The Online Library of Liberty

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• Introduction *
• The Restoration of King, Church, and Parliament
• Sovereignty In the Crown
• Parliament and the Succession to the Throne
• James Ii and the Ancient Constitution
• Revolution
• Chronology
• The Struggle For Sovereignty, Volume Ii
• Of Parliament
• Henry Vane, the Tryal of Sir Henry Vane
• Earl of Shaftesbury, Two Speeches
• Henry Scobell, Power of the Lords and Commons In Parliament
• Earl of Shaftesbury, Two Seasonable Discourses
• Earl of Shaftesbury, a Letter From a Person of Quality
• Anon, Vox Populi
• Parliament and the Succession
• Elkanah Settle, the Character of a Popish Successour
• William Cavendish, Reasons For His Majesties Passing the Bill of Exclusion
• Benjamin Thorogood, His Opinion of the Point of Succession
• Algernon Sidney, the Very Copy of a Paper Delivered to the Sheriffs
• The King’s Inalienable Prerogative
• John Brydall, the Absurdity of That New Devised State-principle
• Anon, the Arraignment of Co-ordinate-power
• Anon, the King’s Dispensing Power
• Anon, the Clergy’s Late Carriage to the King
• Revolution and Allegiance
• Gilbert Burnet, Measures of Submission to the Supream Authority
• John Wildman, Some Remarks Upon Government
• Samuel Masters, the Case of Allegiance In Our Present Circumstances
• Anon, a Friendly Conference Concerning the New Oath of Allegiance
• In the Wake of Revolution
• Zachary Taylor, Obedience and Submission to the Present Government
• William Sherlock, Their Present Majesties Government Proved to Be Throughly Settled
• Bartholomew Shower, Reasons For a New Bill of Rights

John Brydall, The Absurdity of that New devised State-Principle

[John Brydall, b. 1635?]

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.

Ὀυκ ἀγαθὸν πολυκοιρανίη, εἷς κοίρανος ἔστω

Haud Multos regnare bonum est, Rex unius esto.

LONDON,

Printed for T. D. and are to be sold by

Randal Taylor, near Stationers Hall, 1681

This essay in the form of a letter has been attributed to John Brydall, the author of some thirty-six published treatises, most of which dealt with the law.

Little is known about Brydall’s personal life. He was a native of Somerset. He was educated at Jesus College, Cambridge, and Queen’s College, Oxford, then went on to Lincoln’s Inn. While there he served as captain of a foot regiment raised for the king by the Inns of Court. He seems to have been noted for his pike exercises. Brydall later became secretary to Sir Harbottle Grimston, who served as master of the rolls from 1660 until his death in 1685. Between 1673 and 1700 Brydall published numerous treatises, for some reason all anonymously. At his death he left another thirty treatises still in manuscript.

Brydall was a champion of prerogative and absolute royal power. The emergence of the Whigs and the challenge of the exclusion crisis provoked him to write on political, as opposed to legal, theory. In the tract reprinted here he stoutly defends the absolutist concepts of Jean Bodin and the views of Sir Robert Filmer, whose Patriarcha had been published the previous year. As Sidney and the Whigs harked back to the principles of the “good old cause,” Brydall was among those who harked back to the principles of the absolutist defenders of monarchy. Both Sidney and Brydall demonstrate the longevity of the old quarrel as it resurfaced in the new political situation of an impending Catholic succession. “The Absurdity of That New Devised State-Principle” appeared in only a single edition.

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,1 (In Answer to Two Pamphlets, the one styled, An Account of the Growth of Popery and Arbitrary Government in England;2 The other, A seasonable Argument to perswade all the Grand Juries in England to Petition for a New Parliament);3 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 ’tis true, but the King makes the Law, and ’tis 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 itself, 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 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. Bulstrod’s Reports, Dominus Rex & Allen, v. Tooley.

These same Authorities I allow as well as you, but then it must be with this distinction, that the Two Houses 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 itself, 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 injoin 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. ’Tis 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 itself, 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 ’tis very curiously expressed by the Learned Mr. Hooker,4That 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 leveult, 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 Henry 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.”5

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 Joint 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 sit 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 Politicans very well know, that the King is Caput Principium & Finis Parliamenti,6 solely made and Created by him, and unto 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 Status 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, is not by a Contrivement or Reservation (as some Fanaticks fancy) at the supposed Making of the First King, but proceeds, ex Indulto Regum from the gratuit Concessions of our Princes.

But it was Objected by you in our Disceptation as it hath been by others heretofore, that the very Style of Comites7 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 Style of Comites, Quia sunt in Comitatu,8 without any Relation to Parliament, because they are either in the Train of the King, or because placed in each County, ad Regendum Populum,9 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.10 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 Denomination 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.11

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 Majestate, 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.14 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) any 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.15

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 Ledovicus Pius; And he will find most sad and horrible Confusions ensued on such Partitions. But letting pass Forreign Countries, we must not pretermit the miserable Estate within this Kingdom, under the Heptarchy until all was Re-united under one Soveraign; 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 est divisible:16 And so was the Descent of Troy.

