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 Guthurn 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 Stephen and Henry the 2d 12. Of Hilary-Term according to those ancient Laws 13. Of Easter-Term in like manner 14. Of Trinity-Term and the long Vacation following 15. Of Michaelmas-Term 16. Of the later Constitutions of the Terms by the Statutes of the 51. of Hen. 3. and 36. of Edw. 3. 17. How Trinity-Term was alter'd by the 32. of Hen. 8. 18. And how Michaelmas-Term was abbreviated by Act of Parliament 16. Carol. 1. 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 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 shall mention but this seemeth to have been at that time 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 Prytanaean-Days in every Month for civil matters and the third onely for their Sacra Aeschines in his Oration against Ctesiphon chargeth Demosthenes with writing a Decree in the Senate that the Prytanaean Magistrates might hold an Assembly upon the 8. 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 president medled not with Law Causes during the time appointed to the worship of their Gods as appeareth by their Primitive Law of the 12. Tables Feriis jurgia amovento and by the places before cited as also this of the same Tables Post semel exta Deo data sunt licet omnia fari Verbáque honoratus libera Praetor habet When Sacrifice and holy Rites were done The Reverend Pretor then his Courts begun 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 Non bellum ineunt non arma sumunt clausum omne ferrum pax quies tunc tantùm nota tunc tantùm amata Of our German Ancestours we shall speak more anon our 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 I will therefore seek the Original of our Terms onely from the Romans as all other Nations that have been subject to their Civil and Ecclesiastical Monarchy do and must CHAP. II. Of Law-days amongst the Romans using choice days 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 manè Nefastus erat The afternoon was Term the mâ—rning Holy-day Nor were all their Fasti applyed to Judicature but some of them to other meetings and Consultations of the Commonwealth so that being divided into three sorts which they called Fastos propriè Fastos Intercisos Fastos Comitiales they contained together 184. days yet through all the Months in the year there remained not properly to the Pretor as Judicial or Triverbal Days above 28 Whereas before the abbreviation of Michaelmas Term by the Statute of 16. Car. 1. we had in our Term above 96. Days in Court and now have 86. besides the Sundays and Exempted Festivals which fall in the Terms and those are about 28. or there about Sir Thomas Smith counts it strange that three Tribunals in one City in less than a third part of the year should satisfie the wrongs of so large and populous a Nation as this of England But let us return where we left off CHAP. III. Of Law-days amongst the primitive Christians and how they used all times alike TO beat down the Roman superstition touching the 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 extreme Yet had they some president 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 and on Festivals upon the Walls So the whole year then seemed a continual Term no day exempted 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 the 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 aut 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 goe to Law under Heathens and Infidels This Canon of the Church for exempting Sunday was by Theodosius fortified with an
of them CHAP. VIII CAnutus succeeding shortly after by his Danish sword in our English Kingdome not onely retained but revived this former Constitution adding after the manner of his zeal two new Festival and Vacation days And Æ¿e forbeodað ordal aðâ—s freols dagum ymbren dagum lenâ—â—en dagum riht faesten dagum fram Adventum domini eþ se eah to þa dag And we forbid Ordal and Oaths on Feast-days and Ember days and Lent and set fasting days and from the Advent of our Lord till eight days after the twelve days be past And from Septuagessima till fifteen nights after Easter And the Sages have ordained that St. Edward's day shall be Festival over all England on the 15. of the Kalends of April and St. Dunstan's on the 14. of the Kalends of June and that all Christians as right it is should keep them hallowed and in peace Canutus following the example of the Synod of Eanham setteth down in the Paragraph next before this recited which shall be Festival and which Fasting-days appointing both to be days of Vacation Among the Fasting days he nameth the Saints Eves and the Frydays but excepteth the Frydays when they happen to be Festival days and those which come between Easter and Pentecost as also those between Midwinter