to all these was the Tenant by Knights-service ty'd by his oath of Fealty swearing to be feal and leal As the oath was at those times interpreted as well by Divines and Canonists as by Feodists and Lawyers And as these were inherent to this Tenure of Common right so was there many other grievous exactions impos'd by the Lords upon their Tenants some by custom of the Mannour some by Composition upon granting the Fee and many by Signioral Authority as tho' the Lord besides his Legal Power might do some things like the King by Prerogative By Custom when the Lord or Lady came into the Mannour the Bailiff was to present them 18 oras denar and every of their servants 10s. with some summs of mony as gratuities ut essent laeti animo That the Tenants should pay 32d. for every daughter they married It was an ordinary custom that Lords might take not only of their Tenants but of all the Country thereabout Victuals and all other necessaries for furnishing their Castles which how grievous it was may well enough be conceiv'd tho' the Statute that restrain'd it did not testifie it So other Lords took provision for their houshold and hospitality within their Mannours By Composition as to have their Tenants attend them with horse and man in their journies whom they call'd Road-knights To present them yearly at times Horses Hawks and other things of profit and pleasure By Signioral Authority as to lye and feast themselves and followers call'd Coshering at their Tenants houses and when any matter of extraordinary charge fell upon them then to extort the same amongst their Tenants which the Irish about fourty years since of my own knowledge still continu'd calling it Cuttings according to our old word Tallagium But among us it was taken away by the Magna Charta of King John I speak not of the innumerable Carriages Angaries and Vexations with which they otherwise harrowed if not plagued their Tenants Yet must I not let that pass which every where was then in use for Lords of Castles to imprison men at pleasure to hold and keep distresses there against common justice and to do many outrages all about them Wherein the Lords of Mannours imitating them would also imprison their Tenants and followers which Custom I saw also yet not laid down in Ireland fourty years since For a meane-Meane-Lord would ordinarily say upon offence taken against a Churle c. Take him and put him in bolts But let Matthew Paris who liv'd long after many of these oppressions were abolish'd tell you the fashions of those times Every Lord having this authority over his Tenant the Superiour as comprehending them all and holding in Capite was tyed to the King to see all under his tenure to be of good Government good behaviour and forth-coming whensoever they should be demanded to answer any misdemeanour This appeareth by the Laws of Edward the Confessor where it is said Archiepiscopi Episcopi Comites Barones omnes qui habuerint Sacam Socam c. milites proprios servientes sc dapiferos pincernas c. sub suo friburgo habeant That is sub sua fide-jussione de se bene gerendo By reason whereof whatsoever those their Lords agreed or disagreed unto in matters of the State and Common-wealth it did bind every of them their inferiors Unto whom they themselves might then also appoint Laws and Ordinances in their own Courts And this is that which Tacitus affirmeth to have been the ancient manner of the Germans our Ancestors Agricolis suis jus dicere where under the word Agricolis he intendeth all them whom we call Tenants Hence then it comes to pass that in making Laws of the Kingdom the common people were not consulted with but only the Barons and those which held in Capite who then were call'd Consilium Regni And the common people being as I said by way of tenure under one or other of them did then by him that was their chief Lord as by their Tribune or Procurator and as now by the Knights of the Shire consent or dissent in Law-making and are not therefore nam'd in the title of any ancient Law Look Doomsday-book and there ye shall see the whole Kingdom divided only among the Barons and great Persons and the whole Commons of the Kingdom distributed and plac'd under some of them tho' not by name yet by number in their several qualities Let us then see how the practice of those ancient ages agreed with this Theoreme King Ina made his Laws by the advice of Kenred his father and as he saith himself Heddis Erkenwaldi Episcoporum meorum omnium Aldermannorum i. e. Procerum meorum seniorum sapientum Regni mei multa aggregatione servorum Dei which is of Church-men as I take it Alured briefly Consilio sapientum meorum Edward the Elder proposeth his Laws not as Senatus-consultum but as