even as Bishops are but clerici Prelati and Aldermen but cives elati in England the Nobles have no distinct or different Lawes as in Germany Poland and some other countries these here inherit by the Common Law or Lawes Common to others they also contract Bargaine and sale by the same Lawes and are subject to the same Lawes some Priveledges they have which make rather a Titulary or circumstantiall then an Essentiall or specificall difference between them and the inferiour Common-People But it may be some will say why should not the Lords being dignified or Noble be Judges Primariò or in the first place rather then the Commons I answer that the Lords are not intrusted by the People as are the Commons and therefore in matters of Generall concernment the Commons ought to precede them notwithstanding de se suis in things that meerely concerne the Lords as also concerning matters of Fact * And for this causo as also to advise the King are the Iudges Masters of Chancery called to the House of Peeres Jenkins in his Cordiall c. or controversie which shall happen by writs of Error or otherwise to come into that most Honourable House therein the Lords De Jure precede the Commons But Mr. Jenkins will have the House of Peeres to be Judges of the Lawes rather then the House of Commons because the King by his writ saith that he will consult and treat with the Peeres and Prelates of the Kingdome for and touching the great Concernments of the Common-wealth for the King never sits in the House of Commons the Peeres doe consulere and consequently as saith Mr. Jenkins judge of the concernments of the Common-wealth the Commons doe but Facere et consentire according to such Consultation or judgment which Power ad faciendum consentiendum Mr. Jenkins saith the King gives them by his writ to strengthen his Opinion he quoteth a great Lawyer But by the favour of Mr. Jenkins and such as adhere to his opinion albeit the King say in his writ that he will consult and treate with the Prelates and Peeres touching the great concernments of the Common-wealth for that they are properly his Assistants he sitting with them doth he therefore say that he will not treate with the Commons nay doth not the King treate with the Commons by Messengers when he desireth Aides and Subsidies and have not the Commons a Negative voice therein can the King and the Peeres make an Act of Law without the Commons are the Commons tyed or obliged necessarily to doe and consent to what the King and the Lords shall determine as Mr. Jenkins seemes to intimate surely no our Lawes and customes speake them absolutely free in these things And whereas Mr. Jenkins saith that the King by his writ gives Power to the Commons ad faciendum consentiendum therein he is greatly mistaken the King by his writ onely appoints the place and time and instances the words ad faciendum consentiendum to shew the cause or End of their Convention or assembling together ☞ but the People give them their Power who elect or nominate them and also transact their Power unto them by their Parole at their Elections and by their Indentures wherein they insert the words ad faciendum consentiendum as from themselves to the Partâ—es whom in the said Indentures they Nominate and intrust and indeed were the Power of the Knights Citizens and Burgesses derived to them by the Kings writ such Indentures were needlesse and frivolous the Sheriffs might only make their Return se fecisse Electionem secundum Breve receptum and such like Moreover it is against Reason that a People shall have Power to nominate and intrust some about their Affaires and shall for that end allow them wages as doe the Counties Cities and Townes Corporate to the Knights Citizens and Burgesses and yet that such Trustees or Stewards should derive no Power from the People their Trustors neither as their Judges Delegate nor Allegate that is to say neither as Judges for them according to Law nor as Judges for them according to Reason and Conscience But M. Jenkins conceiveth the House of Commons to be no fit Judges of Lawes or Acts for the Peoples good because they are not called ad consiliandum but the House of Peeres And furthermore Jenkins in his Lex Terrae and his Cordiall that the House of Commons are no Court at leastwise no Court of Record nor can give an Oath or examine upon Oath And that House which cannot doe the lesse cannot doe the greater By M. Jenkins and other his adherents favour is it not of greater moment and concernment to be called ad faciendum consentiendum then ad consiliandum or consilium dandum He or they who are called to Councell are called only to advise with but he or they who are called ad faciendum consentiendum are called to Act with or to be Co-enactors Therefore the King by his Writ invites the People to doe and consent by their Representatives touching such difficult and urgent affaires as concerne Himself the State and defence of the Kingdome of England and Church of England of which He intends to Consult with His Peeres And great Reason it is that the Common-wealth should at the least have free Power in her self to acknowledge her own Finalem Concordantiam her own Facere consentire ☞ albeit she were in nature of Femine Covert Baron as M. Jenkins would have her the King being sponsus Regni Jenkins in his Lex Ter. p 41. qui per annulum is espoused to his Realme at His Coronation And certainly the King conceives such Power inherent in the Common-wealth when He declares in His Writ Ita quod pro defectu Potestatis hujusmodi seu propter improvidam Electionem Militum Civium Burgensium c. Moreover I could tell M. Jenkins that Common-wealth hath greater Powerâ— The KING receives the Ring at His Coronation as doth Femme Covert Baron and consequently the Common-wealth rather espouses the King then the King the Common-wealth So that the Common-wealth is Regina sui ipsius ☞ the King Rex Regeâ—s as was Philip the second of Spain in England albeit modo difference for he was King meerly of Courtesie but our Kings are Kings by Descent And whereas M. Jenkins doth in severall places except against the Power of the House of Commons affirming that they are not fit to be Judges of the Lawes of the Land for that they cannot punish Felony or Treason nor give an Oath nor are a Court of Record c. It maketh no matter whether they can doe these things or whether they are a Court of Record or no in relation of their being Judges of the Lawes of the Land so farre forth as they are to judge of them for the Commons are not called and chosen chiefly to judge of matters de facto according to the Lawes in
