BY Debtors, I understand, Debtors Insolvent, or unable to make sa­tisfaction for their Debts; although they are heartily willing to do it in the Whole, or so far as their Ability extends, or any Im­ployment (on which they might fall, if at Liberty) might enable them; the necessary livelihood of themselves and Families, first allowed.

The Laws of God suppose,Ar [...] That all Crimes (not worthy of Death) should be Punished with Punishments limited and determined, as to their Degrees, and Spaces of Time; so as neither to be extream nor perpetual. But In­solvent Debtors are neither by the Law of God, nor by the Law of Nati­ons, or of this particular Nation, thought worthy of Death; and therefore ought not to be kept as Living-Dead Men, in perpetual Imprisoment; as (being left to the Incompassionateness of their Creditors) upon their Insol­vency they generally are: For such Punishment is unlimited in Time, and excessive for Degree; and is too like to the Punishment of Hell it self, both upon the Body, and Soul also.

The Laws of God, and of Christ, lay all possible Obligation upon us,Ar [...] To have Mercy on the Poor: But there is no Poverty greater than what arises from Imprisonment of Debtors, unable to Live, that engages Men to make Bricks, for the Charges of Imprisonment, as well as Livelihood; and takes away all means of Industry in Mens several Callings: And this being per­petual, (or which, as it most often proves, is all one, except the Creditor please to have Mercy) is most contrary to the goodness of Divine Laws, in the point of Mercy to the Poor.

The Law of God, and of Christ, Arg [...] direct Living Men to all Duties towards God, towards Men, and towards Themselves: But perpetual Imprisonment keeps them alive, and yet deprives them of all means of serving the ends of Life, by disabling them to the Offices of Religion, of Service to their Prince and Country, to their Families, and to themselves; taking away all vigour of Spirit, Vertuousness, Ingenuousness of Nature, freedom of Body, and, very often, outward Means of Serving God; and more often, of Presence of Mind, through Want, Grief, and Despair: All which, as a state worse than [Page 2] Death, is most contrary to the Laws of God, and of Jesus Christ; which allows Death, but nothing worse than Death, (not a Living-Death) to be Executed on our Brethren: but a perpetual Imprisonment, indeed, allows Men to Live, and not to serve the ends of Life; which is, a Dying-Life, or Living-Death, and so worse than Death.

V The Mercy that God enjoyns in the Old Testament, shews evidently, That it is most contrary to the Justice, Mercy, and Humanity of his Laws, thus perpetually to Imprison Debtors, that acknowledge, and Worship the same God, and so are Brethren: He therefore took all care, that his People should not perpetuate the Sufferings of their Brethren, so much as in their Estates, or any of the conveniences of Life; much less, as to their Liberty, by the perpetual Imprisonment of their Persons; as these Scriptures bear witness: Exod. 22.26. If thou at all take thy Neighbours Rayment to Pledge, thou shalt deliver it unto him by that the Sun goeth down; For that is his Covering only; it is his Rayment for his Skin, wherein shall he Sleep, &c. Ezek. 18.7. He that hath not Oppressed any, but hath restored to the Debtor his Pledge, hath spoyled none by Violence, hath given his Bread to the Hungry, and hath covered the Naked with a Garment. Levit. 25.35. If thy Brother be waxen Poor, and fallen in decay with thee, thou shalt Re­lieve him: Yea, though he be a Stranger, or a Sojourner, that he may live with thee. Ver. 39, 40.42, 43. If thy Brother be Impoverished, and be Sold unto thee, thou shalt not compel him to serve as a Bond-Servant, but as an Hi­red-Servant, and as a Sojourner shall he be with thee, and shall Serve thee unto the Year of Jubilee. They are my Servants, saith the Lord, they shall not be Sold as Bond-men: Thou shalt not Rule over him with Rigour, but shalt Fear thy God. Jer. 34.14. And when thy Brother, which hath been Sold unto thee, hath Served thee Six years, thou shalt let him go free, &c. Deut. 15.1, 2, 3. At the end of every Seven Years thou shalt make a Release; and this is the manner of the Release. Every Creditor that lendeth ought unto his Neighbour, shall Release it; he shall not exact it of his Neighbour, or of his Brother, because it is called the Lords Release: of a Foreigner thou mayest exact it again; but that which is thine with thy Brother, thy hand shall Release: So ver. 12.13.

And the Religion of Jesus Christ is yet a Thousand-fold more abundant, and express, in all its Commands and Precepts, for the highest Acts of Mercy and Compassion to all, especially to Christians; as these Scriptures of the New-Testament Teach us:

Matth. 18.26.27. to the end. The Servant therefore fell down and Worship­ed him, saying, Lord have Patience with me, and I will pay thee all: Then the Lord of that Servant was moved with Compassion, and loosed him, and [Page 3] forgave him the Debt, &c. Mat. 6.12. Forgive us our Debts, as we for­give our Debtors. Ver. 14. For if ye Forgive Men their Trespasses, your Hea­venly Father also will Forgive you. Ver. 15. But if ye Forgive not Men their Trespasses, neither will your Father forgive your Trespasses. Luk. 11.4. And forgive us our Sins, for we also Forgive every one that is Indebted to us. Mat. 22.39. Thou shalt Love thy Neighbour as thy self. Mat. 18.22, 23. How oft shall my Brother Sin against me, and I forgive him? until Seven times? Jesus saith unto him, I say not unto thee, until Seven times, but until Seventy times Seven. Mat. 5.44. Love your Enemies, Bless them that Curse you; Do good to them that Hate you; and Pray for them which despitefully use you. Rom. 12.20. If thine Enemy Hunger, feed him; if he Thirst, give him Drink.

The Law allowing to the Creditor, Ar [...] the Power of perpetual Imprison­ment of his Debtor, makes the Creditor think that Lawful and Justifiable, that (it is much to be feared) lays him under the Judgment of God, with­out Mercy, because he shewed no Mercy; and makes him believe he is Innocent, in Sacrificing to his Revenge the Life of his Insolvent Debtor; and that without any Compensation for his Debt, but only the sweet­ness of that Revenge, which is hateful to God, and most severely denounc'd upon by the great Lover of Mankind (whose Nature, in Mercy to it, he took) even Christ our Lord. Whereas, if our Laws took this Revenge out of the Creditors power, it would prevent so great a Sin and Guilt upon him; and yet, would do no Injury to his Estate, in delivering his Insol­vent Debtor out of his hand.

It is often a Temptation to the Rich and the Mighty,Arg [...] unjustly to take the advantage of Imprisoning the Poor, under some pretence of Debt; and so not only the Body, but the Justice of the Prisoners Cause is Fettered and Imprisoned also; than which, nothing is more abominable, according to the Laws of God and Christ.

From all which it arises, Perpetual Imprisonment is a Punishment upon the Insolvent, unjustifiable by the Laws of God, and of Christ.

But against this, it may be Objected:

Object. 1. Some places of Scripture suppose such a Punishment as perpetual Imprisonment; as, When the Ʋnmerciful Servant in the Gospel, to whom his Lord had Forgiven all, threw his Fellow Servant into Prison: And, M [...] ult. [...] Lu [...] ult. [...] When Christ advises us to agree with our Adversary, while we are in the way, lest we are cast into Prison; and adds; I tell thee, Thou shalt not come out thence, until thou hast paid the last Mite.

Answ. This no more proves the Lawfulness of perpetual Imprisonment, than the Parable of the Talents does the Lawfulness of Usury, so severely [Page 4] forbidden among the Jews: But in that Parable, Mat. 18. Christ provides against all such unmercifulness in Creditors; except they are first able to pay all their Debts to God, or are willing to be kept in his Prison till they can, they must exercise the same Mercy to their Debtors they so much want, and must beg one day of God.

In this other, Christ only borrows from the custom of Heathen Nati­ons (which might possibly have crept in among the Jews, as some other things did, by Living under the Laws of Heathen Princes) an Illustrati­on of the Divine Severity, from Merciless Creditors: But that Severity falls only upon those who will not accept the Offers of Free Forgiveness, upon the terms of Repentance; which God, as our Grand Exemplar of Mercy, most Liberally offers. And indeed, It is only the Prerogative of Gods Supream Justice, to Imprison to Perpetuity the Refractory to all his terms of Mercy.

Human Justice cannot Punish so high: Where the Crime is not worthy of Death, there God requires all Exercises of Mercy, and that Indispensibly.

