Imperial Constitution whilst we Britains were yet under the Roman Government Solis die quem dominicum certe dicere solebant majores omnium omnino litium negotiorum quiescat intentio Thus was Sunday redeemed from being part of the Term but all other days by express words of the Canon were left to be Dies Juridici whether they were mean or great Festivals For it thus followeth in the same place of the Decretals Caeteris verò diebus convenientibus personis illa quae justa sunt habent licentiam judicandi excepto criminali or as another Edition reads it exceptis criminalibus negotiis The whole Canon is verbatim also decreed in the Capitulars of the Emperours Carolus Ludovicus CHAP. V. How other Fastival and Vacation Days were exempted LET us now see how other Festivals and parts of the year were taken from the Courts of Justice The first Canon of note that I meet with to this purpose is that in Concilio Triburiensi Ca. 35. in or about the year 895. Nullus Comes nullúsque omnino secularis Diebus Dominicis vel Sanctorum in Festis seu Quadragessimae aut jejuniorum placitum habere sed nec populum praesumat illo coercere After this manner the Council of Meldis Ca. 77. took Easter-week commonly called the Octaves from Law-business Paschae hebdomade feriandum forensia negotia prohibentur By this example came the Octaves of Pentecost St. Michael the Epiphany c. to be exempted and principal Feasts to be honoured with Octaves The next memorable Council to that of Tribury was the Council of Ertford in Germany in the year 932. which though it were then but Provincial yet being afterwards taken by Gratian into the Body of the Canon Law it became General and was imposed upon the whole Church I will recite it at large as it stands in Binius for I take it to be one of the foundation-stones to our Terms Placita secularia Dominicis vel aliis Festis diebus seu etiam in quibus legitima Jejunia celebrantur secundum Canonicam institutionem minimè fieri volumus In super quoque Gloriosissimus Rex Francorum Henricus ad augmentum Christianae Religionis concessit or as Gratian hath it Sancta Synodus decrevit ut nulla judiciaria potest as licentiam habeat Christianos suâ authoritate ad placitum bannire septem diebus ante Natalem Domini à Quinquagessima usque ad Octavas Paschae septem diebus ante Natalem Sancti Johannis Baptistae quatenus adeundi Ecclesiam orationibúsque vacandi liberiùs habeatur facultas But the Council of St. Medard extant first in Burchard and then in Gratian enlargeth these vacations in this manner Decrevit Sancta Synodus ut a Quadragessima usque in Octavam Paschae ab Adventu Domini usque in Octavam Epiphaniae necnon in Jejuniis quatuor temporum in Litaniis Majoribus in diebus Dominicis in diebus Rogationum nisi de concordia pacificatione nullus supra sacra Evangelia jurare praesumat The word jurare here implyeth Law causes or hold Plea on these days as by the same phrase in other Laws shall by and by appear which the Gloss also upon this Canon maketh manifest saying in his etiam diebus causae exerceri non debent citing the other Canon here next before recited but adding withall that the Court and Custome of Rome it self doth not keep Vacation from Septuagessima nor as it seemeth on some other of the days And this president we follow when Septuagessima and Sexagessima fall in the compass of Hilary-Term CHAP. VI. That our Terms take their Original from the Canon Law THUS we leave the Canon Law and come home to our own Country which out of these and such other foreign Constitutions for many more there are has framed our Terms not by chusing any set portion of the year for them but by taking up such times for that purpose as the Church and common Necessity for collecting the fruits of the Earth left undisposed of as in that which followeth plainly shall appear CHAP. VII The Constitutions of our Saxon Kings in this matter IN AS one of our ancient Saxon Kings made a very strict Law against working on Sunday Gif þeoƿ mon ƿyrce on sunnan daeg be his hlafordes haese sy he freo If a Servant work on Sunday by his Master's command let him be made free c. And Alured prohibited many Festivals but the first that prohibited Juridical proceedings upon such days was Edward the Elder and Guthurne the Dane who in the League between them made about ten years before the Council of Ertford that it may appear we took not all our light from thence did thus ordain Ordel aþas syndon tocƿedene Freols dagum riht faesten dagum We forbid that Ordel and Oaths So they called Law-tryals at that time be used upon Festival and Lawfull fasting Days c. How far this Law extended appeareth not particularly no doubt to all Festival and Fasting-days then imposed by the Roman Church and such other Provincial as by our Kings and Clergy here were instituted Those which by Alured were appointed to be Festivals are now by this Law made also days of Vacation from Judicial Trials yet seem they for the most part to be but Semi-Festivals as appointed onely to freemen not to bondmen for so this Law declareth viz. The 12. days of Christmas the day wherein Christ overcame the Devil the Anniversary of St. Gregory the 7. days afore Easter and the seven days after the day of St. Peter and St. Paul and the whole Week before St. Mary in the harvest and the feast-Feast-day of all-All-Saints But the four Wednesdays in the four Ember Weeks are remitted to Bondmen to bestow their work in them as they think good To come to that which is more perspicuous I find about Sixty years after a Canon in our Synod of Eanham under King Ethelred in these words First touching Sunday Dominicae solennia diei cum summo honore magnopere celebranda sunt nec quicquam in eadem operis agatur servilis Negotia quoque secularia quaestionésque publicae in eadem deponantur die Then commanding the Feast-days of the B. Virgin and of all the Apostles the Fast of the Ember days and of the Fryday in every Week to be duely kept it proceedeth thus Judicium quippe quod Anglicè Ordel dicitur juramenta vulgaria festivis temporibus legitimis jejuniis sed ab Adventu Domini usque post Octabas Epiphaniae à Septuagesima usque 15. dies post Pascha minime exerceantur Sed sit his temporibus summa pax concordia inter Christianos sicut fieri oportet It is like there were some former Constitutions of our Church to this purpose but either mine eye hath not lighted on them or my memory hath deceived me
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-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-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