Edictum Principis viz. Ego Edouardus Rex iis omnibus qui Reipub. praesunt etiam atque etiam mando ut c. And after by the absolute words Praecipio Statuimus Volo Yet those wherein he and Guthrun the Dane joyned are call'd Senatus-consulta Ethelstane made his Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum suorum consilio nec-non omnium Optimatum sapientum mandato suo congregatorum Edmund in a great Assembly Tam Ecclesiasticorum quà m Laicorum cui interfuerunt Oda Wulstanus Archiep. plurimique alii Episcopi Edgar In frequenti sapientum Senatu Ethelred In sapientum Concilio Canuius saith Sapientum adhibito Consilio per omnem Angliam observari praecipio As for Edward the Confessor his Laws come not to us as they were composed by himself but as the Paragraphs of them were collected by the Conqueror and augmented afterward In which collection there is no mention made of the manner of their Institution But reciting of a passage of St. Austens touching Tithes it is spoken as of former time that Haec concessa sunt à Rege Baronibus populo meaning the several kinds of Tithes there mention'd But whether these words extend to a concession of them by Parlament as we now call it or by a voluntary contribution of them yeilded unto by the King the Barons and the people according to the Canons of the Church I leave to others to determine To come to times of the Conquerour wherein Novus seclorum nascitur ordo and from whence as from a new period we must now take all our projections The great establishment of his own and of Edward the Confessor's Laws is said in the title to be that which Gulielmus Rex Anglorum cum Principibus suis constituit post conquisitionem Angliae Other Authors instead of Principibus have Barones And tho' all his Laws for the most part were ordain'd by his Charter in his own name only yet they seem to be made by the
Carew Contrary to a perswasion very common now adays That Philosophy Oratory Poetry and the other Exercises which take up the first four years in our Universities are altogether foreign to the business of Lawyers and that the study of them is so much loss of time to Gentlemen design'd for that honourable Profession After he had continu'd at home about a twelve-month he was sent to study the Law at Lincoln's-Inn either with a design to practise it or which is more likely as a necessary accomplishment of an English Gentleman There he stay'd almost three years but was then unhappily remov'd when we may imagine he began to relish the Law and in some measure to conquer the difficulties of it Many years after we find him complaining of his hard Fortune in the Preface to his Glossary and he concludes his complaint with a character of the Common-Law which I will here transcribe for the honour of the Profession Excussit me interea è Clientela sua speaking of the Law gratiae potestatis dignitatis immensaeque apud nos largitrix opulentiae Illa inquam vestitu simplici inculto sed jurium omnium Municipalium absit dictis invidia nobilissima domina omni utpote justitia moderamine prudentia sublimique acumine temere licet eam perstrinxerit Hottomannus refertissima He was about twenty years of Age and retiring into the Countrey married the eldest Daughter and Coheir of John Le Strange a Gentleman of an ancient Family in Norfolk By this match he became Guardian to Sir Hamon Le Strange during whose Minority he liv'd at Hunstanton the Seat of that Family and was High Sheriff of Norfolk By degrees he begun to be taken notice of for his great Prudence and Abilities and was accordingly three several times sent by the King into Ireland upon publick business At home he was appointed one of the Commissioners To enquire into the oppression of exacted Fees in all the Courts and Offices of England as well Ecclesiastical as Civil which a late Author calls A noble Examination and full of Justice To this business he gave his constant attendance for many years together with great integrity and application and the Government was so sensible of his good services that the Council procur'd his Majesties Writt of Privy Seal for 300l. to be presented to him not as a full Recompence for so they declar'd but only as an occasional Remembrance till they should have an opportunity of doing something for him that might be a more suitable consideration for his diligence in that and other publick Affairs This attendance made him neglect his own private business to the great prejudice of his Family as he himself seems to complain in his Preface to the Glossary And his eldest Son Sir John Spelman represented to the Privy Councel how much his Father's Estate had suffer'd by it appealing for a proof of his great pains therein to the