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<DATE>2010-06-15</DATE>
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<NAME>Alexis Jakobson</NAME>
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<DIV1 TYPE="title page">
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<P>THE POWER OF KINGS <HI>DISC&V;SSED:</HI> OR, An Examen of the Fundamentall Con|&s;titution of the Free-borne People of <HI>ENGLAND:</HI> In An&s;wer to &s;everall Tenents of M. <HI>David Jenkins.</HI></P>
<P>By <HI>Will: Ball</HI> of <HI>Barkham,</HI> <ABBR>E&s;q</ABBR></P>
<Q><HI>Sat Patriae Priamo&abque; datum</HI>&mdash;</Q>
<P><HI>LONDON,</HI> Printed for JOHN HARRIS, 1649.</P>
</DIV1>
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<DIV1 TYPE="text">
<PB REF="2">
<PB N="1" REF="2">
<HEAD>THE POVVER OF <HI>KINGS</HI> DISCUSSED, &amp;c.</HEAD>
<P>_THe Free-borne people of <HI>England</HI> live or ought to live by or under a <HI>Law of common con&s;ent,</HI> the Su|preame Ruler or highe&s;t Magi&s;trate whereof is the KING, who&s;e Oath is to con&s;erve and maintaine <HI>ju&s;tas leges &amp; con&s;uetudines quas vulgus elegerit, &amp;c.</HI> the ju&s;t Lawes and Cu&s;tomes which the Common People <HI>&s;hall choo&s;e,</HI> (as many doe expound it.) Others will have the Verbe <HI>elegerit</HI> to &s;ignifie <HI>hath cho&s;en,</HI> according to the French <HI>Aur<GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter">n choi&s;y:</HI> and Mr. <HI>Jenkins</HI> alledgeth this rea&s;on for it,
<NOTE PLACE="marg">Jenk. Re&s;p. ad Prin.</NOTE> <HI>Cu&s;tomes can|not referre to future time, and both are coupled together, Lawes and cu&s;tomes;</HI> &s;o that <HI>Elegerit</HI> mu&s;t be taken in the Preterperfect Ten&s;e: But by the favour of Mr. <HI>Jenkins</HI> albeit Cu&s;tomes are not properly alterable as are Lawes, and though Lawes and Cu&s;tomes are coupled together, yea alterable Lawes are nominated and placed before Cu&s;tomes; yet may the verbe <HI>Elegerit</HI> be taken in the future Ten&s;e; for the Rea&s;on why <HI>Lawes</HI> are in&s;erted in the Kings Oath, or propounded to the King in his Oath before <HI>Cu|&s;tomes,</HI> is, fir&s;t, becau&s;e <HI>Lawes</HI> are more worthy and noble then Cu|&s;tomes, for that Lawes are Rules or Regulations of the whole or entire People, but Cu&s;tomes are Rules onely of &s;ome or of a part of the People, and that in &s;ome things onely.</P>
<P>Secondly, <HI>Lawes</HI> are more ancient, to &s;peake generally, then <HI>Cu&s;tomes,</HI> for it's very probable that the Saxons comming out of <HI>Germany</HI> into <HI>Britaine</HI> brought the <HI>Common Law</HI> with them, as a Rule agreeable to the Law of Nature and Rea&s;on, which they had learned or had delivered unto them from their fathers; yet <HI>Cu|&s;tomes</HI> they could not bring with them, for <HI>Cu&s;tomes</HI> have Relation to Place as well as to Per&s;ons, but neither the Saxons, nor any other
<PB N="2" REF="3">People could have Relation to a Land or Country before they po&s;&s;e&s;&s;ed it: &s;o that the coupling of <HI>Lawes</HI> and <HI>Cu&s;tomes</HI> together, or Nominating or Placing <HI>Lawes</HI> before Cu&s;tomes in the Kings Oath, is no amiable Rea&s;on, From whence a direct con&s;equence may be deduced, that the Verbe <HI>Elegerit</HI> mu&s;t or ought to be taken in the Preterperfect Ten&s;e, or that it may not be taken in the Future-Ten&s;e, and con&s;equently that the King may not be &s;trictly tyed and obliged <HI>in foro con&s;cientiae,</HI> to con&s;erve and maintaine &s;uch ju&s;t Lawes as the Common-People &s;hall at any time make choi&s;e of: but admitting the Verbe <HI>Elegerit</HI> to be taken and expounded in the Preterperfect Ten&s;e, albeit there be difference in Grammar, yet is there no great difference in <HI>Logick</HI> or Rea&s;on; for the King taking his Oath <HI>to maintaine the ju&s;t Lawes and Cu&s;tome<GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter"> which the People or Common-People have cho&s;en, taketh his Oath by an Implicite or Tacite condition to con&s;erve and maintaine the ju&s;t Lawes which the People &s;hall chu&s;e;</HI> for at the fir&s;t making of that Oath, and at our Kings their taking of it ever &s;ince, the Common-people had then cho&s;en, and have ever &s;ince <HI>con&s;erved</HI> &s;uch choi&s;e, that not only there &s;hould be no Lawes <HI>de futuro,</HI> for the time to come, with|out their <HI>Con&s;ent,</HI> but al&s;o that upon their Reque&s;t or Petition our Kings &s;hould Redre&s;&s;e &s;uch Agrievances as they &s;hould complaine of, and likewi&s;e propagate &s;uch ju&s;t Lawes as they &s;hould propound conducing to their generall good or welfare: and that was the Rea&s;on why heretofore it was in&s;erted in many Statutes, <HI>Be it there|fore enacted by the Kings Maje&s;ty, with A&s;&s;ent of the Lords, &amp;c. and at the Reque&s;t of the Commons,</HI> &amp;c. wherein two things are to be noted, fir&s;t, that the Commons did Reque&s;t, not command or en|force our Kings to pa&s;&s;e &s;uch Acts; &s;econdly, that our Kings did upon &s;uch Reque&s;ts u&s;ually pa&s;&s;e them. And albeit the King have a Negative voice, or rather a voice for advi&s;e, or to advi&s;e, as the words <HI>Le Roy &s;'avi&s;era</HI> import, yet I conceive that he is &s;trictly tyed <HI>in Foro con&s;cientiae</HI> according to his Oath, and the end of his Government (which is the good of the People) to pa&s;&s;e &s;uch Acts for Civill Government as the Commons &s;hall Reque&s;t him to pa&s;&s;e.
