OF THE Law-Terms: A DISCOURSE Written by The Learned ANTIQUARY. Sir HENRY SPELMAN, Kt. WHEREIN The Laws of the Jews, Grecians, Romans, Saxons and Normans, relating to this Subject, are fully explained.  
LONDON, Printed for Matthew Gillyflower, in Westminster-Hall. 1684.   

SECT. I.  
Of the Terms in general.  
AS our Law-books have nothing, to my knowledge, of the Terms, so were it much better if our Chronicles had as little: For though it be little they have in that kind, yet is that little very untrue, affirming that William the Conqueror did first institute them. It is not worth the examining who was author of this error, but it seemeth that 
a Deinde constituit [Guilielmus Conquaestor] ut quater quotannis, etc. Lib. 9 p. 154. l. 16. etc.  Polydore Virgil (an alien in our Commonwealth, and not well endenized in our Antiquities) spread it first in print. I purpose not to take it upon any man's word: but, searching for the fountain, will, if I can, deduce them from thence, beginning with their definition.  
The Terms are certain portions of the year in which only the King's Justices hold plea, 
Definition.  in the high Temporal Courts, of Causes belonging to their Jurisdiction, in the place thereto assigned, according to the ancient Rites and Customs of the Kingdom.  
The definition divides itself, and offers these parts to be considered.  

1. The names they bear.  
2. The original they come of.  
3. The time they continue.  
4. The persons they are held by.  
5. The causes they deal with.  
6. The place they are kept in.  
7. The rites they are performed with.   
These parts minister matter for a Book at large, but my purpose upon the occasion imposed being to deal only with the institution of the Terms; I will travel no farther than the three first stages of my division, (that is) touching their Name, their Original, and their Time of continuance.   

SECT II.  
Of the Names of the Terms.  
THE word Terminus is of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which signifieth the Bound, End, or Limit of a thing, here particularly of the time for Law-matters. In the Civil-Law it also signifieth a day set to the Defendant, and in that sense doth Bracton and others sometimes use it. Mat. Paris calleth the Sheriff's Turn, Terminum Vicecomitis, and in the addition to the M: SS: Laws of King Inas, Terminus is applied to the Hundred-Court; as also in a Charter of Hen. 1. prescribing the time of holding the Court. And we ordinarily use it for any set portion of time, as of Life, Years, Lease, etc.  
The space between the Terms, is named Vacation, à Vacando, as being Leisure from Lawbusiness, by Latinists Justitium à jure stando, because the Law is now at a stop or stand.  
The Civilians and Canonists call Termtime Dies Juridicos; Vacation, Dies Feriales, Days of leisure, or intermission, Festival-days, as being indeed sequestered from troublesome affairs of humane business, and devoted properly to the service of God, and his Church. According to this our Saxon and Norman Ancestors divided the year also between God and the King, calling those days and parts that were assigned to God, Dies pacis Ecclesiae, the residue allotted to the King, Dies, or tempus Pacis Regis.  Divisum Imperium cum Jove Caesar habet. 
Other names I find none anciently among us, nor the word Terminus to be frequent, till the time of Hen. 2. wherein Gervascius Tilburiensis, and Ranulphus de Glanvilla (if those books be theirs) do continually use it for Dies pacis Regis.  
The ancient Romans, in like manner, divided their Year between their Gods, and their Commonwealth, naming their Law-days, or Termtime, Fastos, because their Praetor or Judge might then Fari, that is speak freely; their Vacation, or days of Intermission (as appointed to the service of their Gods) they called Nefastos, for that the Praetor might ne fari, not speak in them judicially. Ovid Fastorum lib. 1.  
Ille Nefastus erat, per quem tria verba silentur,  
Fastus erat per quem lege licebat agi.  
When that the three Judicial words  
The Praetor might not use,  
It was Nefastus: Fastus then,  
When each man freely sues.  
The three Judicial words were Do, Dico, Abdico; by the first he gave licence Citare partem ream, to Cite the Defendant; by the 2d. he pronounced sentence; and by the 3d. he granted execution. This obiter.  
The word Term hath also other considerations, sometimes it is used for the whole space, from the first Return to the end of the Term, including the day of 
a See Sect. 5. Cap. 6.  Return Essoine, Exception, return. Brev. Sometimes and most commonly excluding these from the first sitting of the Judges in full Court (which is the first day for appearance) and this is called full-Term by the Statute of 32. of Hen. 8. Cap. 21. as though the part precedent were but Semi-Term, Puisne-Term, or Introitus Termini: The words of the Stat. are these, That Trinity-Term shall begin the Monday next after Trinity-Sunday, for keeping the Essoines, Returns, Proffers and other ceremonies heretofore used, etc. And that the full term of the said Trinity-Term shall yearly for ever begin the Friday next after Corpus Christi- Day. Here the particulars I speak of, are apparently set forth, and the Term declared to begin at the first Return. By which reason it falleth out that the eight days wherein the Court of the Exchequer sits, at the beginning of Michaelmas-Terms, Hilary-Term and Easter, are to be accounted as parts of the Terms, for that they fall within the first Return: the Exchequer having one Return in every of them, more than the Courts of Common-Law have, viz. Crastino Sancti Michaelis, Octabis Hilarii, and Octabis or Clausum Paschae: And it seemeth that Trinity-Term had Crastino Trinitatis in the selfsame manner, before this Statute altered it.   

SECT. III.  
Of the Original of Terms or Law-days.  
LAW-days or Dies Juridici, which we call Terms, are upon the matters as ancient as offences and controversies: God himself held a kind of Term in Paradise, when judicially he tried and condemned Adam, Eve, and the Serpent. In all Nations, as soon as Government was settled, some time was appointed for punishing offences, redressing of wrongs, and determining of controversies; and this time to every of those Nations was their Term. The Original therefore of the Terms or Law-days, and the time appointed to them, are like the Signs of Oblique Ascension in Astronomy, that rise together. I shall not need to speak any more particularly of this point, but show it, as it farther offereth itself in our passage, when we treat of the time appointed to Term or Law-days, which is the next and longest part of this our Discourse.   

SECT. IV.  
Of the Times assigned to Law-matters, called the Terms.  
WE are now come to the great Arm of our Division, which spreads itself into many branches in handling whereof we shall fall, either necessarily or accidentally, upon these points, viz.  

1. Of Law-days among the Ancients, Jews and Greeks.  
2. Of those among the Romans using choice days.  
3. Of those among the Primitive Christians using all alike.  
4. How Sunday came to be exempted.  
5. How other Festivals, and other Vacation days.  
6. That our Terms took their original from the Canon-Law.  
7. The Constitutions of our Saxon Kings; Edward the Elder, Guthurn the Dane, and the Synod of Eanham under Ethelred, touching this matter.  
8. The Constitutions of Canutus more particular.  
9 The Constitutions of Edward the Confessor more material.  
10. The Constitution of William the Conqueror. And of Law-days in Normandy.  
11. What done by William Rufus, Stephen and Henry the 2d.  
12. Of Hilary-Term according to those ancient Laws.  
13. Of Easter-Term in like manner.  
14. Of Trinity-Term and the long Vacation following.  
15. Of Michaelmas-Term.  
16. Of the later Constitutions of the Terms by the Statutes of the 51. of Hen. 3. and 36. of Edw. 3.  
17. How Trinity-Term was altered by the 32. of Hen. 8.  
18. And how Michaelmas-Term was abbreviated by Act of Parliament 16. Carol. 1.   

