do we not dayly pray that God would for∣give us our Trespasses, as we for∣give them their Trespass against us? how then dare we harbour malice in our heart against our Brothers; since except we truly forgive, we are not to expect forgiveness? consider with thy self how much thou art indebted to God, and if he (as in Justice he might) should require that great debt at thy hands, nay, but one of a Million, thou must inevitably go to prison, I, to that prison (to which all earthly sufferings and torments are as nothing) from which there is

no redemption to all eternity; and therefore forgive, as thou dost ex∣pect to be forgiven.

Again, this is not the way to satis∣fie the debt (which is the end of the Law in such executions) but to ruin the party; who, had he is Liberty, might leave his former vanities and ill courses, and live to be able to make satisfaction of his debts; God happily waits for thy reformation all thy life, do thou (as in duty thou art bound) deal so likewise with thy Brother. I shall conclude all with this one word, let us consider those that are in bonds, as if we were in bonds together with them.

The next I have considered to treat of, is the Chancery and its power, and therein I shall propose this short question.