<NOTE PLACE="marg">Jenk. Re&s;p. ad Prin.</NOTE> But Mr. <HI>Jenkins</HI> and others make a <HI>Quaere</HI> and aske, <HI>who &s;hall be Judges?</HI> whether &s;uch Lawes as the Commons &s;hall Reque&s;t be ju&s;t or no, the King is tyed or obliged by Oath only to propagate and maintaine the ju&s;t Lawes which the Common-People chu&s;e or Reque&s;t. In Mr. <HI>Jenkins</HI> his opinion, the judges and the Ma&s;ters of Chancery, with the Lords or Peers a&s;&s;i&s;ting the King ought to
<PB N="3" REF="3">be judges of the Common-People, or of their Repre&s;entatives, or Tru&s;tees their Reque&s;ts, rather then two, or three, or a few Com|moners, who &s;ometimes are not learned in the Lawes of the Land. To this Quaere, and the Allegations, I an&s;wer, that the Com|mons <HI>Primario,</HI> or in the fir&s;t Place are, and ought to be <HI>the judges,</HI> even as Cu&s;tomary Tenants are, and ought to be their owne Evi|dences; <HI>although one man ought not to be judge in his owne Ca&s;e, yet all in a Kingdome, or Common-wealth, can have no judges of their Common Intere&s;t but them&s;elves, or &s;ome among&s;t them&s;elves, at lea&s;twi&s;e no Competent judges:</HI> and where the <HI>Common Intere&s;t</HI> is controverted, there they, who have the greate&s;t <HI>Intere&s;ts,</HI> or whom it mo&s;t concernes, ought to be judges <HI>Primario</HI> or in the fir&s;t place; and &s;urely the Common People in generall have the greate&s;t <HI>In|tere&s;t</HI> in their <HI>Common Intere&s;t,</HI> and the Lawes of the Land mo&s;t concerne them, wherefore they, or their Repre&s;entatives, or Tru&s;tees, ought to be judges <HI>Primario,</HI> or in the fir&s;t place. And as touching that, many in the Hou&s;e of Commons are not &s;omtimes learned in the Lawes, nor have any great knowledge in State affaires; it may be &s;o; and it may be wi&s;hed, that none but &s;uch as have &s;ound judgments, might &s;it in that Honourable Hou&s;e, and I beleeve that the words <HI>habiles homines,</HI> in the writ of Burge&s;&s;es intend &s;uch men, and not men of great E&s;tates, who are &s;ometimes men of meane under&s;tandings, and yet by fea&s;ting (I will not &s;ay Bribing) or by flattering, or by an over-awing Power, attaine to be Parliament men; how&s;oever, for as much as &s;uch men being cho&s;en, are capable to con&s;ult and advi&s;e with others wi&s;er then them&s;elves, and are in matters of great Concernment, guided by the Di&s;cretion 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. How&s;oever I doe not exclude the Lords, or the Hou&s;e of Peeres from being judges <HI>&s;ecundario</HI> of &s;uch matters, as generally concerne the King|dome: for although Mr. <HI>Jenkins</HI> conceive them not to be <HI>Vulgus,</HI>
<NOTE PLACE="marg">Jenk Re&s;p. ad Prin.</NOTE> truly I conceive the Lords in England to be but <HI>vulgus &s;uperlatum,</HI> even as Bi&s;hops are but <HI>clerici Prelati,</HI> and Aldermen but <HI>cives elati;</HI> in England the Nobles have no di&s;tinct or different Lawes, as in Germany, Poland, and &s;ome other countries; the&s;e here inherit by the Common Law, or Lawes Common to others; they al&s;o contract Bargaine and &s;ale by the &s;ame Lawes, and are &s;ubject to the &s;ame Lawes; &s;ome Priveledges they have which make ra|ther
<PB N="4" REF="4">a Titulary, or circum&s;tantiall, then an E&s;&s;entiall or &s;pecificall difference, between them and the inferiour Common-People. But it may be &s;ome will &s;ay, why &s;hould not the Lords being dignified, or Noble, be Judges <HI>Primari&ograve;,</HI> or in the fir&s;t place, rather then the Commons? I an&s;wer, that the Lords are not intru&s;ted by the Peo|ple, as are the Commons, and therefore in matters of Gene|rall concernment, the Commons ought to precede them; not|with&s;tanding <HI>de &s;e &amp; &s;uis</HI> in things that meerely concerne the Lords, as al&s;o concerning matters of Fact,
