Of the law-terms, a discourse wherein the laws of the Jews, Grecians, Romans, Saxons and Normans, relating to this subject are fully explained / written by ... Sir Henry Spelman, Kt.

SECT. IV. (Book 4)

Of the Times assigned to Law-mat∣ters, called the Terms. (Book 4)

WE are now come to the great Arm of our Division, which spreads it self into many branches in handling whereof we shall fall, either necessarily or accidentally, upon these points, viz.

• 1. Of Law-days among the Anci∣ents, Jews and Greeks.
• 2. Of those among the Romans using choice days.
• 3. Of those among the Primitive Christians using all alike.
• 4. How Sunday came to be ex∣empted.
• 5. How other Festivals, and other Vacation days.
• 6. That our Terms took their ori∣ginal from the Canon-Law.
• 7. The Constitutions of our Saxon Kings; Edward the Elder, Guthurn the Dane, and the Synod of Eanham under Ethelred, touching this matter.
• ...

• 8. The Constitutions of Canutus more particular.
• 9. The Constitutions of Edward the Confessour more material.
• 10. The Constitution of William the Conquerour. And of Law-days in Normandy.
• 11. What done by William Rufus, Stephen and Henry the 2d.
• 12. Of Hilary-Term according to those ancient Laws.
• 13. Of Easter-Term in like manner.
• 14. Of Trinity-Term and the long Vacation following.
• 15. Of Michaelmas-Term.
• 16. Of the later Constitutions of the Terms by the Statutes of the 51. of Hen. 3. and 36. of Edw. 3.
• 17. How Trinity-Term was alter'd by the 32. of Hen. 8.
• 18. And how Michaelmas-Term was abbreviated by Act of Parliament 16. Carol. 1.

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 Reli∣gion. Therefore whilst Moses was yet under the Law of Nature, and be∣fore 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,* 1.1 who (as Josephus in his book against Appion witnesseth) had much of their ancient Rites from the Hebrews, held two of their† 1.2 Prytanaean-Days in every Month for civil matters, and the third onely for their Sacra.

Aeschines, in his Oration against Ctesiphon, chargeth Demosthenes with writing a Decree in the Senate, that the* 1.3 Prytanaean Magistrates might hold an Assembly upon the 8. day of the approaching Month of† 1.4 Elaphe∣bolion, when the holy Rites of Aescu∣lapius were to be solemnized.

The Romans* 1.5 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 ci∣ted as also this of the same Tables.

Post semel exta Deo data sunt licet omnia fari. Verbáque honoratus libera Praetor habet.

When Sacrifice and holy Rites were done, The Reverend Pretor then his Courts be∣gun.

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 Barba∣rous Nations, even our Angli, whilst they were yet in Germany, the Suevians themselves, and others of those Nor∣thern parts would in no-wise violate or interrupt it.* 1.6 Tacitus says of them that, during this time, Non bellum ineunt non arma sumunt, clausum omne ferrum; pax & quies tunc tantùm nota, tunc tan∣tùm 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† 1.7 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 sub∣ject 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 por∣tions of the year, for a legal decision of Controversies, but out of a supersti∣tious conceit that some days were omi∣nous, 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 Aegyp∣tian day) to be Vacation or Nefastus: Seldom two Fasti, or Law-days toge∣ther, yea they sometimes divided one and the same day in this manner,

Qui modo Fastus erat, manè Nefastus erat,

The afternoon was Term, the m••rning Holy-day.

Nor were all their Fasti applyed to Judicature, but some of them to other meetings and Consultations of the

Commonwealth; so that being divi∣ded into three sorts, which they called Fastos propriè, Fastos Intercisos, & Fa∣stos Comitiales, they contained together 184. days, yet through all the Months in the year there remained not proper∣ly to the Pretor, as Judicial or Tri∣verbal 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.† 1.8 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 super∣stition 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* 1.9 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 acquain∣ted 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

City; and on the Sabbath, and on Fe∣stivals 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 per∣verting the Lord's day to the hear∣ing of clamorous Litigants, it was or∣dained 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 De∣cretal Caus. 15. quaest. 4. That, Nullus Episcopus vel infra positus Die Dominico causas judicare [aut ventilare] prae∣sumat, 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) Bi∣shops and Clergy-men did hear and

determine Causes, lest Christians, against the rule of the Apostle, should goe to Law under Heathens and In∣fidels.

