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A84011 The survey of policy: or, A free vindication of the Commonwealth of England, against Salmasius, and other royallists. By Peter English, a friend to freedom. English, Peter, a friend to freedom.; Pierson, David. 1654 (1654) Wing E3078; Thomason E727_17; ESTC R201882 198,157 213

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Law-principles in point of suit may be reduced as is known to all skilful Lawyers Posit 2. Intail is a corrupt title of Claim For it hath no ground either in Nature or in Reason but only in the circuit of a prodigal humour for perpetuating a Name which is but grasse and the glory thereof as the flower that fadeth Thus the perpetuating of the Line in the person of the eldest son by vouchsafing the whole substance on him is no lesse unjust then prodigal Posit 3. Jure divino upon the accompt of Divine Right all Pleas ought to be composed according to Conscience and Reason without all respect to any Platform of humane Law So it was in the Primitive Institution of the Jewish Common-wealth 1 Special care was had to establish such Judges in it as were men of Conscience and Religion Exod. 18.22 25. Deut. 1.13 15. Who were to judge the People as did Moses making them know the Statutes of GOD and his Laws in judging Pleas between one and another Ex. 18.16 2 Because as they were to judge no other Judgment but what was GOD's Deut. 1.17 so they were to judge only for the Lord 2 Chron. 19.6 Posit 4. The Rigour of the Law is great injustice although the Process be secundum allegata probata For Nimium jus nimia injuria I might instance a hundred cases in which the peremptoriness of the Law is either too intense or too remisse Posit 5. Though the Law were never so just in it self it can never be justly executed a Platform being observed men not being left to their own freedom in judging Because a Platform can never be pleaded without Interpreters Who I pray shall interpret Not the Judges for they cannot both judge and plead Hoc opus hic labor est Not the ignorant Pursuers and Defenders for ignoti nulla cupido far less intellectio Therefore it only remaineth that skilful Lawyers be employed And then be sure of heavie burdens which they themselves will not touch with one of their fingers And thus a Platform's abrogation is the Law 's reformation Otherwise it is but verberatio aëris Posit 6. To day the only best way of easing the People of their burdens in point of Suit is To remit all Pleas to the Arbitration of Neighbours The truth of this doth appear thus All determination of Pleas of necessity is either upon a judicial or as I may so say arbitral accompt If upon a judicial accompt then either according to the dictates of Conscience and pure Reason or the principles of a Platform The former cannot be to day Oh! how selfish are the best of men at this time Though there be both godly and able men to day yet cannot all places of trust be filled with such as answer the Scripture qualifications of Rulers Not til the time Our Officers be peace and Exactors righteousness the Judges being restored as at the first and Counsellours as at the beginning And as the former is impossible so the other is hurtful for as Judges qualified as said is are rare and many of them to fil al places of trust cannot be found so a Platform being established swarms of Lawyers the main face-grinders do abound It therefore remaineth that Pleas be determined by way of Arbitration among friends And then be sure not one of a hundred otherwaies of little expence great moderation and great dispatch Because of the untowardness of People I must needs adde some Cautions Caut. 1. The Pursuer refusing without all reason friendly to compound by way of Arbitration it will do well if by an Act be forfeited toties quoties so much of his suit as may daunt him viz. either one half or a third part thereof as may be judged convenient Caut. 2. The Defender upon no good grounds refusing to compound by way of friendly Arbitration it will do well if an Act bind him toties quoties to forfeit an half or a third part more and above what is sued of him Caut. 3. It will do well if some of the godliest and ablest men be appointed and authorized to that end to attend a ● Pleas which either cannot or stubborn persons refuse to be composed by way of Arbitration all due execution passing upon their Determination whether as to the deciding of the Plea or fining of the stubborn and refractory person All which as I conceive do stand with Reason for as the end of War is Peace so the end of Law is Arbitration Were all men beaten with the Law abroad be sure they would friendly agree at home And many are forced to do so when they have spent their time wits and estates upon it So old Clients can though wantons be ignorant thereof I shall not multiply words on this subject at present but willingly rest satisfied with what is spoken already though I might enlarge my self theron to which I shall be most ready whensoever called thereto being nothing but the abridgment of my thoughts in the matter and hoping the poor man's counsel may deliver the City supposing these words to be spoken in season the exigent of time calling for the like I have no more to adde at present but that I am Your Honours obedient and humble servant PET. ENGLISH To the READER THough my broken speech can adde nothing to the worth of this Treatise yet I judge it my duty to utter some few words concerning it I know Truth in all ages hath had many enemies some men asking what it is and some contradicting and apposing And surely that truth which crosseth most the vanity glory and pride of this world is most opposed by the men of this world in whom the Prince of the power of the a● worketh Yea and any truth which in former ages hath not appeared unto the sons of light but hath been under a cloud the Sun of Righteousness in whose sight Saints see light being pleased not to make the cloud flee away is seen and scarce clearly seen but by few who are of the day and not of the night Hence is it that many who are light even oppose such a truth No wonder then though the truth spoken of here be so much opposed seing it not only crosseth the vanity of a vain-glorious age but also hath been so long over-clouded Howsoever it is very necessary to be known Doubtest thou whether it be lawful for thee to submit to the present Government the Power of the King being in thy apprehension absolute without the bounds of Law or the Kingly Government being the choicest and best and so not be altered far better then a Commonwealth or it being unlawful to resist the King and decline his Authority Thou shalt find these things fully and largely cleared from arguments of all sorts To the Law and to the Testimony of the Spirit of Truth that compleat rule they are brought In the balance of Reason they are weighed But if that shall not suffice thee who eyest much the examples
