sooner than it now doth so it ended six or seven days sooner viz. before the Vigil of Ascension which I take to be the meaning of the Law of Edward the Confessour appointing the time from the Ascension inclusivè to the Octaves of Pentecost with Ascension-Eve to be dies pacis Ecclesiae and Vacation CHAP. XIV trinity-Trinity-Term trinity-TRinity-Term therefore in those days began as it now doth in respect of the Returns at Octab. Pentecostes which being always the day after Trinity Sunday is now by the Stat. of 32. of Hen. VIII appointed to be called Crastino Trinitatis But it seemeth that the Stat. of 51. of Hen. III. changed the beginning of this Term from Crastino Trinitatis to Octabis Trinitatis and that therefore the Stat. of Hen. VIII did no more in this point than reduce it to the former original As touching the end of this Term it seemeth also that the said Stat. of 51. Hen. III. assigned the same to be within two or three days after Quindena Sancti Johannis which is about the twelfth of July for that Statute nameth no Return after But for ought that hindreth by the Canons it is tanquam Terminus sine Termino for there was no set Canon or Ecclesiastical Law that I can find to abridge the continuance thereof till Michaelmass unless the seven days next before St. John Baptist were according to the Canon of Erpford used as days of intermission when they fell after the Octaves of Pentecost as commonly they do tho' this year 1614. four of them fell within them and except the ember-Ember-days meet after Holy-Rood for Jejunia quatuor Temporum as well by the Laws of Canutus and Edward the Confessour as by all other almost before recited are either expresly or implicitely exempted from the days of Law But when Trinity Sunday fell near the feast of St. John Baptist then was the first part of this Term so thrust up between those days of the Church that it was very short and the latter part being always fixt did so hinder Hay-seed and Harvest following that either the course of it must be shortned or it must still usurp upon the time allotted by nature to collect the fruits of the earth For as Religion closed the Courts of Law in other parts of the year so now doth publick necessity stop the progress of them following the Constitution of Theodosius thus decreeing Omnes dies jubemus esse juridicos Illos tamen remanere feriarum dies fas est geminis mensibus ad requiem laboris indulgentior annus excepit aestivis quoque fervoribus mitigandis autumpnis fructibus decerpendis This is also confirmed in the Canon Conquestus and in Gratian with the Glosses upon them to which I leave you But it is of old thus expressed by Statius as if it were ex jure Gentium Certe jam Latiae non miscent jurgia Leges Et pacem piger Annus habet messesque reversae Dimisere Forum nec jam tibi turba râ—orum Vestibulo querulique rogant exire Clientes The Latian Laws do no man now molest But grant this weary season peace and rest The Courts are stopt when Harvest comes about The Plaintiff or Defendant stirs not out So the Longobards our brethren as touching Saxon original appointed for their Vintage a particular Vacation of thirty days which Paulus Diaconus doth thus mention Proficiscentes autem eo ad villam ut juxta ritum imperialem triginta diebus ad vindemiam jocundaretur So also the Western Goths a branch of the Northern Nations ordain'd pro messivis feriis à 15. Kal. Augusti usque ad 15. Kal. Septembris c. observandas Whereby it appeareth that this time was not onely a time of Vacation in those ancient days but also of feasting and merriment for receiving the fruits of the earth as at Nabal's and Absalom's Sheep-shearing and in divers parts of England at this day So the Normans whose Terms were once not so much differing from ours might not hold their Assizes or times of Law but after Easter and Harvest that is after the times of holy Church and publick necessity as appeareth by their Custumary And forasmuch as the Swainmote-Courts are by the ancient Forest-laws appointed to be kept fifteen days before Michaelmass it seemeth to be intended that Harvest was then done or that in Forests little or no corn was then used to be sown But it is to be remembred that this Vacation by reason of Harvest Hay-seed Vintage c. was not of so much solemnity as those in the other parts of the year and therefore called of the Civilians Dies feriati minus solennes because they were not dedicated divino cultui but humanae necessitati Therefore tho' Law business was prohibited on these days to give ease and freedom unto Suiters whilst they attended on the Store-house of the Common-wealth yet was it not otherwise than that by consent of parties they might proceed in this Vacation whereof see the Decreta Gregorii To this effect in a MS. of the lives of the Abbots of