There is one Case only possibly allowable, and that is, of such Irrecon­cilable Enmity to Government, or publick Weal, that a Person hath de­served not to be trusted with his Liberty, as justly suspected to use it only to common Mischief: But because this can no way be Imputed to common Debtors, I will not further consider it.

Object. 2. It may be said, The Laws of God do not intend the overthrow of Human Commerce; but the Denial of this Power of Perpetual Imprisonment on the Insolvent Debtor, would overthrow such Commerce: For without this Awe and Terror over Men, there would be no Care in the Debtor to Pay, nor willingness in Men of Ability, to Lend or Trust; and either way, Civil-Commerce would be Destroyed.

Answ. Nay, but from hence it is certain, This Power of Perpetual Im­prisonment is not necessary to Civil Commerce, seeing the Law of God doth Allow and Encourage that; and yet doth in all his Laws, Dis-allow and Discountenance this Unmerciful Power of Perpetual Imprisonment.

Now, seeing it is certain, He understands Better than Man himself does, what is necessary to Civil Commerce, and yet Dis-allows such a Power; It certainly follows, There are other Measures and Methods of securing Civil Commerce, without such a Power of Imprisonment: It behooves therefore all Religious Legislators and Governours, professing the Religion of God, and Jesus Christ, (as Blessed be God ours do) to Retrench that Power, and to search out those other Means of preserving Civil Commerce, more pleasing to God; which are doubtless not so hard to be found, but that, That Wisdom, by which Kings Reign, and Princes Decree Justice, will easily lead them to it.

And it ought duly to be apprehended, lest by Laws and Powers so of­fensive to God, provoking his Wrath and Judgments, Civil Commerce be much more Endangered, and the Souls of Creditors (as well as Debtors) endangered by a too great Care for their Worldly Estates; without consi­dering, how little that Man is profited, who Gains by this Unmerciful Power, most often none of the World, and yet loses his own Soul by it; for which, even the whole World is too poor an Exchange.

Object. 3. But many Debtors are able, and yet not willing to pay their Debts; and nothing but this Power of Perpetual Imprisonment will Extort the Discovery of secret and fraudulent Conveyances, or other secret ways of securing what they have, out of the Reach of Law and their Creditors; and to Impri­son such unconscionable Debtors, is neither against the Justice nor Mercy of Di­vine Laws, but most Consonant thereunto.

Answ. This Case of the Ability of Debtors to pay their just Debts, and Unwillingness to do it, may be very Righteously Punished with Imprison­ment, if the matter of Fact can be proved, as in all other Cases; and upon due Proof, the Justice and Wisdom of Legislators and Judges, is able to de­termine in this, as in all other such Cases; for it is the Insolvent Debtor, (that if, through Inability, truly so) or he who will do to the utmost he can, for whom this Plea is designed.

But the perpetual Imprisonment of such Insolvents to Explorate, whe­ther they are able or not, is more Cruel than the Torture or Wrack to find out Crimes, otherwise hidden and unproved; for this Imprisonment continues them upon the Torture, till Death it self, even when they have endured the Torture, and suffered the Wrack in the midst of many Extre­mities, years together.

And yet the Law of God, and of this Nation, countenances no other way of Proceedings, but by Proof and Testimony; nor is any other ac­countable, according to the Reason, Justice, and Mercy of Divine Laws, which is the thing which ought to be shewn, and I hope, is shewn.

Object. 4. It may be yet urg'd: Allowing this Perpetual Imprisonment, to be disapproved by the Laws of God, and of Christ; yet there was a Power the Creditor had to seize not only the Persons of Debtors, and to use or sell them as Slaves, but also their Wives and Children, that Payment might be made; as appears 2 Kings 6.1. Matth. 18.25. But this is a severity so great, that Imprisonment is indeed great Mercy, compared with it.

Answ. 1. We may take notice from that piece of Sacred Story, such an In­debted Insolvency may be the Case of a Man fearing God; for the Woman spoken of, viz. the Wife of a Son of the Prophets, appeals to the Prophet Elisha, that her Husband so dying, feared the Lord; which is a great Ar­gument [Page 6] for Mercy and Compassion to such, and not to deal with them as Persons of no Religion.

Answ. 2. The Law of God before Expressed, allowed only in such Cases, to use them as hired Servants, and not to Sell or Inslave them; and they were to be so us'd but till the Seventh year, the Year of the Lords Re­lease; so that, the use of hired Servants upon fair Allowances to their Service, and that Service not Slavish, but Ingenuous, according to their Education, and abilities of Mind and Body, and for such a limited time, is much greater Mercy than perpetual Imprisonment: What ever then ex­ceeded this, was perfect Degeneracy from the Religion of the God of Israel, and highly provoking to Him; as appears Jer. 34. And yet the Mercy, the Gospel requires, is much greater than what the Jewish Constitution required; and the Indignation of Christ, much greater against Unmerci­fulness, as appears in this very Instance, Mat. 18.

IT is evidently and undeniably plain, That by the Antient Com­mon Law of the Land, the Bodies of the People of England could not be Arrested, Imprisoned, or Outlawed for Debt or Dammages, (or any thing thereunto relating) at the Suit of any Subject; as clearly ap­pears, not only by our Antient Laws, but by the Two great Sages of the Law,R. fo. 12. 3. 305 Ch. [...]. the Lord Chief Justice Coke, and the Lord Dyer; as also by Magna Charta, that great Expositor of our Antient Laws; and was in Affirma­tion of the said Antient Common-Laws, and with great and wary Cir­cumspection, provided against the said Imprisonment: and not only not so much as thought on, before the Conquest; but was abhorred, in the least, to be Practised from that time, and the time of the Birth of that Expla­natory Law,M. (which was in the Ninth Year of the Reign of Henry the Third) until many Ages after; there being variety of great, weighty and pregnant Reasons for the preservation of that greatest Liberty and Priviledg of the Subject, (the freedom of their persons from Imprisonment.) And as well those Antient Laws before the Conquest, as the Laws until the mak­ing the great Charter, and Sixty Years after, were in that particular (with [Page 7] all studious and sedulous Care) inviolably observed, as an eminent and signal Badge of the Immunity and Heroick Freedom of the English Na­tion, who were then deservedly called (Libera Gens) and lived so, and in so great and happy splendor, to the Envious Admiration of the rest of the Christian World, and to the Eternal Honour of their and our Ancestors, without being subject to any such Imprisonment, not only at the time of William the Conquerors Reign, (which was above Twenty Years) but 194 years after his Death; until the Statute of Westminster the Second, made in the 13th year of the Reign of King Edward the First,West [...] 13. E [...] invented a Capias, and a new Process of Outlawry; which from that time was full so many years. And altho' the Statute of 52. Hen. 3. was the first that ever made any English-mans Person subject to such Arrest; yet that was only against Bayliffs of particular Lords, and no great stress can be laid thereon; But that breach and inrode being once made into, and upon the Common Law, that gave Incouragement to the unhappy Production of another Statute made in the 25. year of the Reign of King Edward 3. cap. 17. by which it was Enacted, That such Process should be made in Debt, and de­tinue of Chattels, and by Process of Exigent, as was then used in Writs of Account; which were two such keen Laws, that they not only invaded, but cut in sunder the choicest Liberty of the Subject, by submitting the Persons of the then Free-born People of England, to the cruelty of Im­prisonment for Debt and Damages: But the same wise King Edward 3. of whom the Lord Chief Justice Coke, in his Second Institutes, fol. 29. gives this Character, That King Henry 2. Edward 1. and Edward 3. were all Princes of great Fortitude, Wisdom, and Justice,Co. 2.29. that Governed by their Laws; but that in the Reign of King Edward 3. the Laws did principally Flourish: Who saith, He was a Noble, Wise, and Warlike Prince. This prudent Prince, looking deliberately into the Wounds those Statutes had given to the Honour and Happiness of the Kingdom, and to that Antient and most Venerable part of the Common-Law, which preserved his Sub­jects Persons from Imprisonment, and the very many Kings Reigns and Ages, which that Glorious and Famous Liberty had prosperously continu­ed, without the least interruption; And, as it is presumed, repenting himself of the making of the said bitter Statute of the 25. Year of his own Reign; and he and his Parliament finding the mischievous inconveniencies and dishonour, that it had put upon the People; and resolving to file off those Shackles from off the Subjects feet, and to re-invest them into the Liberty and Freedom of their Persons from Imprisonment, according to the Com­mon-Law of the Land, by that gracious healing Statute made in the 42. Year of his Reign, did, in the Opinion of many, (and by the general Con­structions [Page 8] of Law, and the Intendment thereof) Repeal those two raizor­metled, and rigorous cutting Laws, of Imprisoning Mens Persons for Debt, as aforesaid; wherein it is declared, That the great Charter should be holden and kept in all points; and if any Statute be made to the contrary, that it should be holden for none; which last mentioned Statute was accor­ding to common Construction, and intended fully to restore the brightness and lustre of the Antient Common-Law; and to support and maintain the vigor of that Standard of Law and Justice (the great Charter,) which not only asserts his Majesties just Rights, and Prerogative Royal, but defends and preserves the Freedom and just Liberties of the People; which, as the same Author, in his Preface to his Second Institutes, saith, Hath been con­firmed by 32 Acts of Parliament: And not only so,