knowledge of several of their Lordships to the Journals of that Commission and to his papers and collections relating to the same I cannot give any particular account of the other publick Services wherein he was employ'd He was Knighted by K. James who had a particular esteem for him as well on account of his known capacity for business as his great Learning in many kinds more especially in the Laws and Antiquities of our Nation These for a good part of his Life he seems to have study'd for the service of his Prince and his own diversion but not with an eye to any particular design When he was about 50. years of Age he resolv'd to draw his affairs into as narrow a compass as might be with a full design to bestow the remainder of his time among Books and Learned Men. With this resolution he sold his Stock let his Estate quitted the Countrey and settl'd in London with his wife and family His next business was as he himself tells us to get together all such Books and Manuscripts as concern'd the subject of Antiquities whether foreign or domestick For in these Enquiries he had ever had a particular delight and now being in a good measure free'd from the daily disturbances he was before exposed to it was natural for him to fall into a study to which his own genius had always led him It is likely he had then a good understanding of the Laws and Customs of the Kingdom I mean the Modern part of them such as is commonly us'd in the ordinary practice of it But such a general knowledge could not satisfie a Mind so curious and a Judgement so solid as his appears to have been in all his Writings These inclin'd him to search into the Reasons and Foundations of the Law which he knew were not to be learnt but from the Customs and Histories of our Nation in all Ages nor these Usages to be trac'd out but by a strict examination of the most ancient Records and Manuscripts And as his own inclination led him to this Enquiry so not troubling himself with the Practice of the Law but content to live quietly upon his own Estate he was perfectly at leasure to pursue it And indeed as the best things in this world are attended with inconveniences it is very much to the disadvantage of the Law that those of the Long Robe who are best qualified to improve the knowledge of it from original Records are so much taken up with the business of their Profession that they have little time to bestow upon those matters As on the other hand Men who are born to Leasure and Estates however inclinable they may be to the more polite parts of Learning do seldom care to engage in a study which at first sight seems to be so rough and tedious Thus the one wants Leasure and the other Resolution and so the Monuments of our Fore-fathers being neglected we are depriv'd of a great deal of useful knowledge that might be drawn from them It was the happiness of Sir Henry Spelman and much more of the English Nation that he had both time and inclination to do it I mean to examine the ancient Laws and Monuments not only of our own but also of most other Northern Kingdoms Particularly he was very well versed in the old Feudal law and has shewn us in a Discourse upon that head how most of the Tenures here in England have their foundation from thence This near relation between their Customs and our Constitutions made him many times marvel that my Lord Cooke adorning our Law with so many flowers of Antiquity and foreign learning should not turn aside into this field from whence so many roots of our Law have of old been taken and transplanted And I wish so he goes on some worthy Lawyer would read them diligently and shew the several heads from whence these of ours are taken They beyond the seas are not only diligent but very curious in this kind but we
Towns call'd Burgesses and the Barons of the Cinque-ports The first sort are to appear personally or by particular Proxies for the words as touching them are Summoniri faciemus sigillatim but as touching the others it is Summoniri faciemus generaliter c. not that all should come confusedly but that they should send their Advocates which commonly are but two to speak for them These the French in their Parliaments call Ambasiatores and Syndicos In the first rank the Earls and greater Barons have their place in this Council for that they hold of the King in Capite by a Baronie And the Bishops and Abbots with them of the second rank so likewise for that it was declared and ordained in the Council of Clarendon that they should have their possessions of the King as a Barony and should be suiters and sit in the King's Court in judgements as other Barons till it came to the diminution of Members or matter of death But this Council of