St. Albans I meet with this precedent That 4. Non. Aug. Anno Dom. 1328. Indictione 11. Comparentibus judicialiter coram nobis Offic. Cur Eborum Commissario Generali in majore Ecclesia Eborum loco 〈…〉 pro Tribunali sedentibus fratre Johanne de Redburne 〈…〉 S. Albani Ordinis S. Benedicti Lincolniensis Dioeces Procuratore Râ—â—g Virorum Dominorum Abbatis Conventus ejusdem Monasterii verorum Patronorum Ecclesiae de Appleton in Rydale Eborum Dioc. Procuratorio pro eisdem ex una ac Domino Waltero Flemengs Rectore ejusdem Ecclesiae personaliter ex altera Idem Dominus Walterus Rector tempore messium non obstante ipsoque tunc in nobis ut in judice suo ad infra scripta judicialiter consentiente fatebatur se teneri dictis Dominis Abbati Conventui eorum Monasterio in 14. libris argenti nomine pensionis sex marcarum annuarum eisdem Religiosis ab eo dicta sua Ecclesia de tempore quo Rector ejusdem Ecclesiae extitit debit per eundem per idem tempus subtractis CHAP. XV. Of Michaelmass-Term according to the ancient Constitutions MIchaelmass-Term as the Canons and Laws aforesaid leave it was more uncertain for the beginning than for the end It appeareth by a Fine taken at Norwich 18. Hen. III. that the Term was then holden there and began within the Octaves of Saint Michael for the Cyrograph of it is Haec est finalis concordia facta in Curia Domini Regis apud Norwicum die Martis proximo post festum Sancti Michaelis anno regni Regis Henrici filii Regis Johannis 18. coram Tho. de Mulet Rob. de Lexint Olivero c. I observe that the Tuesday next after St. Michael can at the farthest be but the seventh day after it and yet it then must be a day within the Octaves whereas the Term now beginneth
not till the third day after the Octaves But Gervasius Tilburiensis who lived in Hen. II's time hath a Writ in these words N. Rex Anglorum illi vel illi Vicecomiti Jalutem Vide sicut teipsum omnia tua diligis quod sis ad Scaccarium ibi vel ibi in Crastino Sancti Michaelis vel in Crastino Clausi Paschae habeas ibi tecum quicquid debes de veteri firma nova nominatim haec debita subscript viz. c. By which it appeareth that the Term in the Exchequer as touching Sheriffs and Accomptants and consequently in the other parts began then as now it doth saying that the Statute De Scaccario 51. Hen. III. hath since appointed That Sheriffs and Accomptants shall come to the Exchequer the Monday after the feast of St. Michael and the Monday after the Vtas of Easter Which time not being ferial or Church-days is freely allow'd to Term business if the Octaves of St. Michael had no priviledge of which hereafter It is to be noted that the Term in the Exchequer hath one Return at the beginning of every Term before the first Return in other Courts excepting Trinity-Term viz. Crastino S. Michaelis in Michaelmass-Term Octabis S. Hilarii in Hilary-Term and Octabis or Clausum Paschae in Easter-Term And it seemeth that Crastino Trinitatis was so likewise in Trinity-Term before the Stat. 32. Hen. VIII And these returns or the space of eight days in which the Exchequer is open before the full Term which now we commonly call the beginning of the Term are counted to be Term-time as appeareth by the said Statute where it is thus enacted That trinity-Trinity-Term shall begin the Monday next after Trinity Sunday for keeping of the Essoignes Profers Returns and other Ceremonies heretofore used c. And that the full Term of the said trinity-Trinity-Term shall yearly for ever begin the Friday .... The end is certainly prefixed by the Canons and Laws aforesaid that it may not extend into Advent And it holdeth still at that mark saving that because Advent Sunday is moveable according to the Dominical letter and may fall upon any day between the twenty sixth of November and the fourth of December therefore the twenty eighth of November as a middle period by reason of the Feast and Eve of St. Andrew hath been appointed to it Howbeit when Advent Sunday falleth on the twenty seventh of November as sometimes it doth then is the last day of the Term contrary to the Canons and former Constitutions held in Advent and consequently void if custom help it not or for more security the Statute of 3. Edw. I. ca. 48. where the Bishops at the King's request admit Assizes and Inquests to be taken in Advent as it after shall more largely appear CHAP. XVI The later Constitutions of the Terms TO leave obscurity and come nearer the light it seemeth by the Statutes of 51. Hen. III. called Dies communes in Banco that the Terms did then either begin and end as they do now or that those Statutes did lay them out and that the Statute of 36. Edw. III. cap. 15. confirmed that use For the Returns there mentioned are neither other more or fewer than at this day CHAP. XVII How trinity-Trinity-term was alter'd and