The humble Petition of the Prisoners in the FLEET: As it was presented to his Highness the Lord PROTECTOR, and his Honourable council. The 18th. day of MAY, 1655. Remonstrating the Illegality of outlawries, Arrests, and Imprisonments, in civil and personal Actions. With an Expedient for the satisfaction of all Debts for ever, without Arrests or Imprisonment. June. 18 royal emblem of Scottish thistle, French fleur-de-lis, and Tudor rose Printed by T. FORCET. 1655. TO His Highness, OLIVER Lord Protector of the commonwealth of England, Scotland, and Ireland, and the Dominions thereunto belonging, and to his Highness most Honourable council. The humble Petition of the Prisoners in the Fleet, in behalf of themselves and all Honest men, that are willing to pay their Debts. Remonstrating the illegality of outlawries, Arrests, and Imprisonments, in civil and personal Actions. With an Expedient for the satisfaction of all Debts for ever, without Arrests or Imprisonment. Showeth: Sir William Norberts' case. That at the Common Law (Unless in special Cases) neither Lands nor body, were subject to Arrest or Execution in Debt, or damages recovered, but the several proceedings was by Summons and distress Infinite, and after judgement, a Fieri facias & Levari facies, upon the Goods and Chattels, Cook's Instit. 2. par●. fol. 394. and the profits growing upon the Lands were the remedies, and writs of Executions the Law being so tender & savouring of Liberty, that all had freedom not only to follow their own affairs but also to serve their Country when need required, 53. Hen. 3, c●p. 23. neither did it permit the taking away the Possession of any Lands, lest the following of Husbandry and Tillage; which is so beneficial to the commonwealth should be thereby hindered. That the first Innovation upon this Law, Westm 2. cap. 18. was upon the Statute of Marlebridge, which gave a Monstravit de Compote, against fugitive Accomptants, only to attach their Bodies, to bring them to account, and afterwards by the Statute of Westm. the 2. Chap. 11. Process of Outlary was given in account, and if the accountant was found in arrears by the Auditors assigned, than he was to be committed to the next gaol, and their to live of his own. That afterwards, by the Statute of Westm. 2 cap. 18. an Elegit was given for the recovery of Debt or damage to extend half of such Lands, 25. Edw. 3. cap. 17. as the Debtors had at the time of the judgement obtained, if the Chattels were not sufficient to pay the Debt, (and of all the Chattels) except the Oxen, and the Horses belonging to the Plough, which was the first Statute that subjected Lands to Execution. That by the Statute of 25. 42. Edw 3. cap. 1. Edw. 3. chap. 17. such Process was given in Debt and detinue as in account, but by the Statute of 42th of the same King, Cap. 1. all laws made contrary to the great Charter were repealed, Cook's Instit. 2. part. as appears by the Lord Cook in his proem to the 2d. part of his Institutes, and by his Comment▪ upon the 29 Chap. of Magna Carta. So as in good construction that Statute of 25. Edw. 3. which first gave the Capias in debt and detinue was repealed, as being contrary to the Great Charter, though the contrary Practice hath been since used, to the destruction of Millions of Prisoners and their families. That afterward by the Statute of Hen. 19 Hen 7. cap. 9 7. like Process was given in Actions upon the Case, as in Action of trespass and Debt, and by the Statute of Hen. 23. Hen 8. cap 14. 8. like Process was given in a Writ of annuity, as in an action of Debt; all which Statutes are as void, as that of the 25. Magna Carta, Cap 24. of Edw. 3. to which they have relation, in right construction of Law; 11. Edw. 1. for they are not positive laws, but relative to those former Statutes repealed by that general law of 42. 13. Edw. 1. of Ed. 3. as being contrary to the Great Charter, 27 Ed. 3 cap 9 and how can that Law stand whose Foundation faileth. 23 Hen. 8 cap. 6. Now concerning the Arrests and Imprisonment of the Body, and Extent of all the debtors Lands and goods for Satisfaction of debt; acknowledged according to the Statute of Acton Burnell, and the other Statute de Mercatoribus made only between merchant and merchant; as also the Statute of Hen. 8th of the penalty of such as shall acknowledge a Recognizance, in the nature of the Statute Staple for merchandise; It is true, that they who do Enter into such Recognizance, do grant that the penalty in that Case provided, shall run upon them; and give away their Liberty, by their own consent, and are willing to be Enslaved and ruined by the Creditor, in which case the maxim of Volenti non fit Injuria, is a proper answer. But for such as at this day are outlawed, Arrested, and Imprisoned for Debt by Capias Vtlegatum; the Capias in corporate Cities, and Boroughs, or by Bill of Midalesex, or Latitat, before any Debt or Damage is recovered, there being no positive Law now Extant, to warrant the same; seems to be utterly against the Common Law, and an encroachment upon the Liberty of the freeborn people of England by ill custom and use, which ought to be abolished. And although it be regulary true; that where a Capias lies in Process, there a Capias ad Satisfaciendum lies in Execution; yet that is intended in Actions, Vi et armis only; for there a Capias did lie at the Common Law, before and after judgement, but not in Debt and detinue, before the Statute of Edw. 3. So as it is manifest, that the Capias ad Satisfaciendum in Debt, was never given by any Statute-Law to take the Body in Execution, upon a recovery in any mere personal