inter manus habens alicubi retinetur ibi purgetur vel sordidetur si solum inculpatio plegiis si opus est datis ubi justum fuerit terminanda revertatur CHAP. XII The Terms laid out according to these ancient Laws TO lay out now the bounds of the Terms according to these Canons and Constitutions especially that ancient Law of Edward the Confessour it thus appeareth viz. Hilary-Term began then certainly at Octabis Epiphaniae that is the thirteenth day of January seven days before the first Return it now hath and nine days before our Term beginneth and ended at the Saturday next before Septuagesima which being moveable made this Term longer in some years than in others Florentius Wigorniensis and Walsingham in his Hypodigma Neustriae saith Anno 1096. In Octabis Epiphaniae apud Sarisburiam Rex Gulielmus Rufus tenuit Consilium in quo jussit Gulielmi de Anco in duâ—llo victi oculos eruere testiculos abscindere Dapiferum illius Gulielmum de Alderi filium amitae illius suspendi c. proceeding also judicially against others Tho' Walsingham calleth this Consilium with an s a Counsel and Wigorniensis Concilium with a c an Assembly the word Term perhaps not being in use under William Rufus yet it seemeth to be no other than an Assembly of the Barons in the King's house or Court of State which was then the ordinary place of Justice for crimes of this nature For the Barons of the Land were at that time Judges of all causes which we call Pleas of the Crown and of all other belonging to the Court of the King The proceeding also against these offenders seemeth meerly Legal and not Parliamentary or ex arbitrio For the tryal was according to Law by Battel and the judgement after the manner of the time by putting out the eyes and mutilation of the privy members As for putting men to death I confess that it was not at this time ordinary For William the Conquerour had made a Law Interdico nequis occidatur vel suspendatur pro aliqua culpa sed eruantur oculi abscindantur testiculi But as himself observ'd it not so his Son made not nice in breaking of it And I think the Barons of that time did in many things especially crimes of Treason ex arbitrio judicare Besides this if it had been other than an ordinary course of justice they would not have call'd it Consilium or Concilium simply but magnum Concilium or commune Concilium Regni as the phrase then was for Parliaments Lastly tho' it had been a Parliament yet they could not or at least they would not break the Constitutions of the Church by medling with tryals of crime and blood in diebus pacis Ecclesiae and therefore we must conceive it to be done in Term-time diebus pacis Regis as the Canons alledg'd and assign'd it I meet also with a precedent to this purpose in Radevicus under the year 1160. whereby it appears that they began their Term or Law-day likwise beyond the Seas at Octabis Epiphaniae Curia says he quae in Octavis Epiphaniae Papiae fuerat indicta usque in sextam feriam proxime ante caput jejunii quia in destructione Cremae dominus Imperator detinebatur est dilata The Norman Custumary sheweth also expresly that this Term began at Octabis Epiphaniae in saying that their Law-days began and went out with the times of celebrating Marriage which in this part of the year as we shewed before came in at Octab. Epiphaniae and went out at Septuagesima as it still doth And the Court of the Arches doth still hold the same beginning The Exchequer also being brought out of Normandy seemeth to retain at this day the steps of the Norman Custume For in that it openeth eight days before the beginning of the Term it openeth upon the matter at Octabis Epiphaniae By which it appeareth that it was then no Vacation and that the Term was begun at Octabis Epiphaniae whereby it is the likelyer also that it ended at Septuagesima lest beginning it as we now do it might fall out some years to have no Hilary-Term at all as shall anon appear And this our ancient use of ending the Term at Septuagesima is some inducement to think the Council of Erpford is depraved and that the word there Quinquagesima should be Septuagesima as the gloss there reporteth it to be in some other place And as well Gratian mistakes this as he hath done the Council it self attributing it to Ephesus a City of Ionia instead of Erpford a Town in Germany where Burchard before him and Binius since do now place it It comes here to my mind what I have heard an old Chequer-man many years ago report that this Term and Trinity-Term were in ancient time either no Terms at all or but as reliques of Michaelmass and Easter-Terms rather than just Terms of themselves Some courses of the Chequer yet encline to it And we were both of the mind that want of business which no doubt in those days was very little by reason Suits were then for the most part determined in inferiour Courts might be the cause thereof But I since observe another cause viz. That Septuagesima or Church-time one while trode so near upon the heels of Octabis Epiphaniae I mean came so soon after it as it left not a whole week for Hilary-Term and again another while Trinity Sunday fell out so late in the year that the common necessity of Hay-seed and Harvest made that Term very little and unfrequented For insomuch as Easter which is the Clavis as well to shut up Hilary-Term as to open Trinity-Term may according to the general Council of Nice holden in the year 322. fall upon any day between the 21 st of March exclusively which then was the Aequinoctium and the 25. of April inclusively as the farthest day that the Sunday following the Vernal Full-Moon can happen upon Septuagesima may sometimes be upon the eighteenth of January and then could they in ancient time not have above four days Term and we at this day no Term at all because we begin it not till the 23 d. of January which may be six days after Septuagesima and within the time of Church-Vacation But what Hilary-Term hath now lost at the beginning of it it hath gained at the latter ending Of Trinity-Term I shall speak more by and by CHAP. XIII Easter-Term EAster-Term which now beginneth two days after Quindena Paschae began then as the Law of Edward the Confessour appointed it at Octabis This is verified by Glanvil who maketh one of his Writs returnable thus Rex c. Summone per bonos summonitores quatuor legales milites de vicineto de Stock quod sint ad Clausum Paschae coram me vel Justiciis meis apud Westmonasterium ad eligendum supra sacramentum suum duodecim legales milites But as it began then nine days
alii creditum alius subtrahat ac praecipue Clericis quibus opprobrium est si peritos se velint disceptationum esse forensium ostendere But here we see that the Clergy even in those days had set their foot upon the business and I suppose that since that time they never pulled it wholly out again It is like the Eastern Nations adhering to the Empire did observe it But the Western being torn from it by the Northern Nations Saxons Goths and Normans took and left as they thought good Reâ—â—ardus King of the Western Goths about the year 594. tho' he retained the manner of the Civil Law in making Wills yet he ordained that they should be publish d by a Priest as formerly they had been His succâ—ssor Chindavinâ—us about An. 650. making a Law about a Military Will ordained that it should be examined by the Bishop and Earl and ratified by the hand of a Priest and the Earl As the Northern Nations I speak of the Goths the Saxons and Normans were of Neighbour and affinity in their Habitation Language and Original so were they also in their Laws and Manners Therefore as the Goths trusted to their Priests with the passing of Wills so did the Normans their Custom and Law was that Tout testament doit estre passe par devant le Curè ou Vicaire notaire ou tabellion en la presence de daux temotnâ—s idoines dâ— XX. ans accomplis non legataires That all Testaments shall pass before the Curate or Vicar c. where the Commentary noteth that it must be the Curate or Vicar of the same Parish where the Testator dwelleth And that Notary hath been adjudged to be a Notary Apostolick or Ecclesiastical So that the business was then with them wholly in the hands of the Clergy This ancient Norman use liveth to this day in many Towns of England The Parson of Castle Rising in Norfolk hath the Probat of Testaments in that Town And so hath the Parson of Rydon and the Parson of North-Wotton in North-Wotton To go back to our Saxon Ancestors I see they held a kind of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or similitude of Laws with their brethren the Goths and Normans And tho' I find no positive constitution among them in this point yet ab actis judicatis the supporters of the Common Law it self we may perceive what their Custom and Law was Elfâ—re who lived before the year 960. having made his Will did afterward publish the same before Odo the Arch-bishop of Canterbury Elfsy the Priest of Croydon and many other Birtrick and his wife in no long time after declared their Will at Mepham before Elfstane Bishop of Rochester Wine the Priest and divers other See a MS. Law of King Alured the Great who flourished An. 880. De eo quâ— terram testamâ—ntalem habet quam ei parâ—ntes sui dimiserunt ponimus ne illam extra cognationem suam â—â—ttere possit si scriptum intersit testamenti testes quod â—orum prohibitto fuerit qui haâ—c imprimis acquisiverint ipsorum qui dederint ei nâ— hoc possit hoc in Regis Episcopi testimonio recitetur coram parentela sua It is said in the Civil Law that the declaration of a Testament before the Prince omnium Testamentorum solennitatem superat Here the Bishop is joined with the King in cognisance of the Testament by the copulative but Mr. Lambard tho' I confess it agreeth not with the Saxon maketh it in the disjunctive coram Rege aut Episcopo as if it might be before either of them The Saxon is on Cyninges bisceopes geÆ¿itnysse in Râ—gis Episcopi testimonio Be it one or the other it cometh much to a reckning for the presence of the King was then represented in the County by the person of the Earl of the County as it is this day in his Bench by the person of his Judges And the Earl and Bishop sitting together in the Court of the County did as if the King and the Bishop had been there hear jointly not only the causes of Wills spoken of in this Law wherein the Bishop had special interest but other also that came before them And therefore in those days the extent of the Earl's County and the Bishop's Diocess had but one limit To this purpose is the Law of King Edgar Cap. 5. and the like of Canutus Cap. 17. Comitatus bis in anno congregatur nisi plus necesse sit in illo Comitatu sint Episcopus Comes qui ostendant populo justitiam Dei rectitudines seculi The Saxon