Clarendon did rather affirm than give them their priviledge For the Prelates of the Church were in all ages the prime part of these great Councils In the third rank the Burgesses and Barons of the Cinque-ports have their place not so much in respect of Tenure for they were not conceived to be owners of lands but for that in Taxes and Tallages touching their goods and matter of Trade they might have some to speak for them as well as other Members of the Kingdom But here then ariseth a question how it cometh to pass that every poor Burrough of England how little soever it be two excepted have two to speak for them in this great Council when the greatest Counties have no more It seemeth that those of the Counties whom we call Knights served not in ancient time for all the Free-holders of the County as at this day they do but were only chosen in the behalf of them that held of the King in Capite and were not Barones majores Barons of the Realm For all Freeholders besides them had their Lord Paramount which held in capite to speak for them as I have shewed before and these only had no body for that themselves held immediately of the King Therefore King John by his Charter did agree to summon them only and no other Freeholders howbeit those other Freeholders because they could not always be certainly distinguish'd from them that held in capite which encreased daily grew by little and little to have voices in election of the Knights of the Shire and at last to be confirm'd therein by the Stat. 7. Henr. IV. and 8. Henr. VI. But to come to our question why there are but two Knights for a County It may well seem to be for that in those times of old there were very few besides the Barons that held in capite as appeareth by that we have already spoken and that two therefore might seem sufficient for these few as well as two for the greatest Burroughs or City of England except London And it may be that of the four which serve for London two of them be for it as it is a City and two other as it is a County tho' elsewhere it be not so But when two came first to be chosen or appointed for the rest of the Burrough or County I cannot find It seemeth by those Synods that were holden in the times of the Saxon Kings and by some after the Conquest that great numbers of the common people flowed thither For it is said in An. 1021. Cum quamplurimis gregariis militibus ac cum populi multitudine copiosa And An. 1126. Innumeraque Cleri populi multitudine and so likewise in An. 1138. and other Synods and Councils By what order or limitation this innumera populi multitudo came to these Assemblies it appeareth not Bartol that famous Civilian and Hottoman according with him thus expoundeth it in other places Nota quod Praesides Provinciarum coadunant universale Parlamentum Provinciae quod intellige non quod omnes de Provincia debent ad illud ire sed de omnibus Civitatibus deputantur Ambasiatores qui Civitatem repraesentant And Johan de Platea likewise saith Vbi super aliquo providendum est pro utilitate totius Provinciae debet congregari generale Concilium seu Parlamentum non quod omnes de Provincia vadant sed de qualibet Civitate aliqui Ambasiatores vel Syndici qui totam Civitatem repraesentent In quo Concilio seu Parlamento petitur proponi sanum ac utile consilium But our Burgesses as it seemeth in time of old were not call'd to consult of State matters being unproper to their Education otherwise than in matter of Aide and Subsidy For King John granteth no more unto them than ad habendum commune consilium regni de auxiliis assidâ—ndis if his Charter be so pointed that this clause belong to that of the Liberties granted to them which is very doubtful and seemeth rather to belong to that which followeth otherwise there are no words at all for calling them unto the great Councils or Parlaments if you so will term them of that time And yet further it is to be noted that this whole branch of his Charter touching the manner of his summoning a great Council was not comprised in the Articles between him and his Barons whereupon the Charter was grounded but gain'd from him as it seemeth afterward And that may be a reason why it is left out in the Magna Charta of Henry III. confirm'd after by Edward I. in such manner as now we have it The Charter of these Articles I have seen under his own Seal After the death of King John I find many of these great Councils holden and to be often named by the Authors of that time Colloquia after the French word Parlament but no mention in any of them of Burgesses saving that in An. Dom. 1225. Regis 10. it is said that the King held his Christmass at Westminster Praesentibus clero populo cum Magnatibus regionis