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HAving thus laid out the frame of the Terms, both according to the Ancient and Modern Constitutions, it remaineth that we speak something of other points properly incident to this part of our division touching Term-Time, viz.
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.
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 1.9 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 1.10 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 1.11 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.* 1.12 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,* 1.13 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.* 1.14
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 1.15 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 1.16 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 1.17 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 1.18 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,* 1.19 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,* 1.20 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 1.21 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,* 1.22 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,* 1.23 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* 1.24 Statute, That the Knights might celebrate it on the 22. 23. and 24th. of April. Other Feasts there were of this nature;* 1.25 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,* 1.26
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.
IN the mean time let us see, why some Law-business may be done on days exempted, and sometimes on Sun∣day it self, notwithstanding any thing above mentioned.
For as in Term time some days are ex∣empted from Term business, and some portion of the day from sitting in Courts; so in the Vacation time and days ex∣empted, some Law business may be per∣formed by express permission of the Canon-Law, according to that of the a 1.27 Poet in the Georgicks,
Quippe etiam Festis quaedam exercere diebus Fas & jura sinunt—
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, accor∣ding to that ofb 1.28 Prosper,
Non recto servat legalia Sabbata cultu, Qui pietatis opus credit in his vetitum.
The rule is verified by our Saviour's healing on the Sabbath 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
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, e∣ven 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 King∣dom.
For manumission of Bondmen: A work of Piety.
For saving that which otherwise would perish: A work of Necessity.
For doing that, which, time over∣slipt, cannot be done: As for making Appeals within the time limitted, &c.
For taking the benefit of a Wit∣ness 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;
Haec faciunt causas Festis tractare diebus, Pax, Scelus admissum, Manumissio, Res peritura,
Terminus expirans, mora Festi abesse vo∣lentis, Cumque potestatis Patriae jus filius exit.Or thus according to Panormitanus; Ratione Appellationis, Pacis, Necessita∣tis, Celeritatis, Pietatis, Matrimonii, Latrocinii, & ubicunque in mor a promp∣tum est periculum. So likewise by con∣sent of parties upon dies Feriati minùs solennes, viz. Harvest, Hayseed, &c. as we have said before. And divers others there are. See thea 1.29 Glosses.
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 fol∣loweth suddenly upon the Purification, Hilary-Term not onely usurpeth upon
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 ora 1.30 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, Mortdaun∣cester, and Darrain Presentment, should be taken in Advent, Septuagessi∣ma and Lent, even as well as inquests may be taken, and that at the special request of the King made unto the Bi∣shops. 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.
IT seemeth that by virtue of this Sta∣tute, or some other dispensation from the Bishops Assizes began first to be holden in Lent, contrary to the Canons. I find in an ancient Ma∣nuscript of the Monastery of St. Albans a dispensation of this kind thus enti∣tuled;
Licentia concess. Justic. Reg. de Assis∣tenend. sacro tempore non obstante.
Pateat universis per praesentes nos Ri∣chardum (miseratione divinâ) Abba∣tem Monasterii Sancti Albani, licentiam & potestatem authoritate praesentium de∣disse dilecto nobis in Christo Domino Jo∣hanni Shardlow & sociis ejus Justic. Dom. Regis Assisas apud Barnet (nostrae Jurisdictionis exemptae) die Lunae proxi∣mo ante Festum S. Ambrosii capiendas, juxta formam, vim & effectum Brevis Domini Regis inde iis directi. In cu∣jus, &c. Anno Domini, &c.
Sub magno Sigillo.
Whether this was before or after the Statute it appeareth not; it may seem before, or that otherwise it had been needless. But I finda 2.1 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 ex∣tended 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 Li∣cence and dispensation. The Feast of St. Ambrose mention'd in the Li∣cence 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 As∣sizes in tempore sacro, as the Rubrick ex∣plaineth it, lest the words [nostrae ju∣risdictionis exemptae] might be applied to some layick Franchise: I assure my self there are many of this kind, if they might come to light.
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 She∣riffs, 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 Defen∣dants for appearance, every one of them being a se'night after another, to the end that the Defendant accord∣ing to his distance from the place where he was to appear, might have one, two, three or more of these Re∣turns, 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* 2.2 Ethelred the Saxon King in case of vouching upon Trover.
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 ofa 2.3 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 dapi∣fero, vel denique familiae suae liberè de∣nuncietur; si in eodem Comitatu sit, inde ad septem dies terminum habeat; si in alia sit 15. dierum terminum ha∣beat; & si in tertio Comitatu sit, 3. Hebdomadae; si in quarto, quartae Hebdomadae, & ultrà non procedit ubicunque fuerit in Anglia, nisi compe∣tens eum detineat* 2.4 soinius; si ultra ma∣re
est 6. Hebdomadas habeat & unum diem ad accessum & recessum maris, nisi vel occupatio servitii Regis, vel ipsius aegritudo, velb 2.5 tempestas, vel competens aliquod amplius respectet.
