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<DATE>3-5-10</DATE>
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<NAME>John Latta</NAME>
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<STC T="W">R513</STC>
<STC T="T">669.f.21[48]</STC>
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<VID>163543</VID>
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<DIV1 TYPE="tract">
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<HEAD>Rea&s;ons for the Continuance
of the Proce&s;s of ARREST, for the good of the Common-wealth.</HEAD>
<P>1. _BEcau&s;e attaching the per&s;on doth &s;ecure the Plantiffs debt, either by pre&s;ent payment, or cau&s;ing other &s;atisfaction, which the proceedings by
&s;ummons doth not; and as a man will give all for his life, &s;o he will do much for his liberty.</P>
<P>2. When men are detained upon the Arre&s;t (which is but &s;eldom, for few are arre&s;ted in compari&s;on) and then it is ordinarily but for a &s;hort
time, untill they have given &s;ecurity to an&s;wer the Action, or &s;ome Warrant to appear.</P>
<P>3. If men may not proceed by Arre&s;t, it will much hinder Trade, and other dealings; for men will not adventure to tru&s;t, where there is
much liberty for the Debtor to &s;tand out; and Merchants, and Trade&s;men, many times look upon the per&s;on as the be&s;t &s;ecurity, and
the remedy by Arre&s;t the &s;peedie&s;t to gain their debts: without which Trade will nece&s;&s;arily decay.</P>
<P>4. The Proce&s;s to arre&s;t, doth end mo&s;t Suits before the per&s;on be attached, and before appearance, as experience doth &s;hew; for when
men will not regard a &s;ummons, they will take cour&s;e before they will &s;uffer an Arre&s;t.</P>
<P>5. Men will take occa&s;ion from the &s;ummons (as formerly they have done) to be gone from one Countrey to another,<NOTE PLACE="marg">2. H. 3. ca. 23.</NOTE> and to make away their E&s;tates, and though the
Plantiff know it, yet he cannot help him&s;elf, which the Arre&s;t doth prevent: and the Law-makers of this land have ever held it more rea&s;onable, to provide for the &s;a|tisfaction
of the Creditor, then the liberty of the Debtor.</P>
<P>6. <HI>England</HI> is an I&s;land compa&s;&s;ed about with many Port-Towns, where there are many Merchants, and men that go abroad, and trade by &s;ea, who buy Wares upon cre|dit?
and there will be continual occa&s;ion of Suits again&s;t divers per&s;ons of this &s;ort, who will not much regard the &s;ummons, but will betake them&s;elves, and their E|&s;tates
to Sea again, and the Creditor can have no remedy? whereas if the parties be attached, they will make &s;atisfaction,</P>
<P>7. Whereas divers Trade&s;men &s;ub&s;i&s;t upon their credits, and take up great &s;ums of money, for which they can give no other &s;ecurity then their per&s;ons, and by advan|tage
thereof, many times attain to great E&s;tates; but if the proce&s;s of Arre&s;t be taken away, they can hope no more to be intru&s;ted, which apparently tends to their ruine.</P>
<P>8.<NOTE PLACE="marg">Iath. 5. 25.</NOTE> And that proceedings by Arre&s;t may not &s;eem at all cruel, or unju&s;t; we find both Pre&s;idents and Approbation of the like, and greater &s;everity in the Old and New
Te&s;tament:<NOTE PLACE="marg">Iath. 18. 25. 9.</NOTE> as &s;elling the Debtor, his Wife and Children, and all that he had to make payment, and of taking, and ca&s;ting into pri&s;on for debr, untill the utmo&s;t far|thing
were paid? and yet this cour&s;e was not condemned among the <HI>Romans</HI> (&s;o much they loved Ju&s;tice) nor by Chri&s;t him&s;elf in the New Te&s;tament, who bids,