• Praeter te sceptrum Ilione quod gesserat olim
• Maxima Natarum Priami.17

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 itself by way of Communication; for the Prerogative of Legislation (as many others) is so naturally intrinsically 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-regent on Earth.

Ea quae Jurisdictionis sunt & pacis (sayes our Bracton) ad nullum pertinent nisi ad Coronam, & dignitatem Regiam, nec à Coronâ separari poterunt, cum faciant ipsam Coronam, Lib. 2.c.24.18

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, really 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 JureCoronae. 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 sayes 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.19

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 intrusted 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 itself (and consequently there cannot be any such thing as a Co-equality 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 King’s Reign from the time of Edward the First to this day, I find the Title or Introduction thus expressed as follows.

7.Edward 1. the Statute of Mortmain, We therefore by Advice of our Prelates, Earles, Barons and other Subjects, have provided, made and Ordained.

9.Edward 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.Edward 3. Statute de Natis ultra Mare, Our Lord the King by the Assent of the Prelates, Earles, Barons and other Great Men, and all theCommons of the Realm, hath Ordained and Established these things under Written.

3.Richard 2.c.3.—Our Lord the King, by the Advice, and Common Consent, &c. hath Ordained and Established.

4.Edward 4.c.1.—Our Lord the King, by the Advice, Assent Request and Authority aforesaid, hath Ordained and Established.

1.Richard 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.Henry 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.Henry 8.c.7.—The King our Soveraign, by the Assent of the Lords Spiritual and Temporal, and the Commons ordaineth.

1.Edward 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. Mary c.1.—Be it therefore Enacted by the Queen our Soveraign Lady, with the Assent of the Lords Spiritual and Temporal, and of the Commons in this present Parliament Assembled.

5. Elizabeth c.5.—Be it Enacted by the Queen’s Most Excellent Majesty, with the Assent of the Lords Spiritual and Temporal, and the Commons in this present Parliament Assembled.

1. James 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. Charles 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. Charles 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 des 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 tied 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 ’tis true, but the King makes the Law, and ’tis the Stamp, and not the Matter, that makes it Currant.

finis.

[1. ]Roger L’Estrange, “An Account of the Growth of Knavery” (London, 1678), Wing L1193.

[2. ]Andrew Marvell, “Account of the Growth of Popery” (Amsterdam, 1677), Wing M860.

[3. ]Andrew Marvell, “A Seasonable Argument to Perswade All the Grand Juries” (Amsterdam, 1677), Wing M885.

[4. ]Richard Hooker, Of the Laws of the Ecclesiastical Polity, book I, chap. 10, 8.

[5. ]The passage cited is from Patriarcha, chap. 31, by Robert, not Henry Filmer.

[6. ]The head, beginning, and end of Parliament.

[7. ]Companions, or court.

[8. ]Because they are in the court or retinue.

[9. ]For ruling or governing the people.

[10. ]Equals in cares (responsibilities), unequal by the crown alone.

[11. ]From “A Brief Discourse concerning the Power of the Peers, and Commons of Parliament, In point of Judicature,” Cottoni Postuma: Divers Choice Pieces of that Renowned Antiquary, Sir Robert Cotton, J. H. [James Howell] Esq., ed. (London, 1679), 348-49.

[12. ]King John.

[13. ]As many as there are lords, so many are there tyrants.

[14. ]A contradiction in terms.

[15. ]The brothers disagreeing about the inheritance of the kingdom met in single combat and killed each other.

[16. ]For the kingdom is not divisible.

[17. ]Before you [is] the scepter which Ilione, the eldest of the daughters of Priam, formerly wielded.

[18. ]Those things having to do with jurisdiction and peace pertain to no one else but the Crown, and the royal dignity, nor could they be separated from the Crown, even though they support the Crown.

[19. ][From Gottfried or Godfrey] Query: Can the Prince cede the royalty to another? He can, given a special set of proportionate circumstances, lest he cede his royal rights without supreme necessity; and that he cede them from a necessary cause, so that he not cede all of them. Then that whatever he cedes by his own motion, and that he may cede it spontaneously knowing and prudently, With The Exception Of The Rights Of Princely Rule: because even if what is made an exception were not named explicitly, it is still tacitly understood to be excepted (although he may have a right of initiating action against all those possessing royal rights in his kingdom) and besides the right that at no time it be able to be set forth in writing.

The latter, namely, Suarez, says thus. Rule is similar to a certain office that is properly incumbent upon a certain person on whom it is conferred, and not so that it is on account of that very person, instead of those who are to be ruled, and therefore a king or a queen cannot separate such a burden from themselves, even as regards use, or administration, so that the supreme power does not remain with him or her; and the obligation to govern therefore cannot be transferred in that manner in which the administration of the kingdom is transferred to the king by reason of matrimony.