This Canon of the Church for ex∣empting 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 qui∣escat intentio. Thus was Sunday re∣deemed 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 thea 1.10 Decretals; Caeteris verò diebus convenientibus perso∣nis illa quae justa sunt habent licentiam ju∣dicandi, excepto criminali (or as ano∣ther Edition reads it) exceptis criminali∣bus negotiis. The whole Canon is ver∣batim also decreed in the Capitulars of the Emperours* 1.11 Carolus & Ludovi∣cus.

CHAP. V.

How other Fastival and Vacation Days were exempted.

LET us now see how other Festi∣vals 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 Tri∣buriensi Ca. 35. in or about the year 895. Nullus Comes, nullúsque omnino secularis Diebus Dominicis vel Sanc∣torum in Festis seu Quadragessimae, aut jejuniorum, placitum habere, sed nec po∣pulum praesumat illo coercere.

After this manner the Council of † 1.12 Meldis Ca. 77. took Easter-week, com∣monly called the Octaves, from Law-business; Paschae hebdomade feriandum, forensia negotia prohibentur. By this example came the Octaves of Pente∣cost, 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 Pro∣vincial,

yet being afterwards taken by Gratian into the Body of the Canon Law, it became General, and was im∣posed upon the whole Church. I will recite it at large, as it stands in* 1.13 Bi∣nius, for I take it to be one of the foundation-stones to our Terms. Pla∣cita secularia Dominicis vel aliis Festis diebus, seu etiam in quibus legitima Je∣junia celebrantur secundum Canonicam institutionem, minimè fieri volumus. In super quoque Gloriosissimus Rex [Fran∣corum Henricus] ad augmentum Chri∣stianae Religionis concessit, (or as† 1.14 Gra∣tian hath it) [Sancta Synodus decre∣vit] ut nulla judiciaria potest as licentiam habeat Christianos suâ authoritate ad placitum bannire septem diebus ante Na∣talem Domini, & à* 1.15 Quinquagessima usque ad Octavas Paschae, & septem di∣ebus ante Natalem Sancti Johannis Ba∣ptistae, quatenus adeundi Ecclesiam ora∣tionibúsque vacandi liberiùs habeatur facultas. But the Council of St. Me∣dard extant first in† 1.16 Burchard, and then in Gratian enlargeth these va∣cations in this manner, Decrevit Sancta Synodus, ut a Quadragessima usque in Octavam Paschae, & ab Adventu Do∣mini usque in Octavam Epiphaniae, nec∣non & in Jejuniis quatuor temporum,

& in Litaniis Majoribus, & in diebus Dominicis, & in diebus Rogationum (ni∣si 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† 1.17 Canon here next before reci∣ted, but adding withall, that the Court and Custome of Rome it self doth not keep Vacation from Septua∣gessima, nor, as it seemeth, on some other of the days. And this presi∣dent we follow, when Septuagessima and Sexagessima fall in the compass of Hilary-Term.

CHAP. VI.

That our Terms take their Original from the Canon Law.

THUS we leave the Canon Law, and come home to our own Country, which out of these, and such other foreign Constitutions (for many

more there are) has framed our Terms, not by chusing any set por¦tion 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 a∣gainst working on Sunday.

Gif þeoƿ mon ƿyrce on sunnan daeg. be his hlafordes haese. sy he freo.* 1.18

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

And* 1.19 Alured prohibited many Festi∣vals; but the first that prohibited Ju∣ridical proceedings upon such days was Edward the Elder and Guthurne the

Dane, who in the League between them, made about ten years before the Coun∣cil 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;* 1.20

We forbid that Ordel and Oaths (So they called Law-tryals at that time) be used upon Festival and Lawfull fast∣ing Days, &c.

