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. II.

Why they sit not at all some days.

THough there be many days in the Terms, which by ancient Con∣stitutions before recited are exempted from Law-business, as those of the Apostles, &c. and that thea Sta∣tute of Ed. 6. appointed many of them to be kept Holy-days, as dedi∣cated, not unto Saints, but unto di∣vine 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 Puri∣fication, 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 When the others lost their privilege and came to be Term-days I cannot find; it suffi∣ceth that Custome hath repealed them by confession of the Canonists. Yet it seemeth to me, there is no provision made for it in the Constitutions of our Church under Isleep Archbishop of Canterbury in the time of Edward the third. For though many ancient Laws

and the Decretals of Gregory the 9th had ordained, judicialem strepitum di∣ebus conquiescere feriatis; yet in a Sy∣nod then holden, wherein are all the Holy-days appointed and particular∣ly recited, no restraints of Judicature or Forensis strepitus is imposed, but a cessation onely ab universis servilibus o∣peribus, etiam Reipublicae utilibus. Which though it be in the phrase God himself useth touching many great Feasts, viz. a Omne servile opus non facietis in iis, yet it is not in that when he institu∣teth the seventh day to be the Sabbath, b Non facies omne opus in eo, without servile, Thou shalt doe no manner of work therein. Now the act of Judi∣cature, and of hearing and determi∣ning 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 Ca∣nonists and Casuists themselves not onely expound opus servile of corporeal and mechanical labour, but admit 26 several cases where (even in that very kind) dispensation lieth against the Canons, and by much more reason then, with this in question. It may be said that this Canon consequently giveth

liberty to hold plea and Courts, up∣on 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 pre∣vaileth not. Why? but there ariseth another question how it comes to pass that the Courts sit in Easter-Term up∣on the Rogation days, it being forbidden by the Council of Medard, and by the intention of divers other Constituti∣ons? 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 stre∣pitum, clamorous pleading, &c. he nameth them not. And though he did, the Glossographers say, that a Nation may by Custome erect a Feast that is not commanded by the Canons of the Church. Et eodem modo posset ex consuetudine introduci, quòd aliqua quae sunt de praecepto non essent de praecepto, sicut de tribus diebus Rogationum, &c. To be short, I find no such privilege for them in our Courts, though we admit them other Church rites and ce∣remonies.

We must now shew (if we can) why the Courts, sitting upon so many Ferial and Holy-days, do forbear to sit upon some others, which before I mention'd; the Purification, Ascension, St. John Baptist, All-Saints, &c. For, in the Synod under Isleep before men∣tion'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, a∣mong which (majoris cautelae gratiâ) those Opera Servilia are there also prohibited to be done on Easter-day, Pentecost, and the Sunday it self.

Let us then see which are the greater

Feasts, and by what merit they obtain their privilege, that the Courts of Justice sit not on them. As for Sunday, we shall not need to speak of it, being canonized by God himself. As for Easter and Whitsunday, we shall not need to speak of them neither, be∣cause 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 under∣stood, that the Canonists, and such as writea 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 Ca∣thedral Churches do yet observe it: And I mean not to stay upon it, for you may see in theb Rationale which Feasts were of every of these kinds. The ordinary Apostles were of the last, and therefore our Courts made bold with them: But the Purification, Ascension, St. John Baptist, with some others that fall not in the Term, were of the first, and because of this and

some other prerogatives were also called, Festa Majora, Festa Principalia, & Dies novem Lectionum, ordinarily, double Feasts, and Grand days. Men∣tion is made of them in anb Ordi∣nance 8. Ed. 3. That Writs were or∣dained 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 Lecti∣onum, 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 or∣thodox 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 o∣ther 8. should be read in their Ser∣vice, with rejoycing and thanksgiving to God for suppressing that Heresie: And for the greater solemnity, some c Bishop, or the chiefest Clergy-man present did perform that duty. Thus came these days to their styles afore∣said, and to be honoured with extra∣ordinary

Musick, Church-Service, Ro∣bes, Apparel, Feasting, &c. with a particular exemption from Law-Trials amongst the Normans, who therefore kept them the more respectfully here in England: Festa enim Trinitatis (saith Belethus) digniori cultu sunt celebranda.