But the setting up and creation of the great number of Offices and Offi­cers, and the herds of Persons which those most severe Laws, (Westminster the 2. and 25. Edw. 3.) had most advantageously preferred, almost in every City, Town, and Village of the Kingdom; had so fixed, fastened, and rivited; and many of them Men of very great and eminent Quality and Interest, in places of great and tempting Gain; which had made so great an Impression upon the Minds of that prevalent and powerful part of the Kingdom, who had thereby plentifully Inricht themselves, that notwith­standing the said Statute of 42. Edw. 3. so intentionally composed, for ma­numitting of the people of England, as well from the Thraldom of a Pri­son, as otherwise to preserve their Liberty, they went on to Imprison the Bodies of the Subjects; which hath ever since been practised, not only by vertue of those two Laws of Westminster 2. and 25. Edw. 3. but that of Acton Burnel, and the Statute De Mercatoribus, touching Arrests upon Statute Merchant and Staple, and by other Laws built upon them; which, contrary to the Antient Common Law, doth plainly continue the Invasi­lation of Imprisonment against, and upon all the Free-born Subjects of England (except the Lords;) and they in some Cases conceived not to be Exempt. For if a Nobleman be Outlawed (it's holden) he may be Arrested and Imprisoned; and until the Outlawry is Reversed, is not only incapable to sit in the House of Peers, but all his Personal Estate is forfeited, and his Lands in the same condition with any other Subject: So that it's indis­putably clear, how great an Intrenchment the Imprisonment of Mens Persons is upon the Honour of the Antient Common-Law; of which, as the Lord Chief Justice Coke saith, The Great Charter is but Declaratory; and as a late Author, of good Authority, saith, Did not Grant any thing De Novo, but that thereby our Antient Laws and Liberties were only Re­peated and Confirmed: And indeed, all those our Ancestors maintained, [Page 9] not only with Indefatigable prudential care and industry, but the vast ex­pence of Blood and Treasure: Witness the more than 20. years intestine Bloody Civil-War, in the Reign of King John; and in the end, the Con­firmation of those Laws and Liberties, by the same King, in the face of the Nobility, and other the great Men of the Kingdom, and of an infi­nite multitude of other the free people of England; as saith Britton: Brit. [...] 219. So that there wants nothing to make it fully demonstrable by our Ancestors Magnanimity, and resolved Courage, in maintaining the Antient Common-Law, but that they and their Posterity were not only established in their Just Rights, but were preserved from such Imprisonment for Debt and Dam­mages, or any thing relating thereunto, 214. years after the Norman Con­quest; which now is inflicted upon many Thousands of his Majesties good Loyal and Faithful Subjects, to the utter Ruin of them, their Families, and Relations; whilst those who have lined their Iron Consciences with nothing but their Profit, and their Chests throughout, with the Wealth of the Kingdom, which they have gotten by the late unhappy Differences and Troubles, smile to see those who have Sacrificed their Bloods, nay, themselves and theirs, in and to his Majesties faithful Services, pent up by many of them in disconsolate and loathsome Prisons, and thereby made useless Nothings to the World and Themselves: Whereas, if we cast our Eyes back into the Reigns of the Saxon Kings, we shall find, that those Martial, Wise, and Wary Princes, King Ina, King Ethelston, and after them all the Saxon Kings, according to the Antient British Laws, were so very tender of the Imprisonment of Mens Persons, that they did not punish their very Bondmen with it. And King Alfred displaced and Imprisoned one of his Judges, for daring so to do; and when the Government devol­ved, and came to the Normans, William the Conqueror, William Rufus, and Henry the First, took such exact care to preserve this Liberty un-in­fringed, that in their Reigns, not any Person was Imprisoned, (altho for Mortal Crime it self) unless he were first Attainted upon the Verdict of 12. Men: And Additional to all this, many Ages after the Conquest, by the Antient Common-Law, the Writ De Odio & Atia, was given to a Man that was Imprisoned; altho for a heinous Crime, (the Death of a Man) yet the Law in that Golden Age, in favour, and out of an high Esteem it had of the Liberty of a Man, and that his Body should not be detained in Pri­son until the Justices in Eyre should come, he might Sue out this Writ directed to the Sheriff; and altho' the Offence for which he was commit­ted, was not Baylable by Law,Bract 121. yet the Antient Common-Law did so high­ly hate and abominate the long Imprisonment of Men, that it gave him this Writ for his Relief; which appears by Bracton in his Third Book, and [Page 10] by Fleta in his First Book; [...] 21. [...] 14 [...] c. 3. [...] of [...] c. 5. and with whom also, Glanvil in his 14 Book: And the Mirrour of Justice, a Book of great Antiquity and Estimation in the Law, as well as the Books before cited, Chap. 5. Sect. 1. complains of the Imprisonment of Mens Persons, as an abuse, altho' it hath been for break­ing of a Goal. Now, for that it is clear as the Light, how highly valuable and dearly precious the Liberties of Mens Persons were by the Common-Law of the Land; it is in most humble and submissive manner proposed, That as well for the general good of all his Majesties Subjects, as for Priso­ners, the Antient Common-Law may be restored, and that great Liberty of the Freedom of all the Subjects of England and Wales, for Debt and Dam­mages, may, by the Grace and Favour of His Majesty, and of both his Honourable Houses of Parliament, be again retrieved, and brought back with Honour to the People of this Kingdom; and that the Antient Forms and Ways for recovery of Debts, may be (as for several hundreds of Years it was) by Original Writ, Distress Infinite, Fieri Facias, and Levari Facias; and as, by the Antient Common-Law, it continued with great and happy Peace and Tranquility, for such great length of time, as aforesaid: And certainly, great Reason it is, that it should be so, all Debts and Damages being properly to be had out of the Estate of the Debtor, and not his Person. [...]. R. [...] 12. It's said by the Lord Chief Justice Coke, in his 3. Report. fol. 11, 12. That the Common-Law hath and had its Foundation laid and Built upon the true grounds of Reason: And that being granted, as of necessity it must, then it will consequently follow, That it were an Act of as much Honour, as Justice, to restore to the People of England, the Possession of the Inhe­ritance and Birth-rights, which they all have, in and to her Antient Com­mon Laws of England, and of which they have so long and unhappily been Disseized; who indeed have too long already Groaned under the very mi­serable Alteration hereof, by such the Imprisonment of Men, as aforesaid: And indeed, the very large, vast, and sufficiently-known great Prudence, truly-wise Apprehensions, and Princely Compassion of his late Majesty, King Charles the First, that Blessed Martyr, towards his Subjects, were such, that it is eminently known, that had not the late unhappy Civil Wars prevented it, the bent of his full Resolutions were, to have intima­ted his Recommends to the Parliament, for the discharge of all Pri­soners for Debt or Damages; and the absolute taking off of all Arrests and Outlawries, upon some reasonable Compensation to be made for the Emo­luments, that thereby came to his Crown; which was then hoped, would have gone under no great difficulty to have been done; and is now with as great facility and ease, as is conceived by the Wisdom of the Parliament, to receive a full and perfect Consummation: And as his said late Royal [Page 11] Majesty, King Charles the First, was pleased to say, in the Court of the highest Injustice the Christian World ever knew, That he thought he under­stood the Laws of England, as well as any Gentleman of his Kingdom, whose Profession it was not; So by this Intentional Act of His, (had it succeeded) he had made it fully and clearly evident to all his People, that by resto­ring the Antient and known Law of the Land herein to its Pristine and Original just Strength and Vertue; he would thereby as well have com­pelled their Ignorance, to understand with how great and profound Know­ledge in the very Antient Laws of the Kingdom, as the more Modern, he was largely and plentifully furnished, as by his Uninthrawling, new and fresh Enfranchizing his Subjects therein, and by calling them, and his and their Antient Laws, out of the Dark Caves and Dens of Prisons, where for so great length of Time they had lain Sepulchred together.