CHAP. I.  
Of Law-days among the Ancients.  
THE time allotted to Lawbusiness seemeth to have been that from the beginning amongst all, or most Nations, which was not particularly dedicated (as we said before) to the service of God, or some rites of Religion. Therefore whilst Moses was yet under the Law of Nature, and before the positive Law was given, he sacrificed and kept the holy Festival with Jethro his father-in-law on the one day, but judged not the people till the day after; Some particular instance (I know) may be given to the contrary, as I shall mention, but this seemeth to have been at that time the general use.  
The Greeks, 
Greeks.  who (as Josephus in his book against Appion witnesseth) had much of their ancient Rites from the Hebrews, held two of their 
† Every month had about 6. more or less of them, so called because on them the Prytanaean Magistrates might hold Court.  Prytanaean-Days in every Month for civil matters, and the third only for their Sacra.  
Aeschines, in his Oration against Ctesiphon, chargeth Demosthenes with writing a Decree in the Senate, that the 
* So called from the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, where their business was to sit only on things inanimate, as when a piece of stone, timber or iron, etc. fell on a man, if the party that flung it were not known, sentence was passed on that thing which slew him; and the Masters of this Court were to see that thing cast out of the Territories of Athens. See the Attic Antiq. l. 3. Chap. 3. Sect. 4.  Prytanaean Magistrates might hold an Assembly upon the 8. day of the approaching Month of 
† The month February, or, as others would have it March, when Sacrifices were most usually offered to the Goddess Diana, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, cognomen Dianae, quod est, jaculis cervos figens.  Elaphebolion, when the holy Rites of Aesculapius were to be solemnised.  
The Romans 
Romans.  likewise (whether by instinct of nature or precedent) meddled not with Law Causes during the time appointed to the worship of their Gods, as appeareth by their Primitive Law of the 12. Tables, Feriis jurgia amovento, and by the places before cited as also this of the same Tables.  
Post semel exta Deo data sunt licet omnia fari.  
Verbáque honoratus libera Praetor habet.  
When Sacrifice and holy Rites were done,  
The Reverend Praetor than his Courts begun.  
To be short, it was so common a thing in those days of old, to exempt the times of exercise of Religion from all worldly business; that the Barbarous Nations, even our Angli, whilst they were yet in Germany, the Suevians themselves, and others of those Northern parts would in no-wise violate or interrupt it. 
* Lib. de Moribus Germ. Cap. 40.  Tacitus says of them that, during this time, Non bellum ineunt non arma sumunt, clausum omne ferrum; pax & quies tunc tantùm nota, tunc tantùm amata. Of our Germane Ancestors we shall speak more anon; our British are little to the purpose: they judged all Controversies by their Priests the Druids, and to that end met but once a year as 
† De bello Gallico lib. ●.  Caesar showeth us by those of the Gauls.  
I will therefore seek 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.   

CHAP. II.  
Of Law-days amongst the Romans using choice days.  
THE ancient Romans, whilst they were yet Heathens, did not as we at this day use certain continued 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 Egyptians,) they made one day to be Fastus, or Term-day, and another (as an Egyptian 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, manè Nefastus erat,  
The afternoon was Term, the m●rning Holiday.  
Nor were all their Fasti applied to Judicature, but some of them to other meetings and Consultations of the Commonwealth; so that being divided into three sorts, which they called Fastos propriè, Fastos Intercisos, & Fastos Comitiales, they contained together 184. days, yet through all the Months in the year there remained not properly to the Praetor, as Judicial or Triverbal Days above 28; Whereas, before the abbreviation of Michaelmas Term by the Statute of 16. Car. 1. we had in our Term above 96. Days in Court, and now have 86. besides the Sundays and Exempted Festivals which fall in the Terms; and those are about 28. or there about. 
† De Rep. Angl. lib. 3.  Sir Thomas Smith counts it strange, that three Tribunals in one City in less than a third part of the year should satisfy the wrongs of so large and populous a Nation as this of England. But let us return where we left off.   

CHAP. III.  
Of Law-days amongst the primitive Christians, and how they used all times alike.  
TO beat down the Roman superstition touching the observation of days, against which St. Augustine and others wrote vehemently; the Christians at first used all days alike for hearing of Causes, not sparing (as it seemeth) the Sunday itself, thereby falling into another extreme: Yet had they some precedent for it from Moses and the Jews. For 
* Lib. 3.  Philo Judaeus in the life of Moses reporteth, that the cause of him that gathered 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 sat on the weekday from morning to night, in the Gates of the City; and on the Sabbath, and on Festivals upon the Walls. So the whole year than seemed a continual Term, no day exempted. How this stood with the Levitical Law, or rather the Moral, I leave to others.   

CHAP. IU.  
How Sunday came to be exempted.  
BUT, for the 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 [aut ventilare] praesumat, No Bishop or inferior 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 Clergymen did hear and determine Causes, lest Christians, against the rule of the Apostle, should go to Law under Heathens and Infidels.  
This Canon of the Church for exempting Sunday was by Theodosius fortified with an Imperial Constitution, whilst we Britain's were yet under the Roman Government, Solis die, quem dominicum certe dicere solebant majores, omnium omnino litium & negotiorum quiescat intentio. Thus was Sunday redeemed from being part of the Term; but all other days by express words of the Canon were left to be Dies Juridici, whether they were mean or great Festivals; For it thus followeth in the same place of the 
a Caus. 15. quaest. 4. C. 1.  Decretals; Caeteris verò 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 Emperor's 
* Lib. 6. Cap. 245. à Benedict. Levit●,  Carolus & Ludovicus.   

CHAP. V.  
How other Fastival and Vacation Days were exempted.  
LET us now 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 35. in or about the year 895. Nullus Comes, nullúsque omnino secularis Diebus Dominicis vel Sanctorum in Festis seu Quadragessimae, aut jejuniorum, placitum habere, sed nec populum praesumat illo coercere.  
After this manner the Council of 
† Bin. Tom. 3. Part. 1. Sect. 2. Circa annum Christi 845.  Meldis Ca 77. took Easter-week, commonly called the Octaves, from Lawbusiness; Paschae hebdomade feriandum, forensia negotia prohibentur. By this example came the Octaves of Pentecost, St. Michael, the Epiphany, etc. to be exempted, and principal Feasts to be honoured with Octaves.  
The next memorable Council to that of Tribury was the Council of Ertford in Germany in the year 932. which though it were then but Provincial, yet being afterwards 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 stands in 
* Concil. Tom. 3. part. 2. pag. 142. In istius Concil. Cap. 2.  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, minimè fieri volumus. In super quoque Gloriosissimus Rex [Francorum Henricus] add augmentum Christianae Religionis concessit, (or as 
† Decret. Cau. 15. quaest 4. C 1.  Gratian hath it) [Sancta Synodus decrevit] ut nulla judiciaria potest as licentiam habeat Christianos suâ authoritate ad placitum bannire septem diebus ante Natalem Domini, & à 
* al. Septuagessimâ.  Quinquagessima usque ad Octavas Paschae, & septem diebus ante Natalem Sancti Johannis Baptistae, quatenus adeundi Ecclesiam orationibúsque vacandi liberiùs habeatur facultas. But the Council of St. Medard extant first in 
† Cau. 22. ● 5. Ca, 17.  Burchard, and then in Gratian enlargeth these vacations in this manner, Decrevit Sancta Synodus, ut a Quadragessima usque in Octavam Paschae, & ab Adventu Domini usque in Octavam Epiphaniae, necnon & 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 implieth Law causes, or hold Plea on these days, as by the same phrase in other Laws shall by and by appear, which the Gloss also upon this Canon maketh manifest, saying, in his etiam diebus causae exerceri non debent, citing the other 
† Cau. 15. q. 4. C. 1.  Canon here next before recited, but adding withal, that the Court and Custom of Rome itself doth not keep Vacation from Septuagessima, nor, as it seemeth, on some other of the days. And this precedent we follow, when Septuagessima and Sexagessima fall in the compass of Hilary-Term.   

CHAP. VI  
That our Terms take their Original from the Canon Law.  
THUS we leave the Canon Law, and come home to our own Country, which out of these, and such other foreign Constitutions (for many more there are) has framed our Terms, not by choosing any set portion of the year for them, but by taking up such times for that purpose, as the Church and common Necessity (for collecting the fruits of the Earth) left undisposed of, as in that which followeth plainly shall appear.   

