Chapter I: Introduction

BY JOSEPH HENRY BEALE, JR., A.M., LL.B., PROFESSOR OF LAW IN HARVARD UNIVERSITY.

I. RANULPH DE GLANVILLE.

Ranulph de Glanville was born in the Suffolk Stratford, about 1130 A.D. He is believed to have been the son of Sir Hervey de Glanville, Chamberlain to King Stephen, and the grandson of that Ranulph de Glanville who came over with the Conqueror. The family was an important one, owning much land in the counties of Suffolk and Norfolk. Glanville’s public life began in 1164, when he was appointed sheriff of Yorkshire; an office which he continued to hold for six years. In 1171 he was appointed Governor of Richmond Castle, and in 1174, sheriff of Lancashire. The Scots having invaded England in that year, he led the forces of Lancashire and Richmond against them, and (joining the sheriff of Yorkshire and his forces) surprised and routed the Scots at Alnwick, and took King William the Lion prisoner. For this victory Glanville deserved, as he certainly received, the credit; and from that time no man stood higher than he in the favor of King Henry II. He was sheriff of Westmoreland from 1175 to 1179; sheriff of Yorkshire a second time, from 1177 to his death; judge of the King’s Court in 1176, and Chief Justiciar in 1180. He was also employed in many distinguished public services. In 1177 he was sent as ambassador to Flanders. In 1182 he led an army against the Welsh. In 1184, with Archbishop Baldwin, he was sent as ambassador to Rice ap Griffin, Prince of South Wales. In his next Welsh expedition, a few years later (again with Baldwin), he preached a crusade. In 1186 he was ambassador to the King of France, and was active in negotiating the peace of Gisors. In 1189, while Henry was struggling with his rebellious sons and with Philip of France in Normandy, he was sent to Canterbury to treat with the Chapter; was soon again in Normandy with Henry; and finally returned to England to raise an army for his master’s service, a work in which he was engaged at the time of Henry’s death.

These great offices were due to his personal merit and to the great services he rendered to his country; but they appear to have been the result, also, of the personal friendship and affection of the King. He was one of the witnesses to Henry’s will, and a trustee of the King’s bequest of 5,000 marks of silver to certain religious and charitable institutions, and of 300 marks of gold for marrying poor free women of England. He was named by Henry as custodian of Queen Eleanor, and as treasurer of his private fortune. A pretty picture of the King’s feeling toward him occurs in the account of the arrival of Glanville’s messenger in London, after the battle of Alnwick. The messenger arrived at midnight and insisted on seeing the King. Being admitted to the royal chamber he boldly approached the King’s bed and roused him from sleep. He, springing up, cried, “Who is it?” “I am the messenger of Ranulph of Glanville, your faithful subject, and I come from him to your highness as a bearer of good tidings.” “Is our Ranulph well?” cried the King, moved less by the promised good tidings than by his love for the sender of them. “My lord is well,” was the answer, “and he holds your enemy, the King of the Scots, a prisoner at Richmond.”

Upon the death of Henry, Glanville’s position was a difficult one. Henry, conservative, though a reformer, had established the government of his kingdom on a foundation of law and justice, and had created an effective and pure administrative machine. The new King appeared to have no sympathy with his father’s principles of government. He was rash, radical and careless of regular details of administration, and Glanville, in the words of a contemporary, “In his old age saw the King doing many things in a newfangled way, without wisdom or forethought.” He was present at the coronation of Richard, and was sent by him to quell a riot against the Jews which disgraced the ceremony. About his next acts we have different accounts. He had taken the cross in 1186. Whether he asked and received his dismissal from Richard in order to join the army, then about to start for the Holy Land, or whether, as another account has it, he was removed and imprisoned by Richard and obliged to purchase his freedom by a fine of 15,000 pounds of silver, we cannot certainly tell. At any rate, he set out for Palestine together with Baldwin, Archbishop of Canterbury, and his nephew Hubert, then bishop of Salisbury; the three were placed in command of the English forces by Richard (who was obliged to delay his own departure), and Glanville in 1190 died before Acre, by disease, the result of the unhealthy climate. He left one son and three daughters, whom he had already enriched from his great fortune. He founded the priory of Butley, the Abbey of Leiston, and a hospital at Somerton.

