thought fit to omit it and I would not have the good Man depriv'd of such a publick testimony of his Modesty and love for Truth About the Year 1637. Sir William Dugdale acquainted our Author that many Learned Men were very desirous to see the Second Part publisht and requested of him to gratifie the world with the Work entire Upon that he show'd him the Second part as also the improvements that he had made upon the First but withall told him what great discouragements he had met with from the Booksellers So for that time the matter rested and upon the Author's death all the papers came into the hands of his eldest Son Sir John Spelman a Gentleman who had sufficient parts and abilities to compleat what his Father had begun if death had not prevented him After the Restoration of King Charles II. Arch-bishop Sheldon and the Lord Chancellor Hyde enquir'd of Sir William Dugdale what became of the Second part of the Glossary or whether it was ever finisht He told them that it was finisht by the Author and that the Copy was in the hands of Mr. Charles Spelman Grandson to Sir Henry They desir'd that it might by all means be printed and that he would prevail upon Mr. Spelman to do it for the Service of the Publick and the honour of his Grandfather Whereupon having got a good number of Subscriptions the management of that whole affair was referr'd to Sir William Dugdale as well to treat with the Booksellers as to prepare the Copy for the Press The share that Sir William Dugdale had in the publication of this Second Part has been made the ground of a suspicion that he inserted many things of his own that were not in Sir Henry Spelman's Copy and particularly some passages which tend to the enlargement of the Prerogative in opposition to the Liberties of the Subject The objection has been rais'd on occasion of a Controversie about the Antiquity of the Commons in Parliament the Authority of Sir Henry being urg'd to prove that there was no such thing as a House of Commons till the time of Henry III. It is agreed on all hands that this Learned Knight was a very competent Judge of that Controversie that as he had thoroughly study'd our Constitution so he always writ without partiality or prejudice that he was not engag'd in a party nor had any other design but to publish the truth fairly and honestly as he found it asserted by the best Historians Upon these grounds his Opinion in matters of this nature has ever been thought confiderable and his bare Judgement will always be valu'd when we can be sure that it is his own And there can be no doubt but his Assertions under the Title Parlamentum upon which the controversie is rais'd are his own and not an interpolation of Sir William Dugdale's For the very Copy from which it was Printed is in the Bodleian Library in Sir Henry Spelman's own hand and agrees exactly with the Printed Book particularly in the passages under dispute they are the same word for word So far then as this Copy goes for it ends at the word Riota it is a certain testimony that Sir William Dugdale did no more than mark it for the Printer and transcribe here and there a loose paper And tho' the rest of the Copy was lost before it came to the Oxford Library and so we have not the same authority for the Glossarie's being genuine after the Letter R yet it is not likely that Sir William had any more share in the seven last Letters of the Alphabet than he had in the others For all the parts of such a Work must be carry'd on at the same time and so to be sure the Author left equal materials for the whole The Gentleman also who is concern'd to prove the Second Part to be all genuine has urg'd Sir William Dugdale's own authority for it and that too while he was living Then I have seen a Letter from Sir William Dugdale to Mr. Spelman giving him an account of the great losses he had sustain'd by the Fire of London and the pains he had taken in the publication of the Councils and Glossary As to the former he expresly lays claim to the better half of it as his own Work and Collection adding that if the Impression had not perisht in all right and reason he ought to have had consideration for the same as also so he goes on for my pains in fitting the Copy of the Glossary for the Printer by marking it for the difference of Letter and introducing and transcribing those loose papers left by your Grandfather without fit directions where they should come in This is all that he pretends to in the Glossary and if he had any further share in it t is likely he would have insisted upon it on this occasion to convince Mr. Spelman the more effectually of the good services he had done him in that business I have been the more particular in this matter because if it should appear in the main that Sir William had taken the liberty of adding or altering every single passage after would be lyable to suspicion and the authority of the whole very much weaken'd For tho' that worthy Person was extremely well vers'd in our English affairs yet it must be own'd