CHAP. VII.  
The Constitutions of our Saxon Kings in this matter.  
IN AS one of our ancient Saxon Kings, made a very strict Law against working on Sunday.  
Give þeoƿ mon ƿyrce on sunnan daeg. be his hlafordes haese. sy he freo. 
Legum Cap. 3.   
If a Servant work on Sunday by his Master's command, let him be made free, etc.  
And 
* Legum Alured Cap. 39  Alured prohibited many Festivals; but the first that prohibited Juridical proceedings upon such days was Edward the Elder and Guthurne the Dane, who in the League between them, made about ten years before the Council of Ertford, (that it may appear we took not all our light from thence) did thus ordain;  
Ordel & aþas syndon tocƿedene. Freols dagum. & riht faesten dagum; 
Vide Foedus Eavardi & Gu●●urni Regum Cap. 9   
We forbid that Ordel and Oaths (So they called Law-tryals at that time) be used upon Festival and Lawful fasting Days, etc.  
How far this Law extended appeareth not particularly, no doubt to all Festival and Fasting-days then imposed by the Roman Church, and such other Provincial, as by our Kings and Clergy here were instituted. Those which by Alured were appointed to be Festivals, are now by this Law made also days of Vacation from Judicial Trials, yet seem they, for the most part, to be but Semi-Festivals, as appointed only to freemen not to bondmen, for so this 
† See the aforesaid 39 Chapter of the Laws of K. Alured.  Law declareth, viz. The 12. days of Christmas, the day wherein Christ overcame the Devil, the Anniversary of St. Gregory, the 7. days afore Easter, and the seven days after, the day of St. Peter and St. Paul, and the whole Week before St. Mary in the harvest, and the Feast-day of All-Saints. But the four Wednesdays in the four Ember Weeks are remitted to Bondmen to bestow their work in them as they think good.  
To come to that which is more perspicuous, 
The Synod of Eanham.  I find about 
a 'Twas held between the years 1006. and 1013. See the Author's Conc. Britan. Tom. ●. pag. 510.  Sixty years after, a Canon in our 
b The word Synod here signifies more than Council, not as 'tis usually restrained to that of the Clergy only.  Synod of Eanham, under King Ethelred in these words. First, touching Sunday, 
c Concil. Eanham. Can. 15.  Dominicae solennia diei cum summo honore magnopere celebranda sunt, nec quicquam in eadem operis agatur servilis. Negotia quoque secularia quaestionésque publicae in eadem deponantur die. Then commanding the Feast-days of the 
c Concil. Eanham. Can. 15.  B. Virgin, and of all the 
c Concil. Eanham. Can. 15.  Apostles, the 
d Can 16.  Fast of the Ember days, and of the 
e Can. 17.  Friday in every Week to be duly kept; it proceedeth thus, 
f Can. 18.  Judicium quippe quod Anglicè Ordel dicitur, & juramenta vulgaria, festivis temporibus & legitimis jejuniis, sed & ab Adventu Domini usque post Octabas Epiphaniae, & à Septuagesima usque 15. dies post Pascha minime exerceantur: Sed sit his temporibus summa pax & concordia inter Christianos, sicut fieri oportet. It is like there were some former Constitutions of our Church to this purpose; but either mine eye hath not lighted on them, or my memory hath deceived me of them.   

CHAP. VIII.  
CAnutus succeeding shortly after by his Danish sword in our English Kingdom, not only retained but revived this former Constitution, adding, after the manner of his zeal, two new Festival and Vacation days.  
And ƿe forbeodað ordal. & að●s freols dagum. & ymbren dagum. & len●●en dagum. & riht faesten dagum; & fram Adventum domini eþ se eah to þa dag; 
Canuti Leg's cap. 17.   
And we forbid Ordal and Oaths on Feast-days, and Ember days, and Lent, and set fasting days, and from the Advent of our Lord till eight days after [the] twelve [days] be past. And from Septuagessima till fifteen nights after Easter. And the Sages have ordained that St. Edward's day shall be Festival over all England on the 15. of the Kalends of April, and St. Dunstan's on the 14. of the Kalends of June, and that all Christians (as right it is) should keep them hallowed and in peace.  
Canutus, following the example of the Synod of Eanham, setteth down in the Paragraph next before this recited, which shall be Festival and which Fasting-days, appointing both to be days of Vacation. Among the Fasting days he nameth the Saints Eves and the Frydays; but excepteth the Frydays when they happen to be Festival days, and those which come between Easter and Pentecost; as also those between Midwinter (so they called the Nativity of our Lord) and Octabis Epiphaniae. So that, at this time, some Frydays were Law-days and some were not. Those in Easter Term, with the Eve of Philip and Jacob, were, and the rest were not. The reason of this partiality (as I take it) was; they fasted not at Christmas for joy of Christ's nativity, nor between Easter and Whitsuntide, for that Christ continued upon the Earth, from his Resurrection till his Ascension; And 
a Mat. 9 15. Mark. 2. 19  the Children of the wedding may not fast so long as the Bridegroom is with them: Nor at Whitsuntide for joy of the coming of the Holy Ghost.   

CHAP. IX.  
The Constitution of Edward the Confessor most material.  
SAint Edward the Confessor drew this Constitution of Canutus nearer to the course of our time, as a Law in these words: 
b Leges Ed. Conf. c. 9  Ab Adventu Domini usque ad Octabas Epiphaniae pax Dei & sanctae Ecclesiae per omne Regnum; similiter à Septuagessima usque ad Octabas Paschae; item ab Ascensione Domini usque ad Octabas Pentecostes; item omnibus diebus quatuor temporum; item omnibus Sabbatis ab hora nona, & totâ die sequenti, usque ad diem Lunae; item Vigiliis Sanctae Mariae, Sancti Michaelis, Sancti Johannis Baptistae, Apostolorum omnium & Sanctorum quorum solennitates a Sacerdotibus Dominicis annunciantur diebus; & omnium Sanctorum in Kalendis Novembris, ab hora nona Vigiliarum, & subsequenti solennitate: Item in Parochiis in quibus dedicationis dies observatur; item Parochiis Ecclesiarum ubi propria festivitas Sancti celebratur, etc. The Rubric of this Law is, De temporibus & diebus pacis Regis, intimating Termtime, and here in the Text the Vacations are called Dies pacis Dei & sanctae Ecclesiae, as I 
* Sect. 2.  said in the beginning. But pax Dei, pax Ecclesiae, & pax Regis in other Laws of Edward the Confessor, and elsewhere, have other significations also more particular. Hora nona is here (as in all Authors of that time) intended for three of the Clock in the afternoon, being the ninth hour of the artificial day, wherein the Saxons, as other Nations of Europe, and our ancestors of much later time, followed the Judaical computation: perhaps till the invention and use of Clocks gave a just occasion to alter it, for that they could not daily tarry for the unequal hours.   

CHAP. X.  
The Constitution of William the Conqueror.  
THIS Constitution of Edward the Confessor was amongst his other Laws confirmed by William the Conqueror; as not only 
a In Hen. ●. pag. 600.  Hoveden, and those ancient Authors testify, but by the Decree of the Conqueror himself, in these words; 
b Legum Anglo— Saxon. pag. 137.  Hoc quoque praecipio ut omnes habeant & teneant Leges Edwardi in omnibus rebus, adauctis his quae constituimus ad utilitatem Anglorum. And in those Auctions nothing is added, altered, or spoken, concerning any part of that Constitution. Neither is it likely that the Conqueror did much innovate the course of our Terms or Law-days, seeing he held them in his own Duchy of Normandy, not far differing from the same manner, having received the Customs of that his Country from this of ours, by the hand of Edward the Confessor, as in the beginning of their old Customary themselves do acknowledge. The words touching their Law-days or Trials are these, under the Title, De Temporibus quibus leges non debent fieri: 
c Custom: Cap. 80.  Notandum autem est quod quaedam sunt tempora in quibus leges non debent fieri, nec simplices, nec apertae, viz. omnia tempora in quibus matrimonia non possunt celebrari. Ecclesia autem legibus apparentibus omnes dies Festivos perhibet, & defendit, viz. ab hora nona die Jovis, usque ad ortum Solis die Lunae sequenti, & omnes dies solennes novem lectionum & solennium jejuniorum, & dedicationis Ecclesiae in qua duellum est deducendum. This Law doth generally inhibit all Judicial proceedings, during the time wherein Marriage is forbidden, and particularly all trials by Battle, (which the French and our 
d Lib. 4. c. 1. Lib. 14. c. 1. 2.  Glanvill call Leges apparentes, alias Apparibiles, vulgarly Loix Apparisans) during the other times therein mentioned. And it is to be noted, that the Emperor Frederick the Second in his 
e Lib. 2. 〈◊〉. 31.  Neapolitan Constitutions includeth the Trials by Ordeal under Leges paribiles. But touching the times wherein Marriage was forbidden, it agreed for the most part with the Vacations prescribed by Edward the Confessor, especially touching the beginning of them. Of Dies novem lectionum, we shall find occasion to speak hereafter.   