Glanville impressed his contemporaries as a man strong both in body and in mind. A man of integrity and prudence, “most faithful in fortune or misfortune,” “Wise, grave and eloquent,” “The King’s eye;” “A name above every name, who spoke among the princes and was adored by the people.” He was a man wise, just and charitable, whose fellowship was sought and opinions valued by wits and by scholars. One scandal only attacked him. He is charged with falsely condemning to death for rape Sir Gilbert de Plumpton, in order that his widow might be married to Glanville’s friend and steward, Rainer; Sir Gilbert’s punishment was commuted by the King to imprisonment for life. The tale is quite inconsistent with all we know of Glanville’s character and with his position in the King’s affection, and may safely be disbelieved.

His family shared in his success. No less than seven of his near relatives held high judicial position under Henry or his sons. Few other families have rendered greater service to England than that of Ranulph de Glanville, ambassador, administrator, general, judge and jurist.

[Incidents of Glanville’s life and character are reported
in all the chroniclers of the time. Especially valuable
are the accounts in Hoveden, Benedictus Abbas, Giraldus
Cambrensis, Newburgh, Richard of Devizes, and Diceto. The
fullest modern sketch of his life is by Professor Maitland,
in the Dictionary of National Biography. Other modern
biographies are those of Foss (Judges of England, i, 376);
Thomas Wright (Biographia Britannica, 275); Lord Campbell
(Lives of the Chief Justices, i, 19); and Professor Gross
(Sources and Literature of English History, 315).

Many interesting documents bearing on Glanville’s genealogy
and his property are printed in Glanville-Richards’
“Records of the Anglo-Norman House of Glanville.”]

II. THE AUTHORSHIP OF THE TREATISE.

The following “Treatise on the Laws and Customs of the Kingdom of England,” was published between 1187 and 1189; it mentions a fine made in the former year, and it is filled with references to Henry, as then King. It had a high contemporary reputation. Copies of the book were multiplied, and many manuscripts still exist. It forms part of several collections of laws made by contemporaries of Glanville himself. It was translated, or partly translated, into French immediately after Glanville’s death, and it was revised and an attempt made to bring it down to date two generations later. It was finally superseded by Bracton’s completer and more elaborate treatise.

The work itself is anonymous, the manuscripts stating only that it was composed in the time of Henry II., “Glanville then holding the helm of justice.” Early tradition, however, asserts that it was written by Glanville himself, and that fact was accepted as undoubted from the thirteenth to the nineteenth century. Modern scholars have expressed doubt of it. Littleton’s objection (in his “Life of Henry II.”) that Glanville could not have written the book because he was not in orders, may be dismissed at once. The greater officers of the administration, whether in orders or not, must have had sufficient Latin to dictate a Latin treatise to a clerk, and Glanville was particularly commended for his eloquence by more than one contemporary. Hunter’s objection (in the preface to his “Fines”) is that Glanville, at the time the treatise was written, was too busy in public affairs to have composed such a work, and he suggests that the author may have been William de Glanville, a justice in the next reign; who was, in fact, Glanville’s son, and (from 1186) his secretary. But this is the merest guess. Professor Maitland conjectures (for a rather fanciful reason, perhaps) that the author may have been Hubert Walter. Liebermann, on the other hand, defends Glanville’s authorship. Certainly there is little external proof that Glanville was the author of the treatise, though it must have been written by some one in high position and repute to have obtained so immediate a success. The internal evidence does not lead us much further. The style is that of a person speaking with authority, but not necessarily the authority of the Chief Justiciar himself. The claim of Hubert Walter to the authorship cannot be dismissed without further examination.

Hubert was a nephew of Glanville’s wife; according to one account, of Glanville himself, Glanville’s younger brother having married his wife’s sister. Whether Hervey Walter, Hubert’s father, was really, as this account has it, Hervey de Glanville or not, it is certain that Hubert was brought up in intimacy with Glanville’s family, became his secretary, and was regarded by him as a valued counsellor. He was made Dean of York in 1186, being succeeded as secretary by Glanville’s son William. He soon became Bishop of Salisbury, Archbishop of Canterbury, and later Chief Justiciar and Chancellor of the Kingdom. He is described as a man of foresight and wisdom; it is said of him that his heart was in human affairs rather than divine, and that he knew all the laws of the kingdom. He was, however, a man “of little eloquence;” indeed, one chronicler ridicules his Latin style.

Did Glanville write the whole treatise? or did Hubert Walter write it? Or did they collaborate on it? Perhaps we can reach a conjectural conclusion by a more careful examination of the treatise itself.