is ðaere beon ðaere scyre biscop se Ealdorman Let the shire Bishop be there and the Alderman so then they called the Earl Thus both Ecclesiastical and Secular Causes were both decided in the County Court where by the Canons of the Church the Ecclesiastical Causes were first determined and then the Secular And many Laws and Constitutions there be to keep good correspondency between the Bishop and the Earl or Alderman And as both kind of justice were administred in the County Court so were they also in the Hundred Court in which course they continued in both Courts 'till the very time of the Conquest as it seemeth and almost all his time after But about the eighteenth year of his Regn by a Common Council of the Arch-bishops Bishops Abbots and Princes of the Kingdom which we now call a Parliament he ordained as appeareth in a Charter of his then granted to Remigius Bishop of Lincoln Vt nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundred placita teneat nec causam quae ad regimen animarum pertinet ad judicium secularium omnium adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus ei elegerit nominaverit veniat ibique de causa vel culpa sua respondeat non secundum Hundred sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat c. What ensued upon this and how the Bishop and Earl divided their Causes and Jurisdiction appeareth not That of Wills belonged either wholly to the Earl as Rector Provinciae by the Constitution of Theodosius or as much to the Earl as to the Bishop by the Laws of King Edgar and Canutus But the subsequent use must inform us what was then done upon it And thereby it seemeth that all went wholly to the Bishop and Clergy and that the Saxon custom was changed and the Norman introduced And that the name of Court Christian or Ecclesiastical sprung not up or was heard of till after this division For now the devising of Lands by Will after the Saxon manner was left and the goods themselves could not be bequeathed but according to the use of Normandy A third part must remain
being now corruptly so called for Tridings or Thrithings Those things therefore that could not be determined in the Hundred-Courts either for difficulty or miscarriage thereof were from thence brought unto the Trithing where all the principal men of three or more Hundreds being assembled did debate and determine it or if they could not did then send it up nnto the County Court to be there decided as in Parliament by the whole body of the County This appeareth by the Laws of Edward the Confessor Cap. 34. where it is said Erant aliae potestates super Wapentachia quas vocabant ðriðingas c. that is There were other Jurisdictions over Wapentakes or Hundreds which they called Thrithings because they contained a third part of the Province or County And those that governed these Thrithings were thereupon called Thrithingreves before whom were brought all causes that could not be determined in the Wapentakes or Hundreds Tho' I find no such division of our County of Norfolk yet I see the use thereof remained there both till and after the times of the Conquest For William Rufus in a controversie of the Abbot of Ramsie's about the Town of Holme in Norfolk sent his Writ to H. Chamberlyn then Trithingreve as it seemeth over that part of the County commanding him to assemble three Hundreds and an half at a place called Fliâ—ham-burrough which to this day beareth that name and is the site of the Hundred of Frebridge there to determine the said controversie which Writ for reviewing of the ancient customs of the Kingdom I will here adjoin as it standeth in the book of Ramsey Abbey Sect. 197. Willielmus Rex Angl. H. Camerario salutem Fac convenire consedere tres Hundredos dimidium apud Flicceham-Burgh propter terram illam de Holm quae pertinet ad Ringstedam quam Abbas Ramesiae reclamat ad victum vestitum Monachorum suorum Et si Abbas poterit ostendere ratione testimonio Comprovincialium quod antecessor illius eandem terram habuerit eo die quo pater meus fuit vivus mortuus tunc praecipio ut illam terram omnia quae juste pertinent ad Abbathiam suam pacifice honorifice habeat Teste R. Bigod apud Wind. Out of which Writ I conjecture that this H. Camerarius to whom it was directed might be Trithingreve of that part of the County the rather for that the Writ nameth him not Vicecomes as in the next precedent it doth another man viz. Will. Rex O. Vicecomiti salutem c. And that these three Hundreds and an half were to be Judges of the cause it appeareth by the words fac consedere that is cause them to sit down together For Magistrorum Judicum est sedere famulorum Ministrorum stare Therefore it is said Exod. 18. 13. Moses sat to judge the people and the people stood about him whereupon Hugo also noteth Magistrorum est sedere To this purpose also is the Law of H. I. ca. 8. Si aliquis in Hundrâ—… agendorum penuria judicium vel casu aliquo transferendum sit in dâ—us vel tres vel amplius Hundredos respectetur justo fine claudendum Qu. But it seemeth that these Judges were sworn to do right as well as those before mentioned in the Hundred Court And that our course now used for taking a Jury out of many Hundreds in the County for tryal of a cause arising in one Hundred took the beginning from the tryal in the Trithing and that thereupon the Trithing Court grew out of use The Alderman of the County whom confusedly they call an Earl was in parallel equal with the Bishop and therefore both their estimations valued alike in the Laws of Ethelstane at eight thousand Thrymses He was a man learned in the Laws and had the government of the whole Shire and cognizance over all inferiour Courts and persons both in civil matters and criminal For which purpose he held his ordinary Court by the Shreve once every month and there resorted as Suitors and bound by duty all the Lords of Mannours and principal men of the County with the rest of the Free-holders who were not only assistants but Judges with him of all matters there depending whether entred there originally or coming thither by appeal or provocation from the inferiour Courts Ll. Edw. senioris cap. ult Ic Æ¿ille ðat aelc geresa hebbe gemoâ—e c. I will that every Sheriff hold his Court about every four weeks and that he do right equally to every man and make an end of all Suites under the pain before expressed As the Bishop had twice in the year two general Synods wherein all the Clergy of his Diocess of all sorts were ty'd to resort for matters concerning the Church so also was there twice in the year a general assembly of all the Shire for matters concerning the Common-wealth wherein without exception all kind of Estates were required to be present Dukes Earls Barons and so downward of the Laity and especially the Bishop of that Diocess among the Clergy For in those days the Temporal Lords did often sit in Synod with the Bishops and the Bishops in like manner in the Courts of the Temporalty and were therein as by and by shall appear not only necessary but principal Judges themselves Ll. Canuti Regis par 2. ca. 17. The Shyre-gemot for so the Saxons called this assembly of the whole Shire shall be kept twice a year and oftner if need require wherein the Bishop and the Alderman of the Shire shall be present the one to teach the Laws of God the other the Law of the Land This great assembly was by the Laws of Ethelstan ca. 20. to be proclaimed or published a sennight before hand and every man tyed thereupon to be present at it and in the mean time either to satisfie the wrong he had done to another or to undergo the penalty which if he refused all he had was presently to be seâ—sed and himself put to find sureties for his appearance to answer But because this notable assembly otherwise called by the Authors of that time Mallum and Placitum generale was the supreme Court of County-Justice wherein all things of what sort soever were to be determined we will take a little scope in description thereof Shewing first more particularly who were bound to give their attendance here Then what lay in cognizance of this Court And thirdly in what steps they proceeded to the determination of the same All which because they cannot be more authentically delivered then out of the Law it self I will even from thence report it as it standeth in Ll. H. I. ca. 8. Sicut antiqua fuerat institutione formatum c. As it was devised by an ancient institution and confirmed by true report that the general pleas of the Counties ought to be assembled in every Province of England at certain places and before certain Judges at certain times thereto appointed and
that none should be put to further trouble unless the King 's own necessity or the common good of the Kingdom required it Therefore the Bishops Earls Sheriffs Heretoches or Marshals of Armies Trithingreves Leidgreves Lieutenants Hundredors Aldermen Magistrates Reves Barons Vavasors Thungreves and other Lords of land must be all diligently attending at these Assemblies lest that the lewdness of offenders the misdemeanor Gravionum i. of Sheriffs and the ordinary corruption of Judges escaping unpunished make a miserable spoil of the people First let the laws of true Christianity which we call the Ecclesiastical be fully executed with due satisfaction then let the pleas concerning the King be dealt with and lastly those between party and party and whomsoever the Church-Synod shall find at variance let them either make an accord between them in love or sequester them by their sentence of excommunication c. Whereby it appeareth that Ecclesiastical causes were at that time under the cognizance of this Court But I take them to be such Ecclesiastical causes as were grounded upon the Ecclesiastical laws made by the Kings themselves for the government of the Church for many such there were almost in every King's time and not for matters rising out of the Roman Canons which haply were determinable only before the Bishop and his Ministers To proceed Before they entered into any causes as it is commanded in the Laws of Canutus which we mentioned par 2. ca. 17. the Bishop to use the term of our time which from hence taketh the original gave a solemn charge unto the people touching Ecclesiastical matters opening unto them the rights and reverence of the Church and their duty therein towards God and the King according to the word of God and Divinity Then the Alderman in like manner related unto them the Laws of the land and their duty towards God the King and Common-wealth according to the rule and tenure thereof Of all which because I find a notable precedent in a Synodal Edict made by Carolus Calvus Emperour and King of France in Concil Carissiaco An. Dom. 856. I will here add it not to shew that our Saxons took their form of