that Sir Henry Spelman was a better judge of our ancient Customs and Constitutions and consequently whatever he delivers as his opinion ought to be allow'd a proportionable authority Had he put his last hand to this Second Part the Glossary as it is now printed together would have made a much nobler Work But the latter part in comparison of the other is jejune and scanty and every one must see that it is little more than a collection of Materials out of which he intended to compose such Discourses as he has all along given us in the First Part under the words that are most remarkable It was my good fortune among others of his papers to meet with two of these Dissertations De Marescallis Angliae and De Milite which are publisht among these Remains for the present and will be of use hereafter in a new Edition of the Glossary as properly belonging to it and originally design'd for it by the Author Tho' it is not likely that he should lay aside his Glossary for the sake of the Councils yet it is certain that he enter'd upon this latter Work before the Glossary was finisht He was particularly encourag'd in it by Dr. George Abbot and Dr. William Laud successively Arch-bishops of Canterbury and above all by the most Learned Primate of Armagh Archbishop Usher And in his Preface he tells us that he was much confirm'd in his design by what he had heard from Dr. Wren first Bishop of Norwich and afterwards of Ely He told him how Dr. Andrews the then late Bishop of Winchester had been reflecting with great concern upon the
son Clement Spelman containing many things relating to Impropriations and several instances of the judgements of God upon Sacriledge The greatest part of these instances seems to be taken from his History and Fate of Sacriledge a book still in Manuscript The Gentleman for whose sake it was written dy'd immediately upon the publication of this book but however it did very good service to the Church This Mr. Stephens has made appear in a Preface to some of his Posthumous Works wherein he instances in several Gentlemen who were induc'd by the reading of this book to restore their Impropriations to the Church That part of the Preface is since reprinted before an Edition of this book which came out in the Year 1668. and therefore I shall not repeat the Catalogue of them in this place I will only beg leave to mention a more modern benefaction of this kind as it is set down in the late Edition of Camden's Britannia Scarce two miles from Arksey in the West-riding of York-shire lies Adwick in the street memorable on this account that Mrs. Ann Savill a Virgin benefactor yet living daughter of John Savill of Medly Esq purchased the Rectory thereof for which she gave about 900l. and has settl'd it in the hands of Trustees for the use of the Church for ever and this from a generous and pious principle upon the reading of Sir Henry Spelman's noted Treatise De non temerandis Ecclesiis Some reflections were made upon this Discourse by an unknown Author who could not forgive Sir Henry for paying so much respect to Churches and particularly for applying the word Ecclesia to a material Church urging that this term belongs only to the Assembly or Congregation This Sir Henry takes notice of in his Glossary under the title Ecclesia producing some instances of the use of that word in ancient Authors and afterwards honoured it with a fuller Apology It is publisht by Mr. Stephens at the end of his Larger work of Tithes so call'd with respect to the Smaller Treatise De non temerandis Ecclesiis together with a pious Epistle to Mr. Richard Carew who in a Letter to the Author had express'd his dissatisfaction in some particulars of this Work His next book upon this subject is that which he calls the Larger work of Tithes publisht by Mr. Jerem. Stephens in the Year 1646. with an excellent Preface by the same hand In this Discourse he asserts Tithes to the Clergy from the Laws of Nature and of Nations from the Commands of God in the Old and New Testament and from the particular Constitution of our own Kingdom Another work in vindication of the Rights of the Church is still in Manuscript with this title The History and Fate of Sacriledge discover'd by examples of Scripture of Heathens and of Christians from the beginning of the world continually to this day by Sir Henry Spelman Kt. Anno Domini 1632. The account which the Oxford Antiquary gives us of it is this In the Year 1663. Mr. Stephens began to print the History of Sacriledge design'd and began by Sir Henry Spelman and left to Mr. Stephens to perfect and publish But that work sticking long in the Press both the Copy and sheets printed off perisht in the grand Conflagration of London 1666. I have been told by a Learned Divine since a Prelate of our Church that Mr. Stephens was forbidden to proceed in an Edition of that Work lest the publication of it should give offence to the Nobility and Gentry But whatever was the occasion of its continuing in the Press till the Fire of London it has been