And truly, It is a Solicism, that may be justly thought on, that the Law, which is so kind and merciful to Mens Horses, as to take Provisional care to Inlarge them; that yet Mens Persons should be retained in Durance, under a Perishing condition; nay, and without as much as any definitive Time, by Law set for their Releasment; and for Years, that may tell steps to the last end of their Lives; there to melt and burn out their Time, by a kind of every days Death. And it can in no sort be doubted, but that Wise and Prudent Men will seriously and deliberately perpend and consider, that this is the case of almost every English Subject; for let him be crammed with never so much Wealth, yet he knows not, nor is it pos­sible for him to know, or foresee, how soon he may be in a Prison himself; or if not in Prison himself, yet his Widow, Child or Children, near and dear Relations, Kindred, or Intimate Friends. And notwithstanding all this, so miserable is the condition of a Prisoner for Debt, that if he wants Money or Credit to satisfie the extravagant and unjust demands of Keepers and Goalers; or if he appears in any manner to oppose them therein, or make any Complaints against them, (as there is, and hath been too much cause) he is presently clapt into the Common-Side, or Wards, and there lives a Life more deplorable and miserable than a Highway-man or Robber; for they are, in some short time, brought to their Tryal; and generally, by the King's Mercy, Transported beyond Seas; whereas a Prisoner for Debt, though never so Honest or Just, must spend his Days and Estate, without any Limitation of Time, to gratifie the Humor and Malice of a Merciless Cre­ditor.

FOr all Laws that are against the Law of God, or which have no ground or foundation on, or by the Laws of God, are also against the Rule of Justice. And it is against the Rule of Justice, and Law of Nature, that Men equally Free-born, should be deprived of the common and equal Liberty, and be given into the power of another, without Criminal cause or guilt.

But let it be demanded of the Statute Law, to what end the Debtor is Imprisoned? It must be answered, It is either for Punishment or Coersion.

If for Punishment, It is against the Rule of Justice: for to be found a Debtor in the Law, is no Criminal guilt; and therefore it is an unjust thing to punish him Criminally, that hath not offended Criminally.

If for Coersion, To make the Debtor bring forth his Estate to the pay­ment of the Debt, it is against the Rule of Justice also; for to enforce a Man by hard Punishment, to do that which doth not appear to be in his power, or which the Law is already satisfied, that there is not where­withal to do, (for so it is satisfied, before the Capias against the Body was granted) is clear against Justice.

If it be replyed, That it is upon a supposed Fraud, that the Debtor is so Imprisoned; it is unjust also: for to punish upon Supposition, or before Proof made, is unjust: Why should not the Debtor in this Case be pre­sumed in the Law to be Innocent of Fraud, (as in all other Cases accused Men are) till the contrary be proved?

And it is unjust also, because Imprisonment of the Debtors Body, tho' it be torn in pieces for the Creditors will and pleasure, yet it neither fills the Creditors Purse, or discounts a penny of the Debtors Debt.

Plu­ [...] in [...] Life, [...]not [...] un­ [...] [...]ra­ [...] [...]aws, [...]or [...]all [...]es to [...]ike [...]ed.Again, It is not agreeable to the Rule of Justice, to thrust all kind of Debtors into a Prison together in an heap, without respect to the different Qualities of Men, to more or less guilt of Fraud or Obstinacy; or whether it be an Honest or an Usurious Debt, to more or less means of the Debtor, whereby he must live or starve in Prison; or to the holding him one year or Twenty years in Prison. Some are great Debts for Thousands; some are small Debts for Trifles; some are supposed Debts not yet proved; and in Truth, some are no Debts: but for certain, all (or 9 in 10) are Usuri­ous Debts and Forfeitures; scarce one Friendly or Honest Debt in 100.

And it is unjust in Proportion, for the Rule of Justice, by the Law of God; is, An Eye for an Eye, Blood for Blood; not a Mans Liberty, Credit, Person, Life, and all that is dear unto himself, Goods or Moneys Usuriously lent or commerced.

And indeed, it is contrary to Justice and Reason, that the Law should, by uncharitable violence of Imprisonment, compel the Debtor to pay that which the Creditor (not in honesty or friendship, but for uncharitable Usury, and his proper unlawful Gain) hath desperately and corruptly ad­ventured to trust.

And whereas it is suggested, That these violent courses against Debtors,V [...] ta [...] S [...] fo [...] ca [...] m [...] D [...] U [...] are done for the common Good, for maintaining Contract, Commerce, &c. yet it is too clear, that their end and effect is the advancement of Cruelty and Oppression, to the depression of honest and lawful Commerce, and Banishment of Christian Charity; which is, and ought to be the only Rule of Policy, to beget and maintain a Flourishing Kingdom.

But it will be said, That Imprisonment is no Punishment; for Prisoners live at Ease and Pleasure; and indeed, such is the common received Opini­on, though false and very slanderous.

For the truth is, That the miseries and afflictions of Imprisonment, are unexpressible, and cannot be conceived by any, that have not felt or had proof thereof.

The Antient Romans construed and reputed Imprisonment to be a guard or safe keeping of Slaves and Bondmen, but an heavy punishment to Free-born Men.

In the Old Testament, the Prophet Micha, for a Punishment, was by King Ahab sent to Prison, to be fed with the Bread of Affliction: and surely, if the Bread of Affliction be to be found any where, it is in the Prison.

For Imprisonment is a corporal Punishment, a grief and torture of the Mind; a long and lingring Dying, and sometimes a short-killing by Plague or Pestilence, &c.

It overthroweth a Mans Reputation, and destroyeth all that is good or dear unto him: his Kindred grow strange; his Friends forsake him; his Wife and Children suffer with him, or leave him, or revel, or degenerate against him; and lye open to all Disgrace and Villany of the world; in whose Miseries the Prisoner suffereth more than in his own Sufferings: Before him the sight of all these Evils; and (which is not the least) he lies open to every Arrow of Scandal and Calumny, that a Malitious Adversary will shoot at him; which he can neither resist or avoid, because he is not present to answer for himself. Behind him Grief for loss of Liberty, Credit, Friends, Estate, and all good promising Fortunes. His Bayl and Surety (who commonly are the nearest Kin, or dearest Friends) are in Prison al­ready, or lye in the Power of the Adversary, to make them partakers of the same Misery.

We will pass by the ill Air, strait Place, hard Lodging, unwholesome [Page 14] Diet, with the Noise, Noysomness, pestring and fettering the Body of the Prisoner, as the least of many Evils; and rest in this, that the Misery, Baseness and Bondage, which Prisoners suffer & undergo, is more than can be exprest.

Yet Note, That no Man can stand in so sure an Estate, but either in himself, or in his Children, he may taste and feel the Miseries and Suffer­ings of this unjust Rule of Imprisonment.

Now, to lay so many Miseries (as Imprisonment bringeth with it) upon a Man, to compel him to do that, which appears not to be in his power to do, (and who is not criminally Guilty) must needs be against the Rule of Justice.

Therefore, Satisfaction ought to be sought upon the Debtors Estate, not upon his Body.

FOr whatsoever is made or done against the Law of God, or not war­ranted thereby, is also against the Law of Conscience and Christian Charity. Now, to enjoyn, and compel Men to perform corrupt Contracts, and to pay Usuries and Forfeitures, is clearly against the Law of God; therefore, against the Law of Conscience and Charity. But to induce divers necessary consequences, for the proof of this Chapter; it is first to be remembred, how many ways a Man may Guiltlesly and Inno­cently fall by the Law; be convict of Debt or Damages, and cast into Prison thereupon; viz.

1. By Ignorance or Misprision of himself, that knoweth not to express or inform his own Case aright: or if his Attorney or Counsellor, who are not at all times, and in all cases, so sufficient, but they may, and do often­tentimes erre in Answering, Directing, or Pleading; especially when false things are cunningly layed, or true things uncertainly laid.

2. By negligence of his Attorney or Counsellor; who sometimes doth forget, fail, or not attend to Answer or Plead at just times; or by the De­fendants own Necessity, who hath not, or cannot pay the Fees and Charges; or send it by one that pays it not, or pays it too late.

3. By practice or combination of the Adversary, with the Defendants Attorney, Solicitor, or Counsellor, with the Witnesses or Jurors, for Love, Malice, or Ends of their own.

[Page 15]4. By Perjury of Witnesses; in concealing, perverting, or misapplying Truth, or deposing Untruth.

