the one and the other repairing to their Churches should celebrate it as Christmas-day free from Servile-work in ardent prayers for safety of the King and Kingdom The occasion of this Constitution was to excite K. Henry the 5th being upon his expedition for Normandy and this among many Holy-days was abolished by the Stat. of 5. and 6. of Edw. 6. 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. 23. and 24th of April Other Feasts there were of this nature as that of St. Winifred on the 2d of November which is in effect no day of sitting but applyed to the pricking of Sheriffs These are vanished and in their room we have one new memorable 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 5th of November yearly to give God thanks for our great deliverance from the Powder-Treason and hear a Sermon touching it which done they return to their benches This was instituted by Act of Parliament 3. Jacobi Cap. 1. 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 Feriati dies repentini I will go no farther among the tedious subtilties of distinguishing 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 above 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 The Laws of Hen. 1. matters of Concord and doing Fealty to the Lord. The Decree of Gregory the ninth in 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 day 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 and doe the things here next following For matters of Peace and Concord by reason whereof our Judges take the acknowledgment of Fines Statutes Recognizances c. upon any day even the Sabbath it self though it were better then to be forborn For suppressing of Traytors Thieves and notorious Offenders which may otherwise trouble the peace of the Commonwealth and undoe the Kingdom For manumission of Bondmen A work of Piety For saving that which otherwise would perish A work of Necessity For doing that which time overslipt cannot be done As for making Appeals within the time limitted c. For taking the benefit of a Witness that otherwise would be lost as by Death or Departure For making the Son sui Juris As if amongst us a Lord should discharge a Ward of Wardship All which are expressed in these Verses Haec faciunt causas Festis tractare diebus Pax Scelus admissum Manumissio Res peritura Terminus expirans mora Festi abesse volentis Cumque potestatis Patriae jus filius exit Or thus according to Panormitanus Ratione Appellationis Pacis Necessitatis Celeritatis Pietatis Matrimonii Latrocinii ubicunque in mor a promptum est periculum So likewise by consent of parties upon dies Feriati minùs solennes viz. Harvest Hayseed c. as we have said before And divers others there are See the Glosses CHAP. IV. Why the end of Michaelmas-Term is sometimes holden in Advent and the Octaves of Hilary in Septuagessima BUT the Terms sometimes extend themselves into the days of the Church which we call Vacation as when Advent Sunday falleth on the 27th of November then Michaelmas-Term borroweth the day after out of Advent and when Septuagessima followeth suddenly upon the Purification Hilary-Term not onely usurpeth upon it and Sexagessima which by the President of the Church of Rome here before mention'd it may do but also upon Quinquagessima Shrove-Tuesday and Quadragessima it self for all which there is matter enough in one place or other already shewn Yet it is farther countenanced by the Statute of 3 Ed. 1. cap. 51. where it is thus provided Forasmuch as it is great charity to doe right to all men at all times when need shall be by assent of all the Prelates it was provided that Assizes of Novel Disseisin Mortdauncester and Darrain Presentment should be taken in Advent Septuagessima and Lent even as well as inquests may be taken and that at the special request of the King made unto the Bishops Where it is to be noted that Inquisitions might be taken before this Statute within the days prohibited or Church time and that this Licence extended but to particulars therein mentioned CHAP. V. Why Assizes are holden in Lent IT seemeth that by virtue of this Statute or some other dispensation from the Bishops Assizes began first to be holden in Lent contrary to the Canons I find in an ancient Manuscript of the Monastery of St. Albans a dispensation of this kind thus entituled Licentia concess Justic. Reg. de Assistenend sacro tempore non obstante Pateat universis per praesentes nos Richardum miseratione divinâ Abbatem Monasterii Sancti Albani licentiam potestatem authoritate praesentium dedisse dilecto nobis in Christo Domino Johanni Shardlow sociis ejus Justic. Dom. Regis Assisas apud Barnet nostrae Jurisdictionis exemptae die Lunae proximo ante Festum S. Ambrosii capiendas juxta formam vim effectum Brevis Domini Regis inde iis directi In cujus c. Anno Domini c. Sub magno Sigillo Whether this was before or after the Statute it appeareth not it may seem before or that otherwise it had been needless But I find Shardlow to be a Justice of Oier in Pickering Forest 17 Aug. An. 8. Ed. 1. If it were after it seemeth the Writ to the Justices extended to somewhat out of the Statute and that this Licence was obtained in majorem cautelam But to conclude although we find not the reason of things done in ancient ages yet we may be sure nothing was done against the rule of the Church without special Licence and dispensation The Feast