action, contrary to the Common-Law. That the Statute of Bankrupts were made against merchants, and such as got their living by Buying and Selling only, as may appear by all Cases adjudged upon those Statutes; yet of late times, there was a particular Temporary-law entitled an Act for relief of Creditors and poor Prisoners; that subjected all Debtors that were in Prison, at or before the 20th of October, 1653. and should not pay their Debts before the first of April following, to be Bankrupts, and their Lands and Estates were to be sold by the Judges, in the said Act nominated for the satisfaction of their Creditors; which Act for weighty Reasons moving your Highness, was seasonably suspended by your Highness and your council, and since by the late Parliament, to the great comfort of all Prisoners; For the proceedings of the late Judges therein, were so arbitrary and destructive to the Prisoners & their Estates; that if the said Act should have continued, or if any Ordinance of the like nature should hereafter be Established (as some projecting Creditors are now busy and active to obtain) it would be of such sad consequence, that all Prisoners now being, and all Debtors which hereafter may be Prisoners, would be utterly ruined with their Posterity also? For the particular aim and Ends, of some cruel and implacable Creditors only (who have gone as far as the Common practice will permit, and that against their own Election; for after the Body is charged in Execution, the Creditor cannot resort to the Goods or Lands of the Debtor (while he liveth) but the Prisoner is to enjoy what Estate he hath without farther molestation of the Creditor, at whose suit he is Imprisoned, and as it is of sad consequence to the Prisoner, so it may in time prove to all the Free people of the Nation; for that which befalls one may happen to all, and the course of Out-lawing, and Arresting, being continued for Debt and detinue, and other personal Actions against the Common Law, and personal Liberty of the people; there is scarce any that lives but may be brought to the same condition and category, who yet (though free) upon a bare pretence of Debt, may be outlawed, Arrested, and undone (as too many of us now are) upon mere vexatious and feigned Actions; for which abuse he can have no reparation, although he remains three terms in prison, unless he can find sufficient bail beyond Exception of the adverse party. Now if that long Expected year of jubilee to the oppress●d Captives be come, that they may be at last Delivered out of their more than Egyptian slavery and bondage, and restored to their ancient laws, and precious Liberty; we humbly hope your Highness will manifest yourself the Vindicator of the ancient laws and Liberties of the people in general, and Conservator of the Great Charter; and will be pleased to Answer all and whatsoever Innovators, with that memorable Negative, of A nolumus mutáre Leges Angliae; and restore the ancient Law and proceedings for Recovery of Debts, and take away the Capias in all civil causes, which will be a most Honourable and just Ordinance, and prejudicial to none; for the Ancient and laudable proceedings were more remedial to Creditors than that barbarous Imprisonment of the Debtor is or can be; for if the Debtor be worth nothing, it is against the Law of GOD, Nature, and Nations, that he should live all his days in the grave of a Prison; whereby he is deprived of Friends, and disabled for ever by any Industry in his Calling to attain to any Estate, wherewith to make satisfaction to his Creditors or prosecute for his own, but is forced to spend his time most unprofitably in Prison, and waste what ever he hath or can come by for his necessary subsistence (in a very woeful condition) which is well hoped, will not only be pitied but remedied by the Mercy and Justice of your Highness. And for a further Expedient, to take away this public Grievance occasioned by the modern practice of Outlawries, Arrests, and Imprisonment of the Body, in civil causes, and to prevent the vast expense of Debtors under the custody of Sheriffs, bailiffs, sergeants at Mace, and Prison-Keepers, by excessive Fees, usually extorted from poor prisoners in gaols and places (anciently provided for Malefactors and criminous persons, and not for Debtors) many times amounting to more than would pay the Debt, for which the prisoner is Arrested; as also for a more speedy, safe and legal way, for the recovery of all just debts and damages for the future, without outlawry, Arrest, bail, or Imprisonment of the Body; as also, to ease the Creditors of those vast Charges and expenses they are forced unto, before they can have their Debtors person Arrested, their Lands extended, or their Goods levied in Execution, and their moneys raised by the same out of the Sheriffs hands. May it please your Highness, and honourable council, to reflect upon these Proposals humbly offered to your honourable and prudent Considerations, in order to the restoration of the Ancient Law, and proceedings for recovery of Debt and damages, only aimed at by Your Petitioners. 1. IN the first place to take away Outlawries, and the Capias, both before and after judgement in civil causes, and to discharge all such Prisoners from their present Imprisonment; except such as shall be justly indebted to the commonwealth, and have wherewith to pay. 2. And to indemnify all Sheriffs, the Warden of the Fleet, the martial of the Upper-bench, and other Officers and Keepers of Prisons from any Escapes in that behalf. 3. That all Benevolenees, Pensions, and Annuities, formerly given towards the relief of any Prisoners for debt, may be disposed of towards the relief of maimed soldiers. 