shortned trinity-TRinity-Term is alter'd and shortned by the Statute of 32. Hen. VIII chap. 21. which hath ordained it quoad sessionem to begin for ever the Friday after Corpus Christi day and to continue nineteen days whereas in elder times it began two or three days sooner So that Corpus Christi day being a moveable Feast this Term cannot hold any certain station in the year and therefore this year 1614. it began on St. John Baptist's day and the last year it ended on his Eve Hereupon tho' by all the Canons of the Church and former Laws the Feast of St. John Baptist was a solemn day and exempt from legal proceedings in Courts of Justice yet is it now no Vacation day when Corpus Christi falleth as it did this year 1614. the very day before it For that the Statute hath appointed the Term to begin the Friday next after Corpus Christi day which was the day next this year before St. John Baptist and so the Term must of necessity begin on Saint John Baptist's day This deceived all the Ptognosticators who counting St. John Baptist for a grand day and no day in Court appointed the Term in their Almanacks to begin the day after and consequently to hold a day longer deceiving many by that their errour But the aforesaid Statute of 32. Hen. VIII changed the whole frame of this Term For it made it begin sooner by a Return viz. Crastino Sanctae Trinitatis and thereby brought Octabis Trinitatis which before was the first Return to be the second and Quindena Trinitatis which before was the second now to be the third and instead of the three other Returns of Crastino Octabis and Quindena Sancti Johannis it appointed that which before was no Return but now the fourth and last called Tres Trinitatis The altering and abbreviation of this Term is declared by the preamble of the Statute to have risen out of two causes one for health in dismissing the Concourse of people in that contagious time of the year the other for wealth that the Subject might attend his Harvest and gathering in the fruits of the earth But there seemeth to be a third also not mention'd in the Statute and that is the uncertain station length and Returns of the first part of this Term which like an Excentrick was one year near to St. John Baptist another year far removed from it and thereby making the Term not only various but one year longer and another shorter according as Trinity Sunday being the Clavis to it fell nearer or farther off from St. John Baptist For if it fell betimes in the year then was this Term very long and the two first Returns of Octabis and Quindena Trinitatis might be past and gone a fortnight and more before Crastino Sancti Johannis could come in And if it fell late as this year 1614. it did then would Crastino Sancti Johannis be come and past before Octabis Trinitatis were gone out So that many times one or two of the first Returns of this Term for ought that I can see must in those days needs be lost CHAP. XVIII How Michaelmass-Term was abbreviated by Act of Parliament 16. Car. I. Cap. 6. THe last place our Statute-book affords upon this Subject of the limits and extent of the Terms is the Stat. 16. Car. I. Chap. 6. intituled An Act concerning the limitation and abbreviation of Michaelmass-Term For whereas by former Statutes it doth appear that Michaelmass-Term did begin in Octabis Sanctae Michaelis that Statute appoints that the first Return in this Term shall ever hereafter be à die Sancti Michaelis in tres septimanas so cutting off no less than two Returns from the ancient
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-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-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-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
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-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-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-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-Hilary-Term hath now lost at the beginning of it it hath gained at the latter ending Of trinity-Trinity-Term I shall speak more by and by CHAP. XIII easter-Easter-Term easter-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