taken for granted that the whole book was irrecoverably lost and I was satisfied of the same upon Mr. Wood's relation of the matter till examining some Manuscripts which were given to the Bodleian Library by the late Bishop of Lincoln I met with a transcript of some part of it Upon further enquiry I found other parts in other places so that now the Work seems to be pretty entire He begins with a general definition of Sacriledge then reckons up various kinds of it as to Places Persons and Things after which he enumerates at large the many signal punishments of it among Heathens Jews and Christians describing more particularly the instances of that kind which have formerly happen'd in our Nation Then he proceeds to give an account of the attempt upon the lands of the Clergy in Henry the IV's time and how it was disappointed afterwards he descends to the suppression of Priories-Alien in the Reign of Henry V. and so on to the general Dissolution under Henry VIII Here he shows us the several steps of the Dissolution the King 's express promise to employ the Lands to the advancement of Learning Religion and Relief of the Poor with the remarkable Calamities that ensu'd upon the King his Posterity his principal Agents in that affair the new Owners of the Lands and the Lords who promoted and passed the Dissolution Act Concluding with a Chapter which contains The particulars of divers Monasteries in Norfolk whereof the late Owners since the Dissolution are extinct or decay'd or overthrown by Misfortunes and grievous Accidents This is a short account of a large Work wherein the judicious Author is far from affirming that their being concern'd in this Affair either as promoters of the Alienation or Possessors of the Lands was directly the occasion of the Calamities that ensu'd On the contrary he declares more than once that he will not presume to judge of the secret methods of God's Providence but only relates plain matters of fact and leaves every man to make his own application Tho' it must be granted that many of the instances and those well asserted are so terrible in the Event and in the Circumstances so surprising that no considering Man can well pass them over without a serious reflection This Discourse might have appear'd among his other Posthumous Works but that some persons in the present Age would be apt to interpret the mention of their Predecessors in such a manner and on such an occasion as an unpardonable reflection upon their Families These I think are all the Treatises that he either wrote or publisht about the Rights of the Church The next Work that I shall mention is a History of the Civil affairs of the Kingdom from the Conquest to Magna Charta taken from our best Historians and generally set down in their own words It is a Manuscript in the Bodleian Library and the title which Sir Henry has given it is this Codex Legum Veterum Statutorum regni Angliae quae ab ingressu Gulielmi usque ad annum nonum Henrici tertii edita sunt Hoc est ante primum Statutum omnium Impressorum in libris juridicis quod Magna Charta appellatur ab Edwardo I. confirmata E variis monimentis Authoribus Manuscriptis antiquis paginis concinnatum Opere Studio Henrici Spelman collecta Anno
otherwise would perish a work of Necessity For doing that which time overslipt cannot be done As for making Appeals within the time limited 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 the Lord should discharge his 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 testis abesse volentis Cumque potestatis Patriae jus filius exit Or thus according to Panormitanus Ratione Appellationis Pacis Necessitatis Celeritatis Pietatis Matrimonii Latrocinii ubicunque in mora promptum est periculum So likewise by consent of parties upon Dies Feriati minus solennes viz. Harvest Hay-seed c. as we have said before And divers others there are whereof see the Glosses in Gratian and in the Chapter Conquestus but especially the Title De Feriis Dilationibus in ff from whence most of the premises are deduc'd and where also by a Constitution of Trajan Military business may be done in diebus feriis and at all times Rescripsit saith the Law ferias tantum à forensibus negotiis dare vacationem ea tamen quae ad disciplinam militarem pertinerent esse feriatis diebus peragenda Upon these reasons the Admiral-Court is always open for that strangers and Merchants and sea faring-men must take the opportunity of Tides and of Winds and other necessities and cannot without ruine or great prejudice attend the solemnity of Courts and dilatory Pleadings The Marshal's Court also for Military matters falleth within the priviledge granted by Trajan yet hath it observ'd as near as conveniently it may the Canons of the Church as forbearing to assign battle in Quadragesima temporibus prohibitis And so lately in the case between the Lo. Raye and Mr. Ramesey So likewise the Chancery being a Court of piety is said to be always open but I take this to be understood as it is Officina brevium and Consistorium