government from the French but that both the French and they as brethren descending from one parent the German kept the rights and laws of their natural Country Episcopi quinque in suis parochiis Missi in illorum Missaticis Comitesque in eorum Comitatibus pariter placita teneant quo omnes Reipub. Ministri Vassi Dominici omnesque quicunque vel quorumcunque homines in iisdem parochiis Comitatibus sine ulla personaram acceptione excusatione aut dilatione conveniant c. That is The Bishops in their parishes or Diocesses and the Justices Itinerant or Aldermen in their Circuits and the Earls in their Counties shall hold their pleas together whereunto all Ministers and Officers of the Common-wealth all the King's Barons and all other whatsoever they be or whose Tenants soever they be within the same parishes or Counties without any respect of persons excuse or delay shall assemble together And the Bishop of that parish or Diocess having briefly noted sentences touching the matter out of the Evangelists Apostles and Prophets shall read them to the people and also the decrees Apostolick and Canons of the Church and in open and plain terms shall instruct them all what manner and how great a sin it is to violate or spoil the Church and what and how great pennance and what merciless and severe punishment it requireth with other accustomed necessary and profitable admonishments The Aldermen also or Justices shall note down such sentences of law as they call to mind and shall publish unto them the Constitutions of us and our predecessors Kings and Emperours gathered together touching this matter And the Bishops by the Authority of God and the Apostles and the Aldermen or Justices and Earls under the penalty of the King's Laws shall with all the care they can prohibit every man of the Kingdom from making any prey or spoil of the Church c. OF PARLIAMENTS WHEN States are departed from their original Constitution and that original by tract of time worn out of memory the succeeding Ages viewing what is past by the present conceive the former to have been like to that they live in and framing thereupon erroneous propositions do likewise make thereon erroneous inferences and Conclusions I would not pry too boldly into this ark of secrets but having seen more Parliaments miscarry yea suffer shipwrack within these sixteen years past than in many hundred heretofore I desire for my understanding's sake to take a view of the beginning and nature of Parliaments not meddling with them of our time which may displease both Court and Country but with those of old which now are like the siege of Troy matters only of story and discourse Because none shall go beyond me in this argument I will begin with the foundation of Kingdoms which of necessity must be more ancient than Parliaments for that a Parliament is the grand Council of the Kingdom assembled at the commandment of the King for advice in matters of State Our first labour is then to see what this Grand-Council was originally It is confest on all hands that the King is universal Lord of his whole Territories and that no man possesseth any part thereof but deriv'd from him either mediately or immediately This derivation thus proceeded The King in the beginning divided his whole territory into two parts one to be manured by his own Tenants and Husbandmen then call'd Socmen For the Kings of England us'd in those days to stock their grounds themselves like the Kings of Israel and by the profits thereof especially to maintain their Hospitality their Court and Estate having in every Mannour Officers and Servants for that purpose This part was Sacrum Patrimonium the inseperable inheritance of the Crown call'd in Doomsday Terra Regis and in Law the Ancient Demaine And because it belong'd to the husbandry of the King all that manur'd or held any part of this land were said to be Tenants in Socage and might not be drawn into the wars of which nature as touching their Tenure they continue at this day The other part of his whole territory he portioned out to Military men which tho' the other was the more profitable yet this was always held for the more honourable and therefore so divided this among his Nobles and chief servants and followers for supportation in his wars and Royal Estate To some in greater measure to others in less according to their merit and qualities Provinces to Dukes Counties to Earls Castles and Signiories unto Barons rendring unto him not ex pacto vel condicto for that was but cautela superabundans but of common right and by the Law of Nations for so I may term the Feodal-law then to be in our Western Orb all Feodal duties and services due from the Donees and their
pag. 89. concerning this Treatise I shall here briefly exhibit some particulars which I acknowledge to have gather'd from an ample and most judicious discourse on this Subject written by the Learned Sir Henry Spelman Knight in 1614. very well worthy to be made publick THE Occasion of this Discourse ABout fourty two years since divers Gentlemen in London studious of Antiquities fram'd themselves into a College or Society of Antiquaries appointing to meet every Friday weekly in the Term at a place agreed of and for Learning sake to confer upon some questions in that Faculty and to sup together The place after a meeting or two became certain at Darby-house where the Herald's-Office is kept and two Questions were propounded at every meeting to be handled at the next that followed so that every man had a sennight's respite to advise upon them and then to deliver his opinion That which seem'd most material was by one of the company chosen for the purpose to be enter'd in a book that so it might remain unto posterity The Society increased daily many persons of great worth as well noble as other learned joyning themselves unto it Thus it continu'd divers years but as all good uses commonly decline so many of the chief Supporters hereof either dying or withdrawing themselves from London into the Country this among the rest grew for twenty years to be discontinu'd But it then came again into the mind of divers principal Gentlemen to revive it and for that purpose upon the day of in the year 1614. there met at the same place Sir James Ley Knight then Attorney of the Court of Wards since Earl of Marleborough and Lord Treasurer of England Sir Robert Cotton Knight and Baronett Sir John Davies his Majestie 's Attorney for Ireland Sir Richard St. George Knt. then Norrey Mr. Hackwell the Queen's Solicitor Mr. Camden then Clarentieux my self and some others Of these the Lord Treasurer Sir Robert Cotton Mr. Camden and my self had been of the original Foundation and to my knowledge were all then living of that sort saving Sir John Doderidge Knight Justice of the King 's Bench. We held it sufficient for that time to revive the meeting and only conceiv'd some rules of Government and limitation to be observ'd amongst us whereof this was one That for avoid offence we should neither meddle with matters of State nor of Religion And agreeing of two Questions for the next meeting we chose Mr. Hackwell to be our Register and the Convocator of our Assemblies for the present and supping together so departed One of the Questions was touching the Original of the Terms about which as being obscure and generally mistaken I bestow'd some extraordinary pains that coming short of others in understanding I might equal them if I could in diligence But before our next meeting we had notice that his Majesty took a little mislike of our Society not being enform'd that we had resolv'd to decline all matters of State Yet hereupon we forbare to meet again and so all our labours lost But mine lying by me and having been often desir'd of me by some of my Friends I thought good upon a review and augmentation to let it creep abroad in the form you see it wishing it might be rectify'd by some better judgement SECT I. Of the Terms in general AS our Law books have nothing to my knowledge touching the original of the Terms so were it much better if our Chronicles had as little For tho' it be little they have in that kind yet is that little very untrue affirming that William the Conquerour did first institute them It is not worth the examining who was Author of the errour but it seemeth Polydore Virgil an Alien in our Common-wealth and not well endenized in our Antiquities spread it first in Print I purpose not to take it upon any man's word but searching for the fountain will if I can deduce them from thence beginning with their definition The Terms be certain portions of the year in which only the King's Justices hold plea in the high Temporal Courts of causes belonging to their Jurisdiction in the places thereto assigned according to the ancient Rites and Customs of the Kingdom The definition divides it self and offers these parts to be consider'd 1. The Names they bear 2. The Original they come from 3. The Time they continue 4. The Persons they are held by 5. The Causes they deal with 6. The Place they are kept in 7. The Rites they are performed with The parts minister matter for a Book at large but my purpose upon the occasion impos'd being to deal only with the Institution of the Terms I will travel no farther than the three first stages of my division that is touching their Name their Original and their Time of continuance SECT II. Of the Names of the Terms THe word Terminus is of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth the Bound End or Limit of a thing here particularly of the time for Law matters In the Civil Law it also signifieth a day set to the Defendant and in that sense doth Bracton Glanvil and others sometimes use it Mat. Paris calleth the Sheriff's Turn Terminum Vicecomitis and in the addition to the MSS. Laws of King Inas Terminus is applied to the Hundred-Court as also in a Charter of Hen. I. prescribing the time of holding the Court. And we ordinarily use it for any set portion of Time as of Life Years Lease c. The space between the Terms is named Vacation à Vacando as being leasure from Law business by Latinists Justitium à jure stando because the Law is now at a stop or stand The Civilians and Canonists call Term-time Dies Juridicos Law-days the Vacation Dies Feriales days of leasure or intermission Festival-days as being indeed sequester'd from troublesome affairs of humane business and devoted properly to the service of God and his Church According to this our Saxon and Norman Ancestors divided the year also between God and the King calling those days and parts that were assigned to God Dies pacis Ecclesiae the residue alloted to the King Dies or tempus pacis Regis Divisum Imperium cum Jove Caesar habet Other names I find none anciently among us nor the word Terminus to be frequent till the age of Henry II. wherein Gervasius Tilburiensis and Ranulphus de Glanvilla if those books be theirs do continually use it for Dies pacis Regis The ancient Romans in like manner divided their year between their Gods and their Common-wealth naming their Law-days or Term-time Fastos because their Praetor or Judge might then Fari that is speak freely their Vacation or days of Intermission as appointed to the service of their Gods they called Nefastos for that the Praetor might ne fari not speak in them judicially Ovid Fastorum lib. 1. thus expresseth it Ille Nefastus erat per quem tria verba silentur Fastus erat per