<NOTE N="*" PLACE="marg">And for this cau&s;o, as al&s;o to advi&s;e the King, are the Iudges, &amp; Ma&s;ters of Chance|ry called to the Hou&s;e of Peeres. <HI>Jenkins</HI> in his [<HI>Cor|diall.</HI> &amp;c.]</NOTE> or controver&s;ie which &s;hall happen by writs of <HI>Error,</HI> or otherwi&s;e to come into that mo&s;t Ho|nourable Hou&s;e, therein the Lords <HI>De Jure</HI> precede the Com|mons. But Mr. <HI>Jenkins</HI> will have the Hou&s;e of Peeres to be Judges of the Lawes, rather then the Hou&s;e of Commons, becau&s;e the King by his writ &s;aith, <HI>that he will con&s;ult and treat with the Peeres, and Prelates of the Kingdome, for, and touching the great Concern|ments of the Common-wealth</HI> (for the King never &s;its in the Hou&s;e of Commons) the Peeres doe <HI>con&s;ulere</HI> and con&s;equently (as &s;aith Mr. <HI>Jenkins</HI>) judge of the concernments of the Common-wealth, the Commons doe but <HI>Facere et con&s;entire,</HI> according to &s;uch Con&s;ulta|tion or judgment; which Power <HI>ad faciendum &amp; con&s;entiendum</HI> Mr. <HI>Jenkins</HI> &s;aith the King gives them by his writ; &amp; to &s;trengthen his Opinion he quoteth a great Lawyer: But by the favour of Mr. <HI>Jenkins,</HI> and &s;uch as adhere to his opinion, albeit the King &s;ay in his writ, that he will con&s;ult and treate with the Prelates and Peeres, touching the great concernments of the Common-wealth, for that they are properly his A&s;&s;i&s;tants, he &s;itting with them, doth he therefore &s;ay that he will not treate with the Commons? nay, doth not the King treate with the Commons, by Me&s;&s;engers, when he de&s;ireth Aides and Sub&s;idies, 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 nece&s;&s;arily <HI>to doe and con&s;ent</HI> to what the King and the Lords &s;hall determine, as Mr. <HI>Jenkins</HI> &s;eemes to intimate? &s;urely no, our Lawes and cu&s;tomes &s;peake them ab&s;olutely free in the&s;e things. And whereas Mr. <HI>Jenkins</HI> &s;aith that the King by his writ gives Power to the Commons, <HI>ad faciendum &amp; con&s;entiendum,</HI> therein he is greatly mi&s;taken; the King by his writ onely appoints the place and time, and in&s;tances the words, <HI>ad faciendum &amp; con&s;entiendum, to &s;hew the cau&s;e or End of their Convention or a&s;&s;embling together,</HI>
<NOTE PLACE="marg">&rindx;</NOTE> but the Peo|ple give them their Power, who elect or nominate them, and
<PB N="5" REF="4">al&s;o tran&s;act their Power unto them, by their Parole at their E|lections, and by their Indentures wherein they in&s;ert the words, <HI>ad faciendum &amp; con&s;entiendum,</HI> as from them&s;elves to the Part<GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter">es, whom in the &s;aid Indentures they Nominate and intru&s;t: and indeed, were the Power of the Knights, Citizens, and Burge&s;&s;es, derived to them by the Kings writ, &s;uch Indentures were needle&s;&s;e and frivolous, the Sheriffs might only make their Return, <HI>&s;e feci&s;&s;e Electionem &s;ecundum Breve receptum,</HI> and &s;uch like. Moreover, it is again&s;t Rea&s;on that a People &s;hall have Power to nominate and in|tru&s;t &s;ome about their Affaires, and &s;hall, for that end, allow them wages, (as doe the Counties, Cities, and Townes Corporate, to the Knights, Citizens, and Burge&s;&s;es) and yet that &s;uch Tru&s;tees or Stewards &s;hould derive no Power from the People their Tru&s;tors, neither as their Judges <HI>Delegate,</HI> nor <HI>Allegate;</HI> that is to &s;ay, nei|ther as Judges for them according to Law, nor as Judges for them according to Rea&s;on and Con&s;cience. But M. <HI>Jenkins</HI> conceiveth, the Hou&s;e of Commons to be no fit Judges of Lawes, or Acts for the Peoples good, becau&s;e they are not called <HI>ad con&s;iliandum,</HI> but the Hou&s;e of Peeres. And furthermore,
<NOTE PLACE="marg"><HI>Jenkins</HI> in his <HI>[Lex Terrae.]</HI> and his <HI>[Cordiall.]</HI></NOTE> that the Hou&s;e of Com|mons are no Court, at lea&s;twi&s;e no Court of Record, nor can give an Oath, or examine upon Oath; <HI>And that Hou&s;e which cannot doe the le&s;&s;e, cannot doe the greater.</HI> By M. <HI>Jenkins,</HI> and other his adhe|rents favour, is it not of greater moment and concernment to be called <HI>ad faciendum &amp; con&s;entiendum,</HI> then <HI>ad con&s;iliandum,</HI> or <HI>con|&s;ilium dandum?</HI> He, or they, who are called to Councell, are called only to advi&s;e with; but he, or they, who are called <HI>ad faciendum &amp; con&s;entiendum,</HI> are called to Act with, or to be Co-enactors.</P>
<P>Therefore the King, by his Writ, invites the People <HI>to doe and con&s;ent,</HI> (by their Repre&s;entatives) <HI>touching &s;uch difficult and urgent affaires as concerne Him&s;elf, the State, and defence of the Kingdome of</HI> England, <HI>and Church of</HI> England, <HI>of which He intends to Con&s;ult with His Peeres:</HI> And great Rea&s;on it is that the Common-wealth &s;hould, at the lea&s;t, have free Power in her &s;elf to acknowledge her own, <HI>Finalem Concordantiam,</HI> her own, <HI>Facere &amp; con&s;entire,</HI>
