CHAPTER XLIII. Pages 55, 83, 114, 127-129, 140- The famous Statute of the 12th of Charles II., which was at the least equal to a second Magna Charta to England, rendered obsolete the whole of this Chapter; though its privileges had been confirmed and enforced by several previous Acts. Like the whole of the Charter of Liberties, it does but provide for a restitution of the Common Law; and its principal intent was to regulate the service due to the King, from those Honours which belonged to the Crown. The signification of the title Honour, is a more noble sort of Lordship, on which other inferior estates depend, by performance of certain services to the superior chief, who is called the Lord Paramount; and his seignory is frequently termed an Honour, not a Manor, especially if it have ever belonged to the King or to an ancient feudal Baron. To constitute an Honour, however, it was essential that it should have been originally created by the King; and that it should be holden of the King; for though the King might grant it to a subject, yet if it were assigned to another, it could not be holden of a subject. The custom of dividing estates into a multitude of parts, and the restraining Statute which was enacted in consequence, have been already noticed on page 195; but before this the Second Magna Charta of Henry III. Chapter xxxix. page 128, had provided some remedy by ordaining, that no man should give or sell any more of his land, but so, that out of the remainder his Lord might have the service which was due to him. The word Escheat, which also occurs in this Chapter, is derived of the old French word, Escheoir, to return or happen: and it signifies the return of an estate to a Lord, either on failure of issue from the tenant, or upon account of such tenant's felony. The nature of reliefs paid to the chief Lord at the entry of a new heir, has already been particularly described on pages 162-164; and it was usual for Honours to be let out to the Sheriff's to farm, in the manner already stated on pages 206207. Madox in his History of the Exchequer enters into all the peculiarities of Honours and Escheats, with numerous instances and lists of those which were in the King's pos session during several reigns. Vide Chap. x. pages 202209. Another emendation in the Second Great Charter of Henry III., vide page 128, was, that the King should derive no benefit of any Escheat or tenants, unless they reverted from one who held of him in chief: this is in accordance with the xxxviith Chapter of the Great Charter of John, which also distinguishes between the right of the King and that of a Lord, who have each an interest in the same fee. With regard to the new Chapter which in the Second Great Charter of King Henry III. was added to the preceding, its general intent will be understood from the foregoing particulars; and its legal peculiarities and process are explained in Lord Coke's Commentary: vide Second Instit. Magna Chart. Cap. 32. It was altered and explained in 1290, by the 18th of Edw. I. Statute 1. Cap. 2., and finally made obsolete by the 12th of Charles II. Cap. 24. Statutes at Large. CHAPTERS XLIV. XLVII. XLVIII. LIII. Pages 57, 59, 85, 89, 114, 115. The above appear to have been the only regulations for the English Forests enacted under King John, and some of their principal features have been considered and explained in the preceding Essay, pages 4-8. The first two of these Chapters appeared in the First Charter of Henry I., and with respect to the others in the close of the same instrument it was ordained, that they should be regarded until a full council of the kingdom should be summoned, when they were to be provided for. It has been shewn, however, on pages 37, 38, of the foregoing Essay, that with King Henry's Second Charter in 1217, another appeared, confined exclusively to the liberties of the Forest; which afterwards became a Statute of no less importance than the Magna Charta itself. This edition was probably first supposed the original one, by Sir William Blackstone in his Introduction to the Charters, pages xxii. xli.; where also he disproves the usual belief that a Forest Charter was granted by John. That such a deed was now for the first time drawn up, is evident from the word Forestariis in the direction of the Charters, being for the first time omitted in that of 1217, vide pages 105 and 118; and the few Forest clauses which remained in the Charter of Nov. 12th, 1216, pages 114, 115, were then omitted, evidently because the Foresters possessed a separate Charter of their own. Another argument against the existence of such an instrument by King John, is, that in the xvth Chapter of that by Henry, the outlawry of those persons is reversed which had taken place before the King's first Coronation, all others being left at the mercy of the Crown. It is scarcely to be imagined, however, that when the Barons had prevailed against John by insurrection, those persons would be excluded from the benefits of the liberties they procured, who for the last sixteen years had felt the oppressions of the Forests. If, however, this provision be referred to the Charter issued by King Henry's Ministers, the Coronation, Oct. 28th, 1216, would be within a year of its appearance; and the safety granted, in Chapter iv. to other Forest offenders, down to the beginning of the second year of the King's Coronation, exactly coincides with the 6th of Nov. 1217, the time when it may be supposed that the Charta de Foresta