SEts out, that an action of debt was brought against Mr. Mosdel for the Escape of Reynel, the Plaintiff said, that he could prove, that he was in London three long Vacations: Whereas in truth the Plaintiff was a Lady of Quality, who never endeavored to prove Reynel to be in London any one Vacation whatsoever, but insisted on a habeas Corpus ad testificand. at the Assises in Exeter; in the same Fo. he saith, that Mr. Justice Twisden said, the Marshal could not give in Evidence a fresh pursuit, but it must be pleaded, the contrary whereof was very well known to all the practicers of that Court, that that Reverend and Learned Judg was never of that opinion, for he always declared that upon a Nil debet pleaded a fresh pursuit, and a reprisal might be given in Evidence: And then he saith, that Hales said, that he always let them give a fresh pursuit in Evidence upon a Nil debet, which is so notori­ously untrue, that all persons of business and practice know, that Hales would not allow of a fresh pursuit and a reprisal, but when it was spe­cially pleaded, then this Reporter falls off a litttle abruptly, and saith, so they gave Evidence of a habeas Corpus ad testificand. and that the Pri­soner went down too long before hand, and stayed too long after the Assises. Now it will clearly appear, that our Reporter was mightily mistaken, for he saith, that the Prisoner stayed too long after the As­sises (hinc illae Lachrymae) indeed that is too true, for the Prisoner never returned to the Prison, nor never will, for he died of the Small-pox in Devonshire, some few miles beyond Exeter in the time of the Assises. And then he farther saith that he went back threescore miles beyond Wells, I suppose he means his Ghost, or some Daemon in form or shape of the Prisoner travelled from Assises to Assises, to lead the Witnesses in­to perjury; after some other remote expressions he concludes, that Hales (as he calls him) said we are made Engines of doing all the mischief, if this should go unpunished being by Colour of a habeas Corpus; so the Jury (saith he) brought in a Verdict for the Plaintiff, who declared in debt for six thousand and two hundred pounds; now to charge so great a man as the Lord Chief Justice Hales with an expression of so great un­charitableness, and so contrary to what he so publickly declared, makes this Reporter to be more bold than modest, notwithstanding the fair pretences in the Exordium of his Book. For the Lord Chief Justice Hales, as will appear hereafter by several depositions taken upon oath in the high Court of Chancery declared, that if he had brought the action of debt against Mr. Mosdel as the Lady Lutterel did and should recover, if [Page 4] he should take one six pence of it, he believed it would be a Canker to his whole Estate, and farther declared that if the Lady had brought an action on the case for damages, she had done well, for he believed the Jury would have given very small damages in a case of that nature, and as the proofs appeared on both sides to the Court.

That the world may be better informed, and may know that this Gentlemans miseries sprang from another Sourse, the ensuing Narrative is truly and faithfully penned.

Mr. Mosdel Marshal of his Majesties Court of Kings-Bench, by habeas Corpus ad testificand. at the the Assises to be held at Exeter, which was granted and signed by Mr. Justice Raynsford and Mr. Justice Morton, the tenor whereof followeth in haec verba.

Was commanded as appears by the said writ to carry the said George Reynel to Exeter, and he was carried thither, but a conveni­ent time before the Assises, all accidents considered that might hap­pen in so great a Journey, when he was brought to Exeter by the Tipstaffs of Raynsford and Morton, who had the Charge of him by the Command and Appointment of the said two Judges, as well as of Mr. Mosdel, Reynel pretends that he must go to his own House, which was some few miles beyond Exeter to peruse some writings to inform his memory, otherwise he was not able to give Evi­dence in the Cause, the Tipstaffs told him that they could not con­sent to any such thing, for their Authority was only to carry him to Exeter, and if he went beyond Exeter it would be an Escape, but Reynel being in his own Country and within the Ring of all his Friends and Relations makes his Escape to his own House, the Tipstaffs immediately pursued him, and at his House overtook him, but the same Night he came thither he fell sick of the Small-pox, [Page 5] and thereof died in their Custody in three days time, which hap­pened to be in the time of the Assises.

Whereupon, the Lady Lutterel as administratrix durante minor. aetate of Mr. Alexander Lutterel her second Son brought an action of debt against Mr. Mosdel, and by the strict and severe Rules of Law, the going of Reynel beyond Exeter was declared to be an Escape, and accordingly the Jury so found it.

This severe and heavy Verdict being given against Mr. Mosdel, he was forc'd to surrender his Office and to secure his Person in obscure places, whereby he lost the benefit of an active Life where­unto he was always bred, to the loss of above ten thousand pounds to himself and family, and still is kept under the same Calamity.

Now certainly to all rational and charitable Persons the severity is clear and evident, that a man by some small neglect or inadverten­cy of his servants should himself and family be ruined and undone by his being made subject and liable to pay 6200 pounds, when the Plaintiff received no damage, the Prisoner would have died at the same time he did, if Mr. Mosdel had kept him in Ferris: Mr. Mosdel at the same time was but a servant to the Court, and must give obedience to their rules and habeas Corpus's, and when two Judges of the Court shall command him to carry a Prisoner 140 miles from his Prison, it cannot be presumed or intended, that Mr. Mosdel could have that care of him at so great a distance as he could, when he had him always in his Eye.

How such cruel Carriage one towards another can accord with Christian Religion, or with that natural pity which God hath plac'd in the bowels of mankind I know not? In the time of Augustus it was de­creed, that the insolvent debtor should quit all his goods, but not suffer chains, nor slavery, not do labor for his Creditor, but the benefit of this Law extended not to prodigal and vain Persons, but to those only qui vi majore aliquâ fortunis evertebantur, persons that were undone by any great violence, by shiprack or fire or any accident unavoida­ble, or men who were per vim majorem eversi not poor by vice, but by misfortune and the divine providence.