beginning of this Term viz. Octabis Sancti Michaelis à die Sancti Michaelis in quindecim dies and consequently making the beginning of it fall a fortnight later than before Wherefore the first day in this Term will always be the twenty third day of October unless it happen to be Sunday for then it must be defer'd till the day following upon which account we find it accordingly placed on the twenty fourth for the year 1681. This is all the alteration that Statute mentions and therefore for the end of Michaelmass-Term I refer the Reader to what our Author has said already in the 15 th Chapter It may not be amiss in pursuit of our Author's method to set down the motives of making this abbreviation as we find them reckon'd up in the Preamble to that Statute There we find that the old beginning of Michaelmass-term was generally found to be very inconvenient to his Majesty's subjects both Nobles and others First For the keeping of Quarter-sessions next after the feast of St. Michael the Archangel Secondly For keeping their Leets Law-days and Court-Barons Thirdly For the sowing of land with Winter-corn the same being the chief time of all the year for doing it Fourthly For the disposing and setting in order of all their Winter husbandry and business Fifthly For the receiving aud paying of Rents Sixthly Because in many parts of this Kingdom especially the most Northern Harvest is seldom or never Inned till three weeks after the said Feast All which affairs they could before by no means attend in regard of the necessity of their coming to the said Term so speedily after the feast of St. Michael the Archangel to appear upon Juries and to follow their Causes and Suits in the Law SECT V. Other Considerations concerning Term-time HAving thus laid out the frame of the Terms both according to the Ancient and Modern Constitutions it remaineth that we speak something of other points properly incident to this part of our division touching Term-time viz. 1. Why the Courts sit not in the Afternoons 2. Why not upon some whole days as on Grand-days double Feasts and other exempted days and the reason of them 3. Why some Law business may be done on days exempted 4. Why the end of Michaelmass-Term is sometimes holden in Advent and of Hilary-Term in Septuagesima Sexagesima and Quinquagesima 5. Why the Assizes are holden in Lent and at times generally prohibited by the Church 6. Of Returns 7. Of the Quarta dies post 8. Why I have cited so much Canon Civil Feodal and foreign Laws in this discourse with an excursion into the original of our Laws CHAP. I. Why the High Courts sit not in the Afternoons IT is now to be considered why the high Courts of Justice sit not in the Afternoons For it is said in Exodus that Moses judged the Israelites from Morning to Evening And the Romans used the Afternoon as well as the Forenoon yea many times the Afternoon and not the Forenoon as upon the days called Endotercismi or Intercisi whereof the Forenoon was Nefastus or Vacation and the Afternoon Fastus or Law-day as we shewed in the beginning And the Civilians following that Law do so continue them amongst us in their Term at this day But our Ancestours and other the Northern Nations being more prone to distemper and excess of diet as the Canon Law noteth of them used the Forenoon only lest repletion should bring upon them drowsiness and oppression of spirit according to that of St. Jerome Pinguis Venter non gignit mentem tenuem To confess the truth our Saxons as appeareth by Huntington were immeasurably given to drunkenness And it is said in Ecclesiastes Vae Terrae cujus Principes mane comedunt Therefore to avoid the inconvenience depending hereon the Council of Nice ordained that Judices non nisi jejuni leges judicia decernant And in the Council of Salegunstad it was after decreed Vt lectio Nicaeni Concilii recitetur which being done in the words aforesaid the same was likewise there confirm'd According to this in the Laws of Carolus Magnus the Emperour it is ordained Logobard lib. 2. Vt Judices jejuni causas audiant discernant and again in the Capitulars Caroli Lodovici ne placitum Comes habeat nisi jejunus Where the word Comes according to the phrase of that time is used for Judex as elsewhere we have at large declared To the same effect is the Capitular ad Legem Salicam and out of these and such other Constitutions ariseth the rule of the Canon Law that Quae à prandio fiunt Consultationes inter decreta non referuntur Yet I find that Causes might be heard and judged in the Afternoon for in Capitulars lib. 2. Can. 33. and again lib. 4. Can. 16. it is said Causae viduarum pupillorum pauperum audiantur definiantur ante Meridiem Regis vero Potentium post Meridiem Which tho' it seem contradictory to the Constitutions aforesaid yet I conceive them to be thus reconcilable that the Judges sitting then but seldom continued their Courts both Forenoon and Afternoon from Morning till Evening without dinner or intermission as at this day they may and often do upon great Causes tho' being risen and dining they might not meet again yet might they not sit by night or use candle light Quod de nocte non est honestum judicium exercere And from these ancient Rites of the Church and Empire is our Law derived which prohibiteth our Jurours being Judices de facto to have meat drink fire or candle-light till they be agreed of their verdict It may be here demanded how it cometh to pass that our Judges after dinner do take Assizes and Nisi prius in the Guild-hall of London and in their Circuits I have yet no other answer but that ancient Institutions are discontinued often by some custom grating in upon them and changed often by some later Constitution of which kind the instances aforesaid seem to be For Assizes were ordained many ages after by Henry II. as appeareth by the Charter of Beverly Glanvil and Radulphus Niger and Nisi prius by Edward I. in the Statutes of Westminster 2. tho' I see not but in taking of them the ancient course might have been continued if haste would suffer it CHAP. II. Why they sit not at all some days THough there be many days in the Terms which by ancient Constitutions before recited are exempted from Law-business as those of the Apostles c. and that the Statute of Edw. VI. appointed many of them to be kept holy-days as dedicated not unto Saints but unto divine worship which we also at this day retain as holy-days Yet do not the high Courts forbear sitting in any of them saving on the feast of the Purification the Ascension St. John Baptist All-Saints and the day after tho' not a feast called All-souls When
seqq a name not well agreeing with Feodal servitudes But it seemeth by divers Abby-books that some Estates for life which we call Frank tenements were also put in writing especially among the latter Saxons Yet were not these accounted bocland for they were laden commonly with many feodal and ministerial services whereas bocland as I said was free from all services not holden of any Lord the very same that Allodium descendable according to the common course of Nations and of Nature unto all the sons and therefore called Gavelkind not restrain'd to the eldest son as feodal lands were not at first but devisable also by will and thereupon called Terrae testamentales as the Thane that possessed them was said to be testamento dignus Folcland was terra vulgi the land of the vulgar people who had no estate therein but held the same under such rents and services as were accustomed or agreed of at the will only of their Lord the Thane and it was therefore not put in writing but accounted proedium rusticum ignobile But both the greater and the lesser Thanes which possessed Bocland or hereditary lands divided them according to the proportion of their estates into two sorts i. e. into Inland and Outland The Inland was that which lay next or most convenient for the Lord's Mansion-house as within the view thereof and therefore they kept that part in their own hands for supportation of their family and Hospitality The Normans afterwards called these lands terras dominicales the Demains or Lord's lands The Germans terras indominicatas lands in the Lord 's own use The Feudists terras curtiles or intra curtem lands appropriate to the Court or House of the Lord. Outland was that which lay beyond or out from among the Inlands or Demeans and was not granted out to any Tenant hereditarily but like our Copy-holds of ancient time having their original from thence meerly at the pleasure of the Lord. Cujacius speaking of this kind of land calleth it proprium feudum that is to say such land as was properly assigned for Feodal lands Proprium feudum est saith he extra curtem consistit in praediis As if he should say That land properly is a Feud or Feudal land which lyeth without the Demains of the Mannour and consisteth in land not in houses We now call this Outland the Tenants land or the Tenancy and so it is translated out of Biritrick's will in the Saxon tongue This Outland they subdivided into two parts whereof one part they disposed among such as attended on their persons either in war or peace called Theodens or lesser Thanes after the manner of Knights Fees but much differing from them of our time as by that which followeth shall appear The other part they allotted to their Husbandmen whom they termed Ceorls that is Carles or Churles And of them we shall speak farther by and by when we consider all the degrees aforesaid beginning with the Earl CHAP. VI. Of Earls among our Saxons AN Earl in the signification of Comes was not originally a degree of dignity as it is with us at this day but of Office and Judicature in some City or portion of the Country circumscribed anciently with the bounds of the Bishoprick of that Diocess for that the Bishop and the Earl then sat together in one Court and heard jointly the causes of Church and Common-wealth as they yet do in Parliament But in process of time the Earl grew to have the government commonly of the chief City and Castle of his Territory and withal a third part of the King's profits arising by the