5. By Forgery of Letters, Bonds, Deeds, and such like.

6. By Subornation, Inclination, or Corruption of Witnesses, Jurors or Officers.

7. By Affection, Inclination, or Corruption of the Judge. And so like­wise any Man may be Disabled, and become Insolvent by as many Casu­alties, and Acts of Honest and good Intention; and consequently, become Debtors, and cast in Prison thereupon; viz.

1. By Suretiship, Bayl, or Security for Kinsmen, Friends, or others.

2. By Loan to Friends, Kinsmen, or others, who pay not again.

3. By Falshood of Friends, Servants, and others, that are put in Trust with Moneys, Evidences, Office, Trade, Lands, &c.

4. By Moving or Defending a just Suit in Law; where Might, Practice, or Falshood, over-bears him, or many Years Suit and delay, consumes him.

5. By Fire, Water, Shipwrack, and such like suddain and unresistable Accidents, at Sea or at Land.

6. By Robbery of Theives, at Land or Sea.

7. By unprofitable buying or selling of Lands, Leases, Merchandises, &c. whereby many Honest, and good Understanding Men have failed, and been Overthrown.

8. By Arrests, Seizures, or pretences of Foreign Princes.

9. By suddain loss of Friends, or Masters; in whose Life or Favour ma­ny a Mans Estate and Living dependeth.

10. By Errors, in making or keeping Reckonings and Accompts; or by losing, or not calling for Acquittances, Bills, Bonds, Releases, &c.

11. By Ingagements and Assurances for Warranties, Annuities, Dowries, Jointures, Legacies, and such like.

12. By Fathers Debts, and Use thereof, brings many Men to Prison.

13. By Usury, which slily and suddainly eateth up a Mans Estate, e're he be aware.

And by a multitude of other ways and means, which were too long for this discourse.

In brief; So Frail, Insecure, and Inconstant, are all the things of Man in this World, that there is no Man in what state or condition soever, but may become Insolvent, and in Debt, by one way or other.

And it is to be noted, That the Law admits no Information, or takes consideration of any of these Conscionable circumstances of casual Insol­vency, or Innocent failing, as aforesaid.

Or whether the Debt grew upon a deceitful or corrupt Bargain, U­sury or Forfeiture?

Or whether the Creditor hath suffered any damage or no?

Or whether the Debtor hath paid any part of the Debt?

But in summo jure, giveth the whole Forfeiture, without any Conscio­nable respect.

And the after-proceedings are suitable: For after Judgment on an Hun­dred Pound Bond, though the Debtor, by his Goods, discharge Ninety and Nine Pounds principal, yet the Body is subject to be Imprisoned till he pay the whole Forfeiture of 200 pounds.

And the words of the Statute are, That if we have no Goods or Chattels, or not enough to satisfie the whole, his Body shall be Imprisoned for the rest, till he make payment or agreement, Marlbridge cap. 23. an 52. H. 3. and W. 2. cap. 11. an 13. Ed. 1. and Statute Acton Burnel, an. 11. Ed. 1.

So every way it is in the absolute power and will of the Creditor to cast the Debtors Body into Prison; when, in all Conscience and Equity, if he have no means to pay, he ought to be let out of Prison, or not Imprisoned at all.

For, Imprisonment of the Debtors Body (in it self considered) neither is nor can give satisfaction to the Creditors Debt, though he Murther it by Imprisonment.

And in like Rigour, when the Debtor is in Prison, the Law never looketh after him with a Conscionable Eye; though then again there ari­seth most necessary and weighty matter of Conscionable consideration; namely, Whether the Prisoner hath means to pay the Debt or not? And, Whether he hath means to keep himself in Life? For to cast him in Pri­son (who hath no means) is a likelier course to starve him by Famine, than to win payment of the Debt.

1. For some Prisoners have Means, and are willing, but cannot pay. Either because the present Power is not in them: Or in regard of the Time, that they cannot Sell, or cannot receive payment so suddainly. Or in regard of others Interessed, without whose consent he cannot dispose thereof. Or the Estate is Intangled with Dowries, Joyntures, Warranties, Assurances, Statutes, &c. and by Trustees.

2. Some have Means, and are willing to pay; but their Means will not hold out to discharge the whole Forfeitures and Usuries; which common­ly is as much more as the Principal.

3. Some have not to pay Principal, Forfeiture, or Interest, and the Creditor knoweth or believeth it: yet, because the Prisoner hath some able Kinsman or Friend, he will keep him Miserably in Prison 10 or 20 Years, to try conclusions. And they are no small numbers that are cast into, and now lye in Prison, upon this project; who live and dye Miserably, for their able Friends sake.

[Page 17]4. Some have Means, and will not pay, out of Fraud and Obstinacy.

But for certain, there can hardly be found one of Five hundred Priso­ners Guilty in this behalf; it being the common Slander of Creditors, to cloak their Cruelty and Tyranny. But if that were so, the Creditor, who searcheth the very Reins of the Debtor, and his Estate, will rather seize and recover the Estate, to the payment of his Debt, than cast the Debtors Body into Prison; where, if he Die, and the Land not seized, he loseth all.

Now, If an Honest Man may Innocently fall in the Law, by such a multitude of Accidents, Practices, and Errors of others; and may fail also in his Estate, and become Insolvent, by doing just and friendly Offices to others, and by so many ways, and cannot be a Criminal Debtor, but one way, which is by Fraud and Obstinacy only.

How can it stand with any Charity or Conscience, to neglect, and pass by so many Circumstances, and such weighty ones in Conscience; and to fall upon the Debtor with such Cruelty, by laying such an heap of Mise­ries upon Him, his Wife, Children, and Reputation, at once, as Imprison­ment bringeth?

And, as if all were too little, many Prisoners are shut up, sub arcta Custo­dia, upon bare Suggestion of the Creditor or Adversary, and without any proof made, reason shewn, or once calling or hearing the Prisoner speak: when ast he Judge of Judges councelleth not to add Affliction to the Af­flicted; and Punishments ought rather to be mittigated and lessened, than exasperated or increased. Julius the Heathen, Treated St. Paul with much Humanity, when he was a Prisoner; suffered him to go to his Friends, and to do his Affairs. The Civilians define strict or streight Im­prisonment to be a kind of Torment, and far beyond safe Custody; and that perpetual Imprisonment, Banishment, and Death, be equally equivalent.

Now then, every Debtors Imprisonment, whose Estate will not extend to discharge his whole Debt (which is the cause even of every Prisoner for Debt) is perpetual, and consequently, equal to Death and Banishment. And a Judge ought to visit the Imprisoned, and to cause that they may have things necessary. But to return to the Creditor again; Is it not a most unconscionable thing, That when he knows the Debtor hath no Means, will yet cast him in Prison, and keep him there all the days of his Life, upon a corrupt, and oftentimes, causless or casual Debt, without any Fraud proved? Why should not the Debtor rather, in Conscience and Equity, be set at Liberty, to get Bread for himself, Wife and Children, when he hath no Means to pay; or is content to pay and assign all his Means, to avoid the Misery and Danger of Imprisonment? Or what can the cruel Creditor expect more, but the Debtors Life, and the spoyl of his Wife and [Page 18] Children? Or is it not unjust and ungodly, to keep such a poor Debtor in Prison, in hope to wring payment from his Friends, by doing Cruelty up­on his Body?

It is true, The Antient Common Laws of England are very strict in this point, of maintaining Pacts and Contracts: but the Contracts of those Times were Simple, Honest, and Legal, and the Recovery was against the Estate only; for there were no Penal Bonds known, nor Usury practised by Chri­stians, when those Laws were made. But all our Contracts and Bonds, or the greatest part, are corrupted: And to force Men to perform such, with the loss of their Estates, Credit, Liberty, and many times of the Life too, is most inequitable.

☞Especially, being the Law provides every Creditor his full damage, without the help of a Penal Bond; which plainly sheweth, That all for­feitures are needless. And they are unjust also; for they make the Credi­tor Judge of his own damage, which of right belongeth to the Judgment of the Law.

And therefore it is too clear, that all the former cases and causes being different, require different value in Conscience and Equity; yet the Law will neither see nor hear any of them, but punisheth 99 Innocent Prisoners, that would, but cannot pay, because one Debtor may happily be found fraudulent and obstinate.

But it will be said, That the Chancery doth mitigate the hardness and rigour of the Law. And that wrong Judgments may be Reversed by Attaint, Errors, Audita querela, &c. Whereunto it is answered, That the Remedy is worse than the Disease: for all courses of relief by Law, or Chancery, are hard, tedious, uncertain, long, and extream chargable.

