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A29939 The absurdity of that new devised state-principle, (viz.) that in a monarchy, the legislative power is communicable to the subject, and is not radically in soveraignty in one, but in more in a letter to a friend. Brydall, John, b. 1635? 1681 (1681) Wing B5251; ESTC R19834 8,537 12

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for the Prerogative of Legislation as many others is so naturally intrins●cally inherent in the Supremacy for where Majesty is there must be the Power Legislative that it cannot be transferred or separated from the Crown or so Communicated to Both Houses as to denude or disrobe the King of that Sacred Supream Right which God has given to him as his Vice-Gerent on Earth Ea quae Jurisdictionis sunt pacis sayes our Bracton ad nulium pertinent nisi ad Coronam dignitatem Regiam nec à Coronâ separari poterunt cùm faciant ipsam Coronam Lib. 2. c. 24. The old Statute of Praerogativa Regis tells us That our King can grant no Prerogative to the prejudice of the Crown And thereupon whatsoever a King of this Land Grants to his Subjects or to any other that is essentially in the Crown of this Kingdom that is to say rally annexed to the Person of a Man as he is King of England as that the parting with it makes him to be no King or a less King than he ought to be in Dignity or Royal Power the Grant is void the Grant how large soever It must be understood with this Limitation Salvo Jure Corona And how tender our Former Kings and their Subjects have been of the Rights and Prerogatives of the Crown Pray Sir at your good leasure consult the Statutes of 28. E. 1. c. 2. 20. 34. E. 3. c. 15 17. 5. R. 2. c. 13. 11. R. 2. c. 9. 9. H. 5. c. 1. 28. H. 6. c. 2. 27. E. 1. c. 5. With our Municipal Laws do concurr Two Famous Jurists I mean Gothofrede and Suarez The former returns an Answer to this Quaere Potestne Princeps Regalia alteri Cedere Potest sayes he His temperamentis adjectis ut ne Regalia Jura sua cedat sine summâ necessitate ac ut ea cedat ex causâ necessariâ ut ne ea tota cedat Deinde ut quaecunque cedit suopte motu ac sua sponte sciens prudensque cedat Principatûs Jure Excepto quod etsi nominatim non fuerit exceptum tacitè tamen exceptum intelligitur cum adversus omnes Regalia possidentes in suo Regno Jus instituendae Actionis habeat adeo ut Jus id nullo tempore possit praescribi The latter viz. Suarez says thus Regnum est veluti quoddam Officium quod incumbit propriae Personae cui confertur non tam est propter ipsam quam propter eos qui regendi sunt ideo non potest Rex vel Regina tale onus à se separare etiam quoad usum vel administrationem ita ut non maneat apud ipsum suprema potestas Obligatio Regendi non ergo transferri potest illo modo Administratio Regni in Regem Ratione Matrimonii The sum of all that I have said as to the point of Communication is this That however the prime essential Constitutives of Monarchy in the exercise of them may be intructed by the King to the Subject by way of Delegation to ease his Burden and to facilitate his Royal Charge yet in so doing he does not he cannot divest himself of the Soveraign Power nor of any of those Sacred Rights and Prerogatives that are naturally and intrinsecally inherent in his Imperial Crown In the last place as the Two Houses cannot challenge to themselves by way of Grant that is to say neither by Division nor by Communication a Co-ordination in the very Supremacy of Power ●●●self and consequently there cannot be any such thing as a Coequality of Power in the Legislature so neither can they make forth a good and Lawful Title to themselves for a Fellowship in the Legislative Power via usucapionis by virtue of any Custom or Prescription For no immemorial Custom can hold good when there be Authentical Records to the Contrary And whether there be not such I will appeal unto your own good self Antiently the Law Enacted began thus Rex Statuit the King Ordains and before the Laws and Statutes in each Kings Reign from the time of Edward the First to this day I find the Title or Introduction thus expressed as follows 7. E. 1. the Statute of Mortmain We therefore by Advice of our Prelates Earles Barons and other Subjects have provided made and Ordained 9. E. 2. The Statute of Sheriffs Our Lord the King by the Assent of the Prelates Earles Barons and other great Estates hath Ordained and Established 5. E. 3. Statute de Natis ultra Mare Our Lord the King by the Assent of the Prelates Earles Barons and other Great Men and all the Commons of the Realm hath Ordained and Established these things under Written 3. R. 2. c. 3. Our Lord the King by the Advice and Common Consent c. hath Ordained