counsell them according to prudence and justice and sometimes Kings have done what liketh themselves without counsell The King may by an over-awing Power or by a kind of menacing or high carriage enforce or cause the Representatives of the Kingdome to doe or agree to that to which if such unjust and indirect meanes were not used they would not agree unto as did Henry the eight in obtaining the Lands of Abbies and Monasteries for admit the Abbies and Monasteries deserved to be dissolved yet for as much as their Lands were Terrae Regni non Regis they ought to have been applied and employed to the good of the Kingdome not of the King there being then neither Law Reason not President for it but K. Henry partly by frownes mutterings and threatnings and partly by promising that he would with those Lands maintaine an Army for the defence of the Kingdome and ease the People from other Taxes and Payments which how well he performed all men know obtained and got into his hands those Lands by consent of both the Houses of Parliament wherein how justly or unjustly both Houses dealt I will not dispute it at this time But to goe on Jenkins in his Lex Terrae M. Jenkins himself instanceth that in King Johns time the Nobles and Commons of the Realme conceiving that the Ancient Customes and Rights were violated c. Et paulo post after the subjects had obtained their Rights and Liberties which were no other then their Ancient Customes c. by which two instances of his He in some sort acknowledgeth that the People were wronged in their Customes and Rights from the time of the Norman Conquest to the Reigne of Hen. 3. and who did the wrong Surely the Norman and his Successours who severally violated them not such Judges and Justices of the Lawes who then were for they did but as they were commanded To conclude the King may in these and the like things both according to his naturall and politique capacity Peccare contra Deum contra Proximum seipsum and if it be said notwithstanding He can doe no wrong certainly that tenet if it be Ens Legis it is scarce Ens rationis Ratiocinatae That the King can doe no wrong in Curiâ nor the Pope erre in Cathedrâ I take them to be Axioms much alike for my part I pretend not to the knowledge of the Lawes but honour the knowledge thereof thus much I know non jurari in verba magistri I have heard say that the greatest Clerks are not sometimes the wisest men and I must tell M. Jenkins and others that sometimes also the greatest Lawyers are not the soundest School-men for if they were some of them would not have said and written what they have M. Jenkins saith Jenkins in his Cordiall The Law and Custome of this Land is that a Parliament hath Power over my life liberty lands and goods and over every other subject c. Pax cum pedibus good Master Jenkins not so fast what doth Master Jenkins meane by the word Power if he meane by the word Power that the Parliament hath power to protect the lives liberties c. of the People I grant it him or if he meane by the word Power that the Parliament hath power applicare in necessitatum Regni the Proprieties of the People I also grant it him but if Master Jenkins meane by the word Power that the Parliament including the King hath an absolute Power to dispose of the Peoples Estates merè ad Placitum I absolutely deny it and touching this I have formerly inserted Reasons in two Printed Books Moreover the Parliament cannot Tradere Populum Angliae aliene Juri deliver over the Free People of England to a foraine Government or to Lawes imposed by Forainers or composed and continued in relation to Forainers nor can the Parliament by any Ordinance or Act whatsoever deprive the Free people of England of their innate Right of electing Knights Citizens and Burgesses for Parliament in these things and things of the nature of these tending to the fundamentall Rights and Lawes of the People the Parliament cannot nor ought not any way to violate the People or Nation if they doe it they doe not onely fall and faile from the Protection of the People but they become Preditores Hostes Patriae The King is to consider that although he have his Jus Regnandi his Crowne by discent and holds à Deo ordinariâ per successionem God himself being the Efficient Cause primarily yet he holds it in ordine ad Populum in relation to the People who tie him by Oath c. in England salus Populi not Majestas Imperii is the chief object and end of Government The Representatives or Trustees of the People are also to consider that they are creati in Ordine ad Populum not Nati in Ordine ad se as are the Venetian Senators that they are intrusted by the People according to the Kings Writ Pro quibusdam arduis urgentibus Negotiis not made unlimited or absolute in all things so that the King and both the Houses of Parliament ought to endeavour for the generall good of the Common-wealth I am of Master Jenkins his Opinion in this That the safety of the People is the safety of the King and that the honour of the King is supported by the honour of the People or Nation WILLIAM BALL FINIS