The most striking feature of the treatise is, that it is based upon a collection of writs. Omitting the Introduction and the last book, on Pleas of the Crown, just one-third of the chapters into which it is divided consists of writs. These are of all kinds, directed to Lords’ Courts, to County Courts, and to Ecclesiastical Courts, as well as writs returnable in the King’s Courts. Later writers have made free use of writs, but here they are the skeleton of the whole treatise. They fulfil the function of judgment-rolls in Bracton’s book, and of decisions in Coke and later writers. The collection of these eighty writs must have been a work of several years, since some of the writs were certainly of rare occurrence. The Chief Justice, or his clerk, attested all the writs, and either of them had both opportunity and reason for making such a collection; hardly another man in the kingdom would have been likely to do it.

A large part of the treatise is written in a crabbed and inelegant, though usually a clear style. In a few passages, however, near the beginning of the book, we find an elevation of thought and elegance of diction often admired and imitated. The Introduction, in particular, and the seventh chapter of the second book, in praise of the assize (which, according to tradition, Glanville had a hand in inventing, or, at least, in establishing), are worthy of a man “sapiens simul et eloquens”; in sharp contrast with other parts of the work, which indicate an author who “omnia regni novit jura,” but was surely “non eloquio pollens.”

The first ten books of the treatise are carefully written, the commentary is full, the subject well developed. The last four books, on the other hand, seem to have been hurriedly thrown together. The proportion of writ to text is more than twice that in the preceding books; indeed, in the book devoted to the County Courts (in which Glanville had presided for years, and must have become as familiar with the law and procedure as with those of the King’s Courts), there is almost no comment. It seems possible that a proposed full commentary on the County Court practice, for which an elaborate collection of writs was at hand, was abandoned.

The exact date of the work is fixed by the only two dated documents—two fines, of June 27 and about November 1, 1187. Fines were then novel, and they were described carefully. It seems likely that the passage, which occurs toward the end of the treatise, was written soon after the dates of enrollment. Both fines were enrolled in Glanville’s presence.

We may now conjecture that the author, or authors, of the treatise had for years been collecting writs, either for preservation as useful precedents, or possibly with the object of composing a commentary upon them. The collection finished, it would not be a matter of much time or difficulty for one who knew the law, writs in hand, to dictate his commentary to a secretary also learned in the law. If the collector was Glanville, and the secretary Hubert, we may suppose that the actual work of composition was begun in 1185, or 1186; not, apparently, a time of strenuous labor for either. Passages of particular importance or of especial interest to Glanville would be composed by him with care; the actual form of the remainder might safely be left to his competent secretary, subject only to revision by himself. In 1186 the Dean of York died, and the succession was given to Hubert; and Glanville soon set out on his embassy to the King of France. In spite of this, however, time still remained for the completion of the work in the rather less polished form of the later books. In February, 1187, Glanville and Hubert were sitting together in the Court at Westminster; and from that month to the beginning of 1189 (with the exception of Lent, 1188, when Glanville was preaching his crusade in Wales), both appear to have remained in England, without serious interruption from public business. The year 1188, in fact, seems to have been one of the least busy of Glanville’s official life; and, until his time was absorbed by the troubles of the closing year of the reign, there was nothing to prevent a continuance of the work. The last hurried chapters may well, therefore, have been completed in 1188.

There is, then, nothing against the early and persistent tradition that Glanville wrote the treatise, and much in its favor; though most of the actual composition may have been the work of Hubert Walter.

[The fullest discussion of the authorship of “Glanville”
may be found in Pollock and Maitland’s “History of the
English Law,” i, 163. Reeves’ discussion (“History of the
English Law,” Finlayson’s Edition, i, 254) and Foss’s
(“Judges of England,” i, 180) are also worth consulting
upon this point. Liebermann (“Einleitung,” p. 73)
supports the theory of Glanville’s authorship; and in the
“Zeitschrift für romanische Philologie,” xix, 81, he gives
interesting proof of the early popularity of the treatise.
See also Professor Maitland’s article, “Glanville Revised,”
in the Harvard Law Review, vi, 1.

The life and character of Hubert may be found in the “Actus
Pontificum Cantuariensium” of Gervase. Glanville’s and
Hubert’s itineraries may be found in Eyton’s “Itinerary of
Henry II.”]