In France they have two sorts of Grand days, both differing from ours: First, they call them, Les Grand jours, wherein an extraordinary Sessions is holden in any Circuit, by virtue of the King's Commission directed to cer∣tain 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 touch∣ing this their Loyscean De Seigniors.

To come back to 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 Maxi∣mum & Generale, being not onely the Feast of Apostles and Martyrs, but of the Trinity, Angels and Con∣fessours,

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 An∣cient 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 Pro∣vincial Council holden at London, did ordain,a 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 Pa∣rasceue 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 ap∣pointeth for it the whole Service, with the nine Lessons; for it is as a Feast of the Trinity. And though neither the Statute of Edward the 6. nor our

Church at this day doth receive it; yet being formerly a Vacation-day (as it seemeth) our Judges still forbear to sit upon it, and have not hitherto made it a day in Court, though depri∣ved of Festival rites, and therefore nei∣ther graced with Robes, nor Feasting.

The Feast also of St. Peter and Paul on the 29th. of June was a Double Feast, yet it is now become single, and our Judges sit upon it. I confess I have not found the reason, unless that by Canonizing St. Paul and so leaving St. Peter single, we allow him no pre∣rogative 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, ei∣ther 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, con∣trary to the Canons (as the other are;) but of the privilege given him in that place by Pope Nicholas the 2d. in a Bull to Edward the Confessour, as being Patron of the Paroch and Dedication of Westminster, where the Terms are kept, and where by right

thereof this day was also privileged from Court-business.

Other Festivals I enquire not after, as of St. Dunstan and the rest that stand rubricate in old Kalendars; they being abrogated by old Canons of our own Church, or the Statute of Edw. 6. whereof I must note by the way that I find it repealed by Queen Mary, but not revived by Queen Elizabeth, or since. It seemeth that the Statute of the 5. and 6. Edw. 6 Cap. 3. not∣withstanding 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, in∣tituled an Act for the repeal of certain Statutes made in the time of King Edw. the 6. shall stand repealed.

I am carried from the brevity I intended, yet all this lyeth in my way; nor is it out of it to speak a word of St. George's-day, which sometimes falleth in Easter-Term, and is kept in the Court Royal with great so∣lemnity, but not in the Court Judi∣cial. Though he stood before in the Kalendar, and was the English Patron

of elder time, yet H. Chichley, Arch∣bishop of Canterbury gave him his greatness by canonizing his day to be 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 ex∣pedition for Normandy; and this, a∣mong 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 Statute, That the Knights might celebrate it on the 22. 23. and 24th. of April. Other Feasts there were of this nature; 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 West∣minster on the 5th. of November year∣ly,

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 Parli∣ament 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 te∣dious subtilties of distinguishing days; I have not been matriculated in the Court of Rome: And I confess I nei∣ther do nor can explain many objections and contrarieties that may be gather∣ed in these passages. Some Oedipus or Ariadne must help me out.

Notes

• a

  An. 5. & 6. Edv. 6. cap. 3.
• a

  Lev. 23. 21, 25.
• b

  Ex. 20. 10, 11. Lev. 23. 3.
• Tabien. Feriae Sect. 10.
• Why on some Festivals, and not on others.
• The differen∣ces of ••••sti∣vals.
• a

  Vide Du∣raudi lib. 7. c. 1. n 31.
• b

  Durand. lib 7. Ca. 1.
• b

  Rast Ex∣com. 5.
• c

  Belethus Explicat. Cap. 158.
• Grand days in France.
• Grand days in England.
• a

  Tho. Wal∣singham, Hist. Angl. pag. 129
• The Feast of St. Peter and St. Paul.
• St. George's day.
• parag. 7.
• St. Winifred.
• The 5th. of November.