so they called the Nativity of our Lord and Octabis Epiphaniae So that at this time some Frydays were Law-days and some were not Those in Easter Term with the Eve of Philip and Jacob were and the rest were not The reason of this partiality as I take it was they fasted not at Christmas for joy of Christ's nativity nor between Easter and Whitsontide for that Christ continued upon the Earth from his Resurrection till his Ascension And the Children of the wedding may not fast so long as the Bridegroom is with them Nor at Whitsuntide for joy of the coming of the Holy Ghost CHAP. IX The Constitution of Edward the Confessour most material SAint Edward the Confessour drew this Constitution of Canutus nearer to the course of our time as a Law in these words Ab Adventu Domini usque ad Octabas Epiphaniae pax Dei sanctae Ecclesiae per omne Regnum similiter à Septuagessima usque ad Octabas Paschae item ab Ascensione Domini usque ad Octabas Pentecostes item omnibus diebus quatuor temporum item omnibus Sabbatis ab hora nona totâ die sequenti usque ad diem Lunae item Vigiliis Sanctae Mariae Sancti Michaelis Sancti Johannis Baptistae Apostolorum omnium Sanctorum quorum solennitates a Sacerdotibus Dominicis annunciantur diebus omnium Sanctorum in Kalendis Novembris ab hora nona Vigiliarum subsequenti solennitate Item in Parochiis in quibus dedicationis dies observatur item Parochiis Ecclesiarum ubi propria festivitas Sancti celebratur c. The Rubrick of this Law is De temporibus diebus pacis Regis intimating Term-time and here in the Text the Vacations are called Dies pacis Dei sanctae Ecclesiae as I said in the beginning But pax Dei pax Ecclesiae pax Regis in other Laws of Edward the Confessour and elsewhere have other significations also more particular Hora nona is here as in all Authours of that time intended for three of the Clock in the after-noon being the ninth hour of the artificial day wherein the Saxons as other Nations of Europe and our ancestours of much later time followed the Judaical computation perhaps till the invention and use of Clocks gave a just occasion to alter it for that they could not dayly tarry for the unequal hours CHAP. X. The Constitution of William the Conquerour THIS Constitution of Edward the Confessour was amongst his other Laws confirm'd by William the Conquerour as not onely Hoveden and those ancient Authours testify but by the Decree of the Conquerour himself in these words Hoc quoque praecipio ut omnes habeant teneant Leges Edwardi in omnibus rebus adauctis his quae constituimus ad utilitatem Anglorum And in those Auctions nothing is added alter'd or spoken concerning any part of that Constitution Neither is it likely that the Conquerour did much innovate the course of our Terms or Law-days seeing he held them in his own Dutchy of Normandy not far differing from the same manner having received the Customs of that his Country from this of ours by the hand of Edward the Confessour as in the beginning of their old Customary themselves do acknowledge The words touching their Law-days or Trials are these under the Title De Temporibus quibus leges non debent fieri Notandum autem est quod quaedam sunt tempora in quibus leges non debent fieri nec simplices nec apertae viz. omnia tempora in quibus matrimonia non possunt celebrari Ecclesia autem legibus apparentibus omnes dies Festivos perhibet defendit viz. ab hora nona die Jovis usque ad ortum Solis die Lunae sequenti omnes dies solennes novem lectionum solennium jejuniorum dedicationis Ecclesiae in qua duellum est deducendum This Law doth generally inhibit all Judicial proceedings during the time wherein Marriage is forbidden and particularly all trials by Battail which the French and our Glanvill call Leges apparentes alias Apparibiles vulgarly Loix Apparisans during the other times therein mention'd And it is to be noted that the Emperour Frederick the Second in his Neapolitan Constitutions includeth the Trials by Ordeal under Leges paribiles But touching the times wherein Marriage was forbidden it agreed for the most part with the Vacations prescribed by Edward the Confessour especially touching the beginning of them Of Dies novem lectionum we shall find occasion to speak hereafter CHAP. XI What done by William Rufus Hen. 1. K. Stephen and Hen. 2. AS for William Rufus we reade that he pulled many lands from the Church but not that he abridged the Vacation Times assigned to it Henry the 1. upon view of former Constitutions composed this Law under the Title De observatione Legis faciendi viz Ab adventu Domini usque ad Octabas Epâ—â—haniae à Septuagessima usque ad 15 dies post Pascham Festis diebus quatuor Temporum diebus Quadragessimalibus aliis legitimis Jejuniis in diebus Veneris vigiliis Sanctorum Apostolorum non est tempus leges faciendi vel jusjurandum nisi primo fidelitate domini vel concordia vel bellum vel ferri vel aquae vel leges exactiones tractari sed sit in omnibus vera pax beata charitas ad honorem omnipotentis Dei c. The Copy of these Laws is much corrupted and it appeareth by Florence Wigorn's Continuer that the Londoners refused them and put Maud the Empress to an ignominious flight when she pressed the observation of them But in