CHAP. XI.  
What done by William Rufus. Hen. 1. K. Stephen, and Hen. 2.  
AS for William Rufus, we read that he pulled many lands from the Church, but not that he abridged the Vacation Times assigned to it.  
Henry the 1. upon view of former Constitutions, composed this Law under the Title, De observatione Legis faciendi, viz, Ab adventu Domini usque ad Octabas Ep●●haniae, & à Septuagessima usque ad 15 dies post Pascham, & Festis diebus, & quatuor Temporum, & diebus Quadragessimalibus, & aliis legitimis Jejuniis, in diebus Veneris, & vigiliis 
a Alii legunt. Singulo. rum.  Sanctorum Apostolorum non est tempus leges faciendi, vel jusjurandum (
b misi primo] al. pro.  nisi primo fidelitate domini vel concordia) vel bellum, vel ferri, vel aquae, vel leges 
c al. examinationis.  exactiones tractari, sed sit in omnibus vera pax, beata charitas, ad honorem omnipotentis Dei, etc. The Copy of these Laws is much corrupted, and it appeareth by Florence Wigorn's Continuer, that the 
* Anno Dom. 1142.  Londoners refused them, and put Maud the Empress to an ignominious flight when she pressed the observation of them. But in this particular branch there is nothing not agreeable to some former Constitution. The word Bellum here signifieth Combats, which among our Saxons are not spoken of, and by those of Ferri vel Aquae, are meant Ordal.  
King Stephen by his Charter recited at Malmesbury, confirmed and established by a Generality 
† Hist. Nou. lib. 1. pag. 179.  bonas leges & antiquas, & justas consuetudines.  
Henry the 2d. expressly ratified the Laws of Edward the Confessor, and William the Conqueror, as 
c In Hen. 2. pag. 600.  Hoveden telleth us, saying, that he did it by the advice of Ranulph Glanvill then newly made Chief Justice of England; which seemeth to be true, for that 
* Lib. 2. Cap. 11.  Glanvill doth accordingly make some of his Writs returnable in Octabi, or Clauso Paschae where the Laws of Edward the Confessor appoint the end of Lent Vacation: And 
e Dial. de Scacc.  Gervascius Tilburiensis also mentioneth the same return.   

CHAP. XII.  
The Terms laid out according to these ancient Laws.  
TO lay out now the bounds of the Terms according to these Canons and Constitutions, especially that ancient Law of Edward the Confessor; it thus appeareth, viz.  
Hilary Term began then certainly at Octabis Epiphaniae, 
Hilary-Term.  that is the thirteenth day of January, seven days before the first Return is now, and nine days before our Term beginneth, and ended at the Saturday next before Septuagessima, which being movable made this Term longer some years than in others. Florentinus Wigorniensis, and Walsingham in his 
a Pag. 441. Lin. 18.  Hypodigma Neustriae saith,— Anno 1096. in Octabis Epiphaniae apud Sarisburiam Rex Gulielmus Rufus tenuit Consilium in quo jussit Gulielmo de Anco in duello victi oculos eruere, & testiculos abscindere, & Dapiferum illius Gulielmum de Alderi, filium Amitae illius suspendi, etc. proceeding also judicially against others. Though Walsingham calleth this Assembly Consilium with an s, and Wigorniensis Concilium with a c, (the word Term perhaps not being in use in the days of William Rufus) yet it may seem to be no other, than an Assembly of the Barons, in the King's Court of State, (which was then the place of Justice) to proceed judicially against these offenders. For the Barons of the Land were at that time the Judges of all Causes, which we call Pleas of the Crown, and of all other belonging to the Court of the King: So that the proceedings being Legal and not Parliamentary, it appeareth that it was then no Vacation, and that the Term was begun at Octabis Epiphaniae; whereby it is the liklier also that it ended at Septuagessima, lest beginning it, as we now do, some years might happen to have no Hilary-Term at all, as shall anon appear. And this our ancient use of ending the Term at Septuagessima is some inducement to think, the Council of Ertford to be depraved, and that the word there Quinquagessima should be Septuagessima, as the gloss there reporteth it to be in some other place: And as well Gratian mistakes this, as he hath done the Council it self, attributing it to Ephesus, a City of jonia, instead of Ertford a town in Germany; where Burchard before him, and Binius since, hath placed it.  
It comes here to my mind, what I have heard an old Chequerman many years ago report, that this Term and Trinity-Term were in ancient time either no Terms at all, or but as relics of Michaelmas and Easter-Terms, rather than just Terms of themselves: Some courses of the Chequer yet incline to it. And we were both of the mind, that want of business (which no doubt in those days was very little) by reason Suits were then for the most part determined in inferior Courts, was the cause of it. But I since observe another cause, viz. That Septuagessima or Church-time one while trod so near upon the heels of Octabis Epiphaniae (I mean came so soon after it,) that it left not a whole week for Hilary-Term; and again, another while, Trinity-Sunday fell out so late in the year, that the common necessity of Hay-seed and Harvest, made that time very little, and unfrequented.  
For inasmuch as Easter-Term (which is the Clavis, as well to shut up Hilary-Term, as to open Trinity-Term,) may according to the General Council of Nice, holden in the year 922. fall upon any day between the 22. of October exclusively, which then was the Aequinoctium, and the 25 of April inclusively (as the farthest day that the Sunday following the Vernal Fullmoon can happen upon;) Septuagessima may sometimes be upon the 18. of January, and then they could not in ancient time have above 4. days Term, and we at this day no Term at all, because we begin it not till the 23. of January, which may be six days after Septuagessima, and within the time of Church-Vacation. But what Hilary-Term hath now lost from the beginning of it, it hath gained at the latter end of Trinity-Term. And I shall speak more of this by and by.   

CHAP. XIII.  
Easter-Term.  
EAster-Term, which now beginneth two days after Quindena Paschae, began then as the Law of Edward the Confessor appointed it, at Octab. This is verified by Glanvill, who maketh one of his Writs returnable thus;— Summoneo per bonos summonitores quatuor legales milites de vicineto de Stock, quod sint ad Clausum Paschae coram me vel Justiciariis meis apud Westmonasterium ad eligendum supra sacramentum suum duodecim legales milites. But, as it began then nine days sooner than it now doth, so it ended six or seven days sooner, (viz.) before the Vigil of Ascension, which I take to be the meaning of the Law of Edward the Confessor, appointing the time from the Ascension (inclusive) to the Octaves of Pentecost with Ascension-Eve to be dies pacis Ecclesiae, and Vacation.   

