AN ESSAY Upon The ORIGINAL AND DESIGNE OF MAGISTRACIE OR A Modest Vindication of the Late Proceedings IN England By one who Equally hates Rebellion and Tyranny Printed in the Year MDCLXXXIX AN Essay upon the Original and Design of MAGISTRCY OR A Modest Vindication of the late Proccedings in ENGLAND AS the Right knowledge of the Supream Magistrate is the Basis and Foundation of our Submisions and the cause of all the Blessings which flow from a well tempered Government so the Misapprehensions and false Notions that many People either through Ignorance or the prejudice of Education frame to themselves of his Power are no less remarkable for their contrary effects We fall into two Extremes equally Dangerous if either we give the People so much Liberty that the Magistrate cannot go about these great Ends fâ—r which he was designed but like a Weather-Cock is turned about at the pleasure of the Mobile or such a boundless power to the Magistrate as makes the Property of the Subject altogether Precarious depending upon the Caprice of an insatiable Monacch To keep a just Ballance we must consider Magistracy as it was first Institute by God Almighty before it was depraved by the Ambition Pride and Avarice of those who were invested in it So that in its Original it may be defined a Power delegat from God for maintaining Order rewarding the Vertues and punishing the Crimes of Mankind The Application of which power is left free to any independent People or Nation It cannot be doubted but that God as Creator of all things might in his own Person have Exerced a Soveraign Power over all his Creatures which since he was not pleased to do He thought fit in His infinite Wisdom to appoint his Lieutenants here on Earth to whom he Communicats some Rays of his Divine Majestie both to beget a greater Reverence for their Persons and procure a chearful Obedience from those that were to be Subject So that the profound Deference and blind Submission which Millions of Men pay to a Mortal perhaps subject to as many Infirmities as the most part of those he Rules over can be ascribed to nothing else but the firm Perswasion of a Divine Institution But that we may the more admire the Goodness of God in ordaining Magistracie he hath no less proposed Mans happiness then his own Glory that we might find it our Interest as well as Duty in Obeying For tho Man was born free And consequently by Nature desirous of Liberty yet an unbounded freedom could have done him very little Service in a natural State when Innocency was no protection from the oppression of the Stronger But Rapines Violence and Murder were the chief wayes of acquiring Right in this Universal Chaos where homo was homini Lupus nothing was thought Vnlawful that Ambition Malice or Cruelty could propose so that the Weaker were driven to a necessity of uniting their Forces against the Stronger Then began they to Errect Societies and make Laws for Regulating them the executing of which Laws was Committed to one or moe Persons as the Major part of the Society thought fit to Trust who had the Name of Captain General or King It was He who led them out to Battel who disposed of Prises and punished Malefactors His Commands were easily obeyed because but few and all Just Honest and profitable These had not Learned the Arcana Imperij or secret ways to enslave their People but their Eminent Virtue and singular Valour both procured their Dignity and maintained them in it and having no Sycophant Flatterers about them to abuse their easie Credality they had not forgot that the Peoples Liberty was resigned for no other end but for obtaining a greater happiness under their Protection then what they could have proposed if every Individual had retained it in his own Person There is no other Original of Magistracie to be Learned from Sacred or Profane Historie for tho the Patriarchs had the Government of their own Families which by reason of their long Age were very numerous yet that right was derived from the Law of Nature and not from any Civil Obligation They had for the most part no fixt Habitation but lived as Strangers and Sojourners by the favour of other Princes and were never model'd into a Common wealth When Domanions were enlarged and Empires began to be erected different forms of Government were established according to the various inclinations of People when the Conqueror gave Laws to the Conquered it was called Despotick But when a free People did enter into a Contract and gave up their Liberty on certain Conditions it was called a Limited Government and these conditions the Fundamental Laws This Soveraignty was either entailed upon a particular Family for considerable services done to the Common wealth or it was only to be held during Life whence Succession and Election There is a Majestie in every free State which is nothing else but an Independent Power upon Earth tyed to no Laws but these of God these of Nature and Nations and the Fundamental Laws of a Kingdom This Majestie is either Real or Personal Real is that Independencie which every free State hath in Relation to one another