agree with thy Adver&s;ary quickly,<NOTE PLACE="marg">King 4. 1. 7.</NOTE> before thou come to the Judge; and God, who will have that which is right to be done among men, was very carefall that his own
people &s;hould pay their debts;<NOTE PLACE="marg">evir. 25. 39.</NOTE> and therefore if any were indebted, though they were poor, and could not pay, yet the Creditor might take the Debtor, and his Children to
be his bondmen,<NOTE PLACE="marg">rov. 10. 16.</NOTE> or &s;ervants; and might take mens garments from them, and the bedding whereon they did lie, from under them, which was a far greater puni&s;hment
then our light Arre&s;ts:<NOTE PLACE="marg">rov. 22. 27.</NOTE> and the pri&s;on with us is but a gage, ot pledge untill the Defendant take cour&s;e to an&s;wer the Action according to the Law.</P>
<P>9. Men ordinarily begin Suits upon nece&s;&s;ity, and Debtors generally are called upon before any Suit is commenced: which indeed is in the nature of a &s;ummons, but yet
neither this, nor the lawful &s;ummons doth drive men to take any cour&s;e, until the proce&s;s of Arre&s;t i&s;&s;ue forth, being more compul&s;ory, and a more &s;peedy remedy for the
Creditor, then the &s;ummons was found to be, as appears by &s;undry Statutes, which are more provi&s;ional for the Creditor who is always out of his money, then for the debtor,
who &s;eldom well &s;pent it,<NOTE PLACE="marg"><GAP DESC="illegible" REASON="blotted" EXTENT="1 letter">. H 7 cap. 9.</NOTE> nor hath care to repay it.</P>
<P>10. And if by any new way upon meer &s;ummons only, and default, Judgement &s;hall be had before appearance (which cour&s;e the Law doth not countenance) then the
grand pillar of our common Law, the trial by twelve men (which the Law doth much honor and favour) will fall to the ground; for much bu&s;ine&s;s will re&s;t wholly upon the
Affidavit of a &s;ummer, or the like, which will be a means to multiply Suits, and is in an un&s;ure cour&s;e, and will induce more perjury into this nation, then our Law would ever
fore this time give an inlet unto; and therefore former Parliaments providing again&s;t delays by Summons, did not give Judgement upon default, but found out a &s;peedy
remedy by Arre&s;t to bring the Defendant to his an&s;wer.</P>
<P>11. By the Law a <HI>Capias ad &s;atisfaciend.</HI> doth not lie, but where there is a <HI>Capias ad re&s;pondend.</HI> fir&s;t: and there is as great rea&s;on and enquity for the Arre&s;t to an&s;wer
before Judgement,<NOTE PLACE="marg">Rep. fol. 12.</NOTE> as for the Arre&s;t to &s;atisfie after Judgement, becau&s;e the <HI>Capias ad re&s;pondend.</HI> doth compel the Defendant to take notice of the Action, to which he
may plead if he will, and doth &s;ecure him that he &s;hall not &s;tart, &s;o that when the <HI>Capias ad &s;atisfaciend.</HI> doth i&s;&s;ue forth, there is left no colour of ju&s;t exception for the De|fendant:
but on the other&s;ide, if Judgement &s;hall be entered upon a &s;uppo&s;ed &s;ummons, there will be many grievous complants, and the &s;ucceeding evils will hardly be
redre&s;&s;ed, many will be undone, and Suits will be multiplied.</P>
<P>12. Experience doth &s;hew that the benefit of the proce&s;s of Arre&s;t hath been very great to this Common-wealth: and all the Statutes which have mentioned it
from time to time have given a larger extent unto it, then before it had, and none have abridged it in any thing, which is now of great antiquity, having been for many
ages the be&s;t remedy (for the people to recover their debts, and to compo&s;e other differences) that our Ance&s;tors could divi&s;e.</P>
<P>13. The &s;ubtilty and &s;ubterfuges of debtors having made the proce&s;s of Arre&s;t now more nece&s;&s;ary then formerly,<NOTE PLACE="marg"><GAP DESC="illegible" REASON="page cropped" EXTENT="1 letter">dditional.</NOTE> there will be rea&s;on rather to add to the remedies