to begin the Fryday next after Corpus-Christi-day which in the said year 1614. was the day next before St. John Baptist and so the Term did of necessity begin on Saint John Baptist's day This deceived all the Prognosticators 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 so deceiving many by that their errour But the aforesaid Statute of 32 H. 8. 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 the other for wealth that the Subject might attend his Harvest and the 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 thereby making the Term not onely 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 some years 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 Michaelmas-Term was abbreviated by Act of Parliament 16. Car. 1. 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. 1. Chap. 6. intituled An Act concerning the limitatiom and abbreviation of Michaelmas-Term For whereas by former Statutes it doth appear that Michaelmas-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 beginning of this Term viz. Octabis Sancti Michaelis A 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 23d 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 24. for the year 1681. This is all the alteration that Statute mentions and therefore for the end of Michaelmas-Term I refer the Reader to what our Authour has said already in the 15th Chapter It may not be amiss in persuit of our Authour'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 Michaelmas-Term was generally found to be very inconvenient to his Majesty's subjects both Nobles and others 1. For the keeping of Quarter-Sessions next after the feast of St. Michael the Archangel 2ly For the keeping their Leets Law-days and Court-Barons 3ly For the sowing of land with Winter-Corn the same being the chief time of all the year for doing it 4ly For the disposing and setting in order of all their Winter husbandry and business 5ly For the receiving and paying of Rents 6ly 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 upon some days exempted 4. Why the end of Michaelmas-Term is sometimes held in Advent and of Hilary-Term in Septuagessima Sexagessima and Quinquagessima 5. Why the Assizes are held 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 incursion 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 Scripture 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 Endotercisi 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 Terms 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 onely lest repletion should bring upon them drowsiness and oppression of spirits according to that of St. Jerome Pinguis Venter non gignit mentem tenuem To confess the truth our Saxons as appeareth by Huntington were unmeasurably given to drunkenness And it is said in Ecclesiastes Vae Terrae cujus Principes manè comedunt Therefore to avoid the inconvenience depending hereon the Council of Nice ordained that Judices non nisi jejuni judicia decernant And in the Council of Salegunstad it was afterward decreed A. D. 1023 ut 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 L lib. 2. ut
of St. Ambrose mention'd in the Licence was on the fourth of April which commonly is about a Week or two before Easter And the Abbat of St. Alban having exempt jurisdiction within the Province of Canterbury granteth the dispensation to hold Assizes in tempore sacro as the Rubrick explaineth it lest the words nostrae jurisdictionis exemptae might be applied to some layick Franchise I assure my self there are many of this kind if they might come to light CHAP. VI. Of the Returns OF the Returns I will not venture to speak much but nothing at all of Essoins and Exception-days for that draweth nearer to the faculty of Lawyers wherein I mean not to be too busie The Returns are set days in every Term appointed to the Sheriffs for certifying the Courts what they have done in execution of the Writs they received from them And I take it that in old time they were the ordinary days set to the Defendants for appearance every one of them being a se'night after another to the end that the Defendant according to his distance from the place where he was to appear might have one two three or more of these Returns that is so many weeks for his appearance as he was Counties in distance from the Court where he was to appear This is verified by the Law of Ethelred the Saxon King in case of vouching upon Trover Gif he cenne