Courts of Justice Fines Forfeitures Escheats c. annexed to the office of his Earldom Yet all this not otherwise than at the pleasure of the King which commonly was upon good behaviour and but during life at most This is apparent by the severe injunction of King Alfred the Great labouring to plant literature and knowledge amongst the ignorant Earls and Sheriffs of his Kingdom imposed upon them That they should forthwith in all diligence apply themselves to the study of wisdom and knowledge or else forgoe their Office Herewith saith Asser Menevensis who lived at that time and was great with the King the Earls and Sheriffs were so affrighted that they rather choose insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere that is To go at last to the School of knowledge how painful soever rather than to lose their offices of Authority and degrees of Honour which Alfred there also declareth that they had not by Inheritance but by God's gift and his Dei saith he dono meo sapientium ministeria gradus usurpatis This is manifest by divers other authorities and examples in my Glossary in verbo Comes as the Reader if he please may there see Some conjecture that Deira and Bernicia in Northumberland and Mercia in the midst of England were Feudal and hereditary Earldoms in the Saxon times Those of Northumberland presently after their first arrival under Hengistus about the year 447. that of Mercia by the gift of Alfred the Great about the year 900. to Ethelredus a man of power in way of marriage with his daughter Ethelfleda but for ought I see it is neither proved by the succession of those Earldoms nor our Authors of Antiquity For my own part I think it not strange that there was not at the entry of the Saxons a Feudal and Hereditary Earldom in all Christendom As for this our Britain the misery of it then was such as it rather seemed an Anarchy and Chaos than in any form of Government Little better even in Alfred's days through the fury of the Danes tho' he at last subdued them for his time How soever three or four examples in five hundred years before the Conquest differing from the common use is no inference to overthrow it especially in times unsettled and tumultuous The noble Earldom of Arundel in our days of peace differeth in constitution from all the other Earldoms of England yet that impeacheth not their common manner of succession Loyseau and Pasquier learned Frenchmen speaking of the Dukes and Earls of France which England ordinarily followeth and sometimes too near the heels justifie at large what I have said shewing the Dukes and Earls in the Roman Empire from whose example others every where were derived were like the Proconsuls and Presidents of Provinces simple Officers who for their entertainment had nothing else but certain rights and customs raised from the people which we in England called Tertium denarium And that the Dukes and Earls of France were Officers in like manner but had the Seigneurie of their territory annexed to their Office so that they were Officers and Vassals both at once that is to say Officers by way of Judicature and Vassals whom we call Feodal tenants for their Seignories of Dukedoms and
heirs upon every gift grant and alienation tho' no word were spoken of them It appeareth by the Feodal-law from whence all that part of our Common-law that concerneth Tee and Tenures hath original and which our Common-law also affirmeth that there was always due ..... Those that thus receiv'd their Territories from the King were said to hold them in Capite for that the King is Caput Regni and were thereupon call'd Capitanei Regis and Capitanei Regni otherwise Barones Regis the King's men Tenants or Vassals who having all the land divided amongst them saving that which the King reserv'd to himself as Sacrum Patrimonium were also call'd Pares Regni and were always upon commandment about the person of the King to defend him and his Territories in war and to counsel and advise him in peace either Judicially in matters of Law brought before the King in his Palace which in those days was the only place of Royal justice or Politically in the great affairs of the Kingdom Hereupon they were not only call'd Praetorianum consilium as belonging to the King's Palace but Magnum concilium Regis and Magnum concilium Regni For that in those times it belonged only to them to consult with the King on State-matters and matters of the Kingdom insomuch as no other in the Kingdom possessed any thing but under them And therefore as in Despotical Government the agreement or disagreement of the Master of the Family concluded the menial and the whole Family so the agreement and disagreement of the chief Lord or him that held in Capite concluded all that depended on him or claimed under him in any matter touching his Fee or Tenure To this purpose seemeth that in the Laws of Edward the Confessor ratified by the Conqueror Debet etiam Rex omnia ritè facere in regno per judicium procâ—rum regni These great Lords according to this Archetype of Government set them by the King divided their lands in like manner among their Tenants and followers First they assign'd a portion ad victum vestitum suum which they committed over to their Socmen and Husbandmen to furnish them with Corn Victuals and Provision for Hospitality and briefly all things necessary to their domestical and civil part of life The residue they divided into as many shares or portions as might well maintain so many Military men whom then they call'd their Knights and thereupon the shares themselves Knights-fees i. e. stipendia militaria And these Fees they granted over to each of their principal followers furnishing them with so many Knights for the wars These Grantees that receiv'd their Estates from the Barons or Capitanei and not from the King were called Valvasores a degree above Knights and were unto their Lords the Capitanei or Barones Regis as they the Capitanei were unto the King and did in like manner subdivide their lands among their Socmen and Military followers who in old time were call'd Valvasini whom I take to be the same at this day that are the Lords of every Mannour if not those themselves that we call Knights as owners of a Knights-Fee For in this the Feodal-law it self is doubtful and various as of a thing lost by Antiquity or made uncertain by the differing manners of several Nations Insomuch that Valvasores and Valvasini grew to be confounded and both of them at last to be out of use and no other Military Tenures to be known amongst us than tenere pâ—r Baroniam and tenere per feodum militare But in a Charter of Henr. I. it is said Si exurgat Placitum de divisione Terrarum si interest Barones meos Dominicos tractetur in Curia mea si inter Vavassores duorum Dominorum tractetur in Comitatu c. Where the Valvasores were also and the Barons themselves Suitors and Attendants Bracton mentioneth them in Henry III's time to be Viri magnae dignitatis Nor was their memory clean gone in Richard II's days as appeareth by Chaucer Yet do I not find in any of our ancient Laws or Monuments that they stood in any classick kind of Tenure other than that we may account the Baron Vavasor and Knight to be as our Lawyers at this day term them the Chief Lord Mesne and Tenant But herein the Feodal-law of our Country differ'd from that of Milan and other parts For there the Valvasini could invest which we call infeosse none under them in fee that is to hold of them by Knights-service And with us every Tenant Par aval might in infinitum till the Statute of Quia Emptores Terrarum enfeoffe another by Knight-service and to do all the services unto him that he did to his Mesne Lord. So that by this means a line of Knights-services might be created of a dozen yea twenty Mean-Lords and Tenants wherein every of them might have his prochine Tenant obliged unto him in the duties and services that his Lord Paramont which held of the King was to do and yeild unto the King himself for the same lands viz. Honour Ward Sustenance   Safety Marriage  give keep  Attendance Relief Counsel to Aid Defence of his Person Tribute Fidelity  Defence of his Patrimony     All which in ancient time while the Feodal-law flourished were well understood to be comprehended under the profession of Homage and the oath of Fidelity which every Feodal Tenant or as others call him Vassal usually did unto his Lord. Honour promis'd by the Tenant upon his knees in doing Homage which tho' it be the greatest and most submiss service that a Freeman can do unto his Lord yet the profession of it to the meanest subject is as ample and submiss yea in the very same words that to the King himself Attendance to follow and attend him in the war at his own charge and in peace with suite of Court Therefore Tacitus calleth them Comites Defence of his person for if he forsook his Lord being in danger it was forfeiture of life land and all he had Defence of his Signiory that nothing of his lands rents or services were withholden or withdrawn Profit by Ward Marriage and Relief as they fell Tribute by way of Aid to make his eldest son a Knight to marry his eldest daughter ransom himself being taken prisoner yea in some places to be an hostage for his Lord. Sustenance that being faln into poverty according to that in the Canon law spoken of a Patron Alatur egenus Counsel and Advice in which respect the Tenant was bound ordinarily once in every three weeks to come to his Lord's Court and there as a Judge with other of his Peers to censure the causes of his Signiory and to direct his Lord as the cause occurrent did require and always to keep his counsel This to the meanest Lord was in the nature of the King 's Great Court or Counsel call'd afterward a Parlyment Fidelity for