by Nature be free-born so neither are all capable of governing nor of choosing to govern The Scripture is clear in this that only such ought to govern who are men fearing God and hating Covetousness Exod. 18.21 Deut. 1.13 Job 34.17 29 30. Psa 12.8 Eccles 20.16 17. And thus uppon a Scripture-accompt according to the primitive pattern of Judges in the choicest of Commonwealths there be these four qualifications necessarily required in those that govern 1. ability 2. fearing of God 3. truth 4. hatred of Covetousness Whence according to the primitive and Scripture-mould of Judges all men are uncapable of governing but such who be so and so qualified Now the question is Who shall choose such who are endowed with these qualifications In answer to this J premise this distinction As the Legislative power radically is in the People so by Nature they ought to choose their own Governours and Rulers But Nature being contaminated all men upon that accompt are not fit to make choice of their Rulers For all men are either godly or ungodly Now the major part of the People being ungodly will and do choose men like themselves as experience teacheth unlesse upon some selfish accompt they happen now and then here and there to choose some godly person or persons But the Scripture doth not allow any to rule but the Righteous And therefore according to the Word of God and the dictates of pure Nature godly men who are known to be such by their fruits should be searched thorowout all the Tribes of Israel and appointed Rulers So did Moses And our Moseses ought to do so too to which the People in reason will be forced to condescend and the rather when they see judgment and righteousness abounding while the righteous govern And which is more in all heathenish ancient Commonwealths in which the Rulers were chosen by the People the whole multitude therein followed the counsel of some few wise-men among them Otherwise the whole matter among them should have turned into confusion And is it not known by experience how that some one faction or other doth sway in all elections though the free choice of the People be pretended Now the generality of the People are swayed rather by the disaffected then wel-affected party in al free choice til they be constrained to do otherwise Which is a clear demonstration that they cannot improve their own Interest but are apt to give it up into the hands of strange Lords and cruel Task-masters And therefore all our wise and godly Moseses whom the Lord hath impower'd ought to assay all means possible to find out among all the Tribes of Israel able men such as fear God men of truth and hating Covetousness that they may bear burden with them in the management of affairs And such of them as be poor there is enough in the world to make them rich But I do not expect the full accomplishment of such things till the Ancient of dayes be come for I see under the sun the place of judgment that wickedness is there and the place of righteousness that iniquity is there I say in mine heart God shall judge the righteous and the wicked for there is a time there for every purpose and for every work Eccles 3.16 17. Till which time hoping all these things shall be acceptable to your Lordship I remain My Lord Your Lordships undoubted wel-wisher and unfeigned servant P. ENGLISH To the Very Honourable Major General Lambert and the rest of the Honourable Commissioners for ordering and managing affairs in Scotland AS ALSO To the Right Honourable Colonel R. Lilburne Commander in chief of the English Forces in SCOTLAND May it please your Honours I Do look upon it as incumbent to me at present to express and manifest my thankfulness toward you for not only by your Authority but also upon the accompt of your Mecoenatick gratuity did this Treatise issue out to publick view And not only so but likewise it was preffered to me by you the honourable Commissioners That any charge in this Nation suitable to my capacity should be devoted to my trust Which no question had been accomplished had not your Honours from hence on a sudden been removed Vpon consideration of which things I cannot but thus humbly demean my self in tendering my respects to your Honours The greatest reward I either desire or expect is That your Honours would be companions of all such who fear the Lord being willing to live and die to stand and fall with such by joynt-concurrence espousing the Quarrel of the Lamb against the Beast the false-Prophet the Kings of the earth and their Armies I shall crave leave of your Honours to offer my single judgment in order to the right regulating of Law-matters which I suppose you will not look upon as matters too high for me unless you should so judge of all that I have written in the following Treatise Howsoever I shall contribute my mite to the treasury in prosecuting these following Positions Posit 1. The Law in its substantials needeth no reformation being grounded upon the principles of pure Nature I shall glance a little at the discovery of the general and substantial principles of the Law In general it consisteth of a direct and indirect part The direct part of the Law is secundum allegata probata The indirect is secundum allegata improbata The direct principles thereof resolve upon Allegation Probation or upon Claim and Instruction Claim is either in order to Movables or Immovables In order to immovables the grounds thereof be heirship disposition donation and conquest Heirship is either of Line or of Conquest Of Line secundum descensum proprium v. g. as is between father and son And secundum descensum accidentalem v. g. as is between the elder and younger brother Of conquest ne ultra unum gradum ascendat v. g. Conquest being disponed to the third son cannot fall to the first In order to which the Law doth say well Primogenito Primoginitura caeteris Proportio Justitia enim fit secundum proportionem Disposition is either mutual by way of contract or personal by way of assignation But saith the Law Ne ulla sit dispositio in fraudem creditorum Donation is either absolute or conditional In order to which saith the Law Volenti non fit injuria Conquest is that which is purchased by the proper industry of the Owner not being derived from any Predecessour But Quod Propria virtute acquiritur Propria ac libera voluntate disponitur As for the Instruction of Claim whether in order to Immovables or Movables it must be by Evidences either of Writ Witnesses or Confession Confession is either formal or virtual Virtual aut per silentium aut per absentiam Qui tacet consentire videtur Non dormientibus sed vigilantibus sunt jura All which principles be very consonant to Nature and sound Reason as is evident from the very tenor of them To which all