CHAP. I.
Of Law-days among the Ancients.

THE time allotted to Law-business seemeth to have been that from the beginning amongst all, or most Nations, which was not particularly dedicated (as we said before) to the service of God, or some rites of Reli­gion. Therefore whilst Moses was yet under the Law of Nature, and be­fore the positive Law was given, he sacrificed and kept the holy Festival with Jethro his father-in-law on the one day, but judged not the people till the day after; Some particular instance (I know) may be given to the contrary, as I shall mention, but this seemeth to have been at that time the general use.

The Greeks, Greeks. who (as Josephus in his book against Appion witnesseth) had much of their ancient Rites from the Hebrews, held two of their Every month had about 6. more or less of them, so called because on them the Prytanaean Magistrates might hold Court. Prytanaean-Days in every Month for civil matters, and the third onely for their Sacra.

[Page 11] Aeschines, in his Oration against Ctesiphon, chargeth Demosthenes with writing a Decree in the Senate, that the So called from the [...], where their business was to sit onely on things in­animate, as when a peice of stone, timber or iron, &c. fell on a man, if the party that flung it were not known, sentence was past on that thing which slew him; and the Masters of this Court were to see that thing cast out of the Territories of Athens. See the Attick Antiq. l. 3. Chap. 3. Sect. 4. Prytanaean Magistrates might hold an Assembly upon the 8. day of the approaching Month of The month February, or, as others would have it March, when Sa­crifices were most usually offer'd to the Goddess Diana, [...] ab [...], cognomen Dianae, quod est, jaculis cervos figens. Elaphe­bolion, when the holy Rites of Aescu­lapius were to be solemnized.

The Romans Romans. likewise (whether by instinct of nature or president) medled not with Law Causes during the time appointed to the worship of their Gods, as appeareth by their Primitive Law of the 12. Tables, Feriis jurgia amovento, and by the places before ci­ted as also this of the same Tables.

[Page 12] To be short, it was so common a thing in those days of old, to exempt the times of exercise of Religion from all worldly business; that the Barba­rous Nations, even our Angli, whilst they were yet in Germany, the Suevians themselves, and others of those Nor­thern parts would in no-wise violate or interrupt it. Lib. de Moribus Germ. Cap. 40. Tacitus says of them that, during this time, Non bellum ineunt non arma sumunt, clausum omne ferrum; pax & quies tunc tantùm nota, tunc tan­tùm amata. Of our German Ancestours we shall speak more anon; our British are little to the purpose: they judged all Controversies by their Priests the Druides, and to that end met but once a year as De bello Gallico lib. [...]. Caesar sheweth us by those of the Gauls.

I will therefore seek the Original of our Terms onely from the Romans, as all other Nations that have been sub­ject to their Civil and Ecclesiastical Monarchy do, and must.

CHAP. II.
Of Law-days amongst the Romans using choice days.

THE ancient Romans, whilst they were yet Heathens, did not as we at this day use certain continued por­tions of the year, for a legal decision of Controversies, but out of a supersti­tious conceit that some days were omi­nous, and more unlucky than others (according to that of the Aegyptians,) they made one day to be Fastus, or Term-day, and another (as an Aegyp­tian day) to be Vacation or Nefastus: Seldom two Fasti, or Law-days toge­ther, yea they sometimes divided one and the same day in this manner,

Nor were all their Fasti applyed to Judicature, but some of them to other meetings and Consultations of the [Page 14] Commonwealth; so that being divi­ded into three sorts, which they called Fastos propriè, Fastos Intercisos, & Fa­stos Comitiales, they contained together 184. days, yet through all the Months in the year there remained not proper­ly to the Pretor, as Judicial or Tri­verbal Days above 28; Whereas, before the abbreviation of Michaelmas Term by the Statute of 16. Car. 1. we had in our Term above 96. Days in Court, and now have 86. besides the Sundays and Exempted Festivals which fall in the Terms; and those are about 28. or there about. De Rep. Angl. lib. 3. Sir Thomas Smith counts it strange, that three Tribunals in one City in less than a third part of the year should satisfie the wrongs of so large and populous a Nation as this of England. But let us return where we left off.