<NOTE PLACE="marg">&rindx;</NOTE> albeit &s;he were in nature of <HI>Femine Covert Baron</HI> (as M. <HI>Jenkins</HI> would have her) the King being <HI>&s;pon&s;us Regni,
<NOTE PLACE="marg"><HI>Jenkins</HI> in his [<HI>Lex Ter.</HI> p, 41.]</NOTE> qui per annulum is e&s;pou&s;ed to his Realme at His Coronation:</HI> And certainly the King conceives &s;uch Power inherent in the Common-wealth, when He declares in His Writ, <HI>Ita quod pro defectu Pote&s;tatis huju&s;modi, &s;eu propter impro|vidam Electionem Militum Civium, &amp; Burgen&s;ium, &amp;c.</HI> Moreover, I
<PB N="6" REF="5">could tell M. <HI>Jenkins</HI> that Common-wealth hath greater Power<GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter"> The KING receives the Ring at His Coronation, as doth <HI>Femme Covert Baron,</HI> and con&s;equently the Common-wealth rather e&s;pou&s;es the King, then the King the Common-wealth: So that the Common-wealth is <HI>Regina &s;ui ip&s;ius,</HI>
<NOTE PLACE="marg">&rindx;</NOTE> the King, <HI>Rex Rege<GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter">s,</HI> as was <HI>Philip</HI> the &s;econd of <HI>Spain</HI> in <HI>England,</HI> albeit <HI>modo difference,</HI> for he was King meerly of Courte&s;ie, but our Kings are Kings by De&s;cent: And whereas M. <HI>Jenkins</HI> doth in &s;everall places except again&s;t the Power of the Hou&s;e of Commons, affirming that they are not fit to be <HI>Judges of the Lawes of the Land,</HI> for that they can|not puni&s;h Felony, or Trea&s;on, nor give an Oath, nor are a Court of Record, &amp;c. It maketh no matter whether they can doe the&s;e things, or whether they are a Court of Record or no, in relation of their being <HI>Judges of the Lawes of the Land,</HI> &s;o farre forth as they are to judge of them; for the Commons are not called and cho&s;en chiefly to judge of matters <HI>de facto,</HI> according to the Lawes <HI>in Being,</HI> (for that the Courts of Ju&s;tice may determine of) but to judge of the Lawes them&s;elves,
<NOTE PLACE="marg">&rindx;</NOTE> <HI>De Facto &amp; de Fieri,</HI> whether they be con|venient or inconvenient, fit to be continued, or repealed; or whe|ther new Lawes ought to be made for the good of the Common|wealth or no; and the&s;e things they may doe as <HI>Judges Allegate,</HI> or <HI>&V;mpeeres</HI> for the People, although the Hou&s;e 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 &s;hall be rea|&s;onably advi&s;ed, or devi&s;ed by the Covenantees, or their Councell, or the like, doth make &s;uch Covenantees their Councell, or Arbi|trators, Judges <HI>Primario,</HI> or in the fir&s;t place of &s;uch Act or Acts, and &s;uch Covenantors make them&s;elves, or become <HI>Pa&s;&s;ive to the end, and Active to the meanes of &s;uch Covenant,</HI> that is to &s;ay, they are to doe, or Act what the Covenantees will (with Rea&s;on) have them doe or Act, albeit the Acts which they do are their own Acts; even &s;o that <HI>Potentate,</HI> who Covenanteth by Oath (for his Oath is <HI>Vice contractus vel compacti</HI>) to con&s;erve and maintain the Ju&s;t Lawes and Cu&s;tomes which the People <HI>&s;hall chu&s;e;</HI>
<NOTE PLACE="marg">&rindx;</NOTE> or otherwi&s;e the Ju&s;t Lawes and Cu&s;tomes which the People <HI>have cho&s;en,</HI> (it being one of their Cho&s;en Lawes, that their <HI>Potentates</HI> &s;hall <HI>de futuro</HI> up|on their Reque&s;t, redre&s;&s;e their Agrievances, be it by repealing Acts inconvenient, or enacting &s;ome <HI>de Novo</HI>) &s;uch Potentate doth &s;urely make the People their Repre&s;entatives or Tru&s;tees, Judges <HI>Pirmario,</HI> or in the fir&s;t place of &s;uch Act, and makes him&s;elf, or
<PB N="7" REF="5">becomes <HI>Pa&s;&s;ive to the end, and Active to the meanes of &s;uch his con|tract by Oath;</HI> that is to &s;ay, He is to doe what the People will (with Ju&s;tice and Rea&s;on) have him to doe or Act, albeit the Acts which he doth are his own Acts. But M. <HI>Jenkins</HI> &s;aith, that both Hou&s;es have many times tendred unto our Kings, unju&s;t and unrea&s;onable Bills, which it had been better for our Kings to have denied, or not have pa&s;&s;ed, then to have con&s;ented to, and have pa&s;&s;ed; and Ma|&s;ter <HI>Jenkins</HI> in&s;tanceth touching Religion, Bills tendred to <HI>Henry</HI> the 8. and to Queen <HI>Mary;</HI> Bills tendred unto <HI>Richard</HI> the 3. and al&s;o to the afore&s;aid <HI>Henry</HI> the 8.
