and Humilty. Nor to lessen their Honour by a Port too low, and unbeseeming their Quality. But this point needs no consideration in this place.
I hasten to my last particular, which is concerning Judges of this Court. A high and antient Court, high in respect of the Ʋniversality, and business of it; the Liberties, Franchises, and Property of all the People of this great Nation, are determinable in it.
And concerning the Antiquity of the Court, give me leave upon this Occasion, and for the Right and Honour of this Court, a little to look into an Opinion delivered by great and learned Men, upon that Point.
Not that I presume upon my slender Judgement to controul theirs, but to lay before you their Asserti∣on, and what Authorities I have met with in my lit∣tle reading to the contrary, that your selves, by com∣paring both together, may the better Judge of the difference.
Lambert, Cowel, Serjeant Fleetwood, Sir Tho∣mas Smith, and a Manuscript concerning Masters of the Chancery, all of them do affirm, That the Court of Common Pleas was erected by the Sta∣tute of Magna Charta, C. 11
The Words are Communia placita non fequantur Curiam nostram, sed sint in loco certo, from hence collect that common Pleus which before were held in other Courts, and followed the Kings House, were not settled in a Place certain, nor the Court of Com∣mon Pleas erected til this time.
Of these Authors, Sir Roger Owen in his Ma∣nuscript sayeth, They are like unto Ostriches, Birds of great Feathers, yet little Flight, I cannot subscribe to their Opinion, upon these Grounds.
Beda. f. 10. relates that the prime Monarch, with the consent of the States of Parliament, allotted Pleas of the Crown to one Court, Common Suits of Subjects to another, and Matters of Revenew to a third, and this was long before Magna Charta.
They mistake the Words Curiam nostram in this place of Magna Charta, to signify the Kings House, which had not then that appellation; but the Word curia had another signification.
Among the Romans, whose Word it is, Curia sometimes was taken for the 30th. part of the People, into which Romulus divided them: but more fre∣quently it signifyed with them an Assembly of Cler∣gy-Men, and Lawyers, as Curia Hostilia, Pompeya, Julia, &c.
St. Augustine in his Coment upon the 121 Psalm, sayeth, that Curia improperly is taken for a Tribe, but properly signifies the Courts of Justice in Cities and Countries.
In the same sense, the word is taken with us, and was so before any applications of it to the Kings House, as is plain in the Mirror of Justices. Glan∣vil, the Stat. of Marlbridge, 52. H. 3. the Stat. W. 1. 3. E. 1. and W. 2. 13. E 1. and others, and in Walsingham, Ingulphus, Hoveden, Paris, and all our Chief Historians.
In H. 3. time, and after, Hospitium Regis was generally the Kings House, as Maresehallus Hospitii, Senesehallus Hospitii, in their Letters Patents, and Britton calls it Hostel du Roy.
That ground then will fail them, that by the word Curia in Magna Charta, is meant the Kings House, but as Sir Roger Owen, and others conject∣ure, by it is meant, the Courts of the Chancery, Kings-Bench, and Exchequer.
The Case 21. E. 3. Fitz. Bre. comes to this, where a Writ de rationabili parte Bonorum was brought in the Kings Bench, the Defendant pleaded this part of Magna Charta, Comunia placita non sequantur Cu∣riam nostram, and though he had been at issue, yet the Plantiff would not proceed.
And in 26. E. 1. in the Treasury, one Nicholas de Scotland brought assize for Land, which was reversed for Error in the Kings Bench, where the Judges willed Nicholas to arraigne a new Assize in the Common Pleas, because by the Words of Magna Charta, Common Pleas ought not to follow Ban∣cum Regis, and there are no other words (Curiam nostram) in Magna Charta but these.
In the Stat. Articuli super Chartas, it is said, No Common Pleas shall hereafter be held in the Cheq. against the tenour of the great Charter, and there be no words restraining suits of Common Pleas, by the great Charter, but these.
To make it more plain, It is agreed by Hoveden, Paris, and others, and I think not to be denyed, that Magna Charta were the Law of Edward the Con∣fessor. And in that Case, 21. E. 3. the Defendant pleaded this part of it, not as an Act of Parliament, but as a common Consent, and Custom.
To this purpose, that is pertinent 26. Assis. p. 24. where the Abbot of B. prescribes to have Cogni∣zance of Pleas, and to have an Original out of Court, by usage in the time of St. Ed∣ward Kings. And that H. 1. by his Charter, con∣firmed all the usages, and that they should have Cog∣nizance of all manner of Pleas; so that the Justi∣ces of the one Bench, or the other, should not intermed∣dle, upon which my L. Cook, Lit. 71. B. Collects, that then there was this Court, and these Judgse.
In the Treasury of the Chequer, are many Re∣cords of Pleas of King H. 2. R. 1. and King John, dated in the Court of Common Pleas.
In an antient Roll there is contained the suit be∣tween the Abbot of Aniou, and the Abbot of Crow∣land, about the Meers of a Marsh, in the Court of Common Pleas in R. 1. and King John's time, and the names of the Justices set down in the Roll thus Justitiaru in Banco residentes, and the Chancellor writes to them by that Name.
Glanvil in his second Book writes of them which would not wage Battle, but have their Matters tryed by a Jüry, f. 14. that they were to be tryed coram Justitiarijs in Banco residentibus.
In Glanvils 4. Book, it is said, that Quare im∣pedits. are returnable coram Justitiarijs apud Westmonasterium which they are to this Day.
In his eighth Book he writes, though Fines were levyed in many other Courts, yet still they were in∣grossed coram Justitiarijs in Banco residentibus; and so they are to this day.
An Act past for Mr. Broughton to be Coroner of the upper Bench.
Dr. Walker is made one of the Judges of the Admiralty.
A Petition of Mr. Gething for Money, and a Demand of Mony by the Lord Grey of Wark re∣ferred to the Commitee to remove Obstructions in the sale of Deanes and Chapters Lands.
An Act past to encourage the Manufacture of Salt.
Order of the Councel for demolishing of Lan∣caster-Castle.
Letters from the Parliaments Navy, that divers of Prince Ruperts Seamen came in to them, that the Prince had very few Men, and most of them, such as had been taken Prisoners by him.
Letters from Chester that the Irish Rebels came near to Dublin, and many of the Parliaments Forces ran to them, that Wheat in Dublin was at 55 s. the Barrel.
From Ireland, that Ormond was come with 12000 Foot, and 2400 Horse, within 25 Miles of Dublin, where he had besieged some places, that C. Jones went out with a Party to relieve them.