provided for the creditor in former Parliaments then to dimi&s;h them:<NOTE PLACE="marg"><GAP DESC="illegible" REASON="page cropped" EXTENT="1 letter">ea&s;ons.</NOTE> and if any inconvenience by this &s;o nece&s;&s;ary a cour&s;e happen to the Debtor, yet will the taking it
away prove more prejudicial to the Plantiff, who is the party injured, and in rea&s;on, his ca&s;e to be prefered and favoured.</P>
<P>14. If mens per&s;ons be exempted from Arre&s;t, it will wrong multitudes, who have taken already the per&s;ons of men for their be&s;t &s;ecurity, which cannot be remedi|ed,
except warning aforehand had been given to the nation, of this great alteration of the Law, and except men have &s;ufficient notice &s;ome good time before this
great change come, that &s;o they may (if po&s;&s;ible) altar, and obtain other &s;ecurity, then now they have: the lo&s;&s;es and complaints will be very many and great, for the
per&s;on is commonly the be&s;t, and in many ca&s;es the only &s;ecurity, &s;o that this &s;udden intended alteration, will not only weaken all mens &s;ecurity, but quite de&s;troy all the
&s;ecurity that many have.</P>
<P>15. If the per&s;on may not be attached, the Plantiff will be put to find out the Defendants E&s;tate, which will be a great trouble, and in many ca&s;es cannot be done.</P>
<P>16. A very great part of our Lands are Copy-hold-tenure, and not liable to pay debts, nor can be without manife&s;t, wrong to the Lord of the Mannor; and ano|ther
great part is Land, either intailed, that the Heir is not liable, or el&s;e is made over to others upon con&s;ideration; and if the per&s;on may not be attached, the Creditor can
have little, and where there is Land, and the Plantiffe have a Judgement, he can have but the moity, which doth &s;eldom &s;atisfie.</P>
<P>17. It is inju&s;tice to protect any mans per&s;on from paying a ju&s;t Debt, for no man may protect another from making good his own bargain, and contract
without &s;in: and it is again&s;t the Law of Nature and Nations.</P>
<P>18. It will ea&s;ily appear that Arre&s;ts for Debt, and for other things, were granted upon the peoples Petition, for the common good, finding a nece&s;&s;ity of it for the
promoting of Trade, and avoyding of Collu&s;ion among them&s;elves.</P>
<P>19. There is no Proce&s;s that will &s;o much keep the people to their Contracts and Promi&s;es, and that without delay, and before Judgement can be obtained, as the
Proce&s;s of Arre&s;t doth, being the mo&s;t co-erceive way, and that which doth over-awe the wor&s;t of men.</P>
<P>20. To exempt the per&s;on from Arre&s;t, will much gratifie that &s;ort of people, who want hone&s;ty to pay their Debts, and will be glad that their per&s;ons may be free, they
will be &s;ure to have nothing before-hand, le&s;t the Creditor &s;hould finde any thing, whereas the fear of a Pri&s;on, or Arre&s;t would make them follow their Callings, &s;pend
le&s;s, and &s;ave &s;omething to pay their Debts.</P>
<P>21. If the per&s;on may not be attached, &s;ervants will grow licentious, men will have liberty to quarrel, fight, and commit tre&s;pa&s;&s;es, and de&s;pi&s;e the Magi&s;trate, and
all good government, more then ever they had, whereas the Law did never protect any mans per&s;on that did not keep the peace.</P>
<P>22. By exemption from Arre&s;t, a very great part (if not the halfe) of this Nation that have neither Land nor other vi&s;ible E&s;tate to an&s;wer their under-taking, can nei|ther
borrow money, nor Trade, nor be compelled to do what the Law requires of them.</P>