4. That in case the great circumspection of your Highness and council shall think fit, to alter the course in the point of Meum & Tuum; then to empower the learned and reverend judges of the four Courts of Westminster, both in termtime, and Vacation; and also all justices of assize, and Nisi prius in their several Circuits; and all judges of Courts of Record within their several Corporations. And that for the ease of the said Judges, and more speedy execution of their said Commissions, That in every County, City, and Corporation, there may be some persons of Fidelity, Honour, and Quality nominated, to be aiding and assisting unto them, to hear and determine all differences between all Creditors, and Debtors in a Summary way, within their several Jurisdictions. 5. That the said judges upon all Petitions to them presented, either for Debt or other personal Actions whatsoever, may have power to call all parties before them by Summons, and upon due proof made of any Debt or damage, and of the debtor's Estate, to order payment and satisfaction, within some reasonable time after; and in default thereof to sell either all or so much of the personal Estate of the Debtor, as shall pay the same; and if that prove short, then to lease two Thirds of the real estate of the Debtor at the uttermost value (except the Mansion house) as will satisfy the debt, for any term at such a rate as is ordinary for the time being, between Buyer and Seller; so it exceed not XXI. years, which may be granted upon the estate of all Debtors, who have any estates for life in Fee, fee-tail, or by copyhold; as also of all Estates past in trust, or to uses, wherein the debtor hath any equitable Right, or otherwise; which Lease may be good against him and his heirs; unless he pay his debt, or agree with his Creditor within Six months after the making of any such Lease, and that this course be universal in all causes, without Circuit of action or respect of Infants; and the like power for such Damages, as by a jury of twelve men shall be given before the said judge, in all other personal actions whatsoever. 6. That these Judges may be also empowered to Examine and review the obtaining of all Decrees, judgements, recognisances, Statutes, and mortgages, and the original debt or contracts upon the same, and to Vacat and reverse the same, upon payment of what shall appear to be justly due thereupon in Law or Equity, unto the parties Interessed therein. And also to try any fradulent settlement of any Lands or Goods made to defeat the Creditor, by a jury of Twelve men, and may be directed (if your Highness and council think fit) to satisfy Creditors their principal debt, with interest according to the priority of their debts, and of their securities; which by Law are to be first satisfied, and also to have power to qualify or take off Interest (with respect had to the late war) as occasion shall require, and to give Damages to such who have been wrongfully Imprisoned, or unlawfully vexed, either for Debts formerly satisfied, or where men have lain in Prison three terms, and no Declaration filled against them. 7. That it may be ordained, that every Petitioner (except Paupers) do pay in every Cause 6. s. 8. d. to the chief Clerk of every Court where any suit is exhibited against the Debtor, before he have the Summons of the Court against the Defendant, in full of all Fees and salaries to the end of the Causes, to be divided amongst the Judges and Officers of the said Court, in recompense of the Fees usually taken by them upon trials of personal Actions. By this course the Creditor will be sure of his just Debt in a short time, with little expense; also the Debtors Wife, and Children, of a House, and some subsistence out of the Third part, the Debtors themselves of their Liberty, to follow their business and to serve the commonwealth in their several stations, as occasion shall require; so shall Peace and much quiet redound to the public, when the power of Oppression, and the sting of the Law, which is the Capias shall be taken away; so may the sheriffs serve the commonwealth with much safety, being not subject to pay for Escapes of Prisoners, bloodshed, and murder avoided; which often happens by Arresting of Debtors, who many times rather hazard their Lives upon a rescue, than they will lose their precious Liberty, and endure the miseries of a Prison. Also much Money will be saved, which is commonly wasted in unnecessary and vexatious Outlawries, Arrests, and Imprisonments, by malicious and male volent Creditors; and every man will have their due from each other. Also by this course, justice can be no looser, when there is a general and equitable Law, for the mutual good of Creditor and Debtor, now and hereafter. And the memorial of this Ordinance, under your highness' Government in a Case of such public concernment, will be Honourable to future Ages. And the Petitioners shall pray, &c. The Names of such Prisoners in the Fleet as subscribed the Petition. William Smith. Walter Roberts▪ William Roberts. William Rudyerd. Edward Rumsey, Robert Rowe, William Gregory, Robert Whitwell, Morris Tuke, Thomas Stevenson, Walter Salmon, Ambrose Fulsham, Thomas Nash, Henry Carverth, William Carverth Robert Becket, Thomas Buck, Thomas Tracy, Edmund Hastings, Francis ewer, Thomas Hyghton, William Bowyer, John Littlebury, William Pitts, William Peacock, Richard Niclets, William Coles, Thomas Johnson, Roger Raven, Thomas Walton, William Browne, Lyst●r Blu●e. M. Mary Rogers. Dorothy Arundel. Cum multis aliis.