<NOTE PLACE="marg"><HI>Jenkins</HI> in his <HI>[Lex Terrae.]</HI></NOTE> concerning Civill Govern|ment, &amp;c. I conceive M. <HI>Jenkins</HI> might have in&s;tanced enough, and to many &s;uch Bills, but what of all this? Is there not <HI>Bonum Reale,</HI> and <HI>Bonum apparens, &s;ecundum tendentiam vellietatis,</HI> Reall Good, and &s;eeming Good, which may be in it &s;elf evill? and is there not <HI>verum Reale,</HI> and <HI>verum Formalt, &s;ecundum quod ad &s;e fert Intel|lectus;</HI> 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 &s;o there is <HI>ju&s;tum Reale,</HI> and <HI>ju&s;tum appaerens,</HI> or <HI>for|male,</HI> an Act, or Being Really ju&s;t, and &s;eemingly or formally Ju&s;t, as it is apprehended by under&s;tanding, and embraced by the will, which may be in it &s;elf unju&s;t: wherefore, if the People (to whom the King is tyed by Oath) or their Repre&s;entatives or Tru&s;tees, &s;o long and &s;o farre as they intru&s;t them, &s;hall on behalfe of the Peo|ple tender to the King, a Bill of Civill Government to them, &s;eem|ing Ju&s;t and Rea&s;onable; but to the King &s;eeming unju&s;t and unrea&s;onable, and it may be &s;o in it &s;elf, the King notwith&s;tanding, is by an Implicite Condition of his Oath, tyed or obliged to pa&s;&s;e &s;uch a Bill if it deprive not him&s;elfe, of his owne <HI>Ju&s;t Rights,</HI> for <HI>Id juris e&s;t quod Nationis e&s;t,</HI> if a Nation or People, will induce them&s;elves into an inconvenience, conceiving it convenience, the King cannot help it; he may u&s;e the be&s;t meanes he can, by advi&s;e, Arguments, and the like, to prevent it; but if the People, and their Repre&s;entatives, wil per&s;evere in their De&s;ire or Reque&s;t, the KING (as afore&s;aid) is obliged to pa&s;&s;e it, The KING is the &s;upreme Ru|ler, or highe&s;t Magi&s;trate for the People, or over the People <HI>ad agen|dum,</HI> to put the Lawes in Execution; but the KING is not chiefe Judge of the Rules, or Lawes, by which the People will be Gover|ned; the People them&s;elves, and tho&s;e whom they intru&s;t &s;o farre as they intru&s;t them, are, or ought to be Judges thereof <HI>Jure Primi|tive:</HI> moreover, if a Covenantee will de&s;ire, or require of a Cove|nantor
<PB N="8" REF="6">an Act, (of which the Covenantee is Judge <HI>Primari&ograve;,</HI> or in the fir&s;t Place) no way beneficiall, but rather detrimentall to him the Covenantee, the Covenantor is obliged to grant, or performe &s;uch an Act tending to the end of his Covenant, not otherwi&s;e to endamage him&s;elfe; even &s;o it is between the KING who is Cove|nantor by Oath, and the People who are Covenantees concerning Lawes and Statutes touching Civil Government to be enacted, or repealed, and aboli&s;hed.</P>
<P>But &s;ome it may be will &s;ay, &s;uppo&s;e the Commons or both Hou|&s;es of Parliament &s;hould tender unto the KING a Bill, or Bills, de|&s;tructive to His owne <HI>Ju&s;t Rights,</HI> is he bound to pa&s;&s;e &s;uch? truly no! He may ju&s;tly refu&s;e them, for the End of His Oath is to con|&s;erve and maintain the <HI>Ju&s;t Lawes</HI> which the People <HI>have cho&s;en,</HI> or <HI>&s;hall chu&s;e,</HI> for their Good; not the unju&s;t Lawes which they &s;hall chu&s;e to de&s;troy or deprive Him of His <HI>Royall Right: Jus Regnandi</HI> is the <HI>Kings</HI> by di&s;cent, even as <HI>Jus Regni</HI> (to &s;peake properly) is the Peoples by birth-right, (no way excluding the <HI>King</HI> from any bene|fit thereof) The People promi&s;e or Covenant by Oath to obey the <HI>King</HI> as their &s;upreame Governour or highe&s;t Magi&s;trate, and to maintaine Him, His Heires, and lawfull Succe&s;&s;ours, in His, and their ju&s;t Rights and Dignities; and as the <HI>Kings</HI> Oath tieth and obligeth Him to the People, certainly the Peoples Oath tieth and obligeth them to the <HI>King:</HI> although our <HI>King</HI> in <HI>England</HI> be not a <HI>Per&s;onall Monarch</HI> to make Lawes, and Governe at His plea&s;ure, as &s;ome af|firme that the <HI>Great Turke,</HI> the <HI>King of Per&s;ia,</HI> and &s;uch like Tyran|nicall Princes do; (albeit, I conceive, that even tho&s;e Potentates are in &s;ome things limited) yet out <HI>King</HI> is a <HI>Legall Monarch</HI> to Reigne and Governe by Lawes made and con&s;ented unto by the People; <HI>&s;o that although the King have not an ab&s;olute Power to make Lawes,
<NOTE PLACE="marg">&rindx;</NOTE> He hath an ab&s;olute Power to admini&s;ter the Lawes;</HI> and I hope there are none that will thinke or attempt otherwi&s;e.</P>