CHAP. XIV.  
Trinity-Term.  
TRinity-Term therefore in those days began as it now doth (in respect of the return) at Octab. Pentecostes, which being always the day after Trinity-sunday is now by the Stat. of 32 of Hen. 8. appointed to be called Crastino Trinitatis. But it seemeth that the Stat. 51. of Hen. 3. changed the beginning of this Term from Crastino Trinitatis to Octab. Trinitatis, and that therefore the Stat. of Hen. 8. did no more in this point than reduce it to the former original. As touching the end of this Term, it seemeth also that the said Stat. of 51. Hen. 3. assigned the same to be within two or three days after Quindena Sancti Johannis (which is about the twelfth of July) for that Statute nameth no return after.  
But, for aught that hindereth by the Canons, it is tanquam Terminus sine termino; for, there was no set Canon or Ecclesiastical Law (that I can find) to abridge the continuance thereof till Michaelmas-Term, unless the 7. days next before St, John Baptist, were (according to the Canon of Ertford) used as days of intermission, when they fell after the Octaves of Pentecost as commonly they do, though in the year 1614 four of them fell within them. And except the Ember-days next after Holy Rood; for Jejunia quatuor Temporum, as well by the Laws of Canutus, and Edward the Confessor, as by all other almost before recited, are either expressly or implicitly exempted from the days of Law. But when Trinity-Sunday fell near the Feast of St. John Baptist, than was the first part of this Term so thrust up between those days of the Church, that it was very short; and the latter part being always very late did so hinder Hay-seed and Harvest following, that either the course of it must be shortened, or it must still usurp upon the time, allotted by nature to collect the fruits of the earth.  
For as Religion closed the Courts of Law in other parts of the year, so now doth public necessity stop the progress of them; following the Constitution of 
a Cod. lib. 3. Tit. 12 De Feriis. Cap. 7.  Theodosius, thus decreeing;— Omnes dies jubemus esse juridicos. Illos tantum manere feriarum dies fas erit, quos geminis mensibus ad requiem laboris indulgentior annus excepit: aestivos fervoribus mitigandis, & autumnos fructibus discerpendis. This is also confirmed in the 
b Tit. De Feriis. Ca 5.  C.— and in 
c Cau. 15. quaest. 4.  Gratian with the Glosses upon them to which I leave you, but is of old thus expressed by 
d Silvarum lib. 4. Carm. 4. quod inscribitur. Ad Victorium Marcellum.  Statius, as if it were ex jure Gentium: 
Certè jam Latiae non miscent jurgia Leges,  
Et pacem piger Annus habet, messésque reversae  
Dimisere Forum: nec jam tibi turba reorum  
Vestibulo, querulique rogant exire Clientes.  
The Latian Laws do no man now molest,  
But grant this weary Season peace and rest;  
The Courts are stopped when harvest comes about,  
The Plaintiff or Defendant stirs not out.   
So the Longobards (our brethren as touching Saxon original) appointed for their Vintage a particular Vacation of 30 days, which Paulus Diaconus doth thus mention: Proficiscentes autem eo ad villam, ut juxta ritum imperialem triginta: Whereby it appeareth that this time was not only a time of Vacation, in those ancient days, but also of feasting and merriment, for receiving the fruits of the earth; 
1 Sam. 25. 4.  as at Nabal's and Absalom's sheep-shearing, 
2 Sam. 13. 23.  and in divers parts of England at this day. So the Normans, whose Terms were once not so much differing from ours, might not hold their Assizes or times of law, but after Easter and Harvest; that is after the times of holy Church and public necessity) as appeareth by their Customary. And forasmuch as the 
* Swaiumote or Swanimote, (from the Saxon sƿang i. e. a Country Clown or Free holder, and mot or gemot Conventus) is a Court of Free holder's within the Forest. See 3 Hen. 8. c. 18.  Swainmote-Courts are by the ancient Forest-Laws appointed to be kept fifteen days before Michaelmas; it seemeth to be intended that Harvest was then done, or that in Forests little or no corn was used to be sown.  
But is to be remembered, that this Vacation by reason of Harvest, Hay-seed, Vintage, etc. was not of so much solemnity as those in the other parts of the year, and therefore called of the Civilians, Dies feriati minùs solennes; because they were not dedicated divino cultui, but humanae necessitati. Therefore though Lawbusiness was prohibited on these days to give ease and freedom unto Suitors whilst they attended on the Storehouse of the Commonwealth; yet was it not otherwise than that by consent of parties they might proceed in this Vacation, whereof see the 
b Lib. 2. cap. 21.  Decreta Gregorii.   

CHAP. XV.  
Of Michaelmas-Term according to the ancient Constitutions.  
MIchaelmas-Term (as the Canons and Laws aforesaid leave it) was more uncertain for the beginning than for the end. It appeareth by a Fine taken at Norwich, 18 Hen. 3. that the Term was then holden there, and began within the Octaves of Saint Michael; for the note of it is; Haec est finalis concordia facta in Curia Domini Regis apud Norwicum, die Martis proximo post festum Sancti Michaelis, anno regni Regis Henrici filii Regis Johannis 18. coram Tho. de Mulet, Rob. de Lexint, Olivero, etc. I observe that the Tuesday next after St. Michael can (at the farthest) be but the seventh day after it, and yet it must be a day within the Octaves; whereas the Term 
* Before the abbreviation by 16. Cat. 1. cap. 6.  now is not till the third day after the Octaves. But 
a Dial. lib. 2. cap. 3.  Gervasius Tilburiensis, who lived in the days of Hen. 2. hath a Writ in these words:— N. Rex Anglorum, [illi vel illi] Vicecomiti salutem. Vide, sicut teipsum & omnia tua diligis, ut sis ad Scaccarium [ibi vel ibi in Crastino Sancti Michaelis, vel in Crastino Clausi Paschae] & habeas tecum quicquid debes de veteri firma & nova, & nominatim haec debita subscript. viz. etc. 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, saving that the Statute De Scaccario, 51 Hen. 3. hath since appointed, that Sheriffs and Accomptants shall come to the Exchequer the Monday after the feast of St. Michael, and the Monday after the 
* Utas] i. e. Octava, the eighth day after any Term or Feast.  Vtas of Easter. So that this time being neither ferial nor belonging to the Church, may justly be allotted to Term affairs, if the Octaves of Saint Michael have no privilege: More of which hereafter.  
The end is certainly prefixed by the Canons and Laws aforesaid, that it may not extend into Advent. And it holdeth still at that mark; saving that because Advent Sunday is movable, according to the Dominical-Letter, and may fall upon any day between the 26th of November and the 4th of December, therefore the 28th 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 27th of November, as sometimes it doth, then is the last day of the Term (contrary to the Canons and former Constitutions) held in Advent, as it after shall more largely appear.   

CHAP. XVI.  
The latter Constitutions of the Terms.  
TO leave obscurity and come nearer the light, it seemeth by the Statutes of 51 Hen. 3. called Die communes in Banco, that the Terms did then either begin and end as they do now, or that those Statutes did lay them out, and that the Statute of 36 Ed. 3. cap. 12. confirmed that use: For the Returns there mentioned are neither more nor fewer than 
* Anno 1614 in which year this Tract was written.  at this day.   

CHAP. XVII.  
How Trinity-Term was altered and shortened.  
TRinity-Term was altered and shortened by the Statute of 32 Hen. 8. chap. 21. which hath ordained it quoad sessionem, to begin for ever the Friday after Corpus-Christi-day, and to continue 19 days; whereas in elder times it began two or three days sooner. So that Corpus-Christi-day being a movable Feast, this Term cannot hold any certain station in the year, and therefore in the year 1614, it began on St. John Baptist's day, and the year before it ended on his Eve. Hereupon, though by all the Canons of the Church and former Laws, the Feast of St. John Baptist was a solemn day, and exempt from legal proceedings in Courts of Justice; yet it is no vacation day, when Corpus-Christi falleth (as it did that year) the very day before it: Because the Statute hath appointed the Term to begin the Friday next after Corpus-Christi-day, which in the said year 1614 was the day next before St. John Baptist, and so the Term did of necessity begin on Saint John Baptist's day. This deceived all the Prognosticators, who counting St. John Baptist, for a grand day, and no day in Court, appointed the Term in their Almanacs to begin the day after, and consequently to hold a day longer; so deceiving many by that their error.  
But, the aforesaid Statute of 32 H. 8. 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, the other for wealth that the Subject might attend his Harvest, and the gathering in the fruits of the earth. But there seemeth to be a third also not mentioned in the Statute, and that is, the uncertain station, length and Returns of the first part of this Term, which, like an Eccentric, was one year near to St. John Baptist, another year far removed from it; 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, than was this Term very long, and the two first Returns of Octabis and Quindena Trinitatis might be passed and gone a fortnight and more, before Crastino Sancti Johannis could come in: And if it fell late, (as some years it did) then would Crastino Sancti Johannis be come and passed, before Octabis Trinitatis were gone out. So that many times one or two of the first Returns of this Term (for aught that I can see) must in those days needs be lost.   

CHAP. XVIII.  
How Michaelmas-Term was abbreviated by Act of Parliament 16. Car. 1. Cap. 6.  
THE last place our Statute-Book affords upon this Subject of the limits and extent of the Terms is the Stat. 16. Car. 1. Chap. 6. entitled, Michaelmas-Term. For, whereas by former Statutes it doth appear, that Michaelmas-Term did begin in Octabis Sanctae Michaelis, that Statute appoints, that the first Return in this Term shall ever hereafter be à die Sancti Michaelis in tres septimanas, so cutting off no less than two Returns from the ancient beginning of this Term, viz. Octabis Sancti Michaelis, & A die Sancti Michaelis in quindecim dies, and consequently making the beginning of it fall a fortnight later than before. Wherefore the first day in this Term will always be the 23d. day of October, unless it happen to be Sunday, for than it must be deferred till the day following, upon which account we find it accordingly placed on the 24. for the year 1681. This is all the alteration that Statute mentions, and therefore for the end of Michaelmas-Term, I refer the Reader to what our Author has said already in the 15th. Chapter. It may not be amiss in pursuit of our Author's method to set down the motives of making this abbreviation as we find them reckoned up in the Preamble to that Statute. There we find, that the old beginning of Michaelmas-Term, was generally found to be very inconvenient to his Majesty's subjects both Nobles and others. 1. For the keeping of Quarter-Sessions next after the feast of St. Michael the Archangel; 2ly. For the keeping their Leets, Law-days and Court-Barons: 3ly. For the sowing of land with Winter-Corn, the same being the chief time of all the year for doing it; 4ly. For the disposing, and setting in order of all their Winter husbandry and business; 5ly. For the receiving and paying of Rents; 6ly. Because in many parts of this kingdom, especially the most northern, Harvest is seldom or never Inned till three weeks after the said Feast. All which affairs they could before by no means attend, in regard of the necessity of their coming to the said Term, so speedily after the Feast of St. Michael the Archangel, to appear upon Juries, and to follow their Causes and Suits in the Law.    