<P>23. At <HI>Gen<GAP DESC="illegible" REASON="blotted" EXTENT="1 letter">va,</HI><NOTE PLACE="marg"><HI><GAP DESC="illegible" REASON="page cropped" EXTENT="1 letter">aws of</HI> New <GAP DESC="illegible" REASON="page cropped" EXTENT="1 letter">ngland <HI>print|<GAP DESC="illegible" REASON="page cropped" EXTENT="1+ letters"> at</HI> London, 1641.</NOTE> and in all Foraign Nations known to us, the Body, Land and Goods, are liable to pay Debts, and if the Creditor have &s;ei&s;ed upon all the E&s;tate, and have
not &s;atisfaction, he may keep the Debtor in Pri&s;on if he will, nor is the pre&s;ent government in <HI>New England</HI> without Arre&s;ts, where every Court hath Mini&s;ters of Ju&s;tice
to attach and fetch per&s;ons before the Magi&s;trate.</P>
<P>24. There was never any Nation that did with more vigor and zeal endeavour the expul&s;ion of Tyrants, and the maintenance of the people in their Liberty, then the
<HI>Athenians</HI> and <HI>Romans,</HI> and made the be&s;t Laws, yet the <HI>Athenians</HI> did Arre&s;t for Debt before Judgement, as may appear by divers pa&s;&s;ages in &s;ome of their Authors yet
extant, and the like was done by the <HI>Romans</HI> after the expul&s;ion of their Kings, as may appear by the lawes of the twelve Tables, and collections of divers Civilians and
Antiquares, and the &s;ame practi&s;e was u&s;ed among the <HI>Romans</HI> in after-times, as may appear by &s;ome old Lawyers in the dige&s;ts of the Civil Law.</P>
<P>25. In 2. <HI>R. 2. Robert de Henley</HI> E&s;quire was Arre&s;ted at <HI>We&s;tminster,</HI> at the time of Ma&s;s, and went into the Abbey for protection, the Officers followed him, and upon
re&s;i&s;tance, he and his men were both &s;lain, the Clergy made a great complaint in Parliament (as appears by the Parliament Roll) that the priviledge of the Church was infrin|ged;
and that a great affront was given to the Popes holine&s;s; upon this the King being moved, the Lords and Commons alledged and called the Judges to witne&s;s, and
vouched Records, that it was again&s;t the Law of the Land to protect any from paying their Debts, and the great Divines and Lawyers of tho&s;e times being called, re&s;olved
the King upon their Oaths, that neither God him&s;elf, &s;aving his perfection, nor the Pope &s;aving his holine&s;s, nor any King could protect any man from paying his Debts and at
that time they judged it a &s;in to protect &s;uch, becau&s;e it was a &s;in for a man not to pay his Debts.</P>
<P><HI>Object.</HI> If it be objected that it is a great trouble to get mens per&s;ons attached, and therefore the intent is but to take away the Arre&s;t before judgment only, and not after.</P>
<P><HI>An&s;w.</HI> Experience is the wi&s;e&s;t guide in this matter, which tels us that it will be much more difficult after Judgment to Arre&s;t then before, and more un&s;afe for the Plain|tiff
to re&s;t upon that, becau&s;e the Defendant hath notice of the Judgement, and may (having time) ea&s;ily ab&s;ent him&s;elfe, and therefore upon the fir&s;t Arre&s;t (which com|monly
is not known before hand) for the good of the Plantiff the Common Law doth provide that the Defendant &s;hall (if the Plaintiff and the Cau&s;e require it) give &s;uffi|cient
Bayl, that if Judgement pa&s;s again&s;t him, then he &s;hall either pay the Debt, or yield his body to Pri&s;on, or el&s;e his Bayl are to make it good, without any Arre&s;t after
Judgement, &s;o that it is of great con&s;equence for the Plantiff to have liberty to attach the per&s;on before Judgement, for by this means he hath a double &s;ecurity, and is more
encouraged to proceed to Tryall, otherwi&s;e he might lo&s;e all the fruit of his Judgement, which is by this meanes prevented.</P>
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