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.

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 * 1.1 Scripture, that Moses judged the Israelites from Morning to Evening. And the Romans used the Afternoon as well as the Forenoon, yea many times the Afternoon and not the Forenoon,

as upon the days called Endotercisi, or Intercisi, whereof the Forenoon was Nefastus or Vacation, and the Afternoon Fastus or Law-day, as we shewed in the beginning. And the Civilians following that Law do so continue them amongst us in their Terms at this day. But our Ance∣stours and other the Northern Nati∣ons being more prone to distemper and excess of diet (as the Canon Law no∣teth of them) used the Forenoon one∣ly, lest repletion should bring upon them drowsiness and oppression of spirits; according to that of St. Jerome, Pin∣guis Venter non gignit mentem tenuem. To confess the truth, our Saxons (as appeareth bya 1.2 Huntington) were unmeasurably given to drunkenness. And it is said inb 1.3 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 Coun∣cil of Salegunstad it was afterward de∣creed, A. D. 1023, ut lectio Nicaeni Concilii recitetur, which being done in the words aforesaid, the same was likewise there confirm'd. According to this in the Laws of Carolus

Magnus the Emperour it is ordained, a 1.4 L—lib. 2. ut Judices jejuni causas audiant & discernant: and again in theb 1.5 Capitulars Caroli & Lo∣dovici, nè placitumc 1.6 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 otherd 1.7 Con∣stitutions ariseth the rule of the Ca∣non Law, that Quae à prandio fiunt Constitutiones inter decreta non referun∣tur. 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 vidua∣rum pupillorum & pauperum audiantur & definiantur ante Meridiem, Regis verò & Potentiorum post Meridiem. This though it may seem contradictory to the Constitutions aforesaid, yet I con∣ceive them to be thus reconcilable: That the Judges (sitting then but seldom) continued their Courts both Forenoon and Afternoon, from Mor∣ning till Evening without dinner or intermission, as at this day they may, and often do, upon great Causes: though being risen and dining, they

might not meet again; yet might they not sit at night, or use candle light, Quòd de nocte non est honestum ju∣dicium exercere. And from these an∣cient Rites of the Church and Empire is our Law derived, which prohibi∣teth our Jurours, being Judices de facto, to have meat, drink, fire or can∣dle 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 dis∣continued often by some custome gra∣ting 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* 1.8 Edward the first, in the Statutes of Westminster 2; though I see not but in taking of them the an∣cient course might have been continued if haste would suffer it.

Notes

• * 1.1

  Exod. 18. 14.
• a 1.2

  Hist. lib. 6. 1.
• b 1.3

  Cap. 10. 13.
• a 1.4

  Tit.
• b 1.5

  Lib. Cau.
• c 1.6

  Archaed. verb. Comes cap. 1. 15.
• d 1.7

  Et alia cap. Car. 6. 4.
• * 1.8

  13 Ed. 1. cap. 30.