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
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
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-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-causes or hold plea
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
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
to the former Rate of sive groats to the ounce do you think that things would then be sold for so many shillings or pounds as they now be I warrant you No. Then is it the unstable value of our former Coins that so much deceiveth a great number For look into such things as have always retain'd an uniform content and you shall find little difference between our and the former times in giving one of those things for another For at this day you may buy a Cow for as few Sheep as you could then and a Horse for as few Cows The Land that was then lett with us in Norfolk for 8d. or 10d. the acre and now for eight groats or three shillings was in those days also let for a coumbe of Barley and yet will not now be hired at so great a Rate Viand You have answer'd me beyond my expectation but yet not fully satisfy'd me For tho' I allow you these proportions yet there remaineth a great diversitie For I have read that in old time a quarter of Wheat was sold at London for 2s. a fat Ox for a noble a fat Sheep for 6d. or 8d. half a dozen of Pigeons for a peny a fat Goose for 2d. a Pig for a peny and other things after that Rate And yet I grant that a Man in letting or selling his Land for Corn Cattel and such like or ware for ware might in those days have as much as he can get now Selv. The time you speak of was about the 10 th of Edw. III. and the like hath been at other times also And when the cause hereof is well consider'd you shall find another right good reason why things should be sold for more mony now than they were then and yet no whit at all dearer and that is the plenty and abundance of plate and mony which at this day is to be found in England more than ever was in time past For it is not our Commodities that be grown dearer but Gold and Silver are become more common and of less estimation than they were wont Insomuch that whereas Plate was dainty in Great-men's Houses it ruffleth now even at the meanest Tables and mony is so little respected as we will give great store thereof for a small Commodity Like as in the days of Solomon Silver was so plentiful as it was nothing esteem'd no it was holden so base a mettal as Solomon would not make one vessel thereof no not for his own service much less for the Temple of God Yet afterward it became so scarce as when Joash undertook to repair the Temple he was driven to tax the people for it that thereby he might have wherewith to pay the work-men and whereon to make the holy Vessels So King Edw. III. having with effusion of much Treasure ended his Scottish Wars and determin'd to begin afresh with France practised such means to recover mony to supply these charges as he got so much into his hands that Writers report it was very scant and hard to be come by through the whole Realm And hereupon proceeded the cheapness that you speak of Men were constrained to give a great deal of ware for a little mony because they could have no other chaffer for their Commodities But from these particular Contingents you must not raise general Consequents for in that sort I can shew unto you that things were much dearer before the time you speak of than they are now As in 22. Edw. I. a quarter of Wheat was sold for 30s. So in the time of Richard I. all things were so exceeding dear for three or four years together that a quarter of Wheat was then sold for 18 â— 8 â— a strange price if you consider the alay of mony then currant and this was almost 400. years agoe Also in the year 1289. Edw. I. 17. Wheat was ordinarily sold for 2s. the bushel and continued at that price almost fourty years together rising oftentimes to 10s. the bushel and sometimes to a mark and above as in the year 1317. and in these days other things bare price accordingly I could put you many Examples more if these sufficed not but sure I am of mind that all occurrents rightly weigh'd things be little or nothing dearer than in ancient time Viand You say sore unto me if you make it apparent that mony were so plentiful as you affirm it For my own part I am sure I have little enough Selv. And I too but that is not the matter For what store of sap soever the tree hath yet many spriggs and leaves do wither away for want thereof The great ones have it I warrant you and that ultra modum but to our matter Two things are the causes thereof It is brought in more plentifully than in ancient times and carryed out more sparingly Brought in more plentifully in respect of greater traffick that we have had within these latter years even to all places in the World by which we have utter'd our own Commodities at the dearest and fetcht the foreign from the original places which with far greater charge we were wont to buy at second hand Viand Yea marry Sir the less we have of some of that trafficking the better I think for England For by this means they carry from us our good Corn Wooll Cloth Copper Lead Tinn and such like rich Commodities and the sustenance of our Countrey and return us for them excess of Lawn Camrick Plums Spice Suckets and other lascivious trumpery whereby effeminate delicacie is crept in amongst us and our warlike reputation put in peril to be lost This kind of traffick may well be term'd Glauci Diomedis permutatio Doth the wealth and mony you speak of come into England by this means Selv. Nothing less There be other good merchandise enough as Pitch Tar Iron Copper Deal Madder Woad Cutchaneale and such like and yet those you speak of are in some measure necessary But by our traffick into foreign Countries tho' we many times bring home light and frivolous toys yet they are often accompanied with Gold and Silver both in Coin and Bullion Besides you know that the Treasure according to my capacity is infinite which in these later years hath been unshipp'd in England Viand True but goeth it not out as merrily think you as it cometh in or not so fast as it did in times past Selv. That is the other point to be consider'd of and I know by certain speeches utter'd in the last Parliament that her Majestie 's occasions to disperse it are exceeding great and urgent yet a principal part thereof runneth as in a circle up and down the Land And tho' she sendeth much beyond the Seas for entertainment of her Bands and Garisons and executing of her other Royal purposes yet doth she therein but as all her Renown'd Progenitors have done before her For neither England nor any other Realm in Europe have ever wanted this kind of issue But the reasons