ofer an scira haebbe ân Æ¿ucena fyrst gif he cenne ofer tra scira habbe tra Æ¿ucena fyrst gif he cenne ofer III. scira haebbe III. Æ¿ucena fyrst Ofer eall sÆ¿a fela scira sÆ¿a he cenne haebbe sÆ¿a feala Æ¿ucena fyrst If the Vouchee dwell one Shire off let him at first have one week if he dwell two Shires off let him have two weeks if he dwell three Shires off let him have three weeks and for so many Shires as he dwelleth off let him have so many weeks The Law of Henry the First is somewhat more particular Qui residens est ad domum suam summoniri debet de placito quolibet cum testibus Et si domi non est idem dicatur vel dapifero vel denique familiae suae liberè denuncietur si in eodem Comitatu sit inde ad septem dies terminum habeat si in alia sit 15. dierum terminum habeat si in tertio Comitatu sit 3. Hebdomadae si in quarto quartae Hebdomadae ultrà non procedit ubicunque fuerit in Anglia nisi competens eum detineat soinius si ultra mare est 6. Hebdomadas habeat unum diem ad accessum recessum maris nisi vel occupatio servitii Regis vel ipsius aegritudo vel tempestas vel competens aliquod amplius respectet The Statute of Marlebridge Cap. 12. soundeth to this purpose In Assisis autem ultimae praesentationis in placito Quare impedit de Ecclesiis vacantibus dentur dies de Quindena in Quindenam vel de tribus septimanis in tres septimanas prout locus fuerit propinquus vel remotus And again Cap. 27. Sed si vocatus c. ad warrantum coram Justiciar itinerantibus fuerit infra Comitatum tunc injungatur Vicecomiti quòd ipsum infra tertium diem vel quartum secundùm locorum distantiam faciat venire sicut in itinere Justiciar fieri consuevit Et si extra Comitatum maneat tunc rationabilem habeat Summonitionem 15. dierum ad minùs secundùm discretionem Justiciar Legem Communem There was also another use of Returns as appeareth by the Reformed Customary of Normandy Artic. 10th Some of them belonged to Pleas of Goods and Chattels which we call personal Actions as those of Octab. Some to Pleas of Land and real Actions as those of Quindena to Quindena Nul n'est tenu de respondere de son heretage en mavidre tems que de quinizanie in quinizanie The more solemn Actions had the more solemn Returns as we see by the Stat. dies communes in Banco which I leave to my Masters of the Law I will not speak of the Returns particularly more than that Octab is sometimes reckon'd by 7. days sometimes by 8 By 7. excluding the Feast from which it is counted By 8. including it And the word is borrowed from the Constitutions of the Church where the seven days following Easter were appointed to be Ferial-days as we have shewed before in imitation of the seven days Azymorum following the Passover in the Levitical Law But in this â—â—nner Octab. Trinitatis always includeth nine days reckoning Trinity-Sunday for one by reason the just Octabis falleth on the Sunday following which being no day in Court putteth off the Return till the next day after making Munday always taken for the true Octab. unless you will count these two days for no more than one as the Stat. de Anno Bissextili in the like case hath ordained CHAP. VII Of the Quarta Dies post TOuching the Quartam diem post allowed to the Defendant for his appearance after the day of Return it is derived from the Ancient Saxon Salique French and German Laws where it was ordained that the Plaintiff should per triduum seu amplius adversarium expectare usque ad occasum solis which they called Sol Satire as appeareth abundantly in their Laws and in the Formular of Marcellus as Bignonius notes upon the same To which also may be added that which occurreth in Gratian Cap. Biduum vel triduum But the original proceedeth from the ancient custome of the Germans mentioned by Tacitus Illud ex libertate vitium quòd non simul nec jussi conveniunt sed alter tertius dies cunctatione coeuntium absumitur He saith ex libertate because that to come at a peremptory time was a note of Servitude which the Germans despised CHAP. VIII Why I have used so much Canon and Foreign Law in the discourse with an incursion into the Original of our Laws I Have used much Canon and some other Foreign Laws in this discourse yet I take it not impertinently for as the Western Nations are for the most part deduced from the Germans so in ancient times there was a great agreement and affinity in their Laws Facies non omnibus una Nec diversa tamen qualem decet esse sororum They that look into the Laws of our English Saxons of the Saliques French Almayns Ripurians Bavarians Longobards and other German Nations about 800. years since shall easily find that out of them and many other Manners Rites and Customs of the Saxons and Germans is the first part and foundation of our Laws commonly called the Laws of Edward the Confessour and Common Law Two other parts principally as from two Pole Stars take their direction from the Canon-Law and the Laws of our brethren the Longobards descending from Saxon linage as well as we called otherwise the Feodal-law received generally