III. THE CHARACTER OF THE TREATISE.

“A Treatise on the Law and Customs of the Kingdom of England” is the earliest systematic treatise on law written in modern times. A few collections of law and decretals, like the _Decretum_ of Gratian and the “Assises of Jerusalem,” had, to be sure, been published earlier; but they were not, like this book, regular expositions of an existing system of law. Bracton’s work was modelled on Glanville, and, through Bracton, Glanville thus fixed the type of the modern commentary on law. An imitation, in many parts an exact copy, of this book was later published in Scotland under the title “Regiam Majestatem,” and the claim was vigorously made for a time that it was the original, Glanville the imitation. This notion, improbable on its face, was absolutely disproved by arguments set forth in Beames’ Introduction.

The first edition of the treatise was printed by R. Tottel in small 12mo, about the year 1554. Coke says that this was done by suggestion of Sir William Stanford, the learned judge and author. The second edition was printed by Thomas Wright in 1604. The text was corrected by the collation of “various manuscripts.” This edition was exactly reprinted, omitting the preface, in 1673. The treatise was again printed in the first volume of Houard’s “_Traités sur les Coutumes Anglo-Normandes_” in quarto, Rouen, 1776. The last Latin edition was published by John Rayner, 8vo, 1780, collated with the Bodleian, the Cottonian, the Harleian and Doctor Milles’s manuscripts by J.E. Wilmot. The Latin text is also printed as an appendix to Phillips’s “Englische Reichs und Rechtsgeschichte,” ii, 335: Berlin, 1828. A collation of Glanville with the “Regiam Majestatem” may be found in the Acts of the Parliament of Scotland, i, 133. An English translation by John Beames, with notes, was published in octavo, London, 1812, and is reprinted in the present edition.

This treatise is more than a mere law book. It is a monument to the genius of one of the greatest legal reformers of all time. Henry II. came to the throne, after a long period of anarchy, to find countless systems of law administered by a confused and confusing mass of popular courts and feudal courts. He at once set himself to bring order and unity out of anarchy and chaos. He made the King’s Court the common court of the land; he determined its jurisdiction as against the church, the lords and the sheriffs; and he made it the guardian of a King’s peace, which should protect high and low throughout the whole land. The establishment of peace was in fact the chief object of his stormy career. Glanville’s treatise shows us the method he took to secure his object.

By a free use of writs running from the King or his Justiciar, he limited the jurisdiction of all other courts, and subordinated them to the King’s Court. By a regular system of removal from lord to county, and from county to King, he secured the gradual unification of the law. The lord’s courts had administered the customs of each manor; each county court, too, had its customs, all based upon the Germanic law, but differing materially in the several counties, and especially in the several ancient divisions of the kingdom. The King’s Court now began to develop a common law, partly Anglo-Saxon in its origin, partly Norman, but molded largely by Henry’s formal or informal legislation, and tempered, as Glanville several times asserts, by equity.

To increase the influence of the King’s courts and to bring them to the people, Henry relied on an already existing institution, the _iter_ or eyre; but he so improved the system as to make it almost a new invention. The Kingdom was divided into circuits, each made up of a number of neighboring counties; and judges were appointed to ride each circuit, holding a King’s court in each county, and thus bringing every part of the Kingdom under the direct control of the King. Glanville himself became one of the first judges of the Northern Circuit.

One of the most important of Henry’s provisions for securing the King’s peace was the invention of writs for the protection of peaceful seisin, and the prevention of disseisin, even by the true owner. These writs put an end to forcible self-help, and brought every legal dispute over dispossession into the King’s Court. The writs of novel disseisin, of mort d’auncestor, and of darrein presentment, established by Henry’s legislation, became the basis of the land law.

Another reform, of even more far-reaching consequence, was his invention of a more rational method of establishing the truth of facts. In place of trial by ordeal, by compurgation, or by battle, he provided the assise (soon followed by the jury) as a means of eliciting truth. Trial by jury in the King’s Court, by favor or by right, became so popular as eventually to deprive the other courts of their litigation; and so satisfactory as to cultivate in the people of England a respect for law and a willingness to abide by its decisions that have been characteristic of the race for centuries.

The doctrine of res judicata seems to have been adopted at this time as another rule tending to the preservation of peace. When Glanville wrote, it had not been fully settled that the judgment even in a writ of right was necessarily final; Glanville’s strong opinion that it was so no doubt settled the law as we now have it.

In the work of reform Henry appears to have found in Glanville an enthusiastic and an able helper. This treatise is full of praise of the King and his legislation. The peaceful governing of its people is a great object of regal power, it is asserted. The king, who loves peace and is the author of it, conducts himself justly, discreetly, and mercifully toward his subjects. His will is law, if promulgated as such by the advice of his nobles; that and reasonable customs, long used, form the Laws of England, which may usefully, in part at least, be reduced to writing.