aequi boni not where it is Praetorium Juris communis and proceedeth in course of the Common Law As for the Star-chamber it is in lieu of that which was in ancient time the Counsel-chamber and Specula Regni the watch-tower of the Kingdom where the Barons and other of the King's Counsel us'd to meet ad prospiciendam fovendamque Remp. to discover prevent and suppress all dangers and enormities occurrent and to provide for the safety and good of the Kingdom It was necessary therefore that this Session should not only be daily open but as is said of the house of Fame Nocte dieque patens for an evil may happen in the night that would be too late to prevent in the morning And therefore the Statute of 3. Henr. VII and 21. Henr. VIII enlarging the jurisdiction hereof do not circumscribe it either with Term-time or days of sitting CHAP. IV. Why the end of Michaelmass-Term is sometimes holden in Advent and of Hilary in Septuagesima c. BUt the Terms sometimes extend themselves into the days of the Church which we call Vacation as when Advent Sunday chanceth on the 27 th of November then Michaelmass-Term borroweth the day after out of Advent and when Septuagesima followeth suddenly upon the Purification Hilary-Term not only usurpeth upon it and Sexagesima which by the precedent of the Church of Rome here before mention'd it may do but also upon Quinquagesima Ash-wednesday and Quadragesima 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. Edw. I. cap. 48. where it is thus provided Forasmuch as it is great charity to do right unto all men at all times when need shall be by assent of all the Prelates it was provided that Assizes of Novel Disseisin Mordauncester and Darrain Presentment should be taken in Advent Septuagesima 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 the particularities therein mentioned CHAP. V. Why Assizes be holden in Lent IT seemeth that by virtue of this Statute or some other particular 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 Assis tenend sacro tempore non obstante Pateat universis per praesentes nos Ricardum miseratione divina Abbatem Monasterii Sancti Albani licentiam potestatem authoritate praesentium dedisse dilecto nobis in Christo Domino Johanni Shardlow sociis suis Justic Dom. Regis Assisas apud Barnet nostrae jurisdictionis exemptae die Lunae proximo ante Festum S. Ambrosii capiendi 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 for that otherwise it needed not But I find Shardlow to be Justice of Oier in Pickering Forest 17. Aug. An. 8. Edw. I. 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 hereby it appeareth that although we find not the reasons of things done in ancient ages yet nothing was done against the Rules of the Church without special Licence and dispensation The Feast of St. Ambrose mentioned 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 this 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 And as they granted Licence in times prohibited so they censur'd such as offended without Licence as appeareth by the case of Sir Gilbert Plumpton An. 1184. who being to be hang'd at Worcester upon the Sunday for a Rape committed by him the Bishop prohibited execution for that day upon pain of Excommunication c. CHAP. VI. Of the Returns OF the Returns I will not venture to speak much but nothing at all of Essoine 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 Sheriff for certifying the Courts what he hath done in
Durandus in the first Chapter of his seventh Book reckoneth the Purification Ascension and St. John Baptist to be Grand days not mentioning All-Saints but both he in his 34 th Chapter and Belethus in his do call it Festum Maximum Generale being not only the Feast of Apostles and Martyrs but of the Trinity Angels and Confessours as Durandus termeth it And that honour therefore and duty quod in singulis valet potentius valebit in conjunctis As for the Feast of All-Souls neither Durandus nor Belethus nor any ancient of those times for they lived almost 400. years since do record it for a Festival But our Country-man Walsingham the Monk of St. Albans saith that Simon Arch-bishop of Canterbury in the year 1328. at a Provincial Council holden at London did ordain Quod die Parasceue in commemoratione Omnium Animarum ab omni servili opere cessaretur Surely he mistook it for neither is it so mention'd in Lindewood reciting that Canon nor in the ancient Copy of the Council it self where the two Feasts canonized by him are the Paresceue and the Conception of the Blessed Virgin Yet doubtless whensoever it was instituted it was a great Feast with us tho' no where else For the old Breviarium Eboracensis Ecclesiae doth not only set it down in the Kalendar for a double Feast but appointeth after the whole service with the nine Lessons for it as a Feast of the Trinity And though neither the Statute of Edward VI. nor our Church at this day do receive it yet being formerly a Vacation day as it seemeth our Judges still forbear to sit upon it as not