and that the solemnity being ended Hugh de Burgo the King's Justice propounded to the Arch-Bishop Bishops Earls Barons aliis universis the losses the King had received in France requiring of them one XV th And in the year 1229. the King summoneth to Westminster Archiepiscopos Episcopos Abbates Priores Templarios Hospitalarios Comites Barones Ecclesiarum Rectores qui de se tenebant in capite about the granting a tenth to the Pope wherein those that held in capite are call'd as in Henr. II. to the Council of Clarendon and as the Charter of King John purporteth but no mention is here made of Burgesses THE ORIGINAL OF THE FOUR TERMS Of the Year By Sir HENRY SPELMAN Kt. Printed in the Year 1684. from a very uncorrect and imperfect Copy Now Publish'd from the Original Manuscript in the BODLEIAN Library Sir William Dugdale in his Origines Juridiciales Chap. 32.
the Original of our Terms only from the Romans as all other Nations that have been subject to their Civil and Ecclesiastical Monarchy do and must The ancient Romans whilst they were yet Heathens did not as we at this day use certain continued portions of the year for a legal decision of Controversies but out of a superstitious conceit that some days were ominous and more unlucky than others according to that of the Aegyptians they made one day to be Fastus or Term-day and another as an Aegyptian day to be Vacation or Nefastus Seldom two Fasti or Law-days together yea they sometimes divided one and the same day in this manner Qui modo Fastus erat mane Nefastus erat The afternoon was Term the morning Holy-day Nor were all their Fasti applyed to Judicature but some of them to other meetings and consultations of the Common-wealth so that being divided into three sorts which they called Fastos proprie Fastos Endotercisos Fastos Comitiales containing together 184. days through all the Months of the year there remained not properly to the Praetor as Judicial or Triverbial Days above 28. Whereas we have in our Terms above 96. days in Court besides the Sundays and exempted Festivals falling in the Terms which are twenty or there about Yet Sir Thomas Smith counts it marvellous that three Tribunals in one City in less than the third part of the year should rectifie 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 among the first Christians using all times alike TO beat down the Roman superstition touching 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 extremity Yet had they some precedent for it from Moses and the Jews For Philo Judaeus in the life of Moses reporteth that the cause of him that gather'd sticks on the Sabbath-day was by a solemn Council of the Princes Priests and the whole Multitude examined and consulted of on the Sabbath-day And the Talmudists who were best acquainted with the Jewish Customs as also Galatinus the Hebrew do report that their Judges in the Council called Sanhedrim sate on the week-day from morning to night in the Gates of the City and on the Sabbath-day and solemn Festivals in the walls So the whole year then seemed a continual Term no day exempt And they that seek the Original of our modern Laws among them do but spend their time in vain unless for some things impos'd on them by the Roman Emperours when they became Subjects 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 reformation of the abuse among Christians in perverting the Lord's day to the hearing of clamorous Litigants it was ordained in the year of our Redemption 517. by the Fathers assembled in Concilio Taraconensi cap. 4. after that in Concilio Spalensi cap. 2. and by Adrian Bishop of Rome in the Decretal Caus 15. quaest 4. That Nullus Episcopus vel infra positus Die Dominico causas judicare al. ventilare praesumat No Bishop or inferiour person presume to judge or try causes on the Lord's day For it appeareth by Epiphanius that in his time as also many hundred years after Bishops and Clergy-men did hear and determine causes lest Christians against the rule of the Apostle should go to Law under Heathens and Infidels And it is said in the 1 st Epistle of Clement if it were truly his that S. Peter himself did so appoint it Concil Tom. 1. p. 33. This Canon of the Church for exempting Sunday was by Theodosius fortified with an Imperial Constitution whilst we Britains were yet under the Roman Government Solis die quem dominicum recte dixere majores omnium omnino litium negotiorum quiescat intentio Thus was Sunday redeemed from being a part of the Term but all other days by express words of the Canon were left to be Dies Juridici whether they were mean or great Festivals For it thus followeth in the same place of the Decretals Caeteris vero diebus convenientibus