through all Europe For in matters concerning the Church and Churchmen Legitimation Matrimony Wills Testaments Adultery Diffamation Oaths Perjury Days of Law Days of Vacation Wager of Laws and many other things it proceeded sometimes wholly sometimes for the greater part by the rules and precepts of the Canon-Law And in matters touching Inheritance Fees Tenures by Knights service Rents Escheats Dower of the third part Fines Felony Forfeiture Trial by Battail c. from the feodal-Feodal-Law chiefly as those that reade the books of those Laws collected by Obertus and Gerardus may see apparently Though we and divers other Nations according as befitteth every one in their particular do in many things vary from them which Obertus confesseth to be requisite and to happen often among the Longobards themselves I wish some worthy Lawyer would reade them diligently and shew the several heads from whence these of ours were taken They beyond the Seas are diligent in this kind but we are all for profit and Lucrando Pane. Another great portion of our Common Law is derived from the Civil unless we will say that the civil-Civil-Law is dervived from ours for Dr. Cowell who hath learnedly travelled in comparing and parallelling of them affirmeth that no Law of any Christian Nation whatsoever approacheth nearer to the Civil-Law than this of ours Yet he saith that all of them generali hujus disciplinae aequitate temperantur quasi condiuntur Had he not said it his book it self intituled Institutiones Juris Anglicani ad methodum seriem Institutionum Imperialium compositae digestae would demonstrate it Which Bracton also above 300. years before right well understanding not onely citeth the Digests and Books of the Civil-Law in many places for want of our Common-Law but in handling our Law persueth the Method Phrase and Matter of Justinian's Institutes of the Civil-Law When and how these several parts were brought into our Common-Law is neither easily nor definitively to be expressed Those no-doubt of the Canon-Law by the prevalency of the Clergy in their several Ages those of the Feodal by military Princes at and shortly after the Conquest And those of Civil-Law by such of our Reverend Judges and Sages of ancient time as for Justice and knowledge sake sought instruction thence when they found no rule at home to guide their Judgments by For I suppose they in those days judged many things ex aequo bono and that their Judgments after as Responsa Prudentium among the Romans and the Codex Theodosianus became Presidents of Law unto posterity As for the parts given unto Common-Law out of the Constitutions of our Kings since the Conquest and before Magna Charta I refer them as they properly belong to our Statute Law though our Lawyers do reckon them ordinarily for Common-Law But among these various heads of our Law I deduce none from the Scots yet I confess that if those Laws of theirs which they ascribe to Malcolm the Second who lived about 60 years before the Conquest be of that antiquity which I cannot but question and that our Book called Glanvill be wholly in effect taken out of the Book of their Law verbatim for the greatest part called Regiam Majestatem for they pretend that to be elder than our Glanvill I must I say ingenuously confess that the greatest part or portion of our Law is come from Scotland which none I think versed either in story or antiquities will or can admit To come therefore to the point If my opinion be any thing I think the foundation of our Laws to be laid by our German Anestours but built upon and polished by materials taken from the Canon Law and Civil Law And under the capacious name of Germans I not onely intend our Saxons but the ancient French and Saliques not excluding from that fraternity the Norwegians Danes and Normans And let it not more mislike us to take our Laws from the noble Germans a principal People of Europe than it did the conquering Romans to take theirs from Greece or the learned Grecians theirs from the Hebrews It is not credible that the Britains should be the authours of them or that their Laws after so many transmutations of people and government but especially after the expulsion in a manner of their Nation or at least of their Nobility Gentry and Freemen the abolishing of their Language and the cessation of all commerce with them should remain or be taken up by the conquering enemy who scarcely suffered one Town in a County to be called as they named it or one English word almost that I yet have learned to creep into their Language Admit that much of their servile and base people remained pleased perhaps as