CHAP. III.
Of Law-days amongst the primitive Christians, and how they used all times alike.

TO beat down the Roman super­stition touching the observation of days, against which St. Augustine and others wrote vehemently; the Christians at first used all days alike for hearing of Causes, not sparing (as it seemeth) the Sunday it self, thereby falling into another extreme: Yet had they some president for it from Moses and the Jews. For Lib. 3. Philo Judaeus in the life of Moses reporteth, that the cause of him that gather'd sticks on the Sabbath-day, was by a solemn Council of the Princes, Priests, and the whole Multitude, examined and consulted of on the Sabbath-day. And the Talmudists, who were best acquain­ted with the Jewish Customs, as also Galatinus the Hebrew, do report that their Judges in the Council called Sanhedrim sate on the week-day from morning to night, in the Gates of the [Page 16] City; and on the Sabbath, and on Fe­stivals upon the Walls. So the whole year then seemed a continual Term, no day exempted. How this stood with the Levitical Law, or rather the Moral, I leave to others.

CHAP. IV.
How Sunday came to be exempted.

BUT, for the reformation of the abuse among Christians, in per­verting the Lord's day to the hear­ing of clamorous Litigants, it was or­dained in the year of our Redemption 517. by the Fathers assembled in Concilio Taraconensi Cap. 4. after that in Concilio Spalensi Cap. 2. and by Adrian Bishop of Rome in the De­cretal Caus. 15. quaest. 4. That, Nullus Episcopus vel infra positus Die Dominico causas judicare [aut ventilare] prae­sumat, No Bishop or inferiour person presume to judge or try causes on the Lord's day. For it appeareth by Epiphanius, that in his time (as also many hundred years after) Bi­shops and Clergy-men did hear and [Page 17] determine Causes, lest Christians, against the rule of the Apostle, should goe to Law under Heathens and In­fidels.

This Canon of the Church for ex­empting Sunday was by Theodosius fortified with an 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 Caus. 15. quaest. 4. C. 1. 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 Lib. 6. Cap. 245. à Bene­dict. Levit [...], 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 Bin. Tom. 3. Part. 1. Sect. 2. Cir­ca annum Christi 845. 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, [Page 19] 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 Concil. Tom. 3. part. 2. pag. 142. In isti­us Concil. Cap. 2. 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 Decret. Cau. 15. quaest 4. C 1. 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 al. Septua­gessimâ. 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 Cau. 22. [...] 5. Ca, 17. 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, [Page 20] & 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 Cau. 15. q. 4. C. 1. 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 [Page 21] 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. Legum Cap. 3.

If a Servant work on Sunday by his Master's command, let him be made free, &c.

And Legum Alured Cap. 39. Alured prohibited many Festi­vals; but the first that prohibited Ju­ridical proceedings upon such days was Edward the Elder and Guthurne the [Page 22] 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; Vide Foedus Eavardi & Gu [...]urni Regum Cap. 9.

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 See the a­foresaid 39. Chapter of the Laws of K. Alured. Law declareth, viz. The 12. days of Christmas, the day wherein Christ overcame the Devil, the Anniversary of St. Gregory, the 7. days [Page 23] 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-day of 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, The Synod of Eanham. I find about 'Twas held between the years 1006. and 1013. See the Authour's Conc. Britan. Tom. [...]. pag. 510. Sixty years after, a Canon in our The word Synod here signi­fies more than Council, not as 'tis usually restrained to that of the Clergy onely. Sy­nod of Eanham, un­der King Ethelred in these words. First, tou­ching Sunday, Concil. Eanham. Can. 15. 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 Concil. Eanham. Can. 15. B. Virgin, and of all the Concil. Eanham. Can. 15. A­postles, the Can 16. Fast of the Ember days, and of the Can. 17. Fryday in every Week to be duely kept; it proceedeth thus, Can. 18. Judicium quippe quod Anglicè Or­del dicitur, & juramenta vulgaria, fe­stivis temporibus & legitimis jejuniis, [Page 24] 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 ƿe forbeodað ordal. & að [...]s freols dagum. & ymbren dagum. & len [...]en dagum. & riht faesten da­gum; & fram Adventum domini eþ se eah to þa dag; Canuti Leg's cap. 17.

