Selected quad for the lemma: land_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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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
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