quem lege licebat agi When that the three Judicial words The Praetor might not use It was Nefastus Fastus then When each man freely sues The three Judicial words were Do Dico Abdico by the first he gave licence to cyte partem ream the Defendant by the second he pronounced Sentence and by the third he granted Execution This à latere The word Term hath also other considerations sometimes it is used for the whole space from the first Return to the end of the Term including the day of Return Essoigne Exception c. Sometimes and most commonly excluding these from the first sitting of the Judges in full Court which is the first day for Appearance and this is called full Term by the Statute of 32. of Hen. VIII cap. 21. as tho' the part precedent were but Semi-Term Puisne-Term or Introitus Termini The words of the Statute are these That Trinity-Term shall begin the Munday next after Trinity-Sunday for keeping the Essoignes Profers Returns and other ceremonies heretofore used c. And that the full Term of the said Trinity-Term shall yearly for over begin the Friday next after Corpus Christi day Here the particulars I speak of are apparently set forth and the Term declared to begin at the first Return By which reason it falleth out that the eight days wherein the Court of the Exchequer openeth at the beginning of Michaelmass-Term Hilary-Term and Easter are to be accounted as parts of those Terms for that they fall within the first Return the Exchequer having one Return in every of them more than the Courts of Common-Law have viz. Crastino Sancti Michaelis Octabis Hilarii and Octabis or Clausum Paschae And it seemeth that Trinity-Term had Crastino Trinitatis in the self same manner before this Statute alter'd it SECT III. Of the Original of Terms or Law-days LAw-days or Dies Juridici which we call Terms are upon the matter as ancient as offences and controversies God himself held a kind of Term in Paradice when judicially he tryed and condemned Adam Eve and the Serpent In all Nations as soon as Government was settled some time was appointed for punishing offences redressing of wrongs and determining of controversies and this time to every of those Nations was their Term. The Original therefore of the Terms or Law-days and the time appointed to them are like the Signs of Oblique Ascention in Astronomy that rise together I shall not need to speak any more particularly of this point but shew it as it farther offereth it self in our passage when we treat of the time appointed to Term or Law-days which is the next and longest part of this our Discourse SECT IV. Of the Times assigned to Law-matters called the Terms WE are now come to the great Arm of our Division which spreads it self into many branches in handling whereof we shall fall either necessarily or accidentally upon these points viz. 1. Of Law-days among the Ancients Jews Greeks c. 2. Of those among the Romans using choice days 3. Of those among the Primitive Christians using all alike 4. How Sunday came to be exempted 5. How other Festivals and other Vacation days 6. That our Terms took their Original from the Canon-Law 7. The Constitutions of our Saxon Kings Edward the Elder Guthrun the Dane and the Synod of Eanham under Ethelred touching this matter 8. The Constitutions of Canutus more particular 9. The Constitutions of Edward the Confessour more material 10. The Constitution of William the Conquerour and of Law-days in Normandy 11. What done by William Rufus Henry I. Stephen and Henry II. 12. Of Hiliary-Term according to those ancient Laws 13. Of Easter-Term in like manner 14. Of Trinity-Term and the long Vacation following how it differeth from the other Vacations 15. Of Michaelmass-Term 16. Of the later Constitutions of the Terms by the Statutes of the 51. of Hen. III. and 36. of Edw. III. 17. How Trinity-Term was alter'd by the 32. of Hen. VIII CHAP. I. Of Law-days among the Ancients THe time allotted to Law-business seemeth to have been that from the beginning amongst all or most Nations which was not particularly dedicated as we said before to the service of God or some rites of Religion for none that I read of ordain'd them to be us'd confusedly Therefore whilst Moses was yet under the Law of Nature and before the positive Law was given he sacrificed and kept the holy Festival with Jethro his father-in-law on the one day but judged not the people till the day after Some particular instance I know may be given to the contrary as I after shall mention but this seemeth then the general use The Greeks who as Josephus in his book against Appion witnesseth had much of their ancient Rites from the Hebrews held two of their Prytanean-days in every Month for civil matters and the third onely for their Sacra Aeschines in his Oration against Câ—esiphon chargeth Demosthenes with writing a Decree in the Senate that the Prytanean Magistrates might hold an Assembly upon the eighth day of the approaching Month of Elaphebolion when the holy Rites of Aesculapius were to be solemnized The Romans likewise whether by instinct of nature or precedent meddled not with Law Causes during the times appointed to the worship of their Gods as appeareth by their Primitive Law of the twelve Tables Feriis jurgia amovento and by the places before cited as also this of the same Author Post semel exta Deo data sunt licet omnia fari Verbaque honoratus libera Praetor habet When Sacrifices and holy Rites were done The Reverend Praetor then his Courts begun And Martial to the same purpose Sacra damus â—estis â—ora judicialia ponunt To be short it was so common a thing in those days of old to exempt the times of exercise of Religion from all worldly business that the Barbarous Nations even our Angli whilst they were yet in Germany the Suevians themselves and others of those Northern parts would in no wise violate or interrupt it Tacitus says of them that during this time of holy Rites Non bellum ineunt non arma sumunt clausum omne ferrum pax quies tunâ— tantum nota tunâ— tantum amata Of our German Ancestors we shall speak more anon our old British are little to the purpose they judged all Controversies by their Priests the Druides and to that end met but once a year as Caesar sheweth us by those of the Gauls The later Britains whom we now call the Wesh in the Saxons time about the year 900. had two Terms only for causes of Inheritance the one beginning at the ninth of November till the ninth of February the other from the ninth of May till the ninth of August The rest of the year was counted time of Vacation for sowing in the Spring and Reaping in the Harvest CHAP. II. Of Law-days amongst the Romans using choice days I Will therefore seek
the Original of our Terms only from the Romans as all other Nations that have been subject to their Civil and Ecclesiastical Monarchy do and must The ancient Romans whilst they were yet Heathens did not as we at this day use certain continued portions of the year for a legal decision of Controversies but out of a superstitious conceit that some days were ominous and more unlucky than others according to that of the Aegyptians they made one day to be Fastus or Term-day and another as an Aegyptian day to be Vacation or Nefastus Seldom two Fasti or Law-days together yea they sometimes divided one and the same day in this manner Qui modo Fastus erat mane Nefastus erat The afternoon was Term the morning Holy-day Nor were all their Fasti applyed to Judicature but some of them to other meetings and consultations of the Common-wealth so that being divided into three sorts which they called Fastos proprie Fastos Endotercisos Fastos Comitiales containing together 184. days through all the Months of the year there remained not properly to the Praetor as Judicial or Triverbial Days above 28. Whereas we have in our Terms above 96. days in Court besides the Sundays and exempted Festivals falling in the Terms which are twenty or there about Yet Sir Thomas Smith counts it marvellous that three Tribunals in one City in less than the third part of the year should rectifie the wrongs of so large and populous a Nation as this of England But let us return where we left off CHAP. III. Of Law-days among the first Christians using all times alike TO beat down the Roman superstition touching observation of days against which St. Augustine and others wrote vehemently the Christians at first used all days alike for hearing of Causes not sparing as it seemeth the Sunday it self thereby falling into another extremity Yet had they some precedent for it from Moses and the Jews For Philo Judaeus in the life of Moses reporteth that the cause of him that gather'd sticks on the Sabbath-day was by a solemn Council of the Princes Priests and the whole Multitude examined and consulted of on the Sabbath-day And the Talmudists who were best acquainted with the Jewish Customs as also Galatinus the Hebrew do report that their Judges in the Council called Sanhedrim sate on the week-day from morning to night in the Gates of the City and on the Sabbath-day and solemn Festivals in the walls So the whole year then seemed a continual Term no day exempt And they that seek the Original of our modern Laws among them do but spend their time in vain unless for some things impos'd on them by the Roman Emperours when they became Subjects How this stood with the Levitical Law or rather the Moral I leave to others CHAP. IV. How Sunday came to be exempted BUt for reformation of the abuse among Christians in perverting the Lord's day to the hearing of clamorous Litigants it was ordained in the year of our Redemption 517. by the Fathers assembled in Concilio Taraconensi cap. 4. after that in Concilio Spalensi cap. 2. and by Adrian Bishop of Rome in the Decretal Caus 15. quaest 4. That Nullus Episcopus vel infra positus Die Dominico causas judicare al. ventilare praesumat No Bishop or inferiour person presume to judge or try causes on the Lord's day For it appeareth by Epiphanius that in his time as also many hundred years after Bishops and Clergy-men did hear and determine causes lest Christians against the rule of the Apostle should go to Law under Heathens and Infidels And it is said in the 1 st Epistle of Clement if it were truly his that S. Peter himself did so appoint it Concil Tom. 1. p. 33. This Canon of the Church for exempting Sunday was by Theodosius fortified with an Imperial Constitution whilst we Britains were yet under the Roman Government Solis die quem dominicum recte dixere majores omnium omnino litium negotiorum quiescat intentio Thus was Sunday redeemed from being a part of the Term but all other days by express words of the Canon were left to be Dies Juridici whether they were mean or great Festivals For it thus followeth in the same place of the Decretals Caeteris vero diebus convenientibus personis illa quae justa sunt habent licentiam judicandi excepto criminali or as another Edition reads it exceptis criminalibus negotiis The whole Canon is verbatim also decreed in the Capitulars of the Emperours Carolus Ludovicus CHAP. V. How other Festival and Vacation days were exempted NOw let us see how other Festivals and parts of the year were taken from the Courts of Justice The first Canon of note that I meet with to this purpose is that in Concilio Triburiensi ca. 26. in or about the year 895. Nullus Comes nullusque omnino secularis diebus Dominicis vel Sanctorum in Festis seu Quadragesimae aut jejuniorum placitum habere sed nec populum illo praesumat cohercere After this the Council of Meldis Cap. 77. took Easter-week commonly called the Octaves from Law business Pascae hebdomade feriandum forensia negotia prohibentur By this example came the Octaves of Pentecost St. Michael the Epiphany c. to be exempted and principal Feasts to be honoured with Octaves The next memorable Council to that of Tribury was the Council of Erpford in Germany in the year 932. which tho' it were then but Provincial yet being after taken by Gratian into the body of the Canon Law it became General and was imposed upon the whole Church I will recite it at large as it standeth in Binius for I take it to be one of the foundation-stones to our Terms Placita secularia Dominicis vel aliis Festis diebus seu etiam in quibus legitima Jejunia celebrantur secundum Canonicam institutionem minime fieri volumus Insuper quoque Gloriosissimus Rex Francorum Henricus ad augmentum Christianae Religionis or as Gratian hath it Sancta Synodus decrevit ut nulla judiciaria potestas licentiam habeat Christianos sua authoritate ad placitum bannire septem diebus ante Natalem Domini à Quinquagesima usque ad Octavas Paschae septem diebus ante Nativitatem Sancti Johannis Baptistae quatenus adeundi Ecclesiam orationibusque vacandi liberius habeatur facultas But the Council of St. Medard extant first in Burchard and then in Gratian enlargeth these Vacations in this Manner Decrevit Sancta Synodus ut a Quadragesima usque ad Octavam Paschae ab Adventu Domini usque ad Octavam Epiphaniae nec-non in Jejuniis quatuor temporum in Litaniis Majoribus in diebus Dominicis in diebus Rogationum nisi de concordia pacificatione nullus supra sacra Evangelia jurare praesumat The word jurare here implyeth that they should not try law-Law-causes or hold plea