How far this Law extended appeareth not particularly, no doubt to all Fe∣stival 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 Fe∣stivals, 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 ap∣pointed onely to freemen not to bond∣men, for so this† 1.21 Law declareth, viz. The 12. days of Christmas, the day wherein Christ overcame the Devil, the Anniversary of St. Gregory, the 7. days

afore Easter, and the seven days after, the day of St. Peter and St. Paul, and the whole Week before St. Mary in the harvest, and the Feast-day of All-Saints. But the four Wednesdays in the four Ember Weeks are remitted to Bond∣men to bestow their work in them as they think good.

To come to that which is more per∣spicuous,* 1.22 I find about a 1.23 Sixty years after, a Canon in ourb 1.24 Sy∣nod of Eanham, un∣der King Ethelred in these words. First, tou∣ching Sunday,c 1.25 Do∣minicae solennia diei cum summo honore magnope∣re 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 c 1.26 B. Virgin, and of all thec 1.27 A∣postles, thed 1.28 Fast of the Ember days, and of thee 1.29 Fryday in every Week to be duely kept; it proceedeth thus, f 1.30 Judicium quippe quod Anglicè Or∣del dicitur, & juramenta vulgaria, fe∣stivis temporibus & legitimis jejuniis,

sed & ab Adventu Domini usque post Octabas Epiphaniae, & à Septuagesima usque 15. dies post Pascha minime exer∣ceantur: 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 me∣mory hath deceived me of them.

CHAP. VIII.

CAnutus succeeding shortly after by his Danish sword in our English Kingdome, not onely retained but re∣vived this former Constitution, ad∣ding, 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 da∣gum; & fram Adventum domini eþ se eah to þa dag;* 1.31

And we forbid Ordal and Oaths on Feast-days, and Ember days, and Lent,

and set fasting days, and from the Ad∣vent of our Lord till eight days after [the] twelve [days] be past. And from Septuagessima till fifteen nights after Ea∣ster. 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 Fa∣sting-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 Nativi∣ty 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 partia∣lity (as I take it) was; they fasted not

at Christmas for joy of Christ's nati∣vity, nor between Easter and Whit∣sontide, for that Christ continued up∣on the Earth, from his Resurrection till his Ascension; Anda 1.32 the Chil∣dren 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 Con∣fessour most material.

SAint Edward the Confessour drew this Constitution of Canutus nearer to the course of our time, as a Law in these words:b 1.33 Ab Adventu Domi∣ni usque ad Octabas Epiphaniae pax Dei & sanctae Ecclesiae per omne Regnum; si∣militer à Septuagessima usque ad Octabas Paschae; item ab Ascensione Domini us∣que ad Octabas Pentecostes; item omni∣bus diebus quatuor temporum; item om∣nibus Sabbatis ab hora nona, & totâ die sequenti, usque ad diem Lunae; item Vi∣giliis Sanctae Mariae, Sancti Michaelis, Sancti Johannis Baptistae, Apostolorum

omnium & Sanctorum quorum solennita∣tes a Sacerdotibus Dominicis annunci∣antur diebus; & omnium Sanctorum in Kalendis Novembris, ab hora nona Vi∣giliarum, & subsequenti solennitate: Item in Parochiis in quibus dedicationis dies observatur; item Parochiis Eccle∣siarum ubi propria festivitas Sancti cele∣bratur, &c. The Rubrick of this Law is, De temporibus & diebus pa∣cis Regis, intimating Term-time, and here in the Text the Vacations are called Dies pacis Dei & sanctae Ec∣clesiae, as I* 1.34 said in the beginning. But pax Dei, pax Ecclesiae, & pax Re∣gis in other Laws of Edward the Con∣fessour, and elsewhere, have other sig∣nifications also more particular. Ho∣ra 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, where∣in the Saxons, as other Nations of Europe, and our ancestours of much later time, followed the Judaical com∣putation: 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 Con∣querour.

THIS Constitution of Edward the Confessour was amongst his o∣ther Laws confirm'd by William the Conquerour; as not onelya 1.35 Hove∣den, and those ancient Authours testi∣fy, but by the Decree of the Conque∣rour himself, in these words;b 1.36 Hoc quoque praecipio ut omnes habeant & tene∣ant Leges Edwardi in omnibus rebus, adauctis his quae constituimus ad utili∣tatem Anglorum. And in those Auctions nothing is added, alter'd, or spoken, concerning any part of that Consti∣tution. Neither is it likely that the Conquerour did much innovate the course of our Terms or Law-days, see∣ing 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 acknow∣ledge.