the others lost their priviledge and came to be Term-days I cannot find it sufficeth that Custome hath repealed them by confession of the Canonists Yet it seemeth to me there is matter for it in the Constitutions of our Church under Islepe Arch-bishop of Canterbury in the time of Edward III. For tho' many ancient Laws and the Decretals of Gregory IX had ordained Judicialem strepitum diebus conquiescere feriatis yet in a Synod then holden wherein all the holy-days are appointed and particularly recited no restraint of Judicature or Forensis strepitus is imposed but a cessation only ab universis servilibus operibus etiam Reipublicae utilibus Which tho' it be in the phrase that God himself useth touching many great Feasts viz. Omne servile opus non facietis in iis yet it is not in that wherein he instituteth the seventh day to be the Sabbath Non facies omne opus in eo without servile Thou shalt do no manner of work therein Now the Act of Judicature and of hearing and determining Controversies is not opus servile but honoratum plane Regium and so not within the prohibition of this our Canon which being the latter seemeth to qualifie all the former Yea the Canonists and Casuists themselves not only expound opus servile of corporal and mechanick labour but admit twenty six several cases where even in that very kind dispensation lieth against the Canons and by much more reason then with this in question It may be said that this Canon consequently giveth liberty to hold plea and Courts upon other Festivals in the Vacations I confess that so it seemeth but this Canon hath no power to alter the bounds and course of the Terms which before were settled by the Statutes of the Land so that in that point it wrought nothing But here ariseth another question how it chanceth that the Courts sit in Easter-Term upon the Rogation-days it being expresly forbidden by the Council of Medard and by the intention of divers other Constitutions It seemeth that it never was so used in England or at least not for many ages especially since Gregory IX insomuch that among the days wherein he prohibiteth Forensem strepitum clamourous pleading c. he nameth them not And tho' he did yet the Glossographers say that a Nation may by Custom erect a Feast that is not commanded by the Canons of the Church Et eodem modo posset ex consuetudine introduci quod aliqua quae sunt de praecepto non essent de praecepto sicut de tribus diebus Rogationum c. To be short I find no such priviledge for them in our Courts as that they should be exempt from suits tho' we admit them other Church rites and ceremonies We must now if we can shew why the Courts sitting upon so many Ferial and holy-days do forbear to sit upon some others which before I mention'd the Purification Ascension St. John Baptist All-Saints c. For in the Synod under Islepe before mention'd no prerogative is given to them above the rest that fall in the Terms as namely St. Mark and St. Philip and Jacob when they do fall in Easter-Term St. Peter in Trinity-Term St. Luke and SS Simon and Jude in Michaelmass-Term It may be said that although the Synod did only prohibit Opera servilia to be done on Festival-days as the offence most in use at that time yet did it not give licence to do any Act that was formerly prohibited by any Law or Canon And therefore if by colour thereof or any former use which is like enough the Courts did sit on lesser Festivals yet they never did it on the greater among which as majoris cautelae gratia those Opera servilia are there also prohibited to be done on Easter-day Pentecost and the Sunday it self Let us then see which are the greater Feasts and by what merit they obtain the priviledge that the Courts of Justice sit not on them As for Sunday we shall not need to speak of it being canonized by God himself As for Easter and Whitsunday they fall not in the Terms yet I find a Parliament held or at least begun on Whitsunday But touching Feasts in general it is to be understood that the Canonists and such as write De Divinis Officiis divide them into three sorts viz. Festa in totum duplicia simpliciter duplicia semiduplicia And they call them duplicia or double Feasts for that all or some parts of the service on those days were begun Voce Duplici that is by two singing-men whereas on other days all was done by one Our Cathedral Churches do yet observe it I mean not to stay upon it look the Rationale which Feasts were of every of these kinds The ordinary Apostles were of the last and therefore our Courts made bold with them But the Purification Ascension St. John Baptist with some others that fall not in the Term were of the first and because of this and some other prerogatives were also called Festa Majora Festa Principalia dies novem Lectionum ordinarily double Feasts and Grand days Mention is made of them in an Ordinance 8. Edw. III. That Writs were ordained to the Bishops to accurse all and every of the perturbers of the Church c. every Sunday and double Feast c. But we must needs shew why they were called Dies novem Lectionum for so our old Pica de Sarum styleth them and therein lyeth their greatest priviledge After the Arian Heresie against the Trinity was by the Fathers of that time most powerfully confuted and suppressed the Church in memory of that most blessed victory and for better establishing of the Orthodox Faith in that point did ordain that upon divers festival-Festival-days