<P>Having &s;aid, that the <HI>King</HI> is tied by an implicite Condition of His Oath (admitting the Verb <HI>Elegerit</HI> to be under&s;tood in the Pre|terperfect ten&s;e) to pa&s;&s;e &s;uch Bills concerning Civill Government as the Commons or both Hou&s;es &s;hall tender unto Him, (not de|&s;tructive to Him&s;elfe) and having &s;aid, notwith&s;tanding, that the <HI>King</HI> hath a Negative Voice, or a Voice to advi&s;e, and con&s;equent|ly not to pa&s;&s;e &s;uch Bills untill he have advi&s;ed; &s;ome it may be will &s;ay, that there is a contradiction or oppo&s;ition in the&s;e A&s;&s;ertions; but there is none, for even every Covenantor may be the courte&s;ie
<PB N="9" REF="6">of the Law advi&s;e with Him&s;elfe 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 Rea&s;on it is, that the <HI>King</HI> &s;hould have as great, or rather greater Freedome in that He is the &s;upreme Ruler, or highe&s;t Magi&s;trate of the Common|wealth; a freedome to advi&s;e, or to deny untill advi&s;e be taken doth not <HI>Nul nec in foro con&s;cientiae, nec in foro Juris,</HI>
<NOTE PLACE="marg">&rindx;</NOTE> the tie or obli|gation of Oath or Covenant &s;o farre forth as &s;uch Oath or Cove|nant tieth or obligeth.</P>
<P>Furthermore, concerning the <HI>Kings</HI> Oath afore&s;aid, although He be tied and obliged by vertue thereof to pa&s;&s;e Bills touching Civill Government, (as afore&s;aid) yet I conceive that He is not tied and obliged by vertue of His &s;aid Oath, to pa&s;&s;e Bills touching Religion, tendred unto Him by the Commons, or both Hou&s;es of Parliament; for, at the making of that Oath, neither the Commons, nor their Repre&s;entatives, or Tru&s;tees; nor the <HI>King,</HI> or His Lords, or Peers, had any thing to doe, or did meddle with matters touching Reli|gion, to define, frame, or alter any thing therein; &s;uch things were then altogether performed by Eccle&s;ia&s;ticall Councels and A&s;&s;em|blies; nor would the People, nor did they tie or oblige the <HI>King</HI> by Oath to doe that which (as then) they conceived He had no Power to doe: and the <HI>Kings,</HI> who have &s;ucce&s;&s;ively taken that Oath &s;ince the fir&s;t making thereof, have taken their Oathes according to the intent and meaning of that Oath when fir&s;t compiled, and no other|wi&s;e; &s;o that I doe not conceive the <HI>King</HI> to be obliged by vertue of His &s;aid Oath to pa&s;&s;e Bills touching Religion tendred unto Him by the Commons, or both Hou&s;es of Parliament.</P>
<P>But &s;ome (it may be) will &s;ay, that the <HI>King</HI> is tied otherwi&s;e <HI>Ex Officio,</HI> to pa&s;&s;e &s;uch Bills touching Religion, as the Commons, or both Hou&s;es &s;hall tender unto Him; it may be &s;o, but if &s;o, yet both the <HI>King,</HI> and both the Hou&s;es, ought to be very cautelous and con&s;cientious how they make Acts touching Religion, in which they may erre them&s;elves, and by which they may en&s;nare and mole&s;t o|ther mens Con&s;ciences: however, the Kirk-men having borrowed (I &s;uppo&s;e) &s;ome infallible Night-caps from the Roman Bi&s;hops, dreame exceedingly, that they interpret the holy Scriptures without errour of the lea&s;t <HI>Iota.</HI></P>
<P>Ma&s;ter <HI>Jenkins</HI> &s;aith, that the <HI>King</HI> is <HI>Principium Caput,
<NOTE PLACE="marg"><HI>Jenkins</HI> in his <HI>[Lex Terrae.]</HI></NOTE> &amp; finis Parlamenti;</HI> the <HI>King</HI> is <HI>Principium,</HI> I grant Him, for that the <HI>King</HI> by His Writ appoints the time, and place, of Parliamentary
<PB N="10" REF="7">Conventions, and that the <HI>King</HI> is <HI>Caput,</HI> I al&s;o grant it Him in that the <HI>King</HI> is the &s;upreme Ruler, or highe&s;t Magi&s;trate of the Common-wealth; but that the <HI>King</HI> is <HI>Finis,</HI> at lea&s;twi&s;e, <HI>Finis in|teger aut tetalis Parlamenti,</HI> I deny it; for <HI>Finis,</HI> or <HI>cau&s;a finaelis,</HI> is <HI>cau&s;a propter quod,</HI> the cau&s;e for which a thing is ordained; and cer|tainly, <HI>&s;alus Populi,</HI> which is <HI>&s;uprema Lex,</HI> the &s;afety of the People, their generall good and welfare is the <HI>end;</HI> at lea&s;twi&s;e, the <HI>princi|pall end</HI> of Parliamentary Conventions: and Ma&s;ter <HI>Jenkins</HI> &s;eemeth in his <HI>[Cordiall to the good People of London]</HI> to acknowledge as much, for whereas Ma&s;ter <HI>H. P.</HI> Barri&s;ter of <HI>Lincolns Inne</HI> affirmeth, that <HI>the &s;afety of the People is the &s;upreame Law,</HI> (as indeed it is:) Ma&s;ter <HI>Jenkins</HI> replying to him,
<NOTE PLACE="marg"><HI>Jenkins</HI> in his <HI>[Cor|diall.]</HI></NOTE> faith, <HI>Neither doe we &s;weare, but His Maje&s;ty and we will &s;weare to the contrary, and have &s;worne 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 &s;afety of His People, the Law and the &s;afety of His People, are His &s;afety, His Ho|nour, and His &s;trength:</HI> the&s;e are Ma&s;ter <HI>Jenkins</HI> his words, whereby he acknowledgeth, That the &s;afety of the People are the <HI>Kings</HI> &s;afe|ty, honour, and &s;trength; &s;o that if the <HI>King</HI> be the <HI>end,</HI> or a <HI>par|tiall end</HI> of the Parliament, according to his A&s;&s;ertion, the Peoples &s;afety mu&s;t needs be the <HI>principall or ultimate end.</HI></P>