hitherto made a day in Courts tho' deprived of Festival rites and therefore neither graced with Robes nor Feasting The Feast also of St. Peter and Paul on the 29 th of June was a double feast yet it is now become single and our Judges sit upon it I confess I have not found the reason unless that by Decanonizing St. Paul and so leaving St. Peter single we allow him no prerogative above the other Apostles lest it should give colour for his Primacy for to St. Paul as one born out of time we allow no Festival either in the Statute of Edward VI. or in the Almanacks and Kalendars of our Church And why St. Peter hath it not is the more observable for that he not only is deprived of the ancient rights of his Apostleship contrary to the Canons as the other are but also of the priviledge given him in that place by Pope Nicholas the 2 d. in a Bull to Edward the Confessour and being Patron of the Paroche and Dedication of Westminster where the Terms are kept and where by the right of his day he was also priviledged from Court business Other Festivals I enquire not after as of St. Dunstan and the rest that stand rubricate in old Kalendars they being either abrogated by old Canons of our own Church or the Statute of Edward VI. whereof I must note by the way that I find it repealed by Queen Mary but not revived by Queen Elizabeth or since I am carried from the brevity I intended yet all this lyeth in my way nor is it out of it to speak a word of St. George's-day which sometimes falleth in Easter-Term and is kept in the Court Royal with great solemnity but not in the Courts Judicial Tho' he stood before in the Kalendar and was the English Patron of elder time yet H. Chichley Arch-bishop of Canterbury gave him his greatness by Canonizing his day to be as a double Feast and Grand day as well among the Clergy as Laity and that both the one and other repairing to their Churches should celebrate it as Christmass-day free from servile-work in ardent prayers for safety of the King and Kingdom The occasion of this Constitution was to excite King Henry the V. being upon his Expedition for Normandy and tho' this among other holy-days was abolished by the Statute 5. and 6. of Edw. VI. yet it being the Festival of the Knights of the Garter it was provided in the Statute That the Knights might celebrate it on the 22 d. 23 d. and 24 th of April Other Feasts there were of this nature as that of St. Wenefred on the second of November which is in effect no day of sitting but applied to the pricking of Sheriffs These are vanished and in their room we have one new memorably day of intermitting Court and Law business for a little in the morning whilst the Judges in their Robes go solemnly to the great Church at Westminster on the fifth of November yearly to give God thanks for our great delivery from the Powder-Treason and hear a Sermon touching it which done they return to their Benches The Institution hereof is by Act of Parliament Jacobi and it is of the kind of those Ferial days which being ordained by the Emperours not by the Popes are in Canon and Civil Law called Dies Feriati repentini I will go no farther among the tedious subtilties of distinguishing of days I have not been matriculated in the Court of Rome And I confess I neither do nor can explain many objections and contrarieties that may be gathered in these passages Some Oedipus or Ariadne must help me out CHAP. III. Why some Law business may be done on days exempted IN the mean time let us see why some Law business may be done on days exempted and sometimes on Sunday it self notwithstanding any thing before mentioned For as in Term-time some days are exempted from Term business and some portion of the day from sitting in Courts so in the Vacation-time and days exempted some Law business may be performed by express permission of the Canon Law according to that of the Poet in the Georgicks Quippe etiam Festis quaedam exercere diebus Fas jura sinunt The Synod of Medard admitteth matters de pace concordia to be dispatched both on holy days and on Sunday it self the Laws of Hen. I. matters of Concord and doing Fealty to the Lord the decree of Gregory IX cases of necessity and doing piety according to that of Prosper Non recto servat legalia Sabbata cultu Qui pietatis opus credit in his vetitum The rule is verified by our Saviour's healing on the Sabbath Out of these and such other authorities of the Laws Ecclesiastical and Civil cited in the Glosses the Canonists have collected these Cases wherein Judges may proceed legally upon the days prohibited or do the things herein following For matters of Peace and Concord by reason whereof our Judges take the acknowledgement of Fines Statutes Recognizances c. upon any day even the Sabbath-day tho' it were better then forborn if necessity require it not For suppressing of Traitours Thieves and notoriours Offenders which may otherwise trouble the peace of the Common-wealth and endanger the Kingdom For manumission of Bond-men a work of Piety For saving that which