The words touching their Law-days or Trials are these, under the Ti∣tle, De Temporibus quibus leges non de∣bent fieri:c 1.37 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 le∣gibus 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, du∣ring the time wherein Marriage is for∣bidden, and particularly all trials by Battail, (which the French and our d 1.38 Glanvill call Leges apparentes, alias Apparibiles, vulgarly Loix Apparisans) during the other times therein men∣tion'd. And it is to be noted, that the Emperour Frederick the Second in his e 1.39 Neapolitan Constitutions includeth the Trials by Ordeal under Leges pari∣biles. But touching the times where∣in Marriage was forbidden, it agreed for the most part with the Vacations prescribed by Edward the Confessour, especially touching the beginning of

them. Of Dies novem lectionum, we shall find occasion to speak hereafter.

CHAP. XI.

What done by William Rufus. Hen. 1. K. Stephen, and Hen. 2.

AS for William Rufus, we reade that he pulled many lands from the Church, but not that he abridged the Vacation Times assigned to it.

Henry the 1. upon view of former Constitutions, composed this Law un∣der the Title, De observatione Legis faciendi, viz, Ab adventu Domini us∣que ad Octabas Ep••••haniae, & à Septu∣agessima usque ad 15 dies post Pascham, & Festis diebus, & quatuor Temporum, & diebus Quadragessimalibus, & aliis legitimis Jejuniis, in diebus Veneris, & vigiliisa 1.40 Sanctorum Apostolorum non est tempus leges faciendi, vel jusjuran∣dum (b 1.41 nisi primo fidelitate domini vel concordia) vel bellum, vel ferri, vel aquae, vel legesc 1.42 exactiones tractari, sed sit in omnibus vera pax, beata charitas, ad honorem omnipotentis Dei, &c. The

Copy of these Laws is much corrupted, and it appeareth by Florence Wigorn's Continuer, that the* 1.43 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 Constitu∣tion. The word Bellum here signi∣fieth Combats, which among our Saxons are not spoken of, and by those of Ferri vel Aquae, are meant Ordal.

King Stephen by his Charter reci∣ted at Malmesbury, confirmed and established by a Generality† 1.44 bonas leges & antiquas, & justas consuetudines.

Henry the 2d. expresly ratified the Laws of Edward the Confessour, and William the Conquerour, asc 1.45 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* 1.46 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: Ande 1.47 Gervascius Tilburi∣ensis 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 Ca∣nons and Constitutions, especially that ancient Law of Edward the Con∣fessour; it thus appeareth, viz.

Hilary Term began then certainly at Octabis Epiphaniae,* 1.48 that is the thir∣teenth day of January, seven days be∣fore 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 hisa 1.49 Hypodigma Neustriae saith,—Anno 1096. in Octa∣bis Epiphaniae apud Sarisburiam Rex Gulielmus Rufus tenuit Consilium in quo jussit Gulielmo de Anco in duello victi oculos eruere, & testiculos abscin∣dere, & Dapiferum illius Gulielmum de Alderi, filium Amitae illius suspendi, &c. proceeding also judicially against

others. Though Walsingham calleth this Assembly Consilium with an s, and Wigorniensis Concilium with a c, (the word Term perhaps not being in use in the days of William Rufus) yet it may seem to be no other, than an Assembly of the Barons, in the King's Court of State, (which was then the place of Justice) to proceed judici∣ally 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 Epi∣phaniae; whereby it is the liklier also that it ended at Septuagessima, lest be∣ginning 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 induce∣ment to think, the Council of Ert∣ford to be depraved, and that the word there Quinquagessima should be Septuagessima, as the gloss there report∣eth it to be in some other place: And as well Gratian mistakes this, as he hath

done the Council it self, attributing it to Ephesus, a City of Ionia, instead of Ertford a town in Germany; where Burchard before him, and Binius since, hath placed it.