<P>Ma&s;ter <HI>Jenkins</HI> &s;aith, <HI>That it cannot be &s;aid the King doth wrong,</HI> and that it was declared by all the Judges, and Serjeants at Law, <HI>[Tempore.]</HI> The Rea&s;on is, (&s;aith Ma&s;ter <HI>Jenkins</HI>) <HI>Nothing can be done in this Common-wealth by the Kings Grant, or any other Act of His, as to the Per&s;ons, Goods, Lands, Liberties of the Subjects, but must be according to the e&s;tabli&s;hed Lawes, which the Judges are &s;worne to eb&s;erve and deliver between the King and His People, impartially to rich and poore, high and low; and therefore the Justices and the Mi|ni&s;ters of Juctice are to be que&s;tioned and puni&s;hed if the Lawes be vio|lated, and no Reflection to be made on the King.</HI></P>
<P>By Ma&s;ter <HI>Jenkins</HI> favour, if it be granted, that the <HI>King</HI> doth not wrong in mini&s;tring the Lawes, but that the Mini&s;ters of the Lawes whom the <HI>King</HI> intru&s;teth doe the wrong, will it therefore follow, that <HI>it cannot be &s;aid that the King doth the wrong,</HI> otherwi&s;e both in His naturall and politique capacity? &s;urely no! The <HI>King</HI> may u&s;urp (and yet be a King <HI>de Facto</HI>) as did <HI>Henry</HI> the fir&s;t, his Bro|ther <HI>Robert</HI> being alive; and <HI>William</HI> the &s;econd al&s;o, notwith&s;tan|ding his Fathers Will; <HI>Stephen; Richard</HI> the fir&s;t, and <HI>John</HI> his Bro|ther, (for <HI>Arthur</HI> Sonne of <HI>Geoffry</HI> Duke of <HI>Britaine,</HI> third Sonne
<PB N="11" REF="7">of <HI>Henry</HI> the &s;econd was right Heire to the Crowne, <HI>Richard</HI> being the fourth Sonne, and <HI>John</HI> the fift Sonne of the &s;aid <HI>King Henry</HI>) <HI>Edward</HI> the third, while his Father lived (for though his Father were a di&s;&s;olute Prince, yet the Son ought not to have u&s;urped his Right; and albeit a People may (as did the petty Kings and People of <HI>So|dom</HI> and <HI>Gomorrah,</HI> the Jewes, Athenians, Romans, and divers other Nations) free them&s;elves from tyranny and &s;lavery, yet they ought not Depo&s;e their <HI>King</HI> for vice) <HI>Henry</HI> the fourth that &s;ubtile U&s;ur|per, <HI>Richard</HI> the third that politique Tyrant.</P>
<P>The <HI>King</HI> may break his faith and promi&s;e with his own People, and others, as did the <HI>Norman,</HI> and &s;ome of his Succe&s;&s;ours very con|&s;tantly, as if it had de&s;cended to them with the Crowne.</P>
<P>The <HI>King</HI> may break his Oath, as did <HI>Henry</HI> the third, and &s;ome others.</P>
<P>The <HI>King</HI> may, through his owne covetous and ambitious de&s;ire, impo&s;e illegall Taxes upon the People, he may al&s;o engage him&s;elf and his People in unnece&s;&s;ary Wars and Broiles, as <HI>Kings</HI> have done either; and if it be &s;aid, that <HI>Kings</HI> are in &s;uch things many times mi&s;led by their Councels, and therefore they them&s;elves ought to be excu&s;ed; I an&s;wer, no <GAP DESC="illegible" RESP="pdcc" EXTENT="1 letter"> for, <HI>Kings</HI> ought not to be mi&s;led by their Councels, <HI>Privatio Rectitudinis in debito e&s;&s;e Actus Peccatum e&s;t; Kings</HI> have the meanes not to be mi&s;led in &s;uch matters if they will make u&s;e of it; but many times <HI>Kings</HI> will be led by Cabinet Coun|&s;ellours, Creatures of their owne making, who depend upon them, and endeavour to humour and plea&s;e their Princes for their owne Ends, and not to coun&s;ell them according to prudence and ju&s;tice: and &s;ometimes <HI>Kings</HI> have done what liketh them&s;elves without coun&s;ell.</P>
<P>The <HI>King</HI> may by an over-awing Power, or by a kind of mena|cing, or high carriage, enforce, or cau&s;e the Repre&s;entatives of the <HI>Kingdome</HI> to doe, or agree to that, to which (if &s;uch unju&s;t and in|direct meanes were not u&s;ed) they would not agree unto; as did <HI>Henry</HI> the eight, in obtaining the Lands of Abbies and Mona&s;teries; for admit the Abbies and Mona&s;teries de&s;erved to be di&s;&s;olved, yet for as much as their Lands were <HI>Terrae Regni non Regis,</HI> they ought to have been applied, and employed to the good of the <HI>Kingdome,</HI> not of the <HI>King,</HI> there being then neither Law, Rea&s;on, not Pre&s;i|dent for it: but K. <HI>Henry</HI> partly by frownes, mutterings, and threat|nings, and partly by promi&s;ing that he would with tho&s;e Lands maintaine an Army for the defence of the <HI>Kingdome,</HI> and ea&s;e the
<PB N="12" REF="8">People from other Taxes, and Payments, (which how well he per|formed, all men know) obtained and got into his hands tho&s;e Lands by con&s;ent of both the Hou&s;es of Parliament: wherein how ju&s;tly, or unju&s;tly, both Hou&s;es dealt, I will not di&s;pute it at this time.</P>