personis illa quae justa sunt habent licentiam judicandi excepto criminali or as another Edition reads it exceptis criminalibus negotiis The whole Canon is verbatim also decreed in the Capitulars of the Emperours Carolus Ludovicus CHAP. V. How other Festival and Vacation days were exempted NOw let us see how other Festivals and parts of the year were taken from the Courts of Justice The first Canon of note that I meet with to this purpose is that in Concilio Triburiensi ca. 26. in or about the year 895. Nullus Comes nullusque omnino secularis diebus Dominicis vel Sanctorum in Festis seu Quadragesimae aut jejuniorum placitum habere sed nec populum illo praesumat cohercere After this the Council of Meldis Cap. 77. took Easter-week commonly called the Octaves from Law business Pascae hebdomade feriandum forensia negotia prohibentur By this example came the Octaves of Pentecost St. Michael the Epiphany c. to be exempted and principal Feasts to be honoured with Octaves The next memorable Council to that of Tribury was the Council of Erpford in Germany in the year 932. which tho' it were then but Provincial yet being after taken by Gratian into the body of the Canon Law it became General and was imposed upon the whole Church I will recite it at large as it standeth in Binius for I take it to be one of the foundation-stones to our Terms Placita secularia Dominicis vel aliis Festis diebus seu etiam in quibus legitima Jejunia celebrantur secundum Canonicam institutionem minime fieri volumus Insuper quoque Gloriosissimus Rex Francorum Henricus ad augmentum Christianae Religionis or as Gratian hath it Sancta Synodus decrevit ut nulla judiciaria potestas licentiam habeat Christianos sua authoritate ad placitum bannire septem diebus ante Natalem Domini à Quinquagesima usque ad Octavas Paschae septem diebus ante Nativitatem Sancti Johannis Baptistae quatenus adeundi Ecclesiam orationibusque vacandi liberius habeatur facultas But the Council of St. Medard extant first in Burchard and then in Gratian enlargeth these Vacations in this Manner Decrevit Sancta Synodus ut a Quadragesima usque ad Octavam Paschae ab Adventu Domini usque ad Octavam Epiphaniae nec-non in Jejuniis quatuor temporum in Litaniis Majoribus in diebus Dominicis in diebus Rogationum nisi de concordia pacificatione nullus supra sacra Evangelia jurare praesumat The word jurare here implyeth that they should not try Law-causes or hold plea
not till the third day after the Octaves But Gervasius Tilburiensis who lived in Hen. II's time hath a Writ in these words N. Rex Anglorum illi vel illi Vicecomiti Jalutem Vide sicut teipsum omnia tua diligis quod sis ad Scaccarium ibi vel ibi in Crastino Sancti Michaelis vel in Crastino Clausi Paschae habeas ibi tecum quicquid debes de veteri firma nova nominatim haec debita subscript viz. c. By which it appeareth that the Term in the Exchequer as touching Sheriffs and Accomptants and consequently in the other parts began then as now it doth saying that the Statute De Scaccario 51. Hen. III. 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 Vtas of Easter Which time not being ferial or Church-days is freely allow'd to Term business if the Octaves of St. Michael had no priviledge of which hereafter It is to be noted that the Term in the Exchequer hath one Return at the beginning of every Term before the first Return in other Courts excepting Trinity-Term viz. Crastino S. Michaelis in Michaelmass-Term Octabis S. Hilarii in Hilary-Term and Octabis or Clausum Paschae in Easter-Term And it seemeth that Crastino Trinitatis was so likewise in Trinity-Term before the Stat. 32. Hen. VIII And these returns or the space of eight days in which the Exchequer is open before the full Term which now we commonly call the beginning of the Term are counted to be Term-time as appeareth by the said Statute where it is thus enacted That Trinity-Term shall begin the Monday next after Trinity Sunday for keeping of the Essoignes Profers Returns and other Ceremonies heretofore used c. And that the full Term of the said Trinity-Term shall yearly for ever begin the Friday .... 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 twenty sixth of November and the fourth of December therefore the twenty eighth of November as a middle period by reason of the Feast and Eve of St. Andrew hath been appointed to it Howbeit when Advent Sunday falleth on the twenty seventh of November as sometimes it doth then is the last day of the Term contrary to the Canons and former Constitutions held in Advent and consequently void if custom help it not or for more security the Statute of 3. Edw. I. ca. 48. where the Bishops at the King's request admit Assizes and Inquests to be taken in Advent as it after shall more largely appear CHAP. XVI The later Constitutions of the Terms TO leave obscurity and come nearer the light it seemeth by the Statutes of 51. Hen. III. 