When mercy and Charity was so far extended before Christianity was established and setled, what mercy and Justice ought to be shewen by us that are Christians, we know that cruelty, violence and inju­ry is against natural Justice and Humanity, and when we have or ought to have a prospect of another and a better being, we ought to act and behave our selves here that we may not fail of it here­after.

[Page 6]Here is a Gentleman, his Wife and Children ruined and undone, and for what? why, because his servants without his consent or knowledge, and contrary to his order by some slender negligence or in­advertency, suffered the Prisoner to go a few miles beyond the place where they were ordered and authorized to carry him, and there the Pri­soner died of the Small-pox, what damage happened to the Creditor of this prisoner by this, even none at all; must a man, his wife, children and family be utterly ruined and undone for this, by the strict and severe rules of law, this is an Escape, and the Prisoner being in Execution the Statute of Westm. the 2 Ca. 11 gives an action of debt to the Cre­ditor against the Keeper or Marshal, but this is to be understood, when the Prisoner shall run quite away, or shall not be retaken before a Declaration or an Original filed against the Keeper or Marshal, the the Lord Coke saith in his 3 Book fo. 44 that inasmuch as Escapes are so penal to Sheriffs and Bayliffs of Liberties, the Judges of the Law have always made a favorable Construction, asmuch as the Law will permit in favor of Sheriffs and Bayliffs of Liberties, who are Officers and Mi­nisters of Justice. But the chief Justice before whom this Cause was tryed was of opinion, that as he was a Judge of Law, he ought without mixture of mercy to proceed according to the strict and severe rules of Law, otherwise he thought he was guilty of the breach of his oath. But the saying and advice of a great Chancellor to Sir H. Mounta­gue, when he was sworn Chief Justice of the Kings-Bench, was thus: As it is a fault saith he in a Judge to be too remiss, and too tender and soft in punishing offences; so it is a fault as great or greater to be too sharp or severe, for you know saith he, who saith Noli esse nimis Justus, and Severitas strained too far, sometimes becomes Saeva veritas, if not Saeva crudelitas, Moores Reports fo. 827.

Mercy is the greatest mark of the Elect and predestinate Persons in the world, mercy is an Attribute, in the manifestation of which, as all our happiness consists, so God takes greatest Complacency and Delights in it above all his other works he punishes, to the third and 4th. Genera­tion, but shews mercy unto thousands we are called to our approxima­tion to God by the practice of this grace; cruelty and severity in mens actions runs counter and is opposite in all its Analogies to this Cardinal virtue, and he that acts with a rigid and inflexible severity, will certain­ly draw vengeance upon himself from the tribunal of divine Justice, how can any man expect mercy from God, (whereof every man every hour stands in need,) when he will shew none to his Brother; our Blessed Saviour commands us to forgive our Brother Seventy times seven times, which is four Hundred and Ninety times, when he asks our pardon and implores our mercy, and since the divine mercy is or ought to be the pattern of ours by way of precedent and by way of reward, God will certainly forgive us as we forgive our Brother and no otherwise, which is proved by these four words Dimitte nobis sicut dimittimus from whence [Page 7] it follows, that to pardon and forgive is not so much an Election of Virtue, as an absolute Necessity of Salvation.

But this being a discourse out of my Sphere (tho' not out of my practice) I shall wave, and shall set out and declare the great care this Gentleman had in the safe keeping of this Prisoner, as doth appear by the following depositions taken upon Oath in the High Court of Chancery.

William Hooper one of the Tipstaffs deposeth, that he doth know that George Reynel was kept a Prisoner very strictly, and not suffe­red to go abroad but by rule of Court or habeas Corpus; and farther he doth know, that the said George Reynel during the time of his Im­prisonment was a necessitous person, and in need of money, inso­much that he wanted money to maintain himself in Prison with Necessaries, and the said Hooper farther deposeth, that he does know that the said George Reynel was carried down to the Assises, held at the Castle in Exeter by virtue of a habeas Corpus Test. the 12th. of Febr. in 24th. Year of His now Majesties Reign, and he this Deponent was ordered by the Marshal to carry him down, and was charged by the Marshal to take great care, that the said Reynel did not escape. And he farther deposeth, that the said George Reynel was not very well during his Journey to Exeter, and when he came to Exeter being ill, he pretended that he had some Papers or Writings at his House, which was some miles distant from Exeter, which he must needs go thither to peruse, and this Deponent desiring him to forbear going thither, the said George Reynel said he must go home to see some Writings for the helping of him in the Testimony he was to give at the Assises, for the days and times the things were done, and this Deponent perceiving he was resolved to go to his House, and this Deponent being not able to resist him nor to dissuade him from it, was forc'd to give him good words for fear he should run quite away, but notwithstanding, the said Reynel did depart from him to­wards his own House he being then sick, and on the way several Pimples broak out upon his hands and face, which he thought were some heats. And this Deponent upon his Oath deposeth, that upon his the said George Reynel departing from Exeter, he this Deponent did immediately follow him, but when they came to the said George Reynel his House, the said Reynel was their immediately taken very sick of the Small-pox, insomuch that he could not be removed, and there in the time of the Assises died of the Small-pox in the Custody of this Deponent his Keeper; this Deponent being in the House all the time he lay sick; and this Deponent farther deposeth, that the Judge of Assise at Exeter being informed of the death of the said Reynel, did thereupon order the Body of the said Reynel to be brought up to the [Page 8] Kings-Bench Prison, which was done accordingly, and there after an Inquisition taken by the Coroner, he the said Reynel was buried in St. George his Church in Southwark at the Charge of M. Mosdel.