and Established 4. E. 4. c. 1. Our Lord the King by the Advice Assent Request and Authority aforesaid hath Ordained and Established 1. R. 3. c. 2. Therefore the King will it be Ordained by the Advice and Assent of the Lords Spiritual and Temporal and the Commons of this Present Parliament 1. H. 7. c. 7. The King our Soveraign Lord by the Advice and Assent of the Lords Spiritual and Temporal at the Supplication of the Commons ordaineth 1. H. 8. e. 7. The King our Soveraign by the Assent of the Lords Spiritual and Temporal and the Commons ordaineth 1. E. 6. c. 4. Wherefore the King our Soveraign Lord at the humble Petition and Suit of the Lords and Commons doth Ordain Declare and Enact by the Assent of the Lords Spiritual and Temporal and of the Commons in Parliament Assembled 1. Mar. c. 1. Be it therefore Enacted by the Queens our Soveraign Lady with the Assent of the Lords Spiritual and Temporal and of the Commons in this present Parliament Assembled 5. Eliz. c. 5. Be it Enacted by the Queen Most Excellent Majesty with the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled 1. Jac. c. 2. Be it therefore Enacted by the King 's Most Excellent Majesty by and with the Assent and Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled 16. Car. 1. c. 1. Be it Enacted by the King 's Most Excellent Majesty with the Consent of the Lords Spiritual and Temporal and the Commons in this present Parliament 12. Car. 2. nunc Regis c. 11. Be it Enacted by the King 's Most Excellent Majesty with the Advice and Consent of the Lords and the Commons in this present Parliament Thus Sir by the Title or Introduction of our Statutes in each King's Reign from King Edward the First to this very day it is clearly proved that the Two Houses cannot challenge a Co-ordinate Power with the King in making Laws in Parliament by Usage or Prescription the Legislative Authority being only in the King though the use of it be restrained to the Consent of the Lords and Commons in Parliament Le Roy fait les Liex avec le Consent du Seigniors Communs non pas les Seigniors Communs avec le Consent du Roy The King makes the Laws with the Consent of the Lords and Commons and not the Lords and Commons with the Consent of the King In a word the Soveraign is the sole Legislator it is His Stamp and Royal Will and that alone which gives Life and Being and Title of Laws to that which was before but Counsel and Advice All marks of Supremacy being still in him nor is it an Argument of Communicating his Power that he restrains himself from exercising some particular Acts without Consent of Parliament for it is by virtue of his own Grant that such after-Acts shall not be valid He hath not divided his Legislative faculty but tyed himself from using it except by the Advice and Consent of the Peers and at the Request of the Commons their Rogation must precede his Ratification Wherefore upon what has been said I may very well pronounce our Author's words That the Making of Laws is a peculiar and incommunicable priviledge of the Supream Power And the Office of the Two Houses in this Case is only Consultive or Preparative but the Character of the Power rests in the final Sanction which is in the King And effectually the passing of a Bill is but the granting of a Request the Two Houses make the Bill 't is true but the King makes the Law and 't is the Stamp and not the Matter that makes it Currant FINIS Lib. 1. c. 8. num 2. Co. Lib. 7. Nevic's Case Co. 2. ●●st 5. 6. Co. Lib. 12. Eral of Shrowsburies Case Ob. Sol. Lib. 1. c. 8. Num. 5. Pares Regni non Regis a That the King with the Prelates and Peers were heretofore the Common Council of the Realm and consequently the Commons were no part of the Court of Parliament in Ages past may be evidenced by these Authorities Cambden in his Britannia sayes that in the time of the Saxon Kings and the ensuing Ages the Great and Common Council of the Land was Praesentia Regis Praelatorum Procerumque Collectorum Selden tells us out of an Old Cronicle of the Church of Lichfield that King Edward by Advice of his Barons revived a Law which had lain dormant Sixty seven years And in the same Chronicle it is said that William the Conquerour held a Council of his Barons Anno 4. Regni sui apud Londinias the next year Conquerour had a Council of Earles and Barons at Pivenden Heath to decide the great Controversie between Lanfrank Arch-bishop of Canterbury and Odo Earl of Kent King John in the first year of his Reign Summoned h●s Magnates his Great M●n to a Parliament at Wiston and the words of the Roll are Commune Concilium Baronum the Common Council of my Barons at Winchester Co. 4. Inst f. 237. 3. K. 1. ● 50. Suarez de Legibus Lib. 2. num 12.