And it is a lamentable case, That when the Debtor is unjustly or un­conscionably cast in the Law, stript of his Estate, his Body Imprisoned, his Liberty tyed up, his Credit destroyed, and his Friends Banished; then to send him so disabled, to seek remedy by new Suits at Law or Chancery, which are chargable, beyond relief; and more chargable, and more dis­advantageous to the Prisoner, than any other by far, is neither just, con­scionable, or reasonable: For many a Prisoner hath in these courses spent his Means, or Starv'd in Prison, e're his Suit hath been half ended. The difficulty or rather impossibility of these Reliefs, is too well known.

And with the same Extremity doth the Statute of Bankrupt deal with the poor Debtor.

1. In that there are so many provisions made for the Creditors recovery of his Debt; but not one Act of Tenderness towards the Debtor: For the Debtor may be Starved in Prison, with his Wife and Children, in the four [Page] Months assigned, for the finding, seizing, and dividing of his Estate, by reason there is no Provision at all made for their Livelihoods in the mean time.

2. In that the Statute hath not remembred to set the Debtor at Liberty, when all his Estate is taken from him and divided; but leaves him, with­out Means, to perish in Prison.

3. Nor hath it made any difference in the quality of Debts; for the greatest part of all Prisoners Debts are, or arise from corrupt Bargains, Forfeitures, and Use; which when the poor Debtors Estate will not ex­tend to pay the Principal, the Forfeitures and Use may be spared, or at least the Debtor not be kept in Prison for such, without Means, and with­out Trade, to keep him, his Wife and Children, in Life. And it is an hard thing to break up the Conscience by Oath, to find wherewith to pay For­feitures, Use, and corrupt Bargains.

Doubtless, in this hardness of the Law, the Miseries of Imprisonment, and the unconscionable dealing of Creditors, (all falling heavy upon the Prisoners Credit, Estate, Wife, Children, and oftimes upon his Body and Soul too) hath wrought many strange and lamentable Effects. And it will not be unfit in this place to shew some especial Examples out of the Kings-Bench; though many more acts of this Kind have been done, both there and in the Fleet, and in all other Prisons of England, wherein, like Men encompassed with like weakness, and like Extremities pressing them, as divers, who under the sense of their Sufferings and Miseries, have with Poyson, Knives, Halters, and in Vaults, desperately made themselves away; which for brevity sake, I omit to particularize.

One Dawley, an unhappy West Country-man, (who formerly had set on work one hundred poor people yearly, in the Art of Felt-making) failing in his Estate, yet by no known Vice, (for he was ever counted an honest and discreet man) was cast into the Kings-Bench Prison, where having pre­vailed with 15 of 17 Creditors, for respite of four years time, the other Two (who were Men of very good Estates) refused, and Prosecuted the Commission of Bankrupt, and obtained the Commission Sealed; which, with much difficulty and expence, poor Dawley withstood; and, at last, having obtained a Supersedeas, and not able to give (for the private Sealing) but half a Piece, (for it was his last Money,) Edney (who perceived there was need and hast) threw the Supersedeas Sealed (as by credible Report) into the Fire; upon notice whereof, poor Dawley not having wherewith to stop the Commission, nor knowing how to keep himself in Prison, or his Wife and Children in Life, that Night hang'd himself.

[Page]2. Frith, a Man of 1600 pound Land per Annum, being Indebted Seven or Eight Thousand pounds, and having Embroiled his Estate, by Assurances, Statutes, &c. to divers great Rich Men, was by Extents, Orders, and De­crees, so far stript of all, that after he had Pawned his Bed-cloaths, and Childrens cloaths, at last in meer Want, and sight of his Misery, having but four Farthings left the Night before, and his Credit for Food spent e­very where, kill'd himself with a Pistol. And it may not seem strange, if his Faith did shrink; for he had been kept Two years, sub arcta Custodia, without hearing of Divine Service, or God's Word Preached. What ever the Man, or the Cause was, we are sure, the Courses were Unconscionable, and the State he stood in was very hard for any Flesh and Blood to bear. He accused, by a Writing made at his Death, Sir J. B. and some others, of hard Measure and Injustice.

3. In the White-Lyon, hard by the Kings-Bench, one Allen, with his two Sureties, were, some few years since, cast into Prison, in Execution of 30l. Forfeiture and Costs for 12 l. Principal Debt, without any other matter of Debt against any of them; who being Mechanical-Men, and not able to pay or maintain themselves in Prison, are all three, through Want, Grief, and Misery of Imprisonment, Dead and Perished. So that, for 12l. Debt, the cruel Creditor hath had the Lives of three Men, and undone their Fa­milies. And no Marvel, if such strange and desperate Acts are so often and commonly committed, when in the Kings-Bench alone, there is near 800. Souls, for whom our Saviour Christ died, and shed his dearest Blood indifferently, as for any other Christian Congregation: Amongst whom, there are many Instances of horrid Cruelty and Severity of hard-hearted Credi­tors, as well as in other Places. These Men are compassed with a Multi­tude of Miseries, and heavy Afflictions; and therefore, some cannot choose but become weak in Faith, Stagger'd, or Desperate; and for want of the Fear of God, many with Shame and Trouble, lose their Suit, or Die.

4. One Mr. Thomas Marcot, a Gentleman of 800l. per Annum in Northamp­ton-shire, Raised a Troop of Horse for the Service of King Charles the First, (of Blessed Memory) in the time of the Unnatural Rebellion; and by that, and other Effects of that War, his Estate was so Wasted, that he was cast into the Fleet for Debt; whence, after a long Durance, he was (by the Cruelty of Merciless Creditors, as not Satiated in their Revenge) Removed to the Kings-Bench, and there thrown among the Prisoners of the Com­mon-side; and having no place to Lye on, but the bare Earth of a dismal Hole, he fell into such a Despair, that on Novemb. 6. 1685. he, by taking Six penny worth of Precipitated Mercury, Poysoned himself; as will be At­tested by persons of sufficient Credit; which being a late and very dread­ful [Page 21] Event, considered in all its Circumstances, shews both the Mercy­lesness of Creditors left to themselves, and the extream Miseries, Prisoners (of what Circumstances soever) often find in Prisons.

5. One William Studd a School-Master, now living at the Hand and Pe [...] in Green-Banck near Wapping, Arrested John Grismond, a Youth under Thir­teen Years of Age, who was his Schollar for above Seven Years, at Ten Pounds a Year, and was justly paid all but Four Pounds Ten Shillings; his Father going to Sea, was unfortunately Cast-away, which was the only cause of the non-payment; upon which, Studd after he had Arrested his Schollar, gets Judgment for Nine Pounds, takes out Execution, throws him into Goal, where he now lies in the Kings-Bench Prison, a most miserable Spectacle of the Barbarous Cruelty, and Inhumanity of his Creditor.

Others for Poverty and Want Perish.

One with Fear and Grief, breaks his Heart outright.

Anothers Heart, that cannot Break, the Devil is ready to teach him how to make away with himself.

One uncharitably flies from his Keeper, that his Keeper may pay his Debt.

Another desperately adventures his Life, to break Prison.

One not having wherewithal to Employ himself, gives himself over to Drink and Company, thinking thereby to comfort his comfortless Soul, till all sense of Grace and Goodness be Drowned in him.

And accordingly, every several Man Falleth, or is in danger to Fall, according to his several Weakness.

The Prophet in the Old-Law, cryed out against grinding the Face of the Poor; But our Prophets may cry out against grinding the Back, Heart, and Life of the Poor. For Creditors, when they have ground away all the Estate, then they cast the Debtors Body into Prison, where his Credit, Liberty, Vertues, and Life too, are slily ground away, by Oppression, Im­prisonment, and the Miseries that attend it.

Yet some will excuse their own unconscionableness, and the Rigour of the Law; and so doing, alledge, That in seizing the Debtors Body and Goods, the Law doth no more than what the Debtor himself hath contracted un­der his Hand and Seal; and, Volenti non fit injuria. Whereto is answer'd,

1. That the Guilt of the Law cannot so be washed off. For in Debts where there is no contract under the Debtors Hand or Seal, the Law gives the Debtors Goods and his Body into Prison, at the Creditors will.

2. That the Debtor is not volens, for it is against every Debtors will to become a Bondsman; but he is pressed thereunto by his own necessity on the one side, and by the Creditors uncharitable will on the other, who will not lend but upon Forfeiture.