IV. THE TREATISE AND THE LAW.

It is possible from Glanville’s treatise to get a rather complete picture of the common law at the end of the reign of Henry II. In the lord’s courts were regularly brought not only the suits of the villein tenants, but all suits concerning land held of the lord. Suits of the latter sort, however, must be begun by the King’s writ; if the lord refused justice, resort might be had to the county court in all suits involving freehold land; and the lord might on his own motion adjourn a question of difficulty into the King’s court. The county court had original jurisdiction of questions of villeinage and of customary service, and of any question sent to it by the King’s writ; and it had jurisdiction over writs of right removed from the lord’s court. It apparently, also, had jurisdiction of disputes as to title or possession of personal property. The ecclesiastical courts had jurisdiction of questions of marriage and legitimacy, of wills, and of disputes involving ecclesiastical questions only; the King’s court would prohibit them by writ from interfering in other matters.

The procedure in the King’s court did not differ greatly from the present procedure. A suit was begun by writ, served by the sheriff, and enforced by the distraint of the defendant’s land. The most important feature of the procedure was the elaborate system of rules governing _essoins_ or continuances. By a skilful use of essoins the defendant or tenant could prolong proceedings on a writ of right for years; the fact that in the new possessory assises few essoins were allowed, and the proceedings were therefore much prompter, contributed greatly to the favor with which they were received. Final judgment in the King’s court was by this time enrolled; and the method of conveying land by levying a fine was in full operation.

The law of real property in its essential features was fully formed. The whole law of tenures and incidents had been finally settled; but the rules of inheritance and of transfer by will were still uncertain. The doctrines of warranty (now obsolete), according to which the grantor of a party could be called into a suit, or in the technical phrase vouched to warranty, and thus substituted for the original party, were still of the highest importance in practice. The modern mortgage, i.e. the grant on condition, was as yet unknown: Glanville’s mortgage of land, like the pledge of personalty in his time, is a mere grant of custody by way of security.

The law of personal property was little developed. Doctrines as to pledge and bailment, derived from the old Germanic law, were applied in the county courts; there, for instance, the absolute responsibility of the bailee was still enforced. Through the writ of detinue and the action on the case, the King’s courts were soon to take control of these subjects, and to establish the modern law of bailments and carriers.

Certain formal contracts were enforced by the King’s court. The writ of debt would lie as a result of a loan, a sale, or an obligation created by charter. Redress for breach of ordinary contracts could be obtained only in the ecclesiastical courts, which might deal with the sin of deceit. Not for three centuries did the King’s court work out a doctrine by which a party might be held to perform his simple contract.

No action of damages for tort would lie. There is as yet no trace of the process by which (working from appeals of felony to writ of trespass against the King’s peace and actions on the case) the King’s court would eventually work out the modern law of tort. So far as there was any remedy for torts it was in the inferior courts.

The King’s court could at this time punish all felonies except theft, jurisdiction over which it obtained by Magna Carta. It was a long time before it obtained exclusive jurisdiction over felony, or took control, as “custos morum,” of misdemeanors.

Such law, it may be admitted, was rude and unsatisfactory; but it was a long advance over what had gone before, and it had within itself the germ of the modern Common Law.

JOSEPH H. BEALE, JR.

HARVARD UNIVERSITY,
_October, 1900_.

THE TRANSLATOR TO THE READER.