well with their new Lords as with their old can we think that the Saxons should take either Laws or Manners or form of Government from them But more expresly Seneca speaking of Claudius the Emperour 's having made an absolute conquest of this Island Jussit ipsum Nova Romanae Jura securis Tremere oceanum In th' Ocean Isle new Laws he set Which from the Roman Axe were fet And more plainly Herodian speaking of Severus the Emperour's going on t of this Island he left saith he behind him in that part of the Island subject to the Romans his youngest Son Geta to administer Law and the Civil affairs thereof and some of his ancient friends to be his Councellours taking his eldest Son Antonius for his wars against the Barbarians When the Romans conquer'd this Land they neither removed the Inhabitants nor brought any Foreigners upon them other than to govern and keep them in obedience some Legions of Souldiers and small Colonies Yet that they made an alteration of their Laws we may see in the Scripture by the example of Judaea For though Pompey obtained the Kingdom there rather by the confederacy with Hyrcanus than by right of Conquest and therefore suffer'd them to enjoy their rites of Religion with the Liberties of most of their Cities yet it being reduced into a Province as this of ours was their Laws were so changed as that by their own confession John 18. 31. it was not lawfull for them to put any man to death Therefore our Saviour and the two Thieves were judged and suffer'd upon the Cross after the Roman manner not according to the Laws of the Jews for their Law never inflicted the Cross upon any offender and the punishment of Blasphemy wherewith they charged Christ was stoning and the punishment of Theft a Quadruple Restitution or bondage in default thereof As for the stoning of Stephen it was not judicial but tumultuous an act of fury and against Law In which course also they thought to have murthered St. Paul had not Lysias prevented them by sending him to his legal trial before Caesar's judgment Seat By this we may conceive how the Romans dealt with the Britains touching their Laws and the story of Saint Alban and Amphybalus somewhat
sheweth it But what Laws soever the Romans made in Britain the Saxons doubtless swept them all away with the Britains There is certain proof of it for Antonius made a Constitution that all Nations under the Roman Empire should be called Romans and this was done when the Northern People brake into the lower parts of Europe and made their habitation there But more plainly Seneca speaking of Claudius the Emperour 's having conquer'd this Island as above Jussit ipsum Nova Romanae Jura securis Tremere oceanum In th' Ocean Isle new Laws he set Which from the Roman Axe were fet The old Inhabitants whom they expelled not but lived mingled with were still called Romans as we see in the ancient Laws of the Saliques and Burgundians in Cassiodorus and others and their Laws distinguished by the Titles of Lex Barbara and Lex Romana But here in Britain after the Saxons had conquer'd we never hear nor find any mention of Lex Romana or of any Roman Which sheweth that both that and the Laws of the Britains were expelled and driven away together or that of the Romans with the Romans and that of the Britains with the Britains What the Laws of the Britains were it remains at this day to be seen by a model of them in an ancient Manuscript under the Title of The Laws of Hoel Dha that is Hoel the good nothing consonant to these of ours at this day or those of the Saxons in time past But we find by the Red Book in the Exchequer that the Laws of Hen. 1. do so concur in many things with them of the other Nations we speak of that sometimes he not onely citeth the Salique Law and the Rubuarian or Belgique by name but deduceth much of the Text verbatim from them And we find also a great multitude of words of Art names of Offices Officers and Ministers in our Law common in old time to the Germans French Saliques Longobards and other Nations as well as to our Saxons Danes and Normans but not one to my knowledge that riseth from the British tongue nor do we to my knowledge retain any Law Rite or Custome of the ancient Britains which we received not from the Saxons or Germans as used also by them of old before they came into Britain For these few words that are found in our Law Chirographer Protonotary c. whereby some argue the antiquity of our Law to be from the Druides whom Caesar and Pliny report to have used the Greek tongue it is doubtless that they come to us from the Civil Lawyers and the one of them being a Mongrel half Greek and half Latine could not descend from the Druides who had neither knowledge nor use of the Latine tongue They therefore that fetch our Laws from Brutus Multnutius the Druides or any other Brutish or