Personal that Right when it s lodged in a particular Person which tho it be inseparable from the Soveraign Power for the greater Splendour yet it may be violate when the Real remains entire otherwise the freedom and Independencie of a Nation would be extinct by the Death or Captivity of the Prince To Majesty or Soveraign Power are annexed the Regalia or Regal Rights which are less or more according to the measure of Liberty given from or reserved to the People or the Representatives at the first Constitution For instance a King may have powâ—r to make Warr and Peace and yet cannot raise Money the Legislative Power may be also divided as it s in England betwixt King and Parliament and generally in all mixt Governments For that Maxim That jura Majestatis sunt indivisa does only take place in an Absolute Monarchy That Power which the People reserveth from the Soveraign is called Liberty and its eitheir Tacite or Express Tacite Liberty is the Exemption of such things as cannot fall under the Cognisance of the Supreme Power which may be reduced to three 1st Religion or the Empire over the Conscience which belongs only to God Almighty 2dly The Power of Life and Death till we forefault them by the Divine Law or Municipal Laws of a Kingdom 3dly Our Goods and Heritages which cannot be taken from us without a Judicial Process or when the good of the Common wealth we live in requires a share of them These three Priviledges were ever reserved in the most Ample Resignation of Liberty The First we cannot give away because not ours we have right to the second as Men who are to be Governed by Reason to the Third as Members of a Societie or Common-wealth Express Liberty is a Stipulation whereby somethings
than Tyranny and a wounded head is better than none at all What is objected against this Opinion from the Old and New Testament is very judiciously refuted by the Author of the Inquiry into the measures of Submission The second Argument is taken from the Oath of Allegiance which Subjects swear to their Prince whereby they engage never to rise in Armes against him To which it is answered that this Oath is accessory to the Contract agreed on betwixt the King and People and so must follow the nature of its principle The Nature of all Contracts is Obligatory on both parties so that if one of the parties fail in the performing his part the other is loosed from his Obligation As it s in this case the People Devolve the power on the Prince upon certain conditions expresly specified The accepting of a Crown on such Terms binds the Prince to perform the Conditions if he does not perform them he ineffect renounces his Right and tacitely consents that it return to those who bestowed it Lawyers say that Contracts can only oblige Equals and therefore no paction betwixt King and Subiect can be binding there is no force in this Argument if we advert that when this Stipulation was made the Prince and Subjects were equall and were only distinguished after the power was conferred Thirdly They instance that this does not bind the Successior to which its answer'd that the Prince engages for himself and Successors who if they would reap the advantage from their Predecessors must have also the disadvantage of being tyed to the same Rules they were adstricted to But for the further security none is admitted to the Government till they take the Coronation Oath Fourthly They upbraid us with the example of the Primitive Christians who suffered the persecution of Heathen Emperours with the greatest Moderation and Patience I do admire as well as they the Constancy patience and other Vertues which these Holy Men were endued with but their case and ours is quite different Paganisme at that time was established by Law and Christianity condemned the Professors whereof suffered as the Disturbers of the publick Peace but blessed be GOD the Law is now on our side and our Religion is become a great part of our Property and the peace of our Country does very much depend on the preservation of it besides if the Christian Religion had been propagate by Arms its Worth had been diminished and the Reputation of the first Founders of Christianity had very much suffered whereas the Morality and Justice of all its Precepts the Holiness and Purity of its Doctrine were of sufficient Efficacy to recommend it and the Constancy and Resolution with which the first Christians suffered Martyrdom were strong Motives to convince the Pagan World of the truth of it But in our Christian common Wealth where there are no moe Heathens to convert as the robbing us of our Religion would be the highest Act of in justice So the parting with it tamely would argue the greatest Stupidity and inconcernedness at men can be capable of The only Difficulty that remains is who shall be Judge of the Princes Actions to know when he is a Tyrrant and when not if it were allowed to the Prince Himself He would be too partial if we should constitute a Right in the People they would be too apt to misconstrue the Princes Actions which should ever receive the most Benign Interpretatiâ—n that the Subject can