Judices jejuni causas audiant discernant and again in the Capitulars Caroli Lodovici nè placitum Comes habeat nisi jejunus Where the word Comes according to the phrase of that time is used for Judex as elsewhere we have it declared to the same effect in the Capitular ad Legem Salicam And out of these and such other Constitutions ariseth the rule of the Canon Law that Quae à prandio fiunt Constitutiones inter decreta non referuntur Yet I find that Causes might be heard and judged in the afternoon for in Capitulars lib. 2 33 and again lib. 4. Cau. 16. it is said Causae viduarum pupillorum pauperum audiantur definiantur ante Meridiem Regis verò Potentiorum post Meridiem This though it may seem contradictory to the Constitutions aforesaid yet I conceive them to be thus reconcilable That the Judges sitting then but seldom continued their Courts both Forenoon and Afternoon from Morning till Evening without dinner or intermission as at this day they may and often do upon great Causes though being risen and dining they might not meet again yet might they not sit at night or use candle light Quòd de nocte non est honestum judicium exercere And from these ancient Rites of the Church and Empire is our Law derived which prohibiteth our Jurours being Judices de facto to have meat drink fire or candle light till they be agreed of their verdict It may here be demanded how it cometh to pass that our Judges after dinner do take Assizes and Nisi prius in the Guild-hall of London and in their Circuits I have yet no other answer but that ancient Institutions are discontinued often by some custome grating in upon them and changed often by some later Constitution of which kind the instances aforesaid seem to be For Assizes were ordained many ages after by Henry the second as appeareth by the Charter of Beverly Glanvill and Radulphus Niger and Nisi prius by Edward the first in the Statutes of Westminster 2 though I see not but in taking of them the ancient course might have been continued if haste would suffer it CHAP. II. Why they sit not at all some days THough there be many days in the Terms which by ancient Constitutions before recited are exempted from Law-business as those of the Apostles c. and that the Statute of Ed. 6. appointed many of them to be kept Holy-days as dedicated not unto Saints but unto divine worship which we also at this day retain as Holy-days Yet do not the high Courts forbear sitting in any of them saving on the Feast of the Purification the Ascension St. John Baptist all-All-saints and the day after though not a Feast called All-souls When the others lost their privilege and came to be Term-days I cannot find it sufficeth that Custome hath repealed them by confession of the Canonists Yet it seemeth to me there is no provision made for it in the Constitutions of our Church under Isleep Archbishop of Canterbury in the time of Edward the third For though many ancient Laws and the Decretals of Gregory the 9th had ordained judicialem strepitum diebus conquiescere feriatis yet in a Synod then holden wherein are all the Holy-days appointed and particularly recited no restraints of Judicature or Forensis strepitus is imposed but a cessation onely ab universis servilibus operibus etiam Reipublicae utilibus Which though it be in the phrase God himself useth touching many great Feasts viz. Omne servile opus non facietis in iis yet it is not in that when he instituteth the seventh day to be the Sabbath Non facies omne opus in eo without servile Thou shalt doe no manner of work therein Now the act of Judicature and of hearing and determining Controversies is not opus servile but honoratum planè Regium and so not within the prohibition of this our Canon which being the latter seemeth to qualifie the former Yea the Canonists and Casuists themselves not onely expound opus servile of corporeal and mechanical labour but admit 26 several cases where even in that very kind dispensation lieth against the Canons and by much more reason then with this in question It may be said that this Canon consequently giveth liberty to hold plea and Courts upon their Festivals in the Vacations I confess that so it seemeth but this Canon hath no power to alter the bounds and course of the Terms which before were setled by the Statutes of the Land so that in that point it prevaileth not Why but there ariseth another question how it comes to pass that the Courts sit in Easter-Term upon the Rogation days it being forbidden by the Council of Medard and by the intention of divers other Constitutions It seemeth that it never was so used in England or at least not for many ages especially since Gregory the ninth insomuch that among the days wherein he prohibiteth Forensem strepitum clamorous pleading c. he nameth them not And though he did the Glossographers say that a Nation may by Custome erect a Feast that is not commanded by the Canons of the Church Et eodem modo posset ex consuetudine introduci quòd aliqua quae sunt de praecepto non essent de praecepto sicut de tribus diebus Rogationum c. To be short I find no such privilege for them in our Courts though we admit them other Church rites and ceremonies We must now shew if we can why the Courts sitting upon so many Ferial and Holy-days do forbear to sit upon some others which before I mention'd the Purification Ascension St. John Baptist All-Saints c. For in the Synod under Isleep before mention'd no prerogative is given to them above the rest that fall in the Terms as namely St. Mark and St. Philip and Jacob when they do fall in Easter Term St. Peter in Trinity-Term St. Luke before the late abbreviation by 16. Car. 1. did fall and St. Simon and Jude doth always fall in Michaelmas-Term It may be said that although the Synod did prohibit onely Opera Servilia to be done on Festival-days as the offence most in use at that time yet did it not give licence to doe any Act that was formerly prohibited by any Law or Laudable Custome And therefore if by colour thereof or any former use which is like enough the Courts did sit on lesser Festivals yet they never did it on the greater among which majoris cautelae gratiâ those Opera Servilia are there also prohibited to be done on Easter-day Pentecost and the Sunday it self Let us then see which are the greater Feasts and by what merit they obtain their privilege that the Courts of Justice sit not on them As for Sunday we shall not need to speak of it being canonized by God himself As for Easter and Whitsunday we shall not need to speak of them
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-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-Grand-days not mentioning all-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
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-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