in the year a particular Lesson touching the nature of the Trinity besides the other eight should be read in their service with rejoycing and thanksgiving to God for suppressing that horrible Heresie And for the greater solemnity some Bishop or the chiefest Clergy-man present did perform that duty Thus came these days to their styles aforesaid and to be honoured with extraordinary Musick Church-service Robes Apparel Feasting c. with a particular exemption from Law-Tryals amongst the Normans who therefore kept them the more respectively here in England Festa enim Trinitatis saith Belethus digniori cultu sunt celebrandi In France they have two sorts of Grand days both differing from ours First they call them Les Grand jours wherein an extraordinary Sessions is holden in any Circuit by virtue of the King's Commission directed to certain Judges of Parliament Secondly those in which the Peers of France hold once or twice a year their Courts of Haught Justice all other Courts being in the mean time silent See touching these Loyseau De Seigneures To come back to England and our own Grand days I see some difference in accounting of them
Christian King caused his own Laws to be put in writing about the year 605. as other Western Nations in an age or two before had done and as Bede saith wrote them in the Saxon tongue The first Charter if I shall so call it or writing touching lands and privileges was as a MS. of Canterbury reporteth made by Withredus King of Kent in the year 694. and as that Charter it self witnesseth was appointed to be kept in the Church of our Saviour at Canterbury as a precedent for posterity to imitate and tho' it appeareth not there in what language it was written yet I presume it was in the same with their Law which was the Saxon tongue For there be two copies of it extant in Latin so differing the one from the other as thereby they both appear to be translations For proof thereof the one of them useth the words Charta and Chartula which Ingulfus affirmeth to be brought in hither by the Normans that is above three hundred years after the time of this Charter of Withred's The other Latin copy termeth it Scriptum not Chartam and the Saxons themselves used neither of those words but called such writings in Latin Chirographos not Chartas as Ingulfus there also testifieth So that it hereby appeareth that the Prototype or first pattern of Charters which the Saxons imitated was not in Latin but in Saxon. Secondly it is therefore to be presumed and very strongly that tho' this Charter of Beorredus remaineth to us by a Latin copy yet the original it self like a thousand others was in the Saxon tongue Nor could it in all probability be otherwise for at the very time when it was made viz. in anno 868. learning was so generally subverted throughout England by the barbarous Danes that King Alfred who began to reign within four years after the date thereof saith Paucissimi fuerunt cis Humbrum qui vel preces suas communes sermone Anglico intelligere potuerant vel scriptum aliquod è Latino transferre Tam sane pauci fuerunt ut ne unum quidem recordari possum ex australi parte Thamesis tum cum ego regnare occaeperam But as their original Charters were in the Saxon tongue so in the Leiger-books in which they are preserved to us they are often set down in the Saxon and then because the books themselves are in Latin they are there translated also into Latin and often times set down in the Latin only without the Saxon as in the book of Ramsey-Abby which having no Charters in it in the Saxon tongue the Author of it saith that himself had there translated them all into Latin after that that Abby in the days of King Stephen had recovered her liberty Yet I deny not that Latin Charters might be often used by their latter Clergy-men when learning which in Beorred's time was utterly subverted began at last to recover life again Thirdly I conceive that the word feudum or feodum was not in use in Beorredus's days viz. anno 868. For proof whereof we are to consider the infancy youth and full age of the Feodal Law for according to these several times the Feodal Lands had their several denominations First they were called Munera then Beneficia and lastly Feuda as is aforesaid Marculfus who collected the Formulas or Precedents as we call them of Charters and Instruments of the time he lived in which was under Clodovaeus II. King of France about the year 660. maketh mention in his first book of Munera and in his second of Beneficia but no where of Feuda and he who a hundred years or more after him collected the Formula's incerti Autoris speaketh divers times of Beneficium but never nameth Feudum for that this term came not into use till afterwards when these Beneficia began to be granted in perpetuity Beneficium Regis saith