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 implicitly 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 very late 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 tantum manere feriarum dies fas erit quos geminis mensibus ad requiem laboris indulgentior annus excepit aestivos fervoribus mitigandis autumnos fructibus discerpendis This is also confirmed in the C. and in Gratian with the Glosses upon them to which I leave you but is of old thus expressed by Statius as if it were ex jure Gentium Certè jam Latiae non miscent jurgia Leges Et pacem piger Annus habet messésque reversae Dimisere Forum nec jam tibi turba reorum 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 30 days which Paulus Diaconus doth thus mention Proficiscentes autem eo ad villam ut juxta ritum imperialem triginta 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 Customary And forasmuch as the Swainmote-Courts are by the ancient forest-Forest-Laws appointed to be kept fifteen days before Michaelmas it seemeth to be intended that Harvest was then done or that in Forests little or no corn was used to be sown But 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 minùs solennes because they were not dedicated divino cultui but humanae necessitati Therefore though Law-business was prohibited on these days to give ease and freedom unto Suiters whilst they attended on the Store-house of the Commonwealth yet was it not otherwise than that by consent of parties they might proceed in this Vacation whereof see the Decreta Gregorii CHAP. XV. Of Michaelmas-Term according to the ancient Constitutions MIchaelmas-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. 3. that the Term was then holden there and began within the Octaves of Saint Michael for the note 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 must be a day within the Octaves whereas the Term now is not till the third day after the Octaves But Gervasius Tilburiensis who lived in the days of Hen. 2. hath a Writ in these words N. Rex Anglorum illi vel illi Vicecomiti salutem Vide sicut teipsum omnia tua diligis ut sis ad Scaccarium ibi vel ibi in Crastino Sancti Michaelis vel in Crastino Clausi Paschae habeas 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 saving that the Statute De Scaccario 51 Hen. 3. 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 So that this time being neither ferial nor belonging to the Church may justly be allotted to Term affairs if the Octaves of Saint Michael have no privilege More of which hereafter 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 26th of November and the 4th of December therefore the 28th 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 27th of November as sometimes it doth then is the last day of the Term contrary to the Canons and former Constitutions held in Advent as it after shall more largely appear CHAP. XVI The latter Constitutions of the Terms TO leave obscurity and come nearer the light it seemeth by the Statutes of 51 Hen. 3. 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 Ed. 3. cap. 12. confirmed that use For the Returns there mentioned are neither more nor fewer than at this day CHAP. XVII How Trinity-Term was altred and shortned TRinity-Term was altred and shortned by the Statute of 32 Hen. 8. chap. 21. which hath ordained it quoad sessionem to begin for ever the Fryday after Corpus-Christi-day and to continue 19 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 in the year 1614 it began on St. John Baptist's day and the year before it ended on his Eve Hereupon though 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 it is no vacation day when Corpus-Christi falleth as it did that year the very day before it Because the Statute hath appointed the Term
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-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
OF THE Law-Terms A DISCOURSE Written by The Learned ANTIQUARY Sir HENRY SPELMAN Kt. WHEREIN The Laws of the Jews Grecians Romans Saxons and Normans relating to this Subject are fully explained LONDON Printed for Matthew Gillyflower in Westminster-Hall 1684. SECT I. Of the Terms in general AS our Law-books have nothing to my knowledge of the Terms so were it much better if our Chronicles had as little For though it be little they have in that kind yet is that little very untrue affirming that William the Conquerour did first institute them It is not worth the examining who was authour of this errour but it seemeth that Polydore Virgil an alien in our Commonwealth and not well endenized in our Antiquities spread it first in print I purpose not to take it upon any man's word but