<P>But to goe on,
<NOTE PLACE="marg"><HI>Jenkins</HI> in his <HI>[Lex Terrae.]</HI></NOTE> M. <HI>Jenkins</HI> him&s;elf in&s;tanceth, that <HI>in King</HI> Johns <HI>time the Nobles and Commons of the Realme conceiving that the Anci|ent Cu&s;tomes and Rights were violated, &amp;c.</HI> Et paulo po&s;t, <HI>after the &s;ubjects had obtained their Rights and Liberties, which were no other then their Ancient Cu&s;tomes, &amp;c.</HI> by which two in&s;tances of his, He in &s;ome &s;ort acknowledgeth that the People were wronged <HI>in their Cu&s;tomes and Rights,</HI> from the time of the <HI>Norman</HI> Conque&s;t, to the Reigne of <HI>Hen.</HI> 3. and who did the wrong? Surely the <HI>Norman</HI> and his Succe&s;&s;ours, who &s;everally violated them, not &s;uch Judges and Ju&s;tices of the Lawes who then were, for they did but as they were commanded: To conclude, the <HI>King</HI> may in the&s;e and the like things, both according to his naturall and politique capacity, <HI>Peccare contra Deum, contra Proximum, &amp; &s;eip&s;um,</HI> and if it be &s;aid, notwith&s;tanding, He can doe no wrong, certainly that <HI>tenet</HI> if it be <HI>Ens Legis,</HI> it is &s;carce <HI>Ens rationis Ratiocinatae.</HI></P>
<P>That the <HI>King</HI> can doe no wrong <HI>[in Curi&acirc;,]</HI> nor the <HI>Pope</HI> erre <HI>[in Cathedr&acirc;,]</HI> 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, <HI>non jurari in verba magi&s;tri,</HI> I have heard &s;ay, that the greate&s;t Clerks are not &s;ometimes the wi&s;e&s;t men; and I mu&s;t tell M. <HI>Jenkins,</HI> and others, that &s;ometimes al&s;o the greate&s;t Lawyers are not the &s;ounde&s;t School-men, for if they were, &s;ome of them would not have &s;aid, and written, what they have: M. <HI>Jenkins</HI> &s;aith,
<NOTE PLACE="marg"><HI>Jenkins</HI> in his <HI>[Cor|diall.]</HI></NOTE> <HI>The Law and Cu&s;tome of this Land, is, that a Parlia|ment hath Power over my life, liberty, lands, and goods, and over every other &s;ubject, &amp;c. Pax cum pedibus,</HI> good Ma&s;ter <HI>Jenkins,</HI> not &s;o fa&s;t; what doth Ma&s;ter <HI>Jenkins</HI> meane by the word, <HI>Power?</HI> if he meane by the word, <HI>Power,</HI> that the Parliament hath power to protect the lives, liberties, &amp;c. of the People, I grant it him; or if he meane by the word, <HI>Power,</HI> that the Parliament hath power <HI>applicare in nece&s;|&s;itatum Regni,</HI> the Proprieties of the People, I al&s;o grant it him; but if Ma&s;ter <HI>Jenkins</HI> meane by the word, <HI>Power,</HI> that the Parliament (including the <HI>King</HI>) hath an ab&s;olute Power to di&s;po&s;e of the Peoples E&s;tates <HI>mer&egrave; ad Placitum,</HI> I ab&s;olutely deny it; and tou|ching this, I have formerly in&s;erted Rea&s;ons in two Printed Books:
<PB N="13" REF="8">Moreover, the Parliament cannot <HI>Tradere Populum Angliae aliene Juri,</HI> deliver over the Free People of <HI>England</HI> to a foraine Govern|ment, or to Lawes impo&s;ed by Forainers, or compo&s;ed and con|tinued in relation to Forainers; nor can the Parliament by any Ordinance, or Act what&s;oever, deprive the Free people of <HI>England</HI> of their innate Right of electing Knights, Citizens, and Burge&s;&s;es for Parliament; in the&s;e things, and things of the nature of the&s;e ten|ding to the fundamentall Rights and Lawes of the People, the Par|liament 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 <HI>Preditores &amp; Ho&s;tes Patriae:</HI> The <HI>King</HI> is to con&s;ider that although he have his <HI>Jus Reg|nandi,</HI> his Crowne by di&s;cent, and holds <HI>&agrave; Deo ordinari&acirc; per &s;ucce&s;&s;io|nem,</HI> God him&s;elf being the Efficient Cau&s;e primarily, yet he holds it <HI>in ordine ad Populum,</HI> in relation to the People, who tie him by Oath, &amp;c. in <HI>England, &s;alus Populi,</HI> not <HI>Maje&s;tas Imperii,</HI> is the chief object and end of Government: The Repre&s;entatives or Tru&s;tees of the People are al&s;o to con&s;ider that they are <HI>creati in Ordine ad Populum,</HI> not <HI>Nati in Ordine ad &s;e,</HI> as are the Venetian Senators; that they are intru&s;ted by the People according to the Kings Writ, <HI>Pro quibu&s;dam arduis &amp; urgentibus Negotiis,</HI> not made unlimited or ab&s;olute in all things; &s;o that the King and both the Hou&s;es of Parliament ought to endeavour for the generall good of the Com|mon-wealth.</P>
<P>I am of Ma&s;ter <HI>Jenkins</HI> his Opinion in this, <HI>That the &s;afety of the People is the &s;afety of the King,</HI> and that the honour of the King is &s;upported by the honour of the People, or Nation.</P>
<CLOSER><SIGNED>WILLIAM BALL.</SIGNED></CLOSER>
<TRAILER>FINIS.</TRAILER>
</DIV1>
</BODY>
</TEXT>
</EEBO>
</ETS>