Bignonius postea Feudum dictum est And in another place he saith Beneficii nomine ea praedia dicta sunt quae Feuda posteritas dixit initio namque vita accipientis finiebantur As if he should say they were called Beneficia when they were granted only for life of the Grantee but were called Feuda when they began to be granted in perpetuity and not before Cujacius therefore speaking of Feudatarii which word came into use with Feudum for Relatives mutuo se ponunt auferunt saith that when Actores custodesque proediorum nostrorum temporarii perpetui esse caeperunt c. when those who had the use and ordering of our Lands for a certain time began to enjoy them in perpetuity and yet retained their Latin name of Homines our Men they grew then also to be called after new and forreign names Vassalli Leudes and Feudatarii by the Princes and great Noblemen who choosed rather to grant them lands in perpetuity in consideration that they should do them military service And he saith that these names were first brought into Italy by the German Princes Where and particularly in Milan as Merula reporteth the Feodal Laws and Customs have had their original and from thence been propagated throughout Europe By this it appeareth that the words Feudum and Feudatarii were not in use till that the word Munera was grown obsolete Nor afterward till Beneficia leaving to be temporary or but for life became to be perpetual possessions which as I have often said was not long before the Conquest So that the word Feudum could not be in use in Beorredus's time who lived two hundred years before Fourthly Tho' the word Feudum were in the original Charter of Beorredus yet doth it not prove that our Feuds were then in use For call them Beneficia or call them Feuda certain it is that neither the one nor the other were then hereditary or perpetual but either temporary or for life only which at length begat the difference between Feuda and Beneficia for Beneficia in a restrained sense began to signifie no more than an estate for life in which sense it resteth at this day in our Clergy-men's Livings called Benefices and the word Feuda grew to be understood only of such Beneficia or Benefices as were perpetual and hereditary To return from whence we digressed I suppose it now appeareth sufficiently how some Feodal words are crept into Charters and writings of Saxon date and I think I may conclude that the words before mentioned Tenura tenentes tenementa tenere or tenendum in a feodal sense or feodum it self were not in use among them Much less Tenure in Capite Tenure by Knight-service Tenure in Socage or Frank-Almoign tho' the like services were performed to the Saxon Lordships by their Thanes and Theodens their Socmen or Husbandmen and their Beads-men or Clergy-men by way of contract for the lands received from them as were after the Conquest to the Norman Lordships by way of Tenure for lands holden of them The Neapolitan and Sicilian Constitutions which
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
Durandus in the first Chapter of his seventh Book reckoneth the Purification Ascension and St. John Baptist to be Grand days not mentioning All-Saints but both he in his 34 th Chapter and Belethus in his do call it Festum Maximum Generale being not only the Feast of Apostles and Martyrs but of the Trinity Angels and Confessours as Durandus termeth it And that honour therefore and duty quod in singulis valet potentius valebit in conjunctis As for the Feast of All-Souls neither Durandus nor Belethus nor any ancient of those times for they lived almost 400. years since do record it for a Festival But our Country-man Walsingham the Monk of St. Albans saith that Simon Arch-bishop of Canterbury in the year 1328. at a Provincial Council holden at London did ordain Quod die Parasceue in commemoratione Omnium Animarum ab omni servili opere cessaretur Surely he mistook it for neither is it so mention'd in Lindewood reciting that Canon nor in the ancient Copy of the Council it self where the two Feasts canonized by him are the Paresceue and the Conception of the Blessed Virgin Yet doubtless whensoever it was instituted it was a great Feast with us tho' no where else For the old Breviarium Eboracensis Ecclesiae doth not only set it down in the Kalendar for a double Feast but appointeth after the whole service with the nine Lessons for it as a Feast of the Trinity And though neither the Statute of Edward VI. nor our Church at this day do receive it yet being formerly a Vacation day as it seemeth our Judges still forbear to sit upon it as not hitherto made a day in Courts tho' deprived of Festival rites and therefore neither graced with Robes nor Feasting The Feast also of St. Peter and Paul on the 29 th of June was a double feast yet it is now become single and