searching for the fountain will if I can deduce them from thence beginning with their definition The Terms are certain portions of the year in which onely the King's Justices hold plea in the high Temporal Courts of Causes belonging to their Jurisdiction in the place thereto assigned according to the ancient Rites and Customs of the Kingdom The definition divides it self and offers these parts to be consider'd 1. The names they bear 2. The original they come of 3. The time they continue 4. The persons they are held by 5. The causes they deal with 6. The place they are kept in 7. The rites they are performed with These parts minister matter for a Book at large but my purpose upon the occasion imposed being to deal onely with the institution of the Terms I will travel no farther than the three first stages of my division that is touching their Name their Original and their Time of continuance SECT II. Of the Names of the Terms THE word Terminus is of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth the Bound End or Limit of a thing here particularly of the time for Law-matters In the Civil-Law it also signifieth a day set to the Defendant and in that sense doth Bracton and others sometimes use it Mat. Paris calleth the Sheriff's Turn Terminum Vicecomitis and in the addition to the M SS Laws of King Inas Terminus is applied to the Hundred-Court as also in a Charter of Hen. 1. prescribing the time of holding the Court. And we ordinarily use it for any set portion of time as of Life Years Lease c. The space between the Terms is named Vacation à Vacando as being Leasure from Law-business by Latinists Justitium à jure stando because the Law is now at a stop or stand The Civilians and Canonists call Term-time Dies Juridicos Vacation Dies Feriales Days of leasure or intermission Festival-days as being indeed sequester'd from troublesome affairs of humane business and devoted properly to the service of God and his Church According to this our Saxon and Norman Ancestours divided the year also between God and the King calling those days and parts that were assigned to God Dies pacis Ecclesiae the residue allotted to the King Dies or tempus Pacis Regis Divisum Imperium cum Jove Caesar habet Other names I find none anciently among us nor the word Terminus to be frequent till the time of Hen. 2. wherein Gervascius Tilburiensis and Ranulphus de Glanvilla if those books be theirs do continually use it for Dies pacis Regis The ancient Romans in like manner divided their Year between their Gods and their Commonwealth naming their Law-days or Term-time Fastos because their Praetor or Judge might then Fari that is speak freely their Vacation or days of Intermission as appointed to the service of their Gods they called Nefastos for that the Praetor might ne fari not speak in them judicially Ovid Fastorum lib. 1. Ille Nefastus erat per quem tria verba silentur Fastus erat per quem lege licebat agi When that the three Judicial words The Pretor 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 Citare partem ream to Cite the Defendant by the 2d he pronounced sentence and by the 3d. he granted execution This obiter 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 Essoine Exception Retorn Brev. 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. 8. Cap. 21. as though the part precedent were but Semi-Term Puisne-Term or Introitus Termini The words of the Stat. are these That Trinity-Term shall begin the Munday next after Trinity-Sunday for keeping the Essoines Returns Proffers and other ceremonies heretofore used c. And that the full term of the said Trinity-Term shall yearly for ever begin the Fryday 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 sits at the beginning of Michaelmas-Terms Hilary-Term and Easter are to be accounted as parts of the 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 matters as ancient as offences and controversies God himself held a kind of Term in Paradise when judicially he tryed and condemned Adam Eve and the Serpent In all Nations as soon as Government was setled 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 and Greeks 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
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-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