admit So that to shun boâ—h Inconveniencies the Controversie must be decided by the Laws of the Kingdom There is just such a Plea betwixt the Church of Rome and the Protestants concerning a Judge of Controversies they contend for the Pope as Christs Vicar and reject the Scriptures which we believe are the only Rule of Faith and that in them all things which relate to Salvation are clearly set down so that these of the meanest capacities may easily understand them In a Politick State the Supreme Magistrate is Sworn to Rule according to the Fundamental Laws of the Kingdom which we must suppose are known both to King and People because they are a Rule to direct the Government of the one and a measure of the obedience of the other and were fairly enacted at the first constitution It s true indeed that if a Law made by the Civil Power contain any obscurity The sole power of Interpreting that Law belongs to the Lawgivers but we must imagine the Fundamental Laws full of perspicuity and except there be a notorious Violation of them resistance can never be lawful What has been said on this general Head will not answer the design of this paper if it cannot be applyed to the present State of Affairs in England For it is of no purpose to prove that Tyrrany is to be resisted by Arms unless we make it appear that the English Government had altogether Degenerate into Tyranny and that the taking up of Arms under the Auspicious conduct of his Highness the Prince of Orange was no rash Act but done after matture Deliberation and withal the circumspection that an Affair of so great Importance did require The great and earnest endeavours to have the Bill of Exclusion past did sufficiently evince what fears and Jealousies the Parliament had of the danger to which their Religion and Liberties would necessarly be exposed under a Popish Successor His Majesties behaviour since he came to the Crown has clearly demonstrate that these Fears were not groundless for not being conâ—ent to Introduce the Popish Religion so much contraire to Law He hath endeavoured to alter the whole frame of the Constitution and swallow up all our Liberties and Priviledges in an Arbitrary and Despotick Power 1. The first step was made against the freedom of Parliaments which makes up a great part of the Government by their having a share of the Legislative Power lodged in them by their Issuing out Quowaranto's against all the Burghs and Corporations in England the most part of them either through fear or force did surrender their Charters to the King who placed such Magistrates in them as he was most assured of and by this means did altogether invert the freedom of Election 2. Nothing can be more contrary to Law then the erecting of Seminaries of Priests and Jesuits in all the Capital Cities of his Dominions yea such confidence hath he reposed in that Order that he hath committed the direction of his Conscience to one of its Fathers and was not ashamed to own himself a son of the Society 3. His pretence to a Dispensing Power was no mean breach of his Coronation Oath for by it he Usurped the whole Legislative Power And would have imposed on the People in procuring the Votes of the Twelve Mercenary Judges if they had not wisely foreseen the dangerous consequences and feared that his Majestie would farther oblige his Roman Catholick Subjects by Repealing all the Laws that were Enacted in Favours of the Protestant Religion It
are by express paction eximed from the Power of the Soveraign by the People or their Representatives which Reservations are called Priviledges and are either thus established by Contract and Agreement at the first Constitution or are afterwards granted by Princes when they would either oblige or gratifie their People as was the Magna Charta in England and Edict of Nants in France or when they desire any favour from them as was the Golden bull wherein the Emperour Charles the 4th granted considerable Immunities to the Electors to engage them to chuse the stupid Vensiaslus his Son Successor in the Empire This Property of the Subject hath ever been the Eye sore of Monarchs tho he has as just a claim to it as these have to their Crowns and whoever goes about to subvert it dissolves the Constitution and Forefaults his own Title since the same Laws that bestowed this at the same time secured that and maintaining the one was made an inseparable condition of possessing the other Neither can a Rape committed on our Liberty be excused upon pretence that Authority is derived from Heaven For the Great Soveraign of the Vniverse ordained Magistracie for the preservation not the destruction of Mankind and he never sent down any person or Family from Heaven with a Commission to enslave a People or Nation to whom the Application of the Civil power was left Absolutlie free So that they might bestow it on whom and after what manner they pleased For tho God loves order yet he never approved of Tyranny and Oppression and he who is all Justice and Mercy can never be supposed to Authorize what is contrary to both So that whosoever Acts beyond his Commission and