our Judges sit upon it I confess I have not found the reason unless that by Decanonizing St. Paul and so leaving St. Peter single we allow him no prerogative above the other Apostles lest it should give colour for his Primacy for to St. Paul as one born out of time we allow no Festival either in the Statute of Edward VI. or in the Almanacks and Kalendars of our Church And why St. Peter hath it not is the more observable for that he not only is deprived of the ancient rights of his Apostleship contrary to the Canons as the other are but also of the priviledge given him in that place by Pope Nicholas the 2 d. in a Bull to Edward the Confessour and being Patron of the Paroche and Dedication of Westminster where the Terms are kept and where by the right of his day he was also priviledged from Court business Other Festivals I enquire not after as of St. Dunstan and the rest that stand rubricate in old Kalendars they being either abrogated by old Canons of our own Church or the Statute of Edward VI. whereof I must note by the way that I find it repealed by Queen Mary but not revived by Queen Elizabeth or since I am carried from the brevity I intended yet all this lyeth in my way nor is it out of it to speak a word of St. George's-day which sometimes falleth in Easter-Term and is kept in the Court Royal with great solemnity but not in the Courts Judicial Tho' he stood before in the Kalendar and was the English Patron of elder time yet H. Chichley Arch-bishop of Canterbury gave him his greatness by Canonizing his day to be as a double Feast and Grand day as well among the Clergy as Laity and that both the one and other repairing to their Churches should celebrate it as Christmass-day free from servile-work in ardent prayers for safety of the King and Kingdom The occasion of this Constitution was to excite King Henry the V. being upon his Expedition for Normandy and tho' this among other holy-days was abolished by the Statute 5. and 6. of Edw. VI. yet it being the Festival of the Knights of the Garter it was provided in the Statute That the Knights might celebrate it on the 22 d. 23 d. and 24 th of April Other Feasts there were of this nature as that of St. Wenefred on the second of November which is in effect no day of sitting but applied to the pricking of Sheriffs These are vanished and in their room we have one new memorably day of intermitting Court and Law business for a little in the morning whilst the Judges in their Robes go solemnly to the great Church at Westminster on the fifth of November yearly to give God thanks for our great delivery from the Powder-Treason and hear a Sermon touching it which done they return to their Benches The Institution hereof is by Act of Parliament Jacobi and it is of the kind of those Ferial days which being ordained by the Emperours not by the Popes are in Canon and Civil Law called Dies Feriati repentini I will go no farther among the tedious subtilties of distinguishing of days I have not been matriculated in the Court of Rome And I confess I neither do nor can explain many objections and contrarieties that may be gathered in these passages Some Oedipus or Ariadne must help me out CHAP. III. Why some Law business may be done on days exempted IN the mean time let us see why some Law business may be done on days exempted and sometimes on Sunday it self notwithstanding any thing before mentioned For as in Term-time some days are exempted from Term business and some portion of the day from sitting in Courts so in the Vacation-time and days exempted some Law business may be performed by express permission of the Canon Law according to that of the Poet in the Georgicks Quippe etiam Festis quaedam exercere diebus Fas jura sinunt The Synod of Medard admitteth matters de pace concordia to be dispatched both on holy days and on Sunday it self the Laws of Hen. I. matters of Concord and doing Fealty to the Lord the decree of Gregory IX cases of necessity and doing piety according to that of Prosper Non recto servat legalia Sabbata cultu Qui pietatis opus credit in his vetitum The rule is verified by our Saviour's healing on the Sabbath Out of these and such other authorities of the Laws Ecclesiastical and Civil cited in the Glosses the Canonists have collected these Cases wherein Judges may proceed legally upon the days prohibited or do the things herein following For matters of Peace and Concord by reason whereof our Judges take the acknowledgement of Fines Statutes Recognizances c. upon any day even the Sabbath-day tho' it were better then forborn if necessity require it not For suppressing of Traitours Thieves and notoriours Offenders which may otherwise trouble the peace of the Common-wealth and endanger the Kingdom For manumission of Bond-men a work of Piety For saving that which