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. Edw. III. cap. 15. confirmed that use For the Returns there mentioned are neither other more or fewer than at this day CHAP. XVII How Trinity-term was alter'd and shortned TRinity-Term is alter'd and shortned by the Statute of 32. Hen. VIII chap. 21. which hath ordained it quoad sessionem to begin for ever the Friday after Corpus Christi day and to continue nineteen days whereas in elder times it began two or three days sooner So that Corpus Christi day being a moveable Feast this Term cannot hold any certain station in the year and therefore this year 1614. it began on St. John Baptist's day and the last year it ended on his Eve Hereupon tho' 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 is it now no Vacation day when Corpus Christi falleth as it did this year 1614. the very day before it For that the Statute hath appointed the Term to begin the Friday next after Corpus Christi day which was the day next this year before St. John Baptist and so the Term must of necessity begin on Saint John Baptist's day This deceived all the Ptognosticators 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 deceiving many by that their errour But the aforesaid Statute of 32. Hen. VIII changed the whole frame of this Term For it made it begin sooner by a Return viz. Crastino Sanctae Trinitatis and thereby brought Octabis Trinitatis which before was the first Return to be the second and Quindena Trinitatis which before was the second now to be the third and instead of the three other Returns of Crastino Octabis and Quindena Sancti Johannis it appointed that which before was no Return but now the fourth and last called Tres Trinitatis The altering and abbreviation of this Term is declared by the preamble of the Statute to have risen out of two causes one for health in dismissing the Concourse of people in that contagious time of the year the other for wealth that the Subject might attend his Harvest and gathering in the fruits of the earth But there seemeth to be a third also not mention'd in the Statute and that is the uncertain station length and Returns of the first part of this Term which like an Excentrick was one year near to St. John Baptist another year far removed from it and thereby making the Term not only 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 this year 1614. 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 Michaelmass-Term was abbreviated by Act of Parliament 16. Car. I. 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. I. Chap. 6. intituled An Act concerning the limitation and abbreviation of Michaelmass-Term For whereas by former Statutes it doth appear that Michaelmass-Term did begin in Octabis Sanctae Michaelis that Statute appoints that the first Return in this Term shall ever hereafter be à die Sancti Michaelis in tres septimanas so cutting off no less than two Returns from the ancient
alii creditum alius subtrahat ac praecipue Clericis quibus opprobrium est si peritos se velint disceptationum esse forensium ostendere But here we see that the Clergy even in those days had set their foot upon the business and I suppose that since that time they never pulled it wholly out again It is like the Eastern Nations adhering to the Empire did observe it But the Western being torn from it by the Northern Nations Saxons Goths and Normans took and left as they thought good Reâ—â—ardus King of the Western Goths about the year 594. tho' he retained the manner of the Civil Law in making Wills yet he ordained that they should be publish d by a Priest as formerly they had been His succâ—ssor Chindavinâ—us about An. 650. making a Law about a Military Will ordained that it should be examined by the Bishop and Earl and ratified by the hand of a Priest and the Earl As the Northern Nations I speak of the Goths the Saxons and Normans were of Neighbour and affinity in their Habitation Language and Original so were they also in their Laws and Manners Therefore as the Goths trusted to their Priests with the passing of Wills so did the Normans their Custom and Law was that Tout testament doit estre passe par devant le Curè ou Vicaire notaire ou tabellion en la presence de daux temotnâ—s idoines dâ— XX. ans accomplis non legataires That all Testaments shall pass before the Curate or Vicar c. where the Commentary noteth that it must be the Curate or Vicar of the same Parish where the Testator dwelleth And that Notary hath been adjudged to be a Notary