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
THE POWER OF KINGS DISCVSSED OR An Examen of the Fundamentall Constitution of the Free-borne People of ENGLAND In Answer to severall Tenents of M. David Jenkins By Will Ball of Barkham Esq Sat Patriae Priamoque datum LONDON Printed for JOHN HARRIS 1649. THE POVVER OF KINGS DISCUSSED c. THe Free-borne people of England live or ought to live by or under a Law of common consent the Supreame Ruler or highest Magistrate whereof is the KING whose Oath is to conserve and maintaine justas leges consuetudines quas vulgus elegerit c. the just Lawes and Customes which the Common People shall choose as many doe expound it Others will have the Verbe elegerit to signifie hath chosen according to the French Aurâ—n choisy and Mr. Jenkins alledgeth this reason for it Jenk Resp ad Prin. Customes cannot referre to future time and both are coupled together Lawes and customes so that Elegerit must be taken in the Preterperfect Tense But by the favour of Mr. Jenkins albeit Customes are not properly alterable as are Lawes and though Lawes and Customes are coupled together yea alterable Lawes are nominated and placed before Customes yet may the verbe Elegerit be taken in the future Tense for the Reason why Lawes are inserted in the Kings Oath or propounded to the King in his Oath before Customes is first because Lawes are more worthy and noble then Customes for that Lawes are Rules or Regulations of the whole or entire People but Customes are Rules onely of some or of a part of the People and that in some things onely Secondly Lawes are more ancient to speake generally then Customes for it 's very probable that the Saxons comming out of Germany into Britaine brought the Common Law with them as a Rule agreeable to the Law of Nature and Reason which they had learned or had delivered unto them from their fathers yet Customes they could not bring with them for Customes have Relation to Place as well as to Persons but neither the Saxons nor any other People could have Relation to a Land or Country before they possessed it so that the coupling of Lawes and Customes together or Nominating or Placing Lawes before Customes in the Kings Oath is no amiable Reason From whence a direct consequence may be deduced that the Verbe Elegerit must or ought to be taken in the Preterperfect Tense or that it may not be taken in the Future-Tense and consequently that the King may not be strictly tyed and obliged in foro conscientiae to conserve and maintaine such just Lawes as the Common-People shall at any time make choise of but admitting the Verbe Elegerit to be taken and expounded in the Preterperfect Tense albeit there be difference in Grammar yet is there no great difference in Logick or Reason for the King taking his Oath to maintaine the just Lawes and Customeâ— which the People or Common-People have chosen taketh his Oath by an Implicite or Tacite condition to conserve and maintaine the just Lawes which the People shall chuse for at the first making of that Oath and at our Kings their taking of it ever since the Common-people had then chosen and have ever since conserved such choise that not only there should be no Lawes de futuro for the time to come without their Consent but also that upon their Request or Petition our Kings should Redresse such Agrievances as they should complaine of and likewise propagate such just Lawes as they should propound conducing to their generall good or welfare and that was the Reason why heretofore it was inserted in many Statutes Be it therefore enacted by the Kings Majesty with Assent of the Lords c. and at the Request of the Commons c. wherein two things are to be noted first that the Commons did Request not command or enforce our Kings to passe such Acts secondly that our Kings did upon such Requests usually passe them And albeit the King have a Negative voice or rather a voice for advise or to advise as the words Le Roy s'avisera import yet I conceive that he is strictly tyed in Foro conscientiae according to his Oath and the end of his Government which is the good of the People to passe such Acts for Civill Government as the Commons shall Request him to passe Jenk Resp ad Prin. But Mr. Jenkins and others make a Quaere and aske who shall be Judges whether such Lawes as the Commons shall Request be just or no the King is tyed or obliged by Oath only to propagate and maintaine the just Lawes which the Common-People chuse or Request In Mr. Jenkins his opinion the judges and the Masters of Chancery with the Lords or Peers assisting the King ought to be judges of the Common-People or of their Representatives or Trustees their Requests rather then two or three or a few Commoners who sometimes are not learned in the Lawes of the Land To this Quaere and the Allegations I answer that the Commons Primario or in the first Place are and ought to be the judges even as Customary Tenants are and ought to be their owne Evidences although one man ought not to be judge in his owne Case yet all in a Kingdome or Common-wealth can have no judges of their Common Interest but themselves or some amongst themselves at leastwise no Competent judges and where the Common Interest is controverted there they who have the greatest Interests or whom it most concernes ought to be judges Primario or in the first place and surely the Common People in generall have the greatest Interest in their Common Interest and the Lawes of the Land most concerne them wherefore they or their Representatives or Trustees ought to be judges Primario or in the first place And as touching that many in the House of Commons are not somtimes learned in the Lawes nor have any great knowledge in State affaires it may be so and it may be wished that none but such as have sound judgments might sit in that Honourable House and I beleeve that the words habiles homines in the writ of Burgesses intend such men and not men of great Estates who are sometimes men of meane understandings and yet by feasting I will not say Bribing or by flattering or by an over-awing Power attaine to be Parliament men howsoever for as much as such men being chosen are capable to consult and advise with others wiser then themselves and are in matters of great Concernment guided by the Discretion of others their votes going along with the votes of others they may be accompted competent judges of what may be beneficiall or prejudiciall to the Common-wealth Howsoever I doe not exclude the Lords or the House of Peeres from being judges secundario of such matters as generally concerne the Kingdome for although Mr. Jenkins conceive them not to be Vulgus Jenk Resp ad Prin. truly I conceive the Lords in England to be but vulgus superlatum