It comes here to my mind, what I have heard an old Chequerman many years agoe report, that this Term and Trinity-Term were in ancient time either no Terms at all, or but as re∣liques of Michaelmas and Easter-Terms, rather than just Terms of themselves: Some courses of the Chequer yet en∣cline 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 ob∣serve another cause, viz. That Septua∣gessima or Church-time one while trode so near upon the heels of Octabis Epi∣phaniae (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 neces∣sity of Hay-seed and Harvest, made that time very little, and unfrequented.

For inasmuch as Easter-Term (which is the Clavis, as well to shut

up Hilary-Term, as to open Trinity-Term,) may according to the Gene∣ral 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 Ver∣nal Full-Moon can happen upon;) Septu∣agessima 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, be∣cause we begin it not till the 23. of Janu∣ary, which may be six days after Septua∣gessima, 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 Tri∣nity-Term. And I shall speak more of this by and by.

CHAP. XIII.

Easter-Term.

EAster-Term, which now beginneth two days after Quindena Paschae, began then as the Law of Edward the

Confessour appointed it, at Octab. This is verified by Glanvill, who maketh one of his Writs returnable thus;—Summoneo per bonos summonitores qua∣tuor legales milites de vicineto de Stock, quod sint ad Clausum Paschae coram me vel Justiciariis meis apud Westmonaste∣rium 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. Pente∣costes, which being always the day af∣ter Trinity-sunday is now by the Stat. of 32 of Hen. 8. appointed to be

called Crastino Trinitatis. But it seem∣eth that the Stat. 51. of Hen. 3. chang∣ed 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 touch∣ing 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 Bap∣tist, 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

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 u∣surp upon the time, allotted by na∣ture 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 Con∣stitution ofa 1.50 Theodosius, thus de∣creeing;—Omnes dies jubemus esse ju∣ridicos. Illos tantum manere feriarum dies fas erit, quos geminis mensibus ad requiem laboris indulgentior annus ex∣cepit: aestivos fervoribus mitigandis, & autumnos fructibus discerpendis. This is also confirmed in theb 1.51 C.—and inc 1.52 Gratian with the Glosses upon them to which I leave you, but is of old thus ex∣pressed byd 1.53 Statius, as if it were ex jure Gentium:

Certè jam Latiae non miscent jurgia Le∣ges, Et pacem piger Annus habet, messésque reversae Dimisere Forum: nec jam tibi turba re∣orum Vestibulo, querulique rogant exire Cli∣entes.

The Latian Laws do no man now molest, But grant this weary Season peace and rest; The Courts are stopt when harvest comes about, The Plaintiff or Defendant stirs not out.

So the Longobards (our brethren as touching Saxon original) appointed for their Vintage a particular Vaca∣tion of 30 days, which Paulus Diaconus doth thus mention: Proficiscentes au∣tem eo ad villam, ut juxta ritum impe∣rialem triginta: Whereby it appea∣reth that this time was not onely a time of Vacation, in those ancient days, but also of feasting and merri∣ment, for receiving the fruits of the earth;* 1.54 as at Nabal's and Absalom's sheep-shearing,* 1.55 and in divers parts of England at this day. So the Normans,

whose Terms were once not so much differing from ours, might not hold their Assizes or times of law, but af∣ter Easter and Harvest; that is after the times of holy Church and publick necessity) as appeareth by their Custo∣mary. And forasmuch as the* 1.56 Swainmote-Courts are by the an∣cient Forest-Laws ap∣pointed to be kept fif∣teen days before Mi∣chaelmas; it seemeth to be intended that Harvest was then done, or that in Forests little or no corn was used to be sown.