SECT. V.  
Other Considerations concerning Termtime.  
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 Termtime, viz.  

1. Why the Courts sit not in the Afternoons.  
2. Why not upon some whole days, as on Grand-days, double Feasts, and other exempted days, and the reason of them.  
3. Why some Lawbusiness may be done upon some days exempted.  
4. Why the end of Michaelmas-Term is sometimes held in Advent, and of Hilary-Term in Septuagessima, Sexagessima, and Quinquagessima.  
5. Why the Assizes are held in Lent, and at times generally prohibited by the Church.  
6. Of Returns.  
7. Of the Quarta dies post.  
8. Why I have cited so much Canon, Civil, Feodal, and foreign Laws in this Discourse, with an incursion into the original of our Laws.   

CHAP. I.  
Why the high Courts sit not in the Afternoons.  
IT is now to be considered why the high Courts of Justice sit not in the Afternoons. For it is said in 
* Exod. 18. 14.  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 showed in the beginning. And the Civilians following that Law do so continue them amongst us in their Terms at this day. But our Ancestors and other the Northern Nations being more prone to distemper and excess of diet (as the Canon Law noteth of them) used the Forenoon only, lest repletion should bring upon them drowsiness and oppression of spirits; according to that of St. Jerome, Pinguis Venter non gignit mentem tenuem. To confess the truth, our Saxons (as appeareth by 
a Hist. lib. 6. 1.  Huntingdon) were unmeasurably given to drunkenness. And it is said in 
b Cap. 10. 13.  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 Council of Salegunstad it was afterward decreed, A. D. 1023, ut lectio Nicaeni Concilii recitetur, which being done in the words aforesaid, the same was likewise there confirmed. According to this in the Laws of Carolus Magnus the Emperor it is ordained, 
a Tit.  L— lib. 2. ut Judices jejuni causas audiant & discernant: and again in the 
b Lib. Cau.  Capitulars Caroli & Lodovici, nè placitum 
c Archaed. verb. Comes cap. 1. 15.  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 other 
d Et alia cap. Car. 6. 4.  Constitutions ariseth the rule of the Canon Law, that Quae à prandio fiunt Constitutiones inter decreta non referuntur. 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 viduarum pupillorum & pauperum audiantur & definiantur ante Meridiem, Regis verò & Potentiorum post Meridiem. This though it may seem contradictory to the Constitutions aforesaid, yet I conceive them to be thus reconcilable: That the Judges (sitting then but seldom) continued their Courts both Forenoon and Afternoon, from Morning 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 judicium exercere. And from these ancient Rites of the Church and Empire is our Law derived, which prohibiteth our Jurours, being Judices de facto, to have meat, drink, fire or candle 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 discontinued often by some custom grating 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 appear by the Charter of Beverly Glanvill and Radulphus Niger, and Nisi prius by 
* 13 Ed. 1. cap. 30.  Edward the first, in the Statutes of Westminster 2; though I see not but in taking of them the ancient course might have been continued if haste would suffer it.   

CHAP. II.  
Why they sit not at all some days.  
THough there be many days in the Terms, which by ancient Constitutions before recited are exempted from Lawbusiness, as those of the Apostles, etc. and that the 
a An. 5. & 6. Edu. 6. cap. 3.  Statute of Ed. 6. appointed many of them to be kept holidays, as dedicated, not unto Saints, but unto divine worship, which we also at this day retain as holidays: Yet do not the high Courts forbear sitting in any of them, saving on the Feast of the Purification, 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 sufficeth that Custom 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 diebus conquiescere feriatis; yet in a Synod then holden, wherein are all the holidays appointed and particularly recited, no restraints of Judicature or Forensis strepitus is imposed, but a cessation only ab universis servilibus operibus, etiam Reipublicae utilibus. Which though it be in the phrase God himself useth touching many great Feasts, viz. 
a Leu. 23. 21, 25.  Omne servile opus non facietis in iis, yet it is not in that when he instituteth the seventh day to be the Sabbath, 
b Ex. 20. 10, 11. Leu. 23. 3.  Non facies omne opus in eo, without servile, Thou shalt do no manner of work therein. Now the act of Judicature, and of hearing and determining 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 qualify the former. Yea the Canonists and Casuists themselves not only 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, upon 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 settled by the Statutes of the Land, so that in that point it prevaileth not. Why? but there ariseth another question how it comes to pass that the Courts sit in Easter-Term upon the Rogation days, it being forbidden by the Council of Medard, and by the intention of divers other Constitutions? 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 strepitum, clamorous pleading, etc. he nameth them not. And though he did, the Glossographers say, that a Nation may by Custom erect a Feast that is not commanded by the Canons of the Church. 
* Tabien. Feriae Sect. 10.  Et eodem modo posset ex consuetudine introduci, quòd aliqua quae sunt de praecepto non essent de praecepto, sicut de tribus diebus Rogationum, etc. To be short, I find no such privilege for them in our Courts, though we admit them other Church rites and ceremonies.  
We must now show (if we can) why the Courts, 
Why on some Festivals, and not on others.  sitting upon so many Ferial and holidays, do forbear to sit upon some others, which before I mentioned; the Purification, Ascension, St. John Baptist, All-Saints, etc. For, in the Synod under Isleep before mentioned, 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 Judas, doth always fall in Michaelmas-Term. It may be said, that, although the Synod did prohibit only Opera Servilia to be done on Festival-days, as the offence most in use at that time; yet did it not give licence to do any Act that was formerly prohibited by any Law or Laudable Custom. 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, among which (majoris cautelae gratiâ) those Opera Servilia are there also prohibited to be done on Easter-day, Pentecost, and the Sunday itself. 
The differences of festivals.   
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 canonised by God himself. As for Easter and Whitsunday, we shall not need to speak of them neither, because 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 understood, that the Canonists, and such as write 
a Vide Duraudi lib. 7. c. 1. n 31.  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 Cathedral Churches do yet observe it: And I mean not to stay upon it, for you may see in the 
b Durand. lib 7. Ca 1.  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. Mention is made of them in an 
b Rast Excom. 5.  Ordinance 8. Ed. 3. That Writs were ordained to the Bishops, to accurse all and every of the perturbers of the Church, & C. every Sunday and Double Feast, etc. But we must needs show why they were called Dies novem Lectionum, for so our old Rituale de Sarum, styleth them, and therein lieth their greatest privilege. After the Arian Heresy 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 orthodox 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 other 8. should be read in their Service, with rejoicing and thanksgiving to God for suppressing that Heresy: And for the greater solemnity, some 
c Belethus Explicat. Cap. 158.  Bishop, or the chiefest Clergyman present did perform that duty. Thus came these days to their styles aforesaid, and to be honoured with extraordinary Music, Church-Service, Robes, Apparel, Feasting, etc. 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, 
Grand days in France.  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 certain 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 touching this their Loyscean De Signors.  
To come back to England, 
Grand days in 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 Maximum & Generale, being not only the Feast of Apostles and Martyrs, but of the Trinity, Angels and Confessors, as Durandus termeth it. And that honour and duty Quoth in singulis valet, potentiùs valebit in conjunctis. As for the Feast of All-Souls, neither Durandus, nor Belethus, nor any Ancient of those times (for they lived above 400. years since) do record it for a Festival. But my Countryman Walsingham the Monk of St. Alban saith, that Simon Archbishop of Canterbury in the year 1328. at a Provincial Council holden at London, did ordain, 
a Tho. Walsingham, Hist. Angl. pag. 129  Quòd die Parasceve & in commemoratione Omnium Animarum ab omni servili opere cessaretur. Surely he mistook it; for neither is it so mentioned in Lindewood, reciting that Canon, nor in the ancient Copy of the Council itself, where the two Feasts canonised by him are the Parasceve 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 only set it down in the Calendar for a double Feast, but appointeth 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 deprived of Festival rites, and therefore neither graced with Robes, nor Feasting.  
The Feast also of St. Peter and Paul on the 29th. of June was a Double Feast, 
The Feast of St. Peter and St. Paul.  yet it is now become single, and our Judges sit upon it. I confess I have not found the reason, unless that by Canonising St. Paul and so leaving St. Peter single, we allow him no prerogative 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, either in the Statute of Edward 6. or in the Almanacs and Kalendars of our Church. And why St. Peter hath it not is the more observable, for that he not only is deprived of the ancient dignity of his Apostleship, contrary 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 Confessor, 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 inquire 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. notwithstanding 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, entitled 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, 
St. George ' s day.  yet all this lieth 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 solemnity, but not in the Court Judicial. Though he stood before in the Calendar, and was the English Patron of elder time, yet H. Chichley, Archbishop of Canterbury gave him his greatness by canonising 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 expedition for Normandy; and this, among many holidays, 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 
* parag. 7.  Statute, That the Knights might celebrate it on the 22. 23. and 24th. of April. Other Feasts there were of this nature; 
St. Winifred.  as that of St. Winifred on the 2d. of November, which is in effect no day of sitting, but applied to the pricking of Sheriffs.  
These are vanished, and in their room we have one new memorable day of intermitting Court and Lawbusiness for a little in the morning, whilst the Judges in their Robes go solemnly to the great Church at Westminster on the 5th. of November yearly, 
The 5th. of November.  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 Parliament 3. Jacobi, Cap. 1. and it is of the kind of those Ferial days, which being ordained by the Emperors, not by the Popes, are in Canon and Civil Law called Feriati dies repentini. I will go no farther among the tedious subtleties of distinguishing days; I have not been matriculated in the Court of Rome: And I confess I neither do nor can explain many objections and contrarieties that may be gathered in these passages. Some Oedipus or Ariadne must help me out.   