of the Law advise with Himselfe and His owne Councell as well as with the Councell of His Covenantee before He make or doe Acts tending to the End of His Covenant and great Reason it is that the King should have as great or rather greater Freedome in that He is the supreme Ruler or highest Magistrate of the Common-wealth a freedome to advise or to deny untill advise be taken doth not Nul nec in foro conscientiae nec in foro Juris ☞ the tie or obligation of Oath or Covenant so farre forth as such Oath or Covenant tieth or obligeth Furthermore concerning the Kings Oath aforesaid although He be tied and obliged by vertue thereof to passe Bills touching Civill Government as aforesaid yet I conceive that He is not tied and obliged by vertue of His said Oath to passe Bills touching Religion tendred unto Him by the Commons or both Houses of Parliament for at the making of that Oath neither the Commons nor their Representatives or Trustees nor the King or His Lords or Peers had any thing to doe or did meddle with matters touching Religion to define frame or alter any thing therein such things were then altogether performed by Ecclesiasticall Councels and Assemblies nor would the People nor did they tie or oblige the King by Oath to doe that which as then they conceived He had no Power to doe and the Kings who have successively taken that Oath since the first making thereof have taken their Oathes according to the intent and meaning of that Oath when first compiled and no otherwise so that I doe not conceive the King to be obliged by vertue of His said Oath to passe Bills touching Religion tendred unto Him by the Commons or both Houses of Parliament But some it may be will say that the King is tied otherwise Ex Officio to passe such Bills touching Religion as the Commons or both Houses shall tender unto Him it may be so but if so yet both the King and both the Houses ought to be very cautelous and conscientious how they make Acts touching Religion in which they may erre themselves and by which they may ensnare and molest other mens Consciences however the Kirk-men having borrowed I suppose some infallible Night-caps from the Roman Bishops dreame exceedingly that they interpret the holy Scriptures without errour of the least Iota Master Jenkins saith that the King is Principium Caput Jenkins in his Lex Terrae finis Parlamenti the King is Principium I grant Him for that the King by His Writ appoints the time and place of Parliamentary Conventions and that the King is Caput I also grant it Him in that the King is the supreme Ruler or highest Magistrate of the Common-wealth but that the King is Finis at leastwise Finis integer aut tetalis Parlamenti I deny it for Finis or causa finaelis is causa propter quod the cause for which a thing is ordained and certainly salus Populi which is suprema Lex the safety of the People their generall good and welfare is the end at leastwise the principall end of Parliamentary Conventions and Master Jenkins seemeth in his Cordiall to the good People of London to acknowledge as much for whereas Master H. P. Barrister of Lincolns Inne affirmeth that the safety of the People is the supreame Law as indeed it is Master Jenkins replying to him Jenkins in his Cordiall faith Neither doe we sweare but His Majesty and we will sweare to the contrary and have sworne and have made good and will by Gods grace make good our Oath to the World that the KING is not above the Law nor above the safety of His People the Law and the safety of His People are His safety His Honour and His strength these are Master Jenkins his words whereby he acknowledgeth That the safety of the People are the Kings safety honour and strength so that if the King be the end or a partiall end of the Parliament according to his Assertion the Peoples safety must needs be the principall or ultimate end Master Jenkins saith That it cannot be said the King doth wrong and that it was declared by all the Judges and Serjeants at Law Tempore The Reason is saith Master Jenkins Nothing can be done in this Common-wealth by the Kings Grant or any other Act of His as to the Persons Goods Lands Liberties of the Subjects but must be according to the established Lawes which the Judges are sworne to ebserve and deliver between the King and His People impartially to rich and poore high and low and therefore the Justices and the Ministers of Juctice are to be questioned and punished if the Lawes be violated and no Reflection to be made on the King By Master Jenkins favour if it be granted that the King doth not wrong in ministring the Lawes but that the Ministers of the Lawes whom the King intrusteth doe the wrong will it therefore follow that it cannot be said that the King doth the wrong otherwise both in His naturall and politique capacity surely no! The King may usurp and yet be a King de Facto as did Henry the first his Brother Robert being alive and William the second also notwithstanding his Fathers Will Stephen Richard the first and John his Brother for Arthur Sonne of Geoffry Duke of Britaine third Sonne of Henry the second was right Heire to the Crowne Richard being the fourth Sonne and John the fift Sonne of the said King Henry Edward the third while his Father lived for though his Father were a dissolute Prince yet the Son ought not to have usurped his Right and albeit a People may as did the petty Kings and People of Sodom and Gomorrah the Jewes Athenians Romans and divers other Nations free themselves from tyranny and slavery yet they ought not Depose their King for vice Henry the fourth that subtile Usurper Richard the third that politique Tyrant The King may break his faith and promise with his own People and others as did the Norman and some of his Successours very constantly as if it had descended to them with the Crowne The King may break his Oath as did Henry the third and some others The King may through his owne covetous and ambitious desire impose illegall Taxes upon the People he may also engage himself and his People in unnecessary Wars and Broiles as Kings have done either and if it be said that Kings are in such things many times misled by their Councels and therefore they themselves ought to be excused I answer no ◠for Kings ought not to be misled by their Councels Privatio Rectitudinis in debito esse Actus Peccatum est Kings have the meanes not to be misled in such matters if they will make use of it but many times Kings will be led by Cabinet Counsellours Creatures of their owne making who depend upon them and endeavour to humour and please their Princes for their owne Ends and not to