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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hand Multos regnare bonum est Rex unius esto LONDON Printed for T. D. and are to be sold by Randal Taylor near Stationers Hall 1681. SIR YOU cannot but remember that at our last Meeting there happened betwixt us a hot dispute touching Co-ordination occasioned by your reading the day before a Tract not long since exposed to publick view and Intituled by the Author thereof An Account of the Growth of Knavery c. In a Letter to a Friend In Answer to Two Pamphlets the one styled An Account of the Growth of Popery and Arbitrary Government in England The other A seasonable Argument to perswade all the Grand Juries in England to Petition for a New Parliament in which said Tract there are some Passages that seem very distastful to your Palat but more especially that Sentence pag. 44 45. concerning the Legislative Power thus expressed by our Author The Making of Laws sayes he 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 This piece of Doctrine say you is very strong and Heterodox for it contradicts not only your own darling Sentiments but also the opinion of many other Persons in this Nation who hold That the Legislature resides not in the King only but in him and in the Two Houses of Parliament so that you and those other Persons fancy a Mixture or Co-ordinacy in the Supremacy it self making the English Monarchy a Compound of Three Co-ordinate Estates This same opinion say you is founded upon the Authority of the Law Books which tell us That every Statute must be made by the King Lords and Commons And if it appear by the Act. that it is made by Two of them only it is no Statute as appears by 4 H. 7. 18. b. Co. Lit. 139. b. Co. 4. Inst f. 25. Co. 2. Inst 157. 158. 334. Bulstrods Reports Dominus Rex Alleu v. Tooley These same Authorities I allow as well as you but then it must be with this distinction that the Two House of Parliament are in a sort Co-ordinate with His Majesty Ad aliquid to some Act or Exercising the Supream Power that is to say there is an equal Right in the King and the Two Houses of a Negative Voice in respect of new Laws to be Enacted or old to be repealed But if you intend by Co-ordination as indeed you do a Fellowship with the King in the very Supremacy it self you are much beside the Cushion and truly in the wrong side of the Hedge too Because it is repugnant to the nature thereof and a clear Contradiction If it be true as it is that the King is our only Soveraign there can be no such thing as a Co-ordinate or Co-equal Power If they be Co-partners in the Soveraignty in what a fine Condition are we that must be obliged to Impossibilities For we must obey three Masters Commanding contrary things The Two Houses may as well injoyn us to do them Homage which is and ought to be performed only to the King as to challenge a Corrival Power with the Soveraignty of Royalty 'T is true no Law can be imposed on us without the consent of the Two Houses yet this doth not make them Co-ordinate with their Prince in the very Supremacy of Power it self but still leaves the Power of Ordaining Supreamly in him as in the Fountain though the Efflux or Exercise of that Power be not solely in his Will but expects the Consent of his People And therefore 't is very curiously expressed by the Learned Mr. Hooker That Laws do not take their Constraining Force from the Quality of such as devise them but from the Power that doth give them the strength of Laws Le Roy le veult the King will have it so is the Interpretative Phrase pronounced at the King 's passing of every Act of Parliament And it was sayes Sir Henry Filmer in that most excellent discourse called Patriarcha the Antient Custom for a long time till the dayes of H. 5. that the Kings when any Bill was brought unto them that had passed Both Houses to take and pick out what they liked not and so much as they chose was Enacted for a Law but the Custom of the later Kings hath been so Gracious as to allow alwayes of the entire Bill and sometimes with a Tacking too as it hath passed both Houses So much Sir in general touching your fancied Corrivality of Power I come now to a more close and minute Application and I argue thus If the Two Houses have a Joynt and Co-equal Authority with their King in making Laws and the like it must be one of these two wayes either it must be Primitively Seated in them or it belongs to them by derivative participation First the Two Houses of Parliament cannot have this Co-ordinate Power vested in them Primitively or Radically For are not Both Houses Summoned by the King 's Writ Do they not fit in Parliament by Virtue only of the Authority Royal Can either the Lords or Commons or both together Lawfully convene themselves appoint the time and place of their own Meeting Our Books of Law can tell you Sir that the Power of Convocating and keeping of Assemblies of Subjects the Power of Calling Holding and Proroguing of Parliaments is an Essential Part and Inseparable Privilege of the English Regality All able Jurists and Polititians very well know that the King is Caput Principium Finis Parliamenti solely made and Created by him and into him only can be ultimately resolved And therefore surely it must be the most unreasonable thing that ever was in the World that Subjects Assembled by their Soveraign's Writ should have a Co-equality of Power with their Prince without whose call they could not meet together and at whose will and pleasure they are Dissolved in Law and bound to betake themselves to their own Habitations And return to the Statu quo of Private Persons and Subjects whereas Supremacy is a Publick and indelible Character of Lawful Authority But farther can the Two Houses of Parliament pretend to be before our First King in time can they outvy him in Seniority Surely no. As for the Lords Bracton affirms that the Earls and Barons were Created by the King and assumed to him only for Counsel and Advice which infers undoubtedly that the Power they are invested withall
for the Prerogative of Legislation as many others is so naturally intrinsâ—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 â—â—â—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. â—â—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 hâ—s Magnates his Great Mâ—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. â— 50. Suarez de Legibus Lib. 2. num 12.