Being for that the Courts of Justice may determine of but to judge of the Lawes themselves ☞ De Facto de Fieri whether they be convenient or inconvenient fit to be continued or repealed or whether new Lawes ought to be made for the good of the Common-wealth or no and these things they may doe as Judges Allegate or Vmpeeres for the People although the House of Commons were no Court of Record Moreover I conceive that he or they who covenant with others to doe any Act or Acts which shall be reasonably advised or devised by the Covenantees or their Councell or the like doth make such Covenantees their Councell or Arbitrators Judges Primario or in the first place of such Act or Acts and such Covenantors make themselves or become Passive to the end and Active to the meanes of such Covenant that is to say they are to doe or Act what the Covenantees will with Reason have them doe or Act albeit the Acts which they do are their own Acts even so that Potentate who Covenanteth by Oath for his Oath is Vice contractus vel compacti to conserve and maintain the Just Lawes and Customes which the People shall chuse ☞ or otherwise the Just Lawes and Customes which the People have chosen it being one of their Chosen Lawes that their Potentates shall de futuro upon their Request redresse their Agrievances be it by repealing Acts inconvenient or enacting some de Novo such Potentate doth surely make the People their Representatives or Trustees Judges Pirmario or in the first place of such Act and makes himself or becomes Passive to the end and Active to the meanes of such his contract by Oath that is to say He is to doe what the People will with Justice and Reason have him to doe or Act albeit the Acts which he doth are his own Acts. But M. Jenkins saith that both Houses have many times tendred unto our Kings unjust and unreasonable Bills which it had been better for our Kings to have denied or not have passed then to have consented to and have passed and Master Jenkins instanceth touching Religion Bills tendred to Henry the 8. and to Queen Mary Bills tendred unto Richard the 3. and also to the aforesaid Henry the 8. Jenkins in his Lex Terrae concerning Civill Government c. I conceive M. Jenkins might have instanced enough and to many such Bills but what of all this Is there not Bonum Reale and Bonum apparens secundum tendentiam vellietatis Reall Good and seeming Good which may be in it self evill and is there not verum Reale and verum Formalt secundum quod ad se fert Intellectus a Reall Truth or a true Reall Being and an apprehended Truth or a true apprehended Being which may be no true Reall Being even so there is justum Reale and justum appaerens or formale an Act or Being Really just and seemingly or formally Just as it is apprehended by understanding and embraced by the will which may be in it self unjust wherefore if the People to whom the King is tyed by Oath or their Representatives or Trustees so long and so farre as they intrust them shall on behalfe of the People tender to the King a Bill of Civill Government to them seeming Just and Reasonable but to the King seeming unjust and unreasonable and it may be so in it self the King notwithstanding is by an Implicite Condition of his Oath tyed or obliged to passe such a Bill if it deprive not himselfe of his owne Just Rights for Id juris est quod Nationis est if a Nation or People will induce themselves into an inconvenience conceiving it convenience the King cannot help it he may use the best meanes he can by advise Arguments and the like to prevent it but if the People and their Representatives wil persevere in their Desire or Request the KING as aforesaid is obliged to passe it The KING is the supreme Ruler or highest Magistrate for the People or over the People ad agendum to put the Lawes in Execution but the KING is not chiefe Judge of the Rules or Lawes by which the People will be Governed the People themselves and those whom they intrust so farre as they intrust them are or ought to be Judges thereof Jure Primitive moreover if a Covenantee will desire or require of a Covenantor an Act of which the Covenantee is Judge Primariò or in the first Place no way beneficiall but rather detrimentall to him the Covenantee the Covenantor is obliged to grant or performe such an Act tending to the end of his Covenant not otherwise to endamage himselfe even so it is between the KING who is Covenantor by Oath and the People who are Covenantees concerning Lawes and Statutes touching Civil Government to be enacted or repealed and abolished But some it may be will say suppose the Commons or both Houses of Parliament should tender unto the KING a Bill or Bills destructive to His owne Just Rights is he bound to passe such truly no! He may justly refuse them for the End of His Oath is to conserve and maintain the Just Lawes which the People have chosen or shall chuse for their Good not the unjust Lawes which they shall chuse to destroy or deprive Him of His Royall Right Jus Regnandi is the Kings by discent even as Jus Regni to speake properly is the Peoples by birth-right no way excluding the King from any benefit thereof The People promise or Covenant by Oath to obey the King as their supreame Governour or highest Magistrate and to maintaine Him His Heires and lawfull Successours in His and their just Rights and Dignities and as the Kings Oath tieth and obligeth Him to the People certainly the Peoples Oath tieth and obligeth them to the King although our King in England be not a Personall Monarch to make Lawes and Governe at His pleasure as some affirme that the Great Turke the King of Persia and such like Tyrannicall Princes do albeit I conceive that even those Potentates are in some things limited yet out King is a Legall Monarch to Reigne and Governe by Lawes made and consented unto by the People so that although the King have not an absolute Power to make Lawes ☞ He hath an absolute Power to administer the Lawes and I hope there are none that will thinke or attempt otherwise Having said that the King is tied by an implicite Condition of His Oath admitting the Verb Elegerit to be understood in the Preterperfect tense to passe such Bills concerning Civill Government as the Commons or both Houses shall tender unto Him not destructive to Himselfe and having said notwithstanding that the King hath a Negative Voice or a Voice to advise and consequently not to passe such Bills untill he have advised some it may be will say that there is a contradiction or opposition in these Assertions but there is none for even every Covenantor may be the courtesie