this particular branch there is nothing not agreeable to some former Constitution The word Bellum here signifieth Combats which among our Saxons are not spoken of and by those of Ferri vel Aquae are meant Ordal King Stephen by his Charter recited at Malmesbury confirmed and established by a Generality bonas leges antiquas justas consuetudines Henry the 2d expresly ratified the Laws of Edward the Confessour and William the Conquerour as Hoveden telleth us saying that he did it by the advice of Ranulph Glanvill then newly made Chief Justice of England which seemeth to be true for that Glanvill doth accordingly make some of his Writs returnable in Octabi or Clauso Paschae where the Laws of Edward the Confessour appoint the end of Lent Vacation And Gervascius Tilburiensis also mentioneth the same return CHAP. XII The Terms laid out according to these ancient Laws TO lay out now the bounds of the Terms according to these Canons and Constitutions especially that ancient Law of Edward the Confessour it thus appeareth viz. Hilary Term began then certainly at Octabis Epiphaniae that is the thirteenth day of January seven days before the first Return is now and nine days before our Term beginneth and ended at the Saturday next before Septuagessima which being movable made this Term longer some years than in others Florentinus Wigorniensis and Walsingham in his Hypodigma Neustriae saith Anno 1096. in Octabis Epiphaniae apud Sarisburiam Rex Gulielmus Rufus tenuit Consilium in quo jussit Gulielmo de Anco in duello victi oculos eruere testiculos abscindere Dapiferum illius Gulielmum de Alderi filium Amitae illius suspendi c. proceeding also judicially against others Though Walsingham calleth this Assembly Consilium with an s and Wigorniensis Concilium with a c the word Term perhaps not being in use in the days of William Rufus yet it may seem to be no other than an Assembly of the Barons in the King's Court of State which was then the place of Justice to proceed judicially against these offenders For the Barons of the Land were at that time the Judges of all Causes which we call Pleas of the Crown and of all other belonging to the Court of the King So that the proceedings being Legal and not Parliamentary it appeareth that it was then no Vacation and that the Term was begun at Octabis Epiphaniae whereby it is the liklier also that it ended at Septuagessima lest beginning it as we now do some years might happen to have no Hilary-Term at all as shall anon appear And this our ancient use of ending the Term at Septuagessima is some inducement to think the Council of Ertford to be depraved and that the word there Quinquagessima should be Septuagessima 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 Ertford a town in Germany where Burchard before him and Binius since hath placed it It comes here to my mind what I have heard an old Chequerman many years agoe report that this Term and Trinity-Term were in ancient time either no Terms at all or but as reliques of Michaelmas 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 was the cause of it But I since observe another cause viz. That Septuagessima or Church-time one while trode so near upon the heels of Octabis Epiphaniae I mean came so soon after it that 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 time very little and unfrequented For inasmuch as Easter-Term 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 922. fall upon any day between the 22. of October 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 Septuagessima may sometimes be upon the 18. of January and then they could not in ancient time have above 4. days Term and we at this day no Term at all because we begin it not till the 23. of January which may be six days after Septuagessima and within the time of Church-Vacation But what Hilary-Term hath now lost from the beginning of it it hath gained at the latter end of Trinity-Term And I shall speak more of this by and by CHAP. XIII Easter-Term EAster-Term which now beginneth two days after Quindena Paschae began then as the Law of Edward the Confessour appointed it at Octab. This is verified by Glanvill who maketh one of his Writs returnable thus Summoneo per bonos summonitores quatuor legales milites de vicineto de Stock quod sint ad Clausum Paschae coram me vel Justiciariis meis apud Westmonasterium ad eligendum supra sacramentum suum duodecim legales milites But as it began then nine days 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 inclusive to the Octaves of Pentecost with Ascension-Eve to be dies pacis Ecclesiae and Vacation CHAP. XIV Trinity-Term TRinity-Term therefore in those days began as it now doth in respect of the return at Octab. Pentecostes which being always the day after Trinity-sunday is now by the Stat. of 32 of Hen. 8. appointed to be called Crastino Trinitatis But it seemeth that the Stat. 51. of Hen. 3. changed the beginning of this Term from Crastino Trinitatis to Octab. Trinitatis and that therefore the Stat. of Hen. 8. 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. 3. assigned the same to be within two or three days after Quindena Sancti Johannis which is about the twelvth of July for that Statute nameth no return after Bnt 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 abbridge the continuance thereof till Michaelmas-Term unless the 7. days next before St John Baptist were according to the Canon of Ertford used as days of intermission when they fell after the Octaves of Pentecost as commonly they do though in the year 1614. four of them fell within them And except the Ember-days next after Holy Rood for
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-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