was first granted. In the time of Sir William Blackstone, however, the originals and all authentic records even of this Charter were lost; and its only traces were an entry in the Patent Rolls of the 2nd of Henry II. part ii. membrane 2, dated July the 24th, 1218, directing the Forest perambulations to be made and its boundaries to be settled, "according to the tenor of the Charter of Forest Liberties which the King had granted." In the same year too, Madox cites the Great Roll of the Exchequer, shewing that the expenses of this perambulation were charged and levied on the Counties concerned; which record also refers to the King's Charter: the inhabitants of Dorset and Somerset were rated at £100. Hist. Excheq. page 285, note g. The conjectures of Sir William Blackstone concerning this Charter, have, however, recently been verified, since the Archives of Durham Cathedral have been found to contain an original of the Forest Charter of the second year of Henry III., endorsed in Latin "The general Charter for the Forests: the fourth general Charter of the whole kingdom, and the first for the Forests; under the seals of the Legate, and William Earl of Pembroke." An account of this instrument will be given hereafter in the descriptive list of original copies of the Great and Forest Charters; and an explanation of the clauses placed at the head of this note, will be found in the illustrations of the various Charters of the Forests. CHAPTER XLV. Pages 57, 85. Some hint at the probable reasons for the insertion of this clause has already been cited from Sir William Blackstone, on page 17 of the preceding Essay; and the Chapter never appeared in any subsequent copy of the Great Charter. Dr. Brady supposes that the office of Chief Justiciary was originally derived from Normandy, where he believes him to have been the same as the Grand Seneschal; in England he had extensive power over all the inferior officers of the law, took cognisance of all crimes, and was often General, Viceroy, and Guardian of the kingdom. The ancient Judges and Lawyers, were, usually, superior Ecclesiastics,-which was also according to the Norman custom,-famous for their honesty and piety; and in the year 1070 William I. displaced many of the English clergy from their livings, putting Normans into their places who were well acquainted with this peculiar law; hence in the ensuing reign these Ecclesiastical Lawyers grew so numerous, as to occasion William of Malmsbury to remark that there was no clerk who was not a pleader. The legislature of England then, being thus conducted by Normans, the laws and the language in which they were administered were also in their own tongue, and this continued down to the 36th year of Edward III., 1362, Chap. xv. when it was enacted that pleas should be held in the English tongue and enrolled in the Latin. This latter custom continued to last until the time of Cromwell, when enrollments were began to be made in English; they were altered again under Charles II., but by a Statute of the 4th of George II. 1730, Chap. xxvi. law proceedings were ordained for the future to be recorded in the national language. The use of the Norman tongue in the Courts of England, was, however, commonly essential because the Judges and officers understood no other; the Chief Justiciary being frequently a military person, and suits being often decided by Peers and Lords of manors to whom the English was not known. From these circumstances it probably was, that the peculiar code of English Law was neglected or unknown by the Justices appointed to administer it; and the Norman customs or absolute injustice were too often substituted in its place. The Common Law of England, says Sir John Davis, is right not written, and more excellent than our written Laws, as Statutes or Acts of Parliament; it being a peculiar invention of this nation, delivered over from age to age by tradition, and even a tradition itself, so learned and communicated. Dr. Brady endeavours to prove, however, that the ancient English Law was actually derived of the Normans rather than the Saxons, and that the followers of William I. judged causes by it immediately after he became King, even before they were acquainted with the English language. Ignorance of the Laws cannot be effectually pleaded by any person, but in the Statutes of King Ethelred it is ordained, that "a Judge who shall give any unjust judgment, shall pay to the King cxx. shillings; unless he be heard to swear that he did not know how to judge rightly." The Laws of Canute add that he shall be dismissed from his legal dignity, if he do not redeem it from the King, according as it shall be allowed him. The transgression of the Laws by Judges is punishable by loss of office, fine, and imprisonment; and it is related that in the time of Richard II. Earl Typtoft, a Chancellor, was even beheaded for acting on the King's Warrant against the Law. A Judge who ignorantly condemns a man to death for felony, when his crime is not felony, is liable to be fined, imprisoned, and lose his office: and if one who has no jurisdiction of a cause give judgment of death and award execution, the Judge and the officer who executes the sentence are both guilty of felony. Brady's Complete Hist. of Eng. Pref. to the Norman Hist. II. 154. Jacob and Tomlins-Blackstone. CHAPTER XLVI, Pages 58, 85, 114, 128, 141, 155. The intent of this division of the Great Charter was to secure to the founders and tenants of Abbies the possession Se |