But is to be remembred, that this Vacation by reason of Harvest, Hay∣seed, Vintage, &c. was not of so much solemnity as those in the other parts of the year, and therefore called of the Civilians, Dies feriati minùs so∣lennes; because they were not dedica∣ted divino cultui, but humanae necessita∣ti. 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 par∣ties they might proceed in this Va∣cation,

whereof see theb 1.57 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 Domi∣ni Regis apud Norwicum, die Martis proximo post festum Sancti Michaelis, anno regni Regis Henrici filii Regis Jo∣hannis 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 with∣in the Octaves; whereas the Term * 1.58 now is not till the third day after the Octaves. Buta 1.59 Gervasius Tilburi∣ensis, who lived in the days of Hen. 2.

hath a Writ in these words:—N. Rex Anglorum, [illi vel illi] Viceco∣miti salutem. Vide, sicut teipsum & omnia tua diligis, ut sis ad Scaccarium [ibi vel ibi in Crastino Sancti Micha∣elis, vel in Crastino Clausi Paschae] & habeas tecum quicquid debes de veteri firma & nova, & nominatim haec debita subscript. viz. &c. By which it ap∣peareth that the Term in the Exche∣quer, as touching Sheriffs and Accomp∣tants, and consequently in the other parts, began then as now it doth, sa∣ving 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* 1.60 Vtas of Easter. So that this time being neither ferial nor belonging to the Church, may justly be allotted to Term affairs, if the Octaves of Saint Michael have no privilege: More of which hereafter.

The end is certainly prefixed by the Canons and Laws aforesaid, that it may not extend into Advent. And it holdeth still at that mark; saving that because Advent Sunday is moveable, according to the Dominical-Letter, and may fall upon any day between the

26th of November and the 4th of De∣cember, therefore the 28th of Novem∣ber (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 Constituti∣ons) held in Advent, as it after shall more largely appear.

CHAP. XVI.

The latter Constitutions of the Terms.

TO leave obscurity and come nea∣rer 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* 1.61 at this day.

CHAP. XVII.

How Trinity-Term was altred and shortned.

TRinity-Term was altred and short∣ned 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 conti∣nue 19 days; whereas in elder times it began two or three days sooner. So that Corpus-Christi-day being a movea∣ble Feast, this Term cannot hold any certain station in the year, and there∣fore in the year 1614, it began on St. John Baptist's day, and the year before it ended on his Eve. Hereup∣on, 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 vaca∣tion day, when Corpus-Christi falleth (as it did that year) the very day be∣fore it: Because the Statute hath ap∣pointed the Term to begin the Fryday next after Corpus-Christi-day, which

in the said year 1614. was the day next before St. John Baptist, and so the Term did of necessity begin on Saint John Baptist's day. This deceived all the Prognosticators, who counting St. John Baptist, for a grand day, and no day in Court, appointed the Term in their Almanacks to begin the day after, and consequently to hold a day longer; so deceiving many by that their errour.

But, the aforesaid Statute of 32 H. 8. changed the whole frame of this Term: For it made it begin sooner by a Re∣turn, 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 appoin∣ted 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 at∣tend

his Harvest, and the gathering in the fruits of the earth. But there seemeth to be a third also not menti∣on'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 abbrevi∣ated 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 abbrevi∣ation of Michaelmas-Term. For, where∣as 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 Sanc∣ti Michaelis in tres septimanas, so cutting off no less than two Returns from the ancient beginning of this Term, viz. Octabis Sancti Michaelis, & A die Sancti Michaelis in quindecim dies, and consequently making the beginning of it fall a fortnight later than before. Wherefore the first day in this Term will always be the 23d. day of October, unless it happen to be Sunday, for then it must be defer'd till the day

following, upon which account we find it accordingly placed on the 24. for the year 1681. This is all the altera∣tion that Statute mentions, and there∣fore for the end of Michaelmas-Term, I refer the Reader to what our Au∣thour has said already in the 15th. Chapter. It may not be amiss in per∣suit of our Authour's method to set down the motives of making this ab∣breviation 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 Ma∣jesty'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 Win∣ter-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 nor∣thern, Harvest is seldom or never Inned till three weeks after the said Feast. All which affairs they could before by

no means attend, in regard of the ne∣cessity of their coming to the said Term, so speedily after the Feast of St. Micha∣el the Archangel, to appear upon Juries, and to follow their Causes and Suits in the Law.

