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A61093 Of the law-terms, a discourse wherein the laws of the Jews, Grecians, Romans, Saxons and Normans, relating to this subject are fully explained / written by ... Sir Henry Spelman, Kt. Spelman, Henry, Sir, 1564?-1641. 1684 (1684) Wing S4929; ESTC R16781 31,761 92

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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 ƿe forbeodað ordal að●s freols dagum ymbren dagum len●●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 Ep●●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
neither because they fall not in the Terms Yet I find a Parliament held at least began 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 two sorts viz. Festa in totum duplicia simpliciter duplicia 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 And I mean not to stay upon it for you may see in 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. Ed. 3. 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 Rituale de Sarum styleth them and therein lyeth their greatest privilege After the Arian Heresie against the B Trinity was by the Fathers of that time most powerfully confuted and suppressed the Church in memory of that most blessed victory and the better establishing of the orthodox faith in that point did ordain that upon divers Festival-days in the year a particular Lesson touching the nature of the Trinity besides the other 8. should be read in their Service with rejoycing and thanksgiving to God for suppressing that 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-Trials amongst the Normans who therefore kept them the more respectfully here in England Festa enim Trinitatis saith Belethus digniori cultu sunt celebranda 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 Faught Justice all other Courts being in the mean time silent See touching this their Loyscean De Seigniors To come back to England and our own Grand-days I see some difference in accounting of them Durandus in his first Chapter and seventh book reckoneth the Purification Ascension and St John Baptist to be Grand-days not mentioning All-Saints but both he in his 34th Chapter and Belethus in his do call it Festum Maximum Generale being not onely the Feast of Apostles and Martyrs but of the Trinity Angels and Confessours as Durandus termeth it And that honour and duty Quod in singulis valet potentiùs valebit in conjunctis As for the Feast of All-Souls neither Durandus nor Belethus nor any Ancient of those times for they lived above 400. years since do record it for a Festival But my Country-man Walsingham the Monk of St. Albans sayth that Simon Archbishop of Canterbury in the year 1328. at a Provincial Council holden at London did ordain Quòd 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 Parasceue and the Conception of the Blessed Virgin Yet doubtless whensoever it was instituted it was a Great Feast with us though no where else For the old Primer Eboracensis Ecclesiae doth not onely set it down in the Kalendar for a double Feast but appointeth for it the whole Service with the nine Lessons for it is as a Feast of the Trinity And though neither the Statute of Edward the 6. nor our Church at this day doth receive it yet being formerly a Vacation-day as it seemeth our Judges still forbear to sit upon it and have not hitherto made it a day in Court though deprived of Festival rites and therefore neither graced with Robes nor Feasting The Feast also of St. Peter and Paul on the 29th 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 Canonizing 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 6. or in the Almanacks and Kalendars of our Church And why St. Peter hath it not is the more observable for that he not onely is deprived of the ancient dignity of his Apostleship contrary to the Canons as the other are but of the privilege given him in that place by Pope Nicholas the 2d in a Bull to Edward the Confessour as being Patron of the Paroch and Dedication of Westminster where the Terms are kept and where by right thereof this day was also privileged from Court-business Other Festivals I enquire not after as of St. Dunstan and the rest that stand rubricate in old Kalendars they being abrogated by old Canons of our own Church or the Statute of Edw. 6. whereof I must note by the way that I find it repealed by Queen Mary but not revived by Queen Elizabeth or since It seemeth that the Statute of the 5. and 6. Edw. 6 Cap. 3. notwithstanding the Repeal of it amongst a multitude of others by Queen Mary Anno 1. Sessione 2. Cap. 2. is revived again though not by Queen Elizabeth yet by ● Jacobi Cap. 25. in these words That an Act made in the first year of the Reign of Queen Mary intituled an Act for the repeal of certain Statutes made in the time of King Edw. the 6. shall stand repealed 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 Court Judicial Though he stood before in the Kalendar and was the English Patron of elder time yet H. Chichley Archbishop of Canterbury gave him his greatness by canonizing his day to be a Double Feast and Grand day as well among the Clergy as Laity and that both