[Page]3. The common saying (Volenti non fit injuria) is a false Position; else it is Lawful to knock a Man on the head, who is willing to Dye; which is absurd, for the will or consent of the Party, unto an act that is in it self unjust, cannot make the Act just, nor justifie the Actor.

And it is also Objected; That if Mens Bodies may not be Imprisoned, how shall they recover their Debts. Answer, Upon the Debtors Estate only, as this Kingdom heretofore did, and other Kingdoms now do: And therefore, let the Creditor ground his Trust thereupon, and Trust no far­ther than the Debtors Estate; for thence only can he have true satisfaction, for the Carcass is worth nothing. It is replyed: That then there will be no more Credit given; and consequently, Trade and Commerce will de­cay. Answer, Honest Trade, honest Contracts, and honest Trust, will notwithstanding be as plentiful; for while there is the same use, necessity, and profit, by Commerce, there must needs be the same Effect, unless it shall be denyed by some impossibility; for necessity and profit will not let the manner or means sleep, till the effect be wrought.

True it is, That Contracts will be more Relatively made to every Mans Estate, Credit, and Honesty, not Blindly and Desperately, as now they are: For how did they in the times of the Old-Law, of the Gospel, and in the Antient Times, and Politick Government of this Kingdom; and in all o­ther Kingdoms at present. Shall we think that those Kingdoms had no Contracts, Commerce, or Loans of Money, or are these or those fallen to Ruine, for want of Imprisoning Mens Bodies for Debt? or were it not bet­ter that we had no such amplitude of Commerce, than to purchase it at so dear Rates, that giveth offence to the Divine Majesty? Is contrary to our own Laws, to Justice and Conscience; prejudicial to the King and Kingdom, unprofitable to the Creditor, and destructive to the Debtor.

To conclude, Since a Man may Innocently be a Debtor by the Law, or become Insolvent, or have no Means, or want present Means, to pay in such a Multitude of causeless and casual ways, as is before shewn, and can be a Criminal Debtor but one way, which the Law Punisheth otherwise; Why should we (upon so good Warrant as we have out of the Old-Law, the Gospel, the Mother Laws of this Kingdom, and upon the sight of so many Reasons, and Rules of Justice, Conscience, and Christian Piety) doubt to depress this cruel practice of Imprisoning Mens Bodies for Debt; and to restore the Antient Laws and Customs of this Kingdom, to their Life and Liberty again.

IN Germany, France, Italy, Spain, and the Low-Countries, no Man is de­tained in Prison for Debt, above a Year and a day; as all they who have observed the Laws and Customs of those Countries, can certifie. In which time, the Creditors have Power to Take, Seize, and Sell all the E­state of the Debtor; which being done, the Wives Dower is first taken out, for the Relief of her and her Children; the rest is divided among the Creditors, so far as it will go, and so the Debtor is freed from those Debts for ever; and at a Year and a day his Body is set at Liberty, to begin the World anew: And by the Civil Law of this Kingdom, Qui vult ce­dere bonis, libertatus est a debito, If the Debtor shall be content to Relin­quish his Estate to the Creditor, he is free from the Debt; so there needs no Imprisonment at all. But no Gentleman, or Man of Quality may be Imprisoned at all for Debts, his Estate only is lyable thereunto, and yet with reservation of such necessary things, as Honesty, Honour, Humanity, and Christianity doth Challenge, viz. The Souldiers Person, his Arms, his Apparrel, Bed, and Chamber, conveniently and necessarily Furnished, may not be taken for Debt; and like Reservation is made to every other Man of Quality: And if the Debtor have no visible Estate, the Creditor is obliged to find him a Maintenance, during his Imprisonment.

And in all those Empires, Kingdoms, and Regions, which are Governed by the Mahometan Laws, there is no Tolleration of Usury at all, neither Im­prisonment of Mens Bodies for Debt, being absolutely, by Mahomets Alcaron prohibted, in the 4. Azoara, or cap. viz. They which live of Ʋsury, shall not rise again otherwise than the Devil, because they Imbrace that which God hath said is unlawful. They in excuse say, Ʋsury is a Merchandize, but ye which are good, fear God, and forsake Ʋsury, lest the Anger of God, and of his Prophet assail you; take only the Principal, and if thy Debtor cannot pay thee, stay till he can, and give him Alms, for this shall be better for thee. The Jews are the only practisers of Usury, in all the Mahometan Countries; and will, before-hand, take 20 or 30 per cent. of any Christian, or other that shall use him: But it rests in the power of the Debtor, to call the Creditor before the Turkish Justice: and what Interest the Debtor can prove he hath paid, shall by the Law be defaulked out of the Principal Lent, and the Debtor only lya­ble to the rest. And no practise of Imprisonment of Mens Bodies above three Months for Debt, unless the Creditor will maintain the Debtor▪ his [Page 24] Wife, Children, and Family, which is never known: So that Imprisonment of Mens Bodies for Debt, according to the practice of England, is a greater Burthen and Bondage than is found in any other Christian or Heathen Country; yet, in no part of the World, Debts worse paid.

FOr all means of satisfaction must arise, either out of the Debtors Credit, out of his Labour and Industry, out of the good will of his Friends, or out of his own Estate. And all things that deprive, or disable the Debtor in any of these, do weaken and lessen his Means, and consequently tend to the Creditors prejudice and disadvantage.

Now, The Debtors Credit is lost as soon as he is made a Prisoner, his Voca­tion, Labour, and Industry, is denyed by Imprisonment. And the Prison makes him become a Reprobate to all his able Friends; for they all forsake him, daily experience proves it. And Imprisonment no way enableth the Means for payment of Debts, but doth absolutely consume the Debtor and his E­state, to the enriching of Lawyers, Keepers of Prisons, Bayliffs, and others, who all have Innumerable Arts and Tricks, to extort unreasonable Fees from those poor Wretches, so soon as they have the misfortune to fall into their hands; and against which there is no Redress. For, besides the Prisoners most necessary expences, for the Livelyhood and Maintenance of himself, Wife, and Children, while he lyes in Prison, and the unavoidable Fees and Charges that he must undergo; he is forced, by reason of his Want, Ex­tremity, and Restraint of Liberty, to trust Friends and Servants with the Sale of Lands, Chattels, or Goods; and with Receipts, and Payments of Mo­ney, by whom he is very often Deceived, Couzened, or Robbed, as by daily experience is seen; not only to the Creditors prejudice, but many times to the overthrow of the Prisoners Life. As for Example, If the Deb­tor owe 1000 pounds Principal, and hath Lands or Lease, which may be well worth 2000 pounds; yet if he cannot convert it into Money for pre­sent payment, his Body is cast into Prison; there falleth so much disgrace, and disreputation suddenly upon him, and his Estate, that no one Man in the Country will bid him ought for it (how clear or good soever the Title be) only the Lawyer, or his Creditor, is commonly his Chapmen: Marry, they will give but half the worth; which the Prisoner, (whose ne­cessity doth not Sleep) cannot refuse. And while these things are in doing, [Page 25] a year or two is spent in hope to Sell to more advantage, (for the Priso­ner is loth to Sell his Estate for half the Worth) and in this time the Debts be encreased by Use, and the Estate more wasted by the Prisoners own Maintenance, by charges in Law and Chancery, to stop Executions, Outlawries, Forfeitures; that his Estate that was worth 2000 pound, and was double to the Principal Debt two or three Years before, is now so far Con­sumed, that it will scarce make 600 pound to pay the Principal, Use, and Charges; which in the mean time are grown to 13 or 1400 pounds, be­sides the overplus of 6 or 700 pounds due by Forfeitures.

So that it is by daily Experience found, that many Debtors have offered at first, to pay the Principal Debt, or half, or more or less, as their Estate and Means did then enable them; who, after they have been cast into Prison, have been so far, and so suddainly wasted and consumed, by lesser Charges, Fees, and necessary Maintenance of them, their Wives and Children, as they have not been able to pay any part of that, which, before their Impri­sonment, they offered, and were able to perform; but have Perished in Pri­son. And though it be true, that some Debtors have paid their Debts, while they have been in Prison, yet they have been very few; nor were they enabled any way thereunto by Imprisonment; but by some accidental Estate, fallen unto them by the Death of Father, Friends, or Kindred, or by some Sale of Lands, Lease, or other Estate, that could not be made sooner; or by Recovery of Lands, Lease, Debts, or such like; which Time hath ripened, or Accident hath brought to the Prisoners hand.

