Selected quad for the lemma: lord_n
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A77919
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The povver of kings discussed: 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;
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Ball, William.
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1649
(1649)
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Wing B594; Thomason E540_21; ESTC R205769
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11,588
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15
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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
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