The† 2.6 Statute of a 2.7 Marlebridge Cap. 12. soundeth to this purpose; Inb 2.8 Assisis autem ultimae praesenta∣tionis & in placito Qua∣re impedit de Ecclesiis vacantibus dentur dies de Quindena in Quin∣denam, 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 quar∣tum (secundùm locorum distantiam) faci∣at venire sicut in itinere Justiciar, fieri consuevit. Et si extra Comitatum maneat, tunc rationabilem habeat Sum∣monitionem 15. dierum ad minùs secundùm discretionem Justiciar. & Legem Communem.
There was also another use of Re∣turns, as appeareth by the Reformed Customary of Normandy, Artic. 10th.
Some of them belonged to Pleas of Goods and Chattels, which we call per∣sonal 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 qui∣nizanie in quinizanie. The more so∣lemn Actions had the more solemn Re∣turns, as we see by the* 2.9 Stat. dies communes in Banco, which I leave to my Masters of the Law.
I will not speak of the Returns par∣ticularly, more than that Octab▪ is sometimes reckon'd by 7. days, some∣times by 8; By 7. excluding the Feast from which it is counted; By 8. in∣cluding it. And the word is borrow∣ed from the Constitutions of the Church, where the seven days follow∣ing Easter were appointed to be Fe∣rial-days (as we have shewed before) in imitation of the seven days Azy∣morum, 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 be∣ing no day in Court, putteth off the Return till the next day after, making
Munday always taken for the true Octab. unless you will count these two days for no more than one, as the * 2.10 Stat. de Anno Bissextili in the like case hath ordained.
TOuching the Quartam diem post allowed to the Defendant for his appearance after the day of Re∣turn, 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;† 2.11 Illud ex libertate vitium quòd non simul nec jussi conveniunt, sed
& alter & tertius dies cunctatione coeun∣tium absumitur. He saith, ex liberta∣te, because that to come at a pe∣remptory time was a note of Servitude, which the Germans despised.
I Have used much Canon and some o∣ther 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.
—Facies non omnibus una, Nec diversa tamen, qualem decet esse sororum.
They that look into the Laws of our English Saxons, of the Saliques, French, Almayns, Ripurians, Bavari∣ans, Longobards, and other German
Nations, about 800. years since, shall easily find, that out of them, and many other Manners, Rites and Cu∣stoms 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 (de∣scending from Saxon linage as well as we) called otherwise the Feo∣dal-law, received generally through all Europe. For in matters concern∣ing the Church and Churchmen, Legi∣timation, Matrimony, Wills, Testa∣ments, Adultery, Diffamation, Oaths, Perjury, Days of Law, Days of Va∣cation, Wager of Laws, and many o∣ther things, it proceeded, sometimes wholly, sometimes for the greater part, by the rules and precepts of the Ca∣non-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 Feo∣dal-Law chiefly; as those that reade the books of those Laws collected by Obertus and Gerardus may see
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 Longo∣bards themselves. I wish some wor∣thy Lawyer would reade them dili∣gently, 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 pro∣fit and Lucrando Pane.
Another great portion of our Com∣mon 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 com∣paring and parallelling of them, af∣firmeth, that no Law of any Chri∣stian Nation whatsoever, approacheth nearer to the Civil-Law than this of ours. Yet he saith that all of them generali hujus disciplinae aequitate tem∣perantur, & quasi condiuntur. Had he not said it, his book it self, in∣tituled, Institutiones Juris Anglicani ad methodum & seriem Institutionum Imperialium compositae & digestae, would demonstrate it: Which Bracton also above 300. years before right well
understanding, not onely citeth the Digests and Books of the Civil-Law in many places for want of our Com∣mon-Law, but in handling our Law persueth the Method, Phrase and Mat∣ter of Justinian's Institutes of the Ci∣vil-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 Reve∣rend 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 Judg∣ments after as Responsa Prudentium a∣mong the Romans, and the Codex Theo∣dosianus became Presidents of Law un∣to posterity.
As for the parts given unto Com∣mon-Law out of the Constitutions of our Kings since the Conquest, and be∣fore Magna Charta; I refer them (as
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 Mal∣colm, the Second, who lived about 60 years before the Conquest, be of that antiquity, (which I cannot but que∣stion) and that our Book called Glan∣vill be wholly in effect taken out of the Book of their Law verbatim, for the greatest part, called Regiam Majesta∣tem, (for they pretend that to be el∣der 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 ver∣sed 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 Ger∣mans, I not onely intend our Saxons, but the ancient French and Saliques; not excluding from that fraternity
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 especial∣ly 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 suf∣fered one Town in a County to be cal∣led 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.