The Imprisoning of the Debtors Body, no way enableth the Debtor to give Satisfaction: How preposterous and absurd is it then, to cast the Debtors Body into Prison, where his Estate is wasted, his Credit spoyl'd, his Fortunes and Vertues lost, his Body afflicted, his Life consumed or murdered, and whereby the Creditor bars himself from all Remedy against his Estate for ever; when as the Debtor, though he be not able to pay presently, yet while he is at Liberty, he hath his Credit, his Fortunes, his Friends, his Quality & Endeavours; and is free not only to raise a new Estate to the payment of his Debts, but to advance himself in Services that tend to the Glory of God, and to the good of the King and Kingdom? But it is here objected, That if the Debtor hath an Estate, and Means to main­tain him in Prison, Why doth he not pay the Debt, and clear himself out of Prison? Answ. For divers just and weighty Causes, viz.

It is in general presumed, That no Man can be so void of Understanding, or desperate of his own Life or Liberty, That will lie in Prison all his days, if (by any, though hard conditions for Flesh and Blood, to undergo) he may be delivered: for either to avoid the Shame, Misery, and danger of his [Page 26] Life, by Imprisonment, he will pay the Debt if he can; or the Creditor (whose Heart and Eye is more directed to the State than Body) will not make himself uncapable to seize the Estate, by taking the Body. Hence therefore it is in necessity of reason induced, that the Prisoner hath not Means to pay the Debt.

2. The Debtor, when he is cast into Prison, hath seriously to consider, whether the payment of all his Estate will clear him or not.

For to pay all his Estate for part of his Debt, and Perish in Prison for the Remainder.

Or to pay all his Estate for the Principal Debt, and acknowledge a Judg­ment for the Interest and Forfeitures, whereby he must shortly come to Pri­son again. Or to pay all his Estate to the Creditor that cast him in Prison, and not to have wherewith to pay others, who are ready to do the like.

Or to pay all his Estate for a Debt doubled by Forfeiture, when he hath paid the greatest part already; Is no other than to Starve himself in Prison, and consequently, to betray his own Life; which the Law of God and Na­ture abhorreth.

Of all these Reasons, the Creditor that cast him in Prison, (who com­monly hath the worst and most extortious Debt) will take no Notice, but against his own Conscience and Knowledge, and to colour his Cruelty, clamoureth and cryeth out falsly, that the Debtor hath Means to pay; but unconscionably lyeth in Prison, and will not pay.

3. The Imprisonment of the Debtors Body, is the Creditors satisfaction, that keeps him in Prison: And it is the greatest Satisfaction that the Cre­ditor can Exact, and the dearest Payment that the Debtor can make: And the Creditor is thereby excluded from all pretence against the Prisoners Estate; and the Debtor can in no sort be truly said to keep or spend the Creditors Estate in Prison; for if the Prisoner shall pay all his Means, and not be sure to quit his Liberty, he thereby payeth the Debt double, and doth Injustice against his own Life.

Now in all these Cases (which are the most common Cases and Causes, that Prisoners pay not their Debts) It is a Just, Equal, and Reasonable thing in the Prisoner, not to pay the Creditor; but to keep his Estate, to defend his Own, his Wife, and Childrens Lives from Perishing.

And therefore, by all the Reasons premised, it must needs be clearly a­gainst the Creditors own Profit, to Imprison the Body of the Debtor.

TO be found a Debtor in the Law, is no Crime or Violence done against the Publick Justice and Government; but is breach of Pact and Contract between private Men, whose particular Interest it only concerneth; and therefore, the Wisdom of the Antient Laws of this Kingdom, gave Remedy and Satisfaction out of the particular Estate of the Debtor, properly; but medled not with the Body of the Debtor.

The Kings of England, are Kings of Freemen, not of Slaves. And, The Body of every Subject belongeth to the King; and every Subject is a Member or single part of the Body of the Kingdome. Now, To take the Body of the Kings Subject, and a Member of the Kingdome, and to cast him into Prison for Debt, is no other than to Rob the King and Kingdome of their Limbs and Members; and consequently, of the Services and Endeavours of a great number of good Subjects, yearly. And, That it may be seen, how far this Loss or Mischief, done to the King and Kingdome, doth extend; let it be first remembred, that there are shut up in Prisons, for Debt, Men of every Quality, Profession, and Degree; of which many have done, and the most part are able to do good Service to the King and State, in one kind or other.

Secondly, Let the number be considered; for in London alone (by miserable ex­ample) is found Seven or Eight Thousand Prisoners for Debt; amongst which, are divers Commanders, and Men of Quality, and good Endowments; who have the same Vertues; yet both Men and Vertues are Buryed alive in Prison, with the spoyl and overthrow of them, their Wives and Children. And, It is more prejudicial to the King and Kingdome, by how much it is more Compassionate; in re­gard an Honest Man may fall in the Law, by a multitude of Accidents, Errors, Practises, Perjuries, Forgeries, and such like, of others; and for doing Honest, Friendly, and Christian Offices, out of Love, Friendship, and good Intention to others, as is before shewn; when nothing can be said for the Creditor, but that he Contracted for Usury, covetous Gain, or Forfeiture; things not altogether Lawful among Men, but hateful in the sight of God.

And this Imprisonment of Mens Bodies for Debt, encourageth the Creditor to give so much blind and desperate credit to Young-Gentlemen; who thereby are fed with Money to serve them in their wild courses; and before they have Age or Dis­cretion to see their Follies, or time to Retract them, are eaten out of their Estates; and oftentimes the Father seeth his Eldest Son run into deep Engagements, yet can­not restrain it; whereby many an Antient House and Family is overthrown, and the Creditor planted in his stead.

So it is with the Painful and Honest Traders; who, when the Profit of the Trade exceeds not the Interest he pays, yet is drawn along in hope of a better Time, or better Fortune, till the use hath eaten him, and his honest Care and Travel quite out.

And it is the main cause also, of infinite and unnecessary Trust, otherwise given to Men of all sorts and degrees, through the Kingdom; who finding Moneys to be had, and not knowing, or not fearing the close-biting, and cankerous nature of Use; and being, either out of their own good nature, a little free and profuse, or out of some accidental cause of Suits at Law (or such like) necessitated a little to ex­ceed the compass of their Means, are in a very short time, by Interests and Forfei­tures, consumed to nothing, or their Estates so far boared through, and embroyled, that scarce one of an hundred can recover it all their Life after.

Moreover, This Imprisonment for Debts, is the cause of much Murder and Blood-shed. For, besides the incredible number of Prisoners, yearly choakt-up, and Slain by Idle Life, ill Air, Famine, and Plague; and many times by desperate Executions upon their own Bodies, for the heavy Weight and Miseries they bear; There are many Slaughters and Murders often committed, between the Debtors Servants and Friends, and the Bayliffs, Serjeants, and Under-Sheriffs; who, to gain Reward, will venture Life and Limb to Kill or be Killed, for the Arresting, and haling the Debtor to Prison.

And it may not be conceived the least prejudice to a Christian Kingdom, in that this Imprisoning of Mens Bodies for Debt is the only Nurse and Support of Extortious Contracts, which God cannot abide; and it is the only spoyl of Charity amongst Men, which God most loveth: Who can tell how far the Wrath of God is kindled against this Kingdom, or how much prejudice it hath, and may receive, for knowing, and not doing these things, and not Reforming them?

If the Creditor had not these Imprisoning Priviledges to prevail upon the Bodies of Men; then it would follow, That the Debtor, though he had paid the Creditor all his Estate, yet having his Person, Qualities and Endeavours free, his Friends constant, and his Credit unstained with the Prison, is still able, ready, and fit to do Honour and Service to his King and Country, and to win and purchase himself a new Estate, to the payment of his Debts, and advancement of his own Fortunes. But if he be once foyled with the Prison, he is disabled to pay any Debt, to raise his Fortunes, or to do his Majesty or Country Service.

And again, If the Recovery of Debts were to be made only upon the Debtors Estate; then it would also follow, That Money would be Imployed in Lands, and lawful Trade; whereby the Poor in Town and Country, would be more and better set on work: And Honest Trade (that most advanceth the Honour, Strength, and Wealth of a Kingdom) would be amplified; Charity, (the Mother and Root of all other Vertues) would abound, and shine out every where in her Antient Splendor, and pull down the Blessings of God more plentifully upon this Kingdom and Peo­ple: Truth, Honesty, and a good Name, would be the highest Ambition: Chari­table and Friendly Borrowing and Lending, would be frequent: And Honest-deal­ing Men best Imployed and Esteemed.

All which, is Humbly offered to the serious Consideration of good Christians.