Notes

• * 1.1

  Greeks.
• † 1.2

  Every month had about 6. more or less of them, so called because on them the Prytanaean Magistrates might hold Court.
• * 1.3

  So called from the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, where their business was to sit onely on things in∣animate, 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.
• † 1.4

  The month February, or, as others would have it March, when Sa∣crifices were most usually offer'd to the Goddess Diana, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 ab 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, cognomen Dianae, quod est, jaculis cervos figens.
• * 1.5

  Romans.
• * 1.6

  Lib. de Moribus Germ. Cap. 40.
• † 1.7

  De bello Gallico lib. ••.
• † 1.8

  De Rep. Angl. lib. 3.
• * 1.9

  Lib. 3.
• a 1.10

  Caus. 15. quaest. 4. C. 1.
• * 1.11

  Lib. 6. Cap. 245. à Bene∣dict. Levit••,
• † 1.12

  Bin. Tom. 3. Part. 1. Sect. 2. Cir∣ca annum Christi 845.
• * 1.13

  Concil. Tom. 3. part. 2. pag. 142. In isti∣us Concil. Cap. 2.
• † 1.14

  Decret. Cau. 15. quaest 4. C 1.
• * 1.15

  al. Septua∣gessimâ.
• † 1.16

  Cau. 22. •• 5. Ca, 17.
• † 1.17

  Cau. 15. q. 4. C. 1.
• * 1.18

  Legum Cap. 3.
• * 1.19

  Legum Alured Cap. 39.
• * 1.20

  Vide Foedus Eavardi & Gu••••urni Regum Cap. 9.
• † 1.21

  See the a∣foresaid 39. Chapter of the Laws of K. Alured.
• * 1.22

  The Synod of Eanham.
• a 1.23

  'Twas held between the years 1006. and 1013. See the Authour's Conc. Britan. Tom. ••. pag. 510.
• b 1.24

  The word Synod here signi∣fies more than Council, not as 'tis usually restrained to that of the Clergy onely.
• c 1.25

  Concil. Eanham. Can. 15.
• c 1.26

  Concil. Eanham. Can. 15.
• c 1.27

  Concil. Eanham. Can. 15.
• d 1.28

  Can 16.
• e 1.29

  Can. 17.
• f 1.30

  Can. 18.
• * 1.31

  Canuti Leg's cap. 17.
• a 1.32

  Mat. 9. 15. Mark. 2. 19.
• b 1.33

  Leges Ed. Conf. c. 9.
• * 1.34

  Sect. 2.
• a 1.35

  In Hen. ••. pag. 600.
• b 1.36

  Legum Anglo—Saxon. pag. 137.
• c 1.37

  Custom: Cap. 80.
• d 1.38

  Lib. 4. c. 1. Lib. 14. c. 1. 2.
• e 1.39

  Lib. 2. 〈◊〉〈◊〉. 31.
• a 1.40

  Alii le∣gunt. Singulo. rum.
• b 1.41

  misi pri∣mo] al. pro.
• c 1.42

  al. exa∣minationis.
• * 1.43

  Anno Dom. 1142.
• † 1.44

  Hist. Nov. lib. 1. pag. 179.
• c 1.45

  In Hen. 2. pag. 600.
• * 1.46

  Lib. 2. Cap. 11.
• e 1.47

  Dial. de Scacc.
• * 1.48

  Hilary-Term.
• a 1.49

  Pag. 441. Lin. 18.
• a 1.50

  Cod. lib. 3. Tit. 12 De Feriis. Cap. 7.
• b 1.51

  Tit. De Feriis. Ca. 5.
• c 1.52

  Cau. 15. quaest. 4.
• d 1.53

  Silva∣rum lib. 4. Carm. 4. quod inscri∣bitur. Ad Victorium Marcellum.
• * 1.54

  1 Sam. 25. 4.
• * 1.55

  2 Sam. 13. 23.
• * 1.56

  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.
• b 1.57

  Lib. 2. cap. 21.
• * 1.58

  Before the abbreviation by 16. Cat. 1. cap. 6.
• a 1.59

  Dial. lib. 2. cap. 3.
• * 1.60

  Utas] i. e. Octava, the eighth day af∣ter any Term or Feast.
• * 1.61

  Anno 1614. in which year this Tract was written.