tho' it rubb upon the apple of their eye What I have said appeareth not only by Bede Lib. 1. cap. 15. but by their own Historians Bede having spoken of their most miserable extirpation throughout the whole Land saith Itaque nonnulli de miserandis reliquiis ..... And the chiefest monument of British Antiquity written in the British tongue and brought about 500. years since out of Britannia Armorica by Walter Arch-deacon of Oxenford and in those days translated into Latin by Monumethensis doth report that in the days of Cadualladur the land was so afflicted with discord sloth pestilence and famine that Miserae Britannorum reliquiae patriam factis agminibus diffugientes transmarinas petebant regiones cum ululatu magno sub velorum funibus hoc modo cantantes Dedisti nos tanquam oves escarum in gentibus dispersisti nos c. Ps 43. 13. And Cadualladur himself there complaineth fleeing into Armorica whence he never returned Incumbit divinae illius ergo potestatis ultio quae nos ex natali solo extirpat quos nec olim Romani nec deinde Scotti vel Picti nec versutae proditiones exterminare quiverunt And the Author going on sheweth that the Land was so universally destitute of British Inhabitants that the Saxons which were already seated here inform'd their Country-men beyond Seas of these desolate Territories inviting them to come and possess them Quod cum ipsis indicatum fuisset saith the Author nefandus populus ille collecta innumerabili multitudine virorum mulierum applicuit in partibus Northanhumbriae desolatas Provincias ab Albania i. e. Scotia usque ad Cornubiam Cornwall inhabitavit Non enim aderat habitator qui prohiberet praeter pauperculas Britonum reliquias quae superfuerant quae infra abdita nemorum in Gualiis commanebant Ab illo tempore potestas Britonum in Insula cessavit Angli regnare coeperunt Their History of Cambria written also in their own Welch language about 250. years since and translated into English by their Country-man and greatest Antiquary Humf. Lhoyd doth acknowledge that after Cadwallader's departure there remain'd none of his Nation but certain poor Britains that liv'd by roots in rocks and woods And that the Saxons Angles and Juthes that is to say Goths being then call'd in by such of their Country-men that were there before did come in great numbers and dividing this Land into divers Territories and Kingdoms did inhabit all the Cities Towns Castles and Villages which the Britains had builded rules and inhabited by the space of 1827. years Let the Reader now judge whether it be likely that the scrupulous Nation of the Saxons either did or could by any probable means take any Laws from the poor reliques of the Britains When the Romans conquer'd this Land they neither remov'd the Inhabitants nor brought any Foreigners upon them other than to govern and keep them in obedience some Legions of Souldiers and small Colonies Yet that they made an alteration of their Laws we may see in the Scripture by the example of Judaea For tho' Pompey obtained the Kingdom there rather by the confederacy with Hyrcanus than by right of Conquest and therefore suffer'd them to enjoy their rites of Religion with the liberties of most of their Cities yet it being reduced into a Province as this of ours was their laws were so changed as by their own confession John 18. 31. It was not lawful for them to put any man to death Therefore our Saviour and the two Thieves were judged and suffer'd upon the cross after the Roman manner not according to the laws of the Jews for their law never inflicted the cross upon any offender and the punishment of blasphemy wherewith they charged Christ was stoning In which course they once in a fury were about to put him to death Joh. 10. 31. and the punishment of Theft a Quadruple Restitution or bondage in default thereof As for the stoning of Stephen it was not judicial but tumultuous an act of fury and against Law In which course they meant also to have murthered St. Paul had not Lysias prevented them by sending him to his legal tryal Caesar's judgement Seat Wherein it is further to be observ'd that even then offences committed about the very judicial Law and Religion it self was also under the cognizance of the Roman Judge For even that self same cause wherein Paul stood accus'd before Festus as Festus himself reporteth it Acts 25. 19. was Touching questions of their own Religion By this we may conceive how the Romans dealt with the Britains touching their Laws and the story of St. Alhan and St. Amphibalus somewhat sheweth it Where according to the Roman manner St. Alban was convened before the Roman Judge by Souldiers not by civil Officers and before his Execution whipp'd as Pilate us'd our Saviour and then deliver'd to the Souldiers to be beheaded Bed Lib. 1. ca. 7. But what Laws soever the Romans us'd in Britain the Saxons doubtless swept them all away with the British Nation Otherwise than that in composing Laws for the government of their people after they had receiv'd Christianity from the Roman Clergy they might perhaps by their advice take somewhat also from the Roman Law Which Beda seemeth to avouch Lib. 2. ca. 5. speaking of the acts of Ethelbert the first Christian Saxon King Qui inter caetera bona quae genti suae conferebat etiam decreta illi judiciorum juxta exempla Romanorum cum consilio sapientum constituit What Beda meant by the words Juxta exempla Romanorum is not perspicuous As whether his meaning was that he made positive Decrees as the Romans had done for the government of his people or that in making his Decrees he took the sum and manner of them from the Romans This doubt we shall easily resolve by that which followeth in Bede himself Quae decreta conscripta Anglorum sermone hactenus habentur observantur ab ea In quibus primitus posuit qualiter id emendare deberet qui aliquid rerum vel Ecclesiae vel Episcopi vel reliquorum ordinum furto auferret volens scil tuitionem eis quos quorum doctrinam susceperat praestare And to say truth this that Bede here doth mention touching the protection of the Clergy is the chiefest matter in them that he taketh from the Romans as namely from their Canons not from their Civil Law For the secular part of those his Decrees differ far from those of the Romans as by the Saxon copy of them which I my self have to shew appeareth plainly But to conclude this point whatsoever in them savoureth of the Roman law be it Canon or Civil it doubtless was inserted by his Roman Clergy being then a principal part of the King's Council as the Clergy was afterward in all ages And of them chiefly I suppose that to be meant which Bede mentioneth Cum consilio sapientum constituit We find among the Saxons the example
in Shoe-lane by a Lease from the Bishop of that See temp Edw. VI. yeilding some Rose or other small or not valuable Rent 19. The Bishop of LINCOLN'S Place was Southampton-house in Holborn convey'd temp Edw. VI. to the Lord Writoheseley then Lord Chancellor in fee for which the Bishop hath no other house in or near London as is thought 20. The Bishop of CHICHESTERS Place or Palace as Matthew Paris in his Chronicle calleth it reciting the story of the Lord Arch-bishop of Canterbury visiting St. Bartholomews did at that time lye in that house which was in Chancery-lane where Sir Richard Read sometime a Master of the Chancery and Mr. Atkinson the Counsellor at Law and others dwelt and dwell in and is said to be in Lease from the Bishop's Predecessors for divers years What the Rents reserv'd yearly be the Lease will shew the same 21. The Bishop of St. ASAPH never had Place at or near London that I can learn of neither in the valuation of the See where all his Possession and Jurisdictions be valu'd in the First-fruit-office is there mention of any such Place neither doth the now Bishop of that See know the same 22. The Bishop of the ISLE OF MAN call'd Sodorensis Episcopus altho' the same be an ancient Bishoprick yet was he never Lord of the Parliament of England having no Chapter or other Clergy but only an Archdeacon and all the Incumbents of the several Parishes of that Isle And before the said Statute of 33. Hen. VIII was neither a Suffragan of the Province of Were wont in former times to ride on Mares or Mules 119. Prohibited to take cognizance of Wills 129. Blackney Harbour 151. Blicking 151. The birth place of Q. Anna Bullen ibid. Bocland what 12. Not subject to Homage 35. Bond-men anciently not valu'd or rated 15. Reputed only as part of their Master's substance 11 15. Boors who 14. Bouthorpe 157. Bramsil 108 109. Brancaster 147 148. Breakspear Nich. converted Norway 139. Made Cardinal and Pope ibid. Breclys 161. Brennus a Britain invades Greece 3. His attendants ibid. Brictrick a Saxon Thane 22. Britains none of 'em remaining after Cadwallador's departure 100. Their Laws alter'd by the Romans 101. Bronholm 152. Brotherton Tho. Earl of Norfolk and Earl Marshal of England 167. When he dy'd 168. Buckenham 158. Burg-Castle 155. Burghesses of old not call'd to consult of State-matters 64 65. Burghbote and Brugbote 17 22 40. Burnham in Norfolk 149. Burnham-East in Com. Bucks 23. By what it signifies 3. 