And we forbid Ordal and Oaths on Feast-days, and Ember days, and Lent, [Page 25] and set fasting days, and from the Ad­vent of our Lord till eight days after [ the] twelve [ days] be past. And from Septuagessima till fifteen nights after Ea­ster. And the Sages have ordained that St. Edward's day shall be Festival over all England on the 15. of the Kalends of April, and St. Dunstan's on the 14. of the Kalends of June, and that all Christians (as right it is) should keep them hallowed and in peace.

Canutus, following the example of the Synod of Eanham, setteth down in the Paragraph next before this recited, which shall be Festival and which Fa­sting-days, appointing both to be days of Vacation. Among the Fasting days he nameth the Saints Eves and the Frydays; but excepteth the Frydays when they happen to be Festival days, and those which come between Easter and Pentecost; as also those between Midwinter (so they called the Nativi­ty of our Lord) and Octabis Epiphaniae. So that, at this time, some Frydays were Law-days and some were not. Those in Easter Term, with the Eve of Philip and Jacob, were, and the rest were not. The reason of this partia­lity (as I take it) was; they fasted not [Page 26] 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 Mat. 9. 15. Mark. 2. 19. 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: Leges Ed. Conf. c. 9. 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 [Page 27] 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 Sect. 2. 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 In Hen. [...]. pag. 600. Hove­den, and those ancient Authours testi­fy, but by the Decree of the Conque­rour himself, in these words; Legum Anglo—Saxon. pag. 137. 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. [Page 29] The words touching their Law-days or Trials are these, under the Ti­tle, De Temporibus quibus leges non de­bent fieri: Custom: Cap. 80. 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 Lib. 4. c. 1. Lib. 14. c. 1. 2. 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 Lib. 2. [...]. 31. 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 [Page 30] 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 Alii le­gunt. Singulo. rum. Sanctorum Apostolorum non est tempus leges faciendi, vel jusjuran­dum ( misi pri­mo] al. pro. nisi primo fidelitate domini vel concordia) vel bellum, vel ferri, vel aquae, vel leges al. exa­minationis. exactiones tractari, sed sit in omnibus vera pax, beata charitas, ad honorem omnipotentis Dei, &c. The [Page 31] Copy of these Laws is much corrupted, and it appeareth by Florence Wigorn's Continuer, that the Anno Dom. 1142. 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 Hist. Nov. lib. 1. pag. 179. bonas leges & antiquas, & justas consuetudines.

Henry the 2d. expresly ratified the Laws of Edward the Confessour, and William the Conquerour, as In Hen. 2. pag. 600. 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 Lib. 2. Cap. 11. 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 Dial. de Scacc. 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, Hilary-Term. 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 Pag. 441. Lin. 18. 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 [Page 33] 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 [Page 34] 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 [Page 35] 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 [Page 36] 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 [Page 37] 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 Jejunia quatuor Temporum, as well by the Laws of Canutus, and Edward the Confessour, as by all other almost [Page 38] 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 Cod. lib. 3. Tit. 12 De Feriis. Cap. 7. 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 Tit. De Feriis. Ca. 5. C.—and in Cau. 15. quaest. 4. Gratian with the Glosses upon them to which I leave you, but is of old thus ex­pressed by Silva­rum lib. 4. Carm. 4. quod inscri­bitur. Ad Victorium Marcellum. Statius, as if it were ex jure Gentium:

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; 1 Sam. 25. 4. as at Nabal's and Absalom's sheep-shearing, 2 Sam. 13. 23. and in divers parts of England at this day. So the Normans, [Page 40] 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 Swaiumote or Swanimote, ( from the Saxon sƿang i. e. a Country Clown or Free holder, and mot or gemot Conventus) is a Court of Free holders within the Forest. See 3 Hen. 8. c. 18. 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, Hay­seed, 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, [Page 41] whereof see the Lib. 2. cap. 21. 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 Before the abbreviation by 16. Cat. 1. cap. 6. now is not till the third day after the Octaves. But Dial. lib. 2. cap. 3. Gervasius Tilburi­ensis, who lived in the days of Hen. 2. [Page 42] 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 Utas] i. e. Octava, the eighth day af­ter any Term or Feast. 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 [Page 43] 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 Anno 1614. in which year this Tract was written. 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 to begin the Fryday next after Corpus-Christi-day, which [Page 45] 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 [Page 46] 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 [Page 48] 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 [Page 49] 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.

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 Exod. 18. 14. 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, [Page 51] 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 Hist. lib. 6. 1. Huntington) were unmeasurably given to drunkenness. And it is said in Cap. 10. 13. 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 [Page 52] Magnus the Emperour it is ordained, Tit. L—lib. 2. ut Judices jejuni causas audiant & discernant: and again in the Lib. Cau. Capitulars Caroli & Lo­dovici, nè placitum Archaed. verb. Comes cap. 1. 15. 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 Et alia cap. Car. 6. 4. 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 [Page 53] 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 13 Ed. 1. cap. 30. 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 An. 5. & 6. Edv. 6. cap. 3. 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-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 [Page 55] 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. Lev. 23. 21, 25. Omne servile opus non facietis in iis, yet it is not in that when he institu­teth the seventh day to be the Sabbath, Ex. 20. 10, 11. Lev. 23. 3. 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 [Page 56] 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. Tabien. Feriae Sect. 10. 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.

[Page 57] We must now shew (if we can) why the Courts, Why on some Festivals, and not on others. 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. The differen­ces of [...]sti­vals.

Let us then see which are the greater [Page 58] 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 Vide Du­raudi lib. 7. c. 1. n 31. 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 Durand. lib 7. Ca. 1. 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 [Page 59] 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 Rast Ex­com. 5. 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 Belethus Explicat. Cap. 158. 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 [Page 60] 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, Grand days in France. 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, Grand days in 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, [Page 61] 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, Tho. Wal­singham, Hist. Angl. pag. 129 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 [Page 62] 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, The Feast of St. Peter and St. Paul. 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 [Page 63] 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, St. George' s day. 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 [Page 64] 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 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 parag. 7. Statute, That the Knights might celebrate it on the 22. 23. and 24th. of April. Other Feasts there were of this nature; St. Winifred. 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, The 5th. of November. [Page 65] 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.

[Page 66] 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 Virgil. Georg. lib. 1. v. 268, &c. Poet in the Georgicks,

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 Lib. Ep. Prosper,

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 [Page 67] 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;

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 Cau. 15. q. 4. Tit. de Feriis c. 5. 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 [Page 69] 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 As An. 1. 27. & 1. 26. Hoveden p. 663. 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;

[Page 71]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 In com. ejus. 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 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 Leges Ethelredi Cap. 93. Ethelred the Saxon King in case of vouching upon Trover.

[Page 73] Gif he cenne ofer an scira. haebbe ân ƿucena fyrst; gif he cenne ofer tra scira habbe tra ƿucena fyrst; gif he cenne ofer III. scira. haebbe III. ƿucena fyrst; Ofer eall sƿa fela scira. sƿa he cenne. haebbe sƿa feala ƿucena 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 Legum Hen. 1. Cap. 41. 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 Sonius M: SS. Seld. soinius; si ultra ma­re [Page 74] est 6. Hebdomadas habeat & unum diem ad accessum & recessum maris, nisi vel occupatio servitii Regis, vel ipsius aegritudo, vel M: SS. Cod. l. in­tempestas. tempestas, vel competens aliquod amplius respectet.