Of Ranulph de Glanville, the reputed Author of the following Treatise, Lord Coke speaks in terms of the highest encomium. He informs us, that Glanville was Chief Justice in the Reign of Henry the Second, that he wrote profoundly on part of the Laws of England, and that his Works were extant at that day. “And,” continues his Lordship, “in token of my thankfulness to that worthy Judge, whom I cite many times in these Reports, (as I have done in my former) for the fruit which I confess myself to have reaped out of the fair field of his Labors, I will for the honor of him and of his name and posterity, which remain to this day (as I have good cause to know) impart and publish, both to all future and succeeding Ages, what I found of great antiquity and of undoubted verity, the original whereof remaineth with me at this day, and followeth in these words: _Ranulphus de Glanvilla, Justiciarius Angliæ, Fundator fuit domus de Butteley, in Comitatu Suffolciæ, quæ fundata erat anno Regis Henrici, filii Imperatricis, decimo septimo, et anno Domini 1171. quo anno Thomas Becket, Cantuariensis Archiepiscopus, erat occisus. Et dictus Ranulphus nascebatur in Villa de Stratford, in comitatu Suffolciæ, et habuit Manerium de Benhall, cum toto Dominio, e dono dicti Regis Henrici. Et duxit in uxorem quandam Bertam, filiam Domini Theobaldi de Valeymz, Senioris domini de Parham: qui Theobaldus per Chartam suam dedit dicto Ranulpho et Bertæ Uxori suæ totam terram de Brochous, cum pertinentiis, in qua domus de Butteley sita est, cum aliis terris et tenementis, in libero maritagio. Prædictus vero Ranulphus procreavit tres filias de dicta Berta (viz.) Matildam, Amabiliam, et Helewisam, quibus dedit terram suam ante progressum suum versus Terram Sanctam._” The document then proceeds with a minute accuracy to trace our Author’s Descendants, and finishes the sketch by informing us—“_quod præfatus Ranulphus de Glanvilla fuit vir præclarissimus genere, utpote de nobili sanguine, vir insuper strenuissimus corpore, qui provectiori ætate, ad Terram sanctam properavit, et ibidem contra inimicos Crucis Christi strenuissime usque ad necem dimicavit_.”[1] The paucity of these facts may be, in some measure, remedied, by consulting the Annals of our Second Henry, where the name of Glanville not unfrequently occurs. We hear of him in 1171, as Fermour of the Honor of Earl Conan:[2]—in 1172, as having the custody of that Honor, and the Fair of Hoiland;[3]—and in 1174, as still retaining the same Honor, and accounting for the Capture and Ransoms of Prisoners, &c. taken in War.[4] In the latter year he is said to have distinguished himself, as the General who took the King of Scotland Prisoner.[5] In 1175, he still retained the Honor of Earl Conan,[6] and filled the Office of Sheriff of Yorkshire.[7] In 1176, he was made a Justice of the King’s Court, and a Justice Itinerant.[8] In the same year, he accounted for Westmoreland by the hands of Reiner, his Dapifer or Steward, a privilege conceded to the great alone.[9] In 1180, he was made Chief Justiciary of all England, as we are informed by his cotemporary Roger Hoveden, whose words are too remarkable to be omitted. _Henricus Rex Angliæ pater constituit Ranulphum de Glanvilla summum Justiciarium totius Angliæ, cujus sapientia conditæ sunt leges subscriptæ, quas Anglicanas vocamus._[10] The Chief Justiciary, presided in the _Curia Regis_ next to the King, as Chief Judge in all civil and criminal questions; and governed the Realm like a Vice-Roy, when the King was beyond Sea, an event of frequent recurrence in that age. In fine, this officer was invested with a power that placed him far above every other subject. No sooner had Glanville arrived at this elevated post, than he exerted himself to restore and confirm many ancient Laws calculated for the good of the Realm.[11] How much to the satisfaction of Henry the Second Glanville filled this arduous situation, we may infer, from finding additional honors heaped upon him by that able and politic Prince. In 1183, our Author held the place of Dapifer to the King,[12] and, in the same year, he was appointed Fermour of Yorkshire:[13] situations, it is to be presumed, not incompatible with that of Chief Justiciary, which he appears to have retained, until the death of Henry the Second,[14] and that with undiminished honor, if we except the imputation cast upon him for condemning Sir Gilbert de Plumptun to death, but which seems to be refuted by the confidence continued to be reposed in him by the discerning Henry.[15] Immediately after the death of that Prince, he assumed the Order of the Cross, and perished fighting valiantly at the Siege of Acon in the year 1190.[16]

[Footnote 1: Co. 8. Rep. pref.]

[Footnote 2: Madox’s Exch. 439.]

[Footnote 3: Ibid. 203.]

[Footnote 4: Ibid. 253.]

[Footnote 5: Hume’s Hist.]

[Footnote 6: Mad. Exch. 297.]

[Footnote 7: Ibid. 87.]

[Footnote 8: Hoveden, p. 600.]

[Footnote 9: Mad. Exch. 662.]

[Footnote 10: Hoveden, p. 600. n. 40.]

[Footnote 11: Mad. Exch. 24.]

[Footnote 12: Mad. Exch. 35.]

[Footnote 13: Ibid. 225.]

[Footnote 14: Leg. Anglo-Sax. p. 339.]

[Footnote 15: Hoveden, p. 622, 623. Note 10.]

[Footnote 16: Spelm. Gloss. ad voc. Justitia; and Plowden, 368. b.]

But, whether the same identical person successively occupied these various situations, and