* 2.12 Jussit & ipsum Nova Romanae Jura securis Tremere oceanum.
In th' Ocean Isle new Laws he set, Which from the Roman Axe were fet.And more plainly Herodian, speak∣ing of Severus the Emperour's going ont of this Island,* 2.13 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 Ci∣vil affairs thereof, and some of his an∣cient 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 In∣habitants nor brought any Foreigners upon them, other than (to govern and keep them in obedience) some Legions of Souldiers, and small Colo∣nies. Yet that they made an alte∣ration of their Laws, we may see in the Scripture by the example of Judaea. For though Pompey obtained the King∣dom there, rather by the confede∣racy with Hyrcanus, than by right of
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 up∣on 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 punish∣ment of Blasphemy wherewith they charged Christ was stoning; and the punishment of Theft a Quadruple Re∣stitution, or bondage in default there∣of. 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 touch∣ing their Laws; and the story of Saint Alban and Amphybalus somewhat shew∣eth it: But what Laws soever the
Romans made in Britain, the Saxons doubtless swept them all away, with the Britains. There is certain proof of it; for Antonius made a Consti∣tution, that all Nations under the Roman Empire should be called Ro∣mans, and this was done when the Northern People brake into the lower parts of Europe, and made their ha∣bitation there.
But more plainly Seneca speaking of Claudius the Emperour's having conquer'd this Island, as above;
Jussit & ipsum Nova Romanae Jura securis Tremere oceanum.
In th' Ocean Isle new Laws he set, Which from the Roman Axe were fet.
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 Ro∣mana. But here in Britain after the Saxons had conquer'd, we never hear
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 a∣way 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 Ma∣nuscript under the Ti∣tle of* 2.14 The Laws of Hoel Dha, (that is Hoel the good;) no∣thing 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 Ex∣chequer, 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 Bel∣gique 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 Na∣tions,
as well as to our Saxons, Danes and Normans; but not one to my knowledge that riseth from the Bri∣tish tongue, nor do we, to my know∣ledge, retain any Law, Rite or Custome of the ancient Britains, which we re∣ceived 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, Protonota∣ry, &c. whereby some argue the an∣tiquity 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 inhabi∣tants 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 with∣all; doe like them that make the Ar∣cadians
to be elder than the Moon, and the God Terminus to be so fixed on the Capitoline-Hill, as neither Mat∣tocks nor Spades, nor all the power of men or of other Gods, could remove him from the place he stood in.
Exod. 18. 14.
Hist. lib. 6. 1.
Cap. 10. 13.
Tit.
Lib. Cau.
Archaed. verb. Comes cap. 1. 15.
Et alia cap. Car. 6. 4.
13 Ed. 1. cap. 30.
An. 5. & 6. Edv. 6. cap. 3.
Lev. 23. 21, 25.
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.
Vide Du∣raudi lib. 7. c. 1. n 31.
Durand. lib 7. Ca. 1.
Rast Ex∣com. 5.
Belethus Explicat. Cap. 158.
Grand days in France.
Grand days in England.
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.
Virgil. Georg. lib. 1. v. 268, &c.
Lib. Ep.
Cau. 15. q. 4. Tit. de Feriis c. 5.
As An. 1. 27. & 1. 26. Hoveden p. 663.
In com. ejus.
Leges Ethelredi Cap. 93.
Legum Hen. 1. Cap. 41.
Sonius M: SS. Seld.
M: SS. Cod. l. in∣tempestas.
This Statute was published Anno. 52. Hen. 3. Anno. Salut. 1267.
The same with Marleborough in Wilts, famous for nothing more than that this Parliament was holden there. So Coke Institut. part 2. fol. 123.
Coke ut suprà fol. 149. hath it thus, Sed si warrantus ille fuerit infra Comitatum, tunc, &c.
Anno. 51. Hen. 3. al••er∣ed by the Statute of 32. Hen. 8. Cap. 21.
Anno 21. Hen. 3.
Lib. de morib. Ger. manorum Cap. 11.
Senecs Philosoph. De morte Cl. Caesaris.
〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 &c. Herodiani Hist. Lib. 3. Cap. 48.
These Laws were made by Hoel Dha King of Wales, about the year 940. and since the wri∣ting of this Tract have been pub∣lished to the world by our Au∣thour himself, in the first Tome of his Concilia Britannica, pag. 408.