The This Statute was published Anno. 52. Hen. 3. Anno. Salut. 1267. Statute of The same with Marleborough in Wilts, famous for nothing more than that this Parliament was holden there. So Coke Institut. part 2. fol. 123. Marlebridge Cap. 12. soundeth to this purpose; In Coke ut suprà fol. 149. hath it thus, Sed si warrantus ille fuerit infra Comitatum, tunc, &c. 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. [Page 75] 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 Anno. 51. Hen. 3. al [...]er­ed by the Statute of 32. Hen. 8. Cap. 21. Stat. dies communes in Banco, which I leave to my Masters of the Law.

I will not speak of the Returns par­ticularly, more than that Octab▪ is sometimes reckon'd by 7. days, some­times by 8; By 7. excluding the Feast from which it is counted; By 8. in­cluding it. And the word is borrow­ed from the Constitutions of the Church, where the seven days follow­ing Easter were appointed to be Fe­rial-days (as we have shewed before) in imitation of the seven days Azy­morum, following the Passover in the Levitical Law. But in this [...]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 [Page 76] Munday always taken for the true Octab. unless you will count these two days for no more than one, as the Anno 21. Hen. 3. 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; Lib. de morib. Ger. manorum Cap. 11. Illud ex libertate vitium quòd non simul nec jussi conveniunt, sed [Page 77] & 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.

They that look into the Laws of our English Saxons, of the Saliques, French, Almayns, Ripurians, Bavari­ans, Longobards, and other German [Page 78] Nations, about 800. years since, shall easily find, that out of them, and many other Manners, Rites and Cu­stoms of the Saxons and Germans is the first part and foundation of our Laws, commonly called the Laws of Edward the Confessour, and Common Law. Two other parts principally (as from two Pole Stars) take their direction from the Canon-Law and the Laws of our brethren the Longobards (de­scending from Saxon linage as well as we) called otherwise the Feo­dal-law, received generally through all Europe. For in matters concern­ing the Church and Churchmen, Legi­timation, Matrimony, Wills, Testa­ments, Adultery, Diffamation, Oaths, Perjury, Days of Law, Days of Va­cation, Wager of Laws, and many o­ther things, it proceeded, sometimes wholly, sometimes for the greater part, by the rules and precepts of the Ca­non-Law. And in matters touching Inheritance, Fees, Tenures by Knights service, Rents, Escheats, Dower of the third part, Fines, Felony, Forfeiture, Trial by Battail, &c. from the Feo­dal-Law chiefly; as those that reade the books of those Laws collected by Obertus and Gerardus may see [Page 79] apparently. Though we and divers other Nations (according as befitteth every one in their particular) do in many things vary from them; which Obertus confesseth to be requisite, and to happen often among the Longo­bards themselves. I wish some wor­thy Lawyer would reade them dili­gently, and shew the several heads from whence these of ours were taken. They beyond the Seas are diligent in this kind, but we are all for pro­fit and Lucrando Pane.

Another great portion of our Com­mon Law is derived from the Civil (unless we will say that the Civil-Law is dervived from ours;) for Dr. Cowell, who hath learnedly travelled in com­paring and parallelling of them, af­firmeth, that no Law of any Chri­stian Nation whatsoever, approacheth nearer to the Civil-Law than this of ours. Yet he saith that all of them generali hujus disciplinae aequitate tem­perantur, & quasi condiuntur. Had he not said it, his book it self, in­tituled, Institutiones Juris Anglicani ad methodum & seriem Institutionum Imperialium compositae & digestae, would demonstrate it: Which Bracton also above 300. years before right well [Page 80] understanding, not onely citeth the Digests and Books of the Civil-Law in many places for want of our Com­mon-Law, but in handling our Law persueth the Method, Phrase and Mat­ter of Justinian's Institutes of the Ci­vil-Law.