is not by a Contrivement or Reservation as some Fanaticks fancy at the supposed Making of the First King but procceds ex Indalto Regum from the gratuit Concessions of our Princes But it was Objectect by you in our Disecptation as it hath been by others heretofore that the very Stile of Comites and Peers implies a Co-ordinative Association with the King in the Government they are in Parliament His Comites His Peers I Answer that Mr. Bracton tells us Rex parem non habet in Regno suo the King has no Peer and offereth us another Reason of the Stile of Comites Quia sunt in Comitatu without any Relation to Parliament because they are either in the Train of the King of because placed in each County ad Regendum Populum and so assumed to the King to the like end that Moses did his under-Officers in Governing his People They were not only to be Companions as to his Person but in respect of his Cares Pares Curis solo diademate dispares They are the Highest and in the nature of Privy-Counsellors but Created by the Soveraign Prince the Fountain of Honour and so not equal unto him though exalted above Fellow-Subjects To be short if this word Comites should imply a Co-ordinative Society it must needs follow that the Commons must be the King's Peers too for they are as much Co-ordinate with His Majesty as the other And so let 's set up Three Thrones One for the King another for the Lords and a Third for the House of Commons I would advise you Sir to make a Voyage next long Vacation into France and argue there at the French Court from the Denomiation of Pares Franciae and see what Thanks you shall have for your Logick Thus much for the Lords I must have a touch at the Commons too As for the Commons they surely will not pretend to exceed the Lords in Antiquity If what Sir Robert Cotton that Famous Antiquary relates in some part of his Posthuma Works be truth And he hath been pleased in this very manner to express himself As this great Court or Council consisting of the King and Barons ruled the great Affaires of State and Controlled all Inferiour Courts so were there certain Officers whose transcendent Power seemed to be set to bound in the Execution of Princes Wills as the Steward Constable and Marshal fix'd upon Families for many Ages They as Tribunes of the People or Ephori amongst the Athenians grown by an unmannerly Carriage fearful to Monarchy fell at the Feet and Mercy of the King where the daring Earl of Leicester was slain at Eveshum This Chance and the Dear Experience Henry the Third himself had made at the Parliament at Oxford in the Fortieth year of His Reign and the Memory of the many streights his Father was driven unto especially at Rumney Meade near Staues brought this King wisely to begin what his Successâ—r fortunately finished in lessening the Strength and Power of His great Lords And this wrought by searching into the Regality they had Usurped over their peculiar Soveraigns whereby they were as the Book of Saint Alban's termeth them Quot Domini Tot Tyranni and by weakning that Hand of Power which they carryed in the Parliaments by Commanding the Service of many Knights Citizens and Burgesses to that General Council Now began the frequent sending of Writs to the Commons their Assents not only used in Money Charge and Making Laws for before all Ordinances passed by the King and Peers but their Consent in Judgments of all natures whether Civil or Criminal By what I have here offered out of Sir Robert Cotton and elsewhere before in this Discourse It is as clear as the Sun at Noon day That the Two Houses of Parliament are not Co-aetaneous with the First King much less before him and consequently the Legislature cannot be said to be Originally and Radically seated in the Lords and Commons Secondly As I have made it appear that the Architectonick Power Paramount of making Laws in Parliament was never Natively and formally seated in the Two Houses so I come now to prove that the Supream Legislative Authority was never vested in them by way of Emanation or derivation from the Imperial Crown of this Nation Now if they have derivatively such a power it must be one of these two wayes either by way of Donation or Usurpation Again if they have it via Donationis by way of Grant they must have it either by way of Division or by way of Communication But they cannot challenge it by either of these same wayes 1. The Houses of Parliament may not challenge a Co-ordination in the Supremacy by way of Division or Partition For Suprema potestas is an Entity or being Indivisible as it is subordinate to none but God Almighty so it admitteth no Co-ordinate Collateral Co-equal or Corrival Power To make Majestatem in Majâ—state Regnum in Regno more than one Soveraign in a Kingdom is inconsistent with Supremity for Supream admits neither of Equal nor Superiour and to affirm it is Contradictio in Adjecto And therefore you may read that Henry de Beauchamp Earl of Warwick for the singular favour that King Henry the Sixth bare to him Crowned him King of Wight But we could never find sayes Cook and Letters Patents of this Creation because as some hold the King could not by Law Create him a King within his own Kingdom because there cannot be Two Kings in one Kingdom or if such there be they are but Reguli or Proreges Kings to their Subjects and Subjects to the Supream King So Oedipus King of the Thebans having Issue Two Sons Polynices and Eteocles ordained that after his Decease his Two Sons should alternative by Course Reign in his Kingdom But what was the event Fratres de Regni Haereditate dissidentes singulari certamine Congressi mutuis vulneribus ceciderunt Let any Man look upon the Estate of the Roman Empire when it was divided by Constantine the Great amongst his Three Sons Constantinus Constantius and Constans Or upon the Estate of the Western Empire after the Division made by Lotharius Lewis and Charles Sons of Lodovicus Pius And he will find most sad and horrible Confusions ensued on such Partitions But letting pass Forreign Conntries we must not pretermit the miserable Estate within this Kingdom under the Heptarchy until all was Re-united under one Severaign And this is the Reason that in England Scotland and Ireland the Royal Dignity is descendible to the Eldest Daughter or Sister Co. 4 Inst f. 243. on Lit. fol. 165. a. For Regnum non eft divisibile And so was the Descent of Troy Praeter te sceptrum Ilione quod gesserat olim Maxima Natarum Priami 2. As the Two Houses cannot have a Co-ordinate Power with the King by way of Division so neither can they challenge to themselves a Co-ordination in the Supremacy it self by way of Communication