destroys the Flock instead of protecting it Is so far from being Gods Vicegerent that he is to be lookt on as the Common Enemie of Mankind The Violation of the Subjects property is called Tyranny A name which at first did only signifie the Regal power but when Liberty began to be oppressed through the Ambition Wickedness or Evil management of the Governours it was made use of to denot the excess of power There are two sorts of Tyrants those in Title and those in Administration of the Government The first sort is he who Usurps the Crown without any Title or just pretence as did Oliver Cromwel in England of the other one who hath a just right to the Crown but postponning the publick good Acts Arbitrarly and contrary to Law Such a Tyrrant was Philip the Second of Spain The want of a Title or a Bad one may be supplied by prescription or the subsequent consent of the people to which perhaps the most part of Princes must at last recurr unless they would derive their Pedegree from one of the Sons of Noah and instruct an uninterrupted Succession ever since Tyranny is the most miserable condition a common-wealth can be in it dissolves the Union betwixt King and Subject and exposes both to all the miseries that attend a civil Warr and to the hazard of falling under a Forreign power Yea even tho a Tyrrant should be successfull in his Attempt yet is he as farr from his happiness as ever for besides the inward remorses that incessantly gnawes his Conscience he suspects all Men fears every thing and is most justly hated by all so that they did not Represent a Tyrrant ill who drew him siâ—ting under a Cannopy of State feasting in great Riot with a naked Sword hanging over his Head. What Remedie is there then against so great an Evil are we tamely to subject our Necks to a Yoke so insupportable to the more refined sort of Men or are we to resist the Supreme Magistrate and Reclaim him by Arms when other means prove ineffectual The difficulty is great and each opinion hath had its Champion who writ Volumes in defence of their cause The horrid Paricide of King Charles the 1. in the middle of this Age was with great heat and zeal defended by Milton and Impugned by the Learned Salmasius who being a stranger to our Constitution and the Transactions of our Country I speak it with Reverence to so great a Man did but weakly defend so good a Cause in endeavouring to prove that Tyranny was not to be resisted whereas he should have Evinced as easily he might that Charles the 1st was a good Prince and no Tyrant The present Revolutions in England revives the dispute and engages me contrary to my humour to Impart my thoughts to the publick with no other design then to contribute my mâ—an endeavours for vindicating the Nations Honour from the heavie Imputations of Treason and Rebellion and if I can make out that Resistance in some case is Lawful I doubt not but I shall be easily able to Demonstrate that the present taking up Arms by the Nobility and Gentry of England in Defence of their Religion Laws and Liberties is both just and necessary There are three Degrees of Resistance The first is the taking up Arms against the Civil Magistrate The second is The Deposing him and shakeing off our Allegiance The third proceeds to the inflicting of capital punishment Which last seems inhumane because GOD has placed a certain Sacredness in the Person of Princes so that none can touch the LORDS Anointed and be guiltless and the depriving them off their Crowns is a great enough punishment and our injuries are sufficiently repaired when we are out of the hazard of being any more obnoxious to them The other two may be allowed of providing the Remedies be applyed by fit persons after a due manner and with such caution as a matter of so great importance does require First By fit persons as the Nobility Gentry and other Representatives of the Nation who as they are most concerned in the Laws are supposed to understand them and consequently are the best Judges of Liberty And they are persons of so much Honour that it were a piece of ill Breeding to suspect them of partiality Secondly The Tyranny must be Evident and Manifest some few Tyrannical Acts do not constitute Tyrannie private injuries must be suffered rather than hazard the publick peace there must be a wilful subversion of the Laws not those of lesser moment but such as shake the very Foundations of Government Davids Murder and Adultery were very Arbitrary and Tyrannical and yet did not make him a Tyrant for Humane Frailty is still to be indulged seing on this side of time perfection is not to be expected Thirdly This is a violent Remedy and consequently should be the last it ought to be gone about with the greatest Deliberation and circumpection imaginable when Addresses petitions Supplications and such gentle Methods prove ineffectual Fourthly The Common-wealth must be in such Danger that the whole Fabrick would otherwise be Dissolved and Overturned Lastly The effectuating of the Design must be certain otherwise we fall into a worse Evil then what we seek to shun for Confusion and Anarchy are worse