When and how these several parts were brought into our Common-Law is neither easily nor definitively to be expressed. Those no-doubt of the Canon-Law by the prevalency of the Clergy in their several Ages, those of the Feodal by military Princes, at, and shortly after the Conquest. And those of Civil-Law by such of our Reve­rend Judges and Sages of ancient time, as for Justice and knowledge sake sought instruction thence, when they found no rule at home to guide their Judgments by. For I suppose they in those days judged many things, ex aequo & bono, and that their Judg­ments after as Responsa Prudentium a­mong the Romans, and the Codex Theo­dosianus became Presidents of Law un­to posterity.

As for the parts given unto Com­mon-Law out of the Constitutions of our Kings since the Conquest, and be­fore Magna Charta; I refer them (as [Page 81] they properly belong) to our Statute Law, though our Lawyers do reckon them ordinarily for Common-Law.

But among these various heads of our Law, I deduce none from the Scots, yet I confess that if those Laws of theirs, which they ascribe to Mal­colm, the Second, who lived about 60 years before the Conquest, be of that antiquity, (which I cannot but que­stion) and that our Book called Glan­vill be wholly in effect taken out of the Book of their Law verbatim, for the greatest part, called Regiam Majesta­tem, (for they pretend that to be el­der than our Glanvill; I must (I say) ingenuously confess, that the greatest part or portion of our Law is come from Scotland, which none I think ver­sed either in story or antiquities will or can admit.

To come therefore to the point; If my opinion be any thing, I think the foundation of our Laws to be laid by our German Anestours, but built upon and polished by materials taken from the Canon Law and Civil Law. And under the capacious name of Ger­mans, I not onely intend our Saxons, but the ancient French and Saliques; not excluding from that fraternity [Page 82] the Norwegians, Danes and Normans. And let it not more mislike us to take our Laws from the noble Germans, a principal People of Europe, than it did the conquering Romans to take theirs from Greece, or the learned Grecians theirs from the Hebrews. It is not credible that the Britains should be the authours of them; or that their Laws after so many transmutations of people and government, but especial­ly after the expulsion (in a manner) of their Nation, or at least of their Nobility, Gentry and Freemen, the abolishing of their Language, and the cessation of all commerce with them, should remain or be taken up by the conquering enemy, who scarcely suf­fered one Town in a County to be cal­led as they named it, or one English word almost, (that I yet have learned) to creep into their Language. Admit that much of their servile and base people remained pleased perhaps as well with their new Lords as with their old; can we think that the Saxons should take either Laws or Manners, or form of Government from them?

But more expresly Seneca speaking of Claudius the Emperour's having made an absolute conquest of this Island.

And more plainly Herodian, speak­ing of Severus the Emperour's going ont of this Island, [...] &c. Herodiani Hist. Lib. 3. Cap. 48. he left (saith he) behind him in that part of the Island subject to the Romans his youngest Son Geta, to administer Law and the Ci­vil affairs thereof, and some of his an­cient friends to be his Councellours, taking his eldest Son Antonius for his wars against the Barbarians.

