To Answer the Argument.
Before I come to answer in particular to what was objected by this learned Gentleman, Mr. St. John, who hath taken a great deal of pains, and made as much use of it as was possible for a Cause of this nature to bear. I shall in the first place give a general Answer.
1. I say, That the testimony by Records given on the other side, whereof many are vouched, which I am glad to hear of, and that men look into a bu∣siness of this nature. To make such a search, is for the honour of the King, that there is accord∣ing to the Law, the freest access to the Records that ever was in England. And that great Lord (meaning the Lord of Holland) doth know the King commanded with his own mouth, that free access should be to the Records in this business. And I appeal to all Officers that keep the Records, that I did not only give that command from the King, but desired them my self, to shew to the o∣ther party what end •• had. I say, these Records, take them at the best, they are not of such weight in point of Right, as the other are which are for the King: For if a King shall voluntarily, in case of his Subjects, or special Grace, do any thing, yet I conceive that is not of such weight as when he produces a constant use of compulsive Power from the Crown, and obeyed by the People: For if any of the Kings have spoken gentle Language, as King John when he was deposed from his Crown, I conceive that will not be so much as gentle words used in the Writs. I shall answer particularly to all the Records that have been cited: It doth much concern the King that this Argument be answered fully
The first thing that was said, is, That to seize Goods without Suit or Cause is void in Law. But this was not used as an Argument, but as an In∣troduction: But in the next place he comes to a high Objection, That there is Voluntas interna & externa; His inward Will, which he doth declare in his Chamber; and his Legal Will: And with∣al that the King cannot judge himself. 2 R. 2. f. 10, 11. which was grounded upon that Book Case. But that is not our Case. The King cannot judge in his own Person, but hath left it to their Lord∣ships, that are sworn to do equal Justice between him and his People. But to say that the King cannot judge himself, I question. Can that be wanting in the Fountain which issues in the Stream? That I utterly deny. Is it not said, Co∣ram Rege in the Kings Bench; and in the Star-Chamber, Coram Conciliis nostris? This is a new Doctrine.
And shall not the King judge? Did not King E. 4. sit in Person in the Kings Bench in a Trial of Rape? And that famous Justice Popham sit at the King's sect, and other Judges sit at the King's side, and therefore called Justiciarij à latere Regis? Sure he forgot King James, who adjudged two Ca∣ses in the Star-Chamber, that of Bellingham and Sir Thomas Lake's Case, the Book doth no way war∣rant his inference. The Book doth not say, The King shall not judge; but saith, If a man be con∣victed before the Judges, the King shall not set the Fine, because he heareth not the Case: This no way concerns our Case.
Object. That no Law can be changed, but by Act of Parliament? As a Naturalization and Legitimation. Nay, no Writ of Error, but in Parliament, till by the Statute 27 El. And the Parliament is Curia Regis, and part of the King's Body, and cited 34 H. 8. Crompton Jurisdiction. The King is at no time in such his state Royal, as in Parliament. All that was made out of this was, That this was a change of Law, viz. the Writ for Shipping. We are so far from belie∣ving that it is a change of Law, as it is the cu∣stom of all Ages in former times. Now (he says) the Parliament is the highest Court, and the King is there at highest both for magnificence and power: But yet out of the Parliament the King is King of England. It doth not follow, that be∣cause he may do it in Parliament, that therefore he cannot do it any where else. And it is too poor a comparison to say that the King should have the ordering of War as a Generalissimo over his Subjects and Vassals. All other Generals have their power from him.
Object. Oh but the King hath provision for War.
This is but a cunning insinuation to make a sur∣vey of the King's Revenue, and to insinuate with the People.
And begin with Knights Service, Tenure, and these in dangerous places, as Dover, Duresm, Che∣ster. 35 H. 6. Britt. That the King should not only have his Wards Lands to breed them up, but to maintain the War in the mean time. And that Knights-Service 37 H. 6. were instituted for ordinary defence, as Horsmen. And because the Kings of England, out of their care to have men trained up for Horsmen to follow them, that therefore they should have no aid when the King∣dom was in danger: Shall we have no Footmen, no Archers, nor Slingers to be used in War? No Guard at Sea, because he hath some Tenures of Horsmen? This doth not discharge the Subject. This is but for forty days, and was instituted to suppress the sudden incursion from Scotland, 19 R. 2. Guard. 165. old Tenures. They do restrain particularly Escuage and Knights Service to Scot∣land and Wales. 22 E. 1. for Gascoign afterwards discharged, but not for Mr. St. Johns Reason. 5▪ E.