Apostolick or Ecclesiastical So that the business was then with them wholly in the hands of the Clergy This ancient Norman use liveth to this day in many Towns of England The Parson of Castle Rising in Norfolk hath the Probat of Testaments in that Town And so hath the Parson of Rydon and the Parson of North-Wotton in North-Wotton To go back to our Saxon Ancestors I see they held a kind of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or similitude of Laws with their brethren the Goths and Normans And tho' I find no positive constitution among them in this point yet ab actis judicatis the supporters of the Common Law it self we may perceive what their Custom and Law was Elfâ—re who lived before the year 960. having made his Will did afterward publish the same before Odo the Arch-bishop of Canterbury Elfsy the Priest of Croydon and many other Birtrick and his wife in no long time after declared their Will at Mepham before Elfstane Bishop of Rochester Wine the Priest and divers other See a MS. Law of King Alured the Great who flourished An. 880. De eo quâ— terram testamâ—ntalem habet quam ei parâ—ntes sui dimiserunt ponimus ne illam extra cognationem suam â—â—ttere possit si scriptum intersit testamenti testes quod â—orum prohibitto fuerit qui haâ—c imprimis acquisiverint ipsorum qui dederint ei nâ— hoc possit hoc in Regis Episcopi testimonio recitetur coram parentela sua It is said in the Civil Law that the declaration of a Testament before the Prince omnium Testamentorum solennitatem superat Here the Bishop is joined with the King in cognisance of the Testament by the copulative but Mr. Lambard tho' I confess it agreeth not with the Saxon maketh it in the disjunctive coram Rege aut Episcopo as if it might be before either of them The Saxon is on Cyninges bisceopes geÆ¿itnysse in Râ—gis Episcopi testimonio Be it one or the other it cometh much to a reckning for the presence of the King was then represented in the County by the person of the Earl of the County as it is this day in his Bench by the person of his Judges And the Earl and Bishop sitting together in the Court of the County did as if the King and the Bishop had been there hear jointly not only the causes of Wills spoken of in this Law wherein the Bishop had special interest but other also that came before them And therefore in those days the extent of the Earl's County and the Bishop's Diocess had but one limit To this purpose is the Law of King Edgar Cap. 5. and the like of Canutus Cap. 17. Comitatus bis in anno congregatur nisi plus necesse sit in illo Comitatu sint Episcopus Comes qui ostendant populo justitiam Dei rectitudines seculi The Saxon is ðaere beon ðaere scyre biscop se Ealdorman Let the shire Bishop be there and the Alderman so then they called the Earl Thus both Ecclesiastical and Secular Causes were both decided in the County Court where by the Canons of the Church the Ecclesiastical Causes were first determined and then the Secular And many Laws and Constitutions there be to keep good correspondency between the Bishop and the Earl or Alderman And as both kind of justice were administred in the County Court so were they also in the Hundred Court in which course they continued in both Courts 'till the very time of the Conquest as it seemeth and almost all his time after But about the eighteenth year of his Regn by a Common Council of the Arch-bishops Bishops Abbots and Princes of the Kingdom which we now call a Parliament he ordained as appeareth in a Charter of his then granted to Remigius Bishop of Lincoln Vt nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in Hundred placita teneat nec causam quae ad regimen animarum pertinet ad judicium secularium omnium adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus ei elegerit nominaverit veniat ibique de causa vel culpa sua respondeat non secundum Hundred sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat c. What ensued upon this and how the Bishop and Earl divided their Causes and Jurisdiction appeareth not That of Wills belonged either wholly to the Earl as Rector Provinciae by the Constitution of Theodosius or as much to the Earl as to the Bishop by the Laws of King Edgar and Canutus But the subsequent use must inform us what was then done upon it And thereby it seemeth that all went wholly to the Bishop and Clergy and that the Saxon custom was changed and the Norman introduced And that the name of Court Christian or Ecclesiastical sprung not up or was heard of till after this division For now the devising of Lands by Will after the Saxon manner was left and the goods themselves could not be bequeathed but according to the use of Normandy A third part must remain