154. By-laws 3 154. C Cadwallader Prince of the Britains fled into Armorica 100. Calthorp 151. King Canutus how he publish'd his Laws 61. His Constitution touching Festivals 79. Capet Hugh usurpt the Kingdom of France 5 He grants his Nobility a perpetual enjoyment of their Feuds and Honours ibid. 14. Capitales plagii 52. Capitanei Regis regni 58. Caput feodi aut Capitaneus feodi 11. Carbrook 161. Carolus Calvus Emperour and King of France his Synodical Edict 54 55. Carolus Magnus or Charlemaigne divided his Territories between his three Sons 128. Castle-acre 141. Castle-rising in Norfolk the Parson has the Probate of Wills in that Town 130. Caston 151. Castor 155 156. Ceorls who 12. Of two sorts 14. The chiefest part of their profits redounded to their Lords ibid. Their service no bondage ibid. Their valuation and priviledges ibid. Not capable of a Knights Fee ibid. Champain in France 128. Chancery-Court 94. Charta de Foresta 109 114. Charter the first by whom made and where kept 8. Saxon Charters usually writ in that Language ibid. Charters of Thane-lands granted by several Kings 19 20. Chichley Henr. Arch-bishop of Canterbury canoniz'd St. George's day 93. The occasion of that Constitution ibid. Chindavintus King of the western Goths his Law concerning Wills 130. Cingulum quo sensu accipiendum 185. Cinque-Ports priviledges granted to them by King Edward the Confessour c. 26. Clacklose-Hundred 139. Clergy-men forbidden to use hunting 109 112 113. seq When they took upon them to prove Wills 129. Prohibited by Justinian to meddle with those matters ibid. Cley harbour 151. De Clifford Rob. Marshal of England 167. K. Canute's Charter of donation to the Thane Orc. 20. Coin of England in Q. Elisabeth's time 203 c. Colloquia 65. Comites who and why so call'd 3. Commendati 35. Congham 145. Conradus Salicus made a Constitution touching Feuds 4 5. Consecration a strange one of Eadmer a Monk of Canterbury 119. Consilium regni 60. Controversies among the ancient Britains by whom judg'd 74. Conveyance of lands how made by the Saxons 8. Cosshering what 60. Cossey 157. Counties in England 5. county-County-Courts how often kept 54. Were proclaim'd a sennight beforehand ib. Earl's County and Bishop's Diocess had but one limit 130 131. Ecclesiastical and Secular causes there decided 131. Court-Baron 4. It s Original 51. Court-Leet 51. Sometimes granted to the Lords of Mannours ibid. Court-Christian or Ecclesiastical when it sprung up 131 132. High Courts of Justice why they sit not in the Afternoons 89 90. Why they sit not all some days 90 91. Why they sit on the Rogation days ibid. Why on some Festivals and not on others 91 The Admiralty-Court why always open 94. Chancery-Court said to be always open ib. Cowshil 153. Creak 149. Cromer 152. Crostwick 153. Crowner's Office not before the Conquest 27. D Dane-blood 149. Dane-law 45. Danes not capable of devising lands by will 22 David I. King of Scotland and Earl of Huntingdon 11 131. Dean his Office and Functions 50. The priviledges of a Bishop's Dean ibid. Deerham West 140. Defensor Plebis 129. Degradatio Militis 185. Deira a Province 13. Demains or Demesne what 12. Ancient Demesnes had not any lands by Knight-service 44 57. D'Evreux Robert Earl of Essex Viscount Bourchier c. 171. Sent into Spain with an army ibid. Storm'd Cadiz ibid. Created Marshal of England ibid. Made Lord Deputy of Ireland ibid. When beheaded ibid. Dies juridici 72 73. Dies feriales 72. Dies pacis Ecclesiae ibid. 79. 82. Dies pacis Regis ibib 82. Dies novem Lectionum 91. Dies feriati repentini 93. Dower why judg'd to belong to the Ecclesiastical Court 132. Downham 140. Druides who 74. The sole Judges of controversies among the old Britains 74. Suppos'd to have us'd the Greek tongue 103 Had no knowledge of the Latin ibid. Dudley John Duke of Northumberland and Earl Marshal of England 170. E Eadmere a Monk of Canterbury made Arch-bishop of St. Andrews in Scotland 119. King Eadwigus's Charter of Thane-lands granted to Aelswine 19. Earl Marshals of England 169 170 171. Earl of a County see Alderman Earldoms not hereditary in ancient times 13. Earldoms in France ibid. 14. Earls among the Saxons 13 14. Earl no title of dignity anciently 13. Their Office depended on the King's pleasure ibid. An Earls Heriot 31. Easter-Term how limited anciently 83. Easter-week when exempted from Law business 76. Ebsam in
on these days as by the same phrase in other Laws shall by and by appear which the Gloss also upon this Canon maketh manifest saying In his etiam diebus causae exerceri non debent citing the other Canon here next before recited but adding withal that the Court and Custume of Rome it self doth not keep Vacation from Septuagesima nor as it seemeth in some other of the days And this precedent we follow when Septuagesima and Sexagesima fall in the compass of Hilary-Term CHAP. VI. That our Terms took their Original from the Canon-Law THus we leave the Canon Law and come home to our own Country which out of these and such other forreign Constitutions for many more there are have framed our Terms not by choosing any set portion of the year for them as Polydore Virgil and our Chroniclers ignorantly suggest but by taking up such times for that purpose as the Church and common Necessity for collecting the fruits of the Earth left undisposed of as in that which followeth plainly shall appear CHAP. VII The Constitution of our Saxon Kings in this matter INas one of our ancient Saxon Kings made a very strict Law against working on Sunday And Alured instituted many Festivals but the first that prohibited Juridical proceedings upon such days was Edward the Elder and Guthrun the Dane who in the League between them made about ten years before the Council of Erpford that it may appear we took not all our light from thence did thus ordain Ordel aþas syndon tocÆ¿edon freols dagum rihtfaesten dagum c. We forbid that Ordel and Oaths So they called Law-tryals at that time be used upon Festival and lawful Fasting days c. How far this Law extended appeareth not particularly no doubt to all Festival and Fasting-days then imposed by the Roman Church and such other Provincial as by our Kings and Clergy were here instituted Those which by Alured were appointed to be Festivals are now by this Law made also days of Vacation from Judicial Tryals yet seem they for the most part to be but Semi-Festivals as appointed only to free-men not to bond-men for so his Law declareth viz. The twelve days of Christmass the day wherein Christ overcame the Devil the Anniversary of St. Gregory the seven days afore Easter and the seven days after the day of St. Peter and St. Paul and the whole week before St. Mary in Harvest and the Feast-day of All-Saints But the four Wednesdays in the four Ember weeks are remitted to Bond-men to bestow their work in them as they thought good To come to that which is more perspicuous I find about sixty years after a Canon in our Synod of Eanham under King Ethelred in these words First touching Sunday Dominicae solempnia diei cum summo honore magnopere celebranda sunt nec quicquam in eadem operis agatur servilis Negotia quoque secularia quaestionesque publicae in eadem deponantur die Then commanding the Feast-days of the B. Virgin and of all the Apostles the Fast of the Ember days and of the Friday in every week to be duely kept it proceedeth thus Judicium quippe quod Anglicè Ordeal dicitur juramenta vulgaria festivis temporibus legitimis jejuniis sed ab Adventu Domini usque post Octabas Epiphaniae à Septuagesima usque 15. dies post Pascha minime exerceantur sed sit his temporibus summa pax concordia inter Christianos sicut fieri oportet It is like there were some former Constitutions of our Church to this purpose but either mine eye hath not light upon them or my memory hath deceived me of them CHAP. VIII The Constitution of Canutus more particular CAnutus succeeding shortly by his Danish sword in our English Kingdom not only retained but revived this former Constitution adding after the manner of his zeal two new Festival and Vacation days And Æ¿e forheodað ordal aðas freols dagum ymbren dagum rite faesten dagum fram Adventum domini oþ se eahtoþa dag agan sy ofer tÆ¿elfta daeg c. We forbid Ordal and Oaths on Feast-days and Ember-days and in Lent and set fasting days and from the Advent of our Lord till the eighth day after the twelfth be past And from Septuagesima till fifteen nights after Easter And the Sages have ordained that St. Edward's day shall be Festival over all England on the fifteenth of the Kalends of April and St. Dunstan's on the fourteenth of the Kalends of June and that all Christians as right it is should keep them hallowed and in peace Canutus following the Synod of Eanham setteth down in the Paragraph next before this recited which shall be Festival and which Fasting-days appointing both to be days of Vacation Among the Fasting-days he nameth the Saints Eves and the Fridays but excepteth the Fridays when they happen to be Festival-days and those which come between Easter and Pentecost as also those between Midwinter so they called the Nativity of our Lord and Octabis Epiphaniae So that at this time some Fridays were Law-days and some were not Those in Easter Term with the Eve of Philip and Jacob were and the rest were not The reason of this partiality as I take it was they fasted not at Christmass for joy of Christ's Nativity nor between Easter and Whitsuntide for that Christ continued upon the Earth from his Resurrection till his Ascension And the children of the wedding may not fast so long as the Bridegroom is with them Nor till Whitsuntide for joy of the coming of the Holy Ghost CHAP. IX The Constitution of Edward the Confessor most material SAint Edward the Confessor drew this Constitution of Canutus nearer to the course of our time as a Law in these words Ab Adventu Domini usque ad Octabas Epiphaniae pax Dei sanctae Ecclesiae per omne Regnum similiter à Septuagesima usque ad Octabas Paschae item ab Ascensione Domini usque ad Octabas Pentecostes item omnibus diebus quatuor temporum item omnibus Sabbatis ab hora nona tota die sequenti usque ad diem Lunae item Vigiliis Sanctae Mariae Sancti Michaelis Sancti Johannis Baptistae Apostolorum omnium Sanctorum quorum solennitates a Sacerdotibus Dominicis â—nnunciantur diebus omnium Sanctorum in Kalendis Novembris semper ab hora nona Vigiliarum subsequenti solennitate Item in Parochiis in quibus dedicationis dies observatur item Parochiis Ecclesiarum ubi propria Festivitas Sancti celebratur c. The Rubrick of this Law is De temporibus diebus pacis Regis intimating Term-time and here in the Text the Vacations are called Dies pacis Dei sanctae Ecclesiae as I said in he beginning But pax Dei pax Ecclesiae pax Regis in other Laws of Edward the Confessor and elsewhere have other significations