When the Romans conquer'd this Land, they neither removed the In­habitants nor brought any Foreigners upon them, other than (to govern and keep them in obedience) some Legions of Souldiers, and small Colo­nies. Yet that they made an alte­ration of their Laws, we may see in the Scripture by the example of Judaea. For though Pompey obtained the King­dom there, rather by the confede­racy with Hyrcanus, than by right of [Page 84] Conquest, (and therefore suffer'd them to enjoy their rites of Religion, with the Liberties of most of their Cities;) yet it being reduced into a Province (as this of ours was) their Laws were so changed, as that, by their own confession, John 18. 31. it was not lawfull for them to put any man to death. Therefore our Saviour and the two Thieves were judged, and suffer'd up­on the Cross after the Roman manner, not according to the Laws of the Jews, (for their Law never inflicted the Cross upon any offender) and the punish­ment of Blasphemy wherewith they charged Christ was stoning; and the punishment of Theft a Quadruple Re­stitution, or bondage in default there­of. As for the stoning of Stephen, it was not judicial but tumultuous, an act of fury, and against Law: In which course also they thought to have murthered St. Paul, had not Lysias prevented them, by sending him to his legal trial before Caesar's judgment Seat.

By this we may conceive how the Romans dealt with the Britains touch­ing their Laws; and the story of Saint Alban and Amphybalus somewhat shew­eth it: But what Laws soever the [Page 85] Romans made in Britain, the Saxons doubtless swept them all away, with the Britains. There is certain proof of it; for Antonius made a Consti­tution, that all Nations under the Roman Empire should be called Ro­mans, and this was done when the Northern People brake into the lower parts of Europe, and made their ha­bitation there.

But more plainly Seneca speaking of Claudius the Emperour's having conquer'd this Island, as above;

The old Inhabitants, whom they expelled not but lived mingled with, were still called Romans; as we see in the ancient Laws of the Saliques, and Burgundians, in Cassiodorus and others, and their Laws distinguished by the Titles of Lex Barbara, and Lex Ro­mana. But here in Britain after the Saxons had conquer'd, we never hear [Page 86] nor find any mention of Lex Romana, or of any Roman: Which sheweth, that both that, and the Laws of the Britains were expelled and driven a­way together, or that of the Romans with the Romans, and that of the Britains with the Britains.

What the Laws of the Britains were, it remains at this day to be seen by a model of them in an ancient Ma­nuscript under the Ti­tle of These Laws were made by Hoel Dha King of Wales, about the year 940. and since the wri­ting of this Tract have been pub­lished to the world by our Au­thour himself, in the first Tome of his Concilia Britannica, pag. 408. The Laws of Hoel Dha, (that is Hoel the good;) no­thing consonant to these of ours at this day, or those of the Saxons in time past. But we find by the Red Book in the Ex­chequer, that the Laws of Hen. 1. do so concur in many things with them of the other Nations we speak of, that sometimes he not onely citeth the Salique Law, and the Rubuarian or Bel­gique by name, but deduceth much of the Text verbatim from them. And we find also a great multitude of words of Art, names of Offices, Officers and Ministers in our Law, common in old time to the Germans, French, Saliques, Longobards, and other Na­tions, [Page 87] as well as to our Saxons, Danes and Normans; but not one to my knowledge that riseth from the Bri­tish tongue, nor do we, to my know­ledge, retain any Law, Rite or Custome of the ancient Britains, which we re­ceived not from the Saxons or Germans, as used also by them of old, before they came into Britain.

For these few words that are found in our Law Chirographer, Protonota­ry, &c. whereby some argue the an­tiquity of our Law to be from the Druides, whom Caesar and Pliny report to have used the Greek tongue, it is doubtless, that they come to us from the Civil Lawyers, and the one of them being a Mongrel, half Greek and half Latine, could not descend from the Druides, who had neither knowledge nor use of the Latine tongue.

They therefore that fetch our Laws from Brutus, Multnutius, the Druides, or any other Brutish or British inhabi­tants here of old, affirming that in all the times of these several Nations, ( viz. Britains, Romans, Saxons, Danes and Normans) and of their Kings, this Realm was still ruled with the self same customes that it is now govern'd with­all; doe like them that make the Ar­cadians [Page 88] to be elder than the Moon, and the God Terminus to be so fixed on the Capitoline-Hill, as neither Mat­tocks nor Spades, nor all the power of men or of other Gods, could remove him from the place he stood in.

And thus I end.