CHAP. III.  
Why some Lawbusiness may be done on days exempted.  
IN the mean time let us see, why some Lawbusiness may be done on days exempted, and sometimes on Sunday itself, notwithstanding any thing above mentioned.  
For as in Term time some days are exempted from Term business, and some portion of the day from sitting in Courts; so in the Vacation time and days exempted, some Law business may be performed by express permission of the Canon-Law, according to that of the 
a Virgil. Georg. lib. 1. v. 268, etc.  Poet in the Georgics, 
Quip etiam Festis quaedam exercere diebus  
Fas & jura sinunt—   
The Synod of Medard admitteth matters the 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, according to that of 
b Lib. Ep.  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 do the things here next following.  
For matters of Peace and Concord, by reason whereof our Judges take the acknowledgement of Fines, Statutes, Recognizances, etc. upon any day, even the Sabbath itself; (though it were better then to be forborn.)  
For suppressing of Traitors, Thiefs, and notorious Offenders, which may otherwise trouble the peace of the Commonwealth, and undo the Kingdom.  
For manumission of Bondmen: A work of Piety.  
For saving that which otherwise would perish: A work of Necessity.  
For doing that, which, time overslipt, cannot be done: As for making Appeals within the time limited, etc.  
For taking the benefit of a Witness 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 volentis,  
Cumque potestatis Patriae jus filius exit.  Or thus according to Panormitanus; Ratione Appellationis, Pacis, Necessitatis, Celeritatis, Pietatis, Matrimonii, Latrocinii, & ubicunque in mor a promptum est periculum. So likewise by consent of parties upon dies Feriati minùs solennes, viz. Harvest, Hayseed, etc. as we have said before. And divers others there are. See the 
a Cau. 15. q. 4. Tit. de Feriis c. 5.  Glosses.   

CHAP. IU.  
Why the end of Michaelmas-Term is sometimes holden in Advent; and the Octaves of Hilary in Septuagessima.  
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, than Michaelmas-Term borroweth the day after out of Advent; and when Septuagessima followeth suddenly upon the Purification, Hilary-Term not only usurpeth upon it and Sexagessima (which by the Precedent of the Church of Rome here before mentioned it may do) but also upon Quinquagessima, Shrove-Tuesday, and Quadragessima itself; for all which there is matter enough in one place or 
a As An. 1. 27. & 1. 26. Hoveden p. 663.  other already shown. 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 do 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, Mortdauncester, and Darrain Presentment, should be taken in Advent, Septuagessima and Lent, even as well as inquests may be taken, and that at the special request of the King made unto the Bishops. 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.   

CHAP. V.  
Why Assizes are holden in Lent.  
IT seemeth that by virtue of this Statute, or some other dispensation from the Bishop's Assizes began first to be holden in Lent, contrary to the Canons. I find in an ancient Manuscript of the Monastery of St. Alban a dispensation of this kind thus entitled;  

Licentia concess. Justic. Reg. de Assistenend. sacro tempore non obstante.  
Pateat universis per praesentes nos Richardum (miseratione divinâ) Abbatem Monasterii Sancti Albani, licentiam & potestatem authoritate praesentium dedisse dilecto nobis in Christo Domino Johanni Shardlow & sociis ejus Justic. Dom. Regis Assisas apud Barnet (nostrae Jurisdictionis exemptae) die Lunae proximo ante Festum S. Ambrosii capiendas, juxta formam, vim & effectum Brevis Domini Regis inde iis directi. In cujus, etc. Anno Domini, etc.  
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 find 
a In come. ejus.  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 extended 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 Licence and dispensation. The Feast of St. Ambrose mentioned in the Licence was on the fourth of April, which commonly is about a Week or two before Easter. And the Abbot of St. Alban, having exempt jurisdiction within the Province of Canterbury, granteth the dispensation to hold Assizes in tempore sacro, as the Rubric explaineth it, lest the words [nostrae jurisdictionis exemptae] might be applied to some layick Franchise: I assure myself there are many of this kind, if they might come to light.   

CHAP. VI  
Of the Returns.  
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 busy. The Returns are set days in every Term appointed to the Sheriffs, 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 Defendants for appearance, every one of them being a seven-night after another, to the end that the Defendant according to his distance from the place where he was to appear, might have one, two, three or more of these Returns, 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 
* Leges Ethelredi Cap. 93.  Ethelred the Saxon King in case of vouching upon Trover.  
Give he cenne ofer an scira. haebbe ân ƿucena fyrst; give he cenne ofer troth scira habbe troth ƿucena fyrst; give he cenne ofer III. scira. haebbe III. ƿucena fyrst; Ofer eal sƿa fela scira. sƿa he cenne. haebbe sƿa feala ƿucena fyrst;  
If the Vouchees 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 of 
a Legum Hen. 1. Cap. 41.  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 dapifero, vel denique familiae suae liberè denuncietur; si in eodem Comitatu sit, inde ad septem dies terminum habeat; si in alia sit 15. dierum terminum habeat; & si in tertio Comitatu sit, 3. Hebdomadae; si in quarto, quartae Hebdomadae, & ultrà non procedit ubicunque fuerit in Anglia, nisi competens eum detineat 
* Sonius M: SS. Seld.  soinius; si ultra mare est 6. Hebdomadas habeat & unum diem ad accessum & recessum maris, nisi vel occupatio servitii Regis, vel ipsius aegritudo, vel 
b M: SS. Cod. l. intempestas.  tempestas, vel competens aliquod amplius respectet.  
The 
† This Statute was published Anno. 52. Hen. 3. Anno. Salut. 1267.  Statute of 
a The same with Marleborough in Wilts, famous for nothing more than that this Parliament was holden there. So Coke Institut. part 2. fol. 123.  Marlebridge Cap. 12. soundeth to this purpose; In 
b Coke ut suprà fol. 149. hath it thus, Sed si warrantus ille fuerit infra Comitatum, tunc, etc.  Assisis autem ultimae praesentationis & in placito Quare impedit de Ecclesiis vacantibus dentur dies de Quindena in Quindenam, vel de tribus septimanis in tres septimanas, prout locus fuerit propinquus vel remotus. And again, Cap. 27. Sed si vocatus, etc. (ad warrantum coram Justiciar. itinerantibus) fuerit infra Comitatum, tunc injungatur Vicecomiti, quòd ipsum infra tertium diem vel quartum (secundùm locorum distantiam) faciat venire sicut in itinere Justiciar, fieri consuevit. Et si extra Comitatum maneat, tunc rationabilem habeat Summonitionem 15. dierum ad minùs secundùm discretionem Justiciar. & Legem Communem.  
There was also another use of Returns, as appeareth by the Reformed Customary of Normandy, Artic. 10th. Some of them belonged to Pleas of Goods and Chattels, which we call personal 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 quinizanie in quinizanie. The more solemn Actions had the more solemn Returns, as we see by the 
* Anno. 51. Hen. 3. altered by the Statute of 32. Hen. 8. Cap. 21.  Stat. dies communes in Banco, which I leave to my Masters of the Law.  
I will not speak of the Returns particularly, more than that Octab▪ is sometimes reckoned by 7. days, sometimes by 8; By 7. excluding the Feast from which it is counted; By 8. including it. And the word is borrowed from the Constitutions of the Church, where the seven days following Easter were appointed to be Ferial-days (as we have showed before) in imitation of the seven days Azymorum, 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 being no day in Court, putteth off the Return till the next day after, making Monday always taken for the true Octab. unless you will count these two days for no more than one, as the 
* Anno 21. Hen. 3.  Stat. de Anno Bissextili in the like case hath ordained.   