British inhabitants here of old affirming that in all the times of these several Nations viz. Britains Romans Saxons Danes and Normans and of their Kings this Realm was still ruled with the self same customes that it is now govern'd withall doe like them that make the Arcadians to be elder than the Moon and the God Terminus to be so fixed on the Capitoline-Hill as neither Mattocks nor Spades nor all the power of men or of other Gods could remove him from the place he stood in And thus I end FINIS a Deinde constituit Guilielmus Conquaestor ut quater quotannis c. Lib. 9. p. 154. l. 16. c. Definition a See Sect. 5. Cap. 6. Greeks †Every month had about 6. more or less of them so called because on them the Prytanaean Magistrates might hold Court * So called from the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 where their business was to sit onely on things inanimate as when a peice of stone timber or iron c. fell on a man if the party that flung it were not known sentence was past on that thing which slew him and the Masters of this Court were to see that thing cast out of the Territories of Athens See the Attick Antiq. l. 3. Chap. 3. Sect. 4. †The month February or as others would have it March when Sacrifices were most usually offer'd to the Goddess Diana 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 cognomen Dianae quod est jaculis cervos figens Romans * Lib. de Moribus Germ. Cap. 40. †De bello Gallico lib. ◠†De Rep. Angl. lib. 3. * Lib. 3. a Caus. 15. quaest 4. C. 1. * Lib. 6. Cap. 245. à Benedict Levit◠†Bin. Tom. 3. Part. 1. Sect. 2. Circa annum Christi 845. * Concil Tom. 3. part 2. pag. 142. In istius Concil Cap. 2. †Decret Cau. 15. quaest 4. C 1. * al. Septuagessimâ †Cau. 22. â— 5. Ca 17. †Cau. 15. q. 4. C. 1. Legum Cap. 3. * Legum Alured Cap. 39. Vide Foedus Eavardi Guâ—â—urni Regum Cap. 9. †See the aforesaid 39. Chapter of the Laws of K. Alured The Synod of Eanham a 'T was held between the years 1006. and 1013. See the Authour's Conc. Britan. Tom. â— pag. 510. b The word Synod here signifies more than Council not as 't is usually restrained to that of the Clergy onely c Concil Eanham Can. 15. c Concil Eanham Can. 15. c Concil Eanham Can. 15. d Can 16. e Can. 17. f Can. 18. Canuti Leg's cap. 17. a Mat. 9. 15. Mark 2. 19. b Leges Ed. Conf. c. 9. * Sect. 2. a In Hen. â— pag. 600. b Legum Anglo Saxon. pag. 137. c Custom Cap. 80. d Lib. 4. c. 1. Lib. 14. c. 1. 2. e Lib. 2. 〈◊〉 31. a Alii legunt Singulo rum b misi primo al. pro. c al. examinationis * Anno Dom. 1142. †Hist. Nov. lib. 1. pag. 179. c In Hen. 2. pag. 600. * Lib. 2. Cap. 11. e Dial. de Scacc. Hilary-Term a Pag. 441. Lin. 18. a Cod. lib. 3. Tit. 12 De Feriis Cap. 7. b Tit. De Feriis Ca. 5. c Cau. 15. quaest 4. d Silvarum lib. 4. Carm. 4. quod inscribitur Ad Victorium Marcellum 1 Sam. 25. 4. 2 Sam. 13. 23. * Swaiumote or Swanimote from the Saxon sÆ¿ang i. e. a Country Clown or Free holder and mot or gemot Conventus is a Court of Free holders within the Forest. See 3 Hen. 8. c. 18. b Lib. 2. cap. 21. * Before the abbreviation by 16. Cat. 1. cap. 6. a Dial. lib. 2. cap. 3. * Utas i. e. Octava the eighth day after any Term or Feast * Anno 1614. in which year this Tract was written * Exod. 18. 14. a Hist. lib. 6. 1. b Cap. 10. 13. a Tit. b Lib. Cau. c Archaed verb. Comes cap. 1. 15. d Et alia cap. Car. 6. 4. * 13 Ed. 1. cap. 30. a An. 5. 6. Edv. 6. cap. 3. a Lev. 23. 21 25. b Ex. 20. 10 11. Lev. 23. 3. * Tabien Feriae Sect. 10. Why on some Festivals and not on others The differences of â—â—stivals a Vide Duraudi lib. 7. c. 1. n 31. b Durand lib 7. Ca. 1. b Rast Excom 5. c Belethus Explicat Cap. 158. Grand days in France Grand days in England a Tho. Walsingham Hist. Angl. pag. 129 The Feast of St. Peter and St. Paul St. George ' s day * parag 7. St. Winifred The 5th of November a Virgil. Georg. lib. 1. v. 268 c. b Lib. Ep. a Cau. 15. q. 4. Tit. de Feriis c. 5. a As An. 1. 27. 1. 26. Hoveden p. 663. a In com ejus * Leges Ethelredi Cap. 93. a Legum Hen. 1. Cap. 41. * Sonius M SS Seld. b M SS Cod. l. intempestas †This Statute was published Anno. 52. Hen. 3. Anno. Salut 1267. a The same with Marleborough in Wilts famous for nothing more than that this Parliament was holden there So Coke Institut part 2. fol. 123. b Coke ut suprà fol. 149. hath it thus Sed si warrantus ille fuerit infra Comitatum tunc c. * Anno. 51. Hen. 3. alâ—ered by the Statute of 32. Hen. 8. Cap. 21. * Anno 21. Hen. 3. †Lib. de morib Ger. manorum Cap. 11. * Senecs Philosoph De morte Cl. Caesaris * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. Herodiani Hist. Lib. 3. Cap. 48. * These Laws were made by Hoel Dha King of Wales about the year 940. and since the writing of this Tract have been published to the world by our Authour himself in the first Tome of his Concilia Britannica pag. 408.