CHAP. VII.  
Of the Quarta Dies post.  
TOuching the Quartam diem post allowed to the Defendant for his appearance after the day of Return, it is derived from the Ancient Saxon, Salic, French and Germane 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 custom of the Germans mentioned by Tacitus; 
† Lib. de morib. Ger. manorum Cap. 11.  Illud ex libertate vitium quòd non simul nec jussi conveniunt, sed & alter & tertius dies cunctatione coeuntium absumitur. He saith, ex libertate, because that to come at a peremptory time was a note of Servitude, which the Germans despised.   

CHAP. VIII.  
Why I have used so much Canon and Foreign Law in the discourse, with an incursion into the Original of our Laws.  
I Have used much Canon and some other 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. 
— Fancies non omnibus una,  
Nec diversa tamen, qualem decet esse sororum.   
They that look into the Laws of our English Saxons, of the Saliques, French, almains, Ripurians, Bavarians, Longobards, and other Germane Nations, about 800. years since, shall easily find, that out of them, and many other Manners, Rites and Customs of the Saxons and Germans is the first part and foundation of our Laws, commonly called the Laws of Edward the Confessor, 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 (descending from Saxon lineage as well as we) called otherwise the Feodal-law, received generally through all Europe. For in matters concerning the Church and Churchmen, Legitimation, Matrimony, Wills, Testaments, Adultery, Diffamation, Oaths, Perjury, Days of Law, Days of Vacation, Wager of Laws, and many other things, it proceeded, sometimes wholly, sometimes for the greater part, by the rules and precepts of the Canon-Law. And in matters touching Inheritance, Fees, Tenors by Knight's service, Rents, Escheats, Dower of the third part, Fines, Felony, Forfeiture, Trial by Battle, etc. from the Feodal-Law chiefly; as those that read 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 Longobards themselves. I wish some worthy Lawyer would read them diligently, and show the several heads from whence these of ours were taken. They beyond the Seas are diligent in this kind, but we are all for profit and Lucrando Pane.  
Another great portion of our Common Law is derived from the Civil (unless we will say that the Civil-Law is dervived from ours;) for Dr. cowel, who hath learnedly traveled in comparing and parallelling of them, affirmeth, that no Law of any Christian Nation whatsoever, approacheth nearer to the Civil-Law than this of ours. Yet he saith that all of them generali hujus disciplinae aequitate temperantur, & quasi condiuntur. Had he not said it, his book itself, entitled, Institutiones Juris Anglicani ad methodum & seriem Institutionum Imperialium compositae & digestae, would demonstrate it: Which Bracton also above 300. years before right well understanding, not only citeth the Digests and Books of the Civil-Law in many places for want of our Common-Law, but in handling our Law pursueth the Method, Phrase and Matter of Justinian's Institutes of the Civil-Law.  
When and how these several parts were brought into our Common-Law is neither easily nor definitively to be expressed. Those nodoubt 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 Reverend 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 Judgements by. For I suppose they in those days judged many things, ex aequo & bono, and that their Judgements after as Responsa Prudentium among the Romans, and the Codex Theodosianus became Precedents of Law unto posterity.  
As for the parts given unto Common-Law out of the Constitutions of our Kings since the Conquest, and before 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 Malcolm, the Second, who lived about 60 years before the Conquest, be of that antiquity, (which I cannot but question) and that our Book called Glanvill be wholly in effect taken out of the Book of their Law verbatim, for the greatest part, called Regiam Majestatem, (for they pretend that to be elder 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 versed 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 Germane Anestours, but built upon and polished by materials taken from the Canon Law and Civil Law. And under the capacious name of Germans, I not only 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 Britain's should be the authors of them; or that their Laws after so many transmutations of people and government, but especially 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 suffered one Town in a County to be called 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 expressly Seneca speaking of Claudius the emperor's having made an absolute conquest of this Island.  

* Senecs' Philosoph. De morte Cl. Caesaris.  
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, speaking of Severus the Emperor's going on't of this Island, 
* 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. Herodianis Hist. Lib. 3. Cap. 48.  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 Civil affairs thereof, and some of his ancient friends to be his Counsellors, taking his eldest Son Antonius for his wars against the Barbarians.  
When the Romans conquered this Land, they neither removed the Inhabitants nor brought any Foreigners upon them, other than (to govern and keep them in obedience) some Legions of Soldiers, and small Colonies. Yet that they made an alteration of their Laws, we may see in the Scripture by the example of Judaea. For though Pompey obtained the Kingdom there, rather by the confederacy with Hyrcanus, than by right of Conquest, (and therefore suffered 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 lawful for them to put any man to death. Therefore our Saviour and the two Thiefs were judged, and suffered upon 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 punishment of Blasphemy wherewith they charged Christ was stoning; and the punishment of Theft a Quadruple Restitution, or bondage in default thereof. 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 murdered St. Paul, had not Lysias prevented them, by sending him to his legal trial before Caesar's judgement Seat.  
By this we may conceive how the Romans dealt with the Britain's touching their Laws; and the story of Saint Alban and Amphybalus somewhat showeth it: But what Laws soever the Romans made in Britain, the Saxons doubtless swept them all away, with the Britain's. There is certain proof of it; for Antonius made a Constitution, that all Nations under the Roman Empire should be called Romans, and this was done when the Northern People broke into the lower parts of Europe, and made their habitation there.  
But more plainly Seneca speaking of Claudius the emperor's having conquered 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 Romana. But here in Britain after the Saxons had conquered, we never hear nor find any mention of Lex Romana, or of any Roman: Which showeth, that both that, and the Laws of the Britain's were expelled and driven away together, or that of the Romans with the Romans, and that of the Britain's with the Britain's.  
What the Laws of the Britain's were, it remains at this day to be seen by a model of them in an ancient Manuscript under the Title of 
* These Laws were made by Hoel Dha King of Wales, about the year 940. and since the writing of this Tract have been published to the world by our Author himself, in the first Tome of his Concilia Britannica, pag. 408.  The Laws of Hoel Dha, (that is Hoel the good;) nothing 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 Exchequer, 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 only citeth the Salic Law, and the Rubuarian or Belgic 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 Nations, as well as to our Saxons, Danes and Normans; but not one to my knowledge that riseth from the British tongue, nor do we, to my knowledge, retain any Law, Rite or Custom of the ancient Britain's, which we received 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, Protonotary, etc. whereby some argue the antiquity of our Law to be from the Druids, 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 Latin, could not descend from the Druids, who had neither knowledge nor use of the Latin tongue.  
They therefore that fetch our Laws from Brutus, Multnutius, the Druids, or any other Brutish or British inhabitants here of old, affirming that in all the times of these several Nations, (viz. Britain's, Romans, Saxons, Danes and Normans) and of their Kings, this Realm was still ruled with the self same customs that it is now governed withal; do like them that make the Arcadians to be elder than the Moon, and the God Terminus to be so fixed on the Capitoline-Hill, as neither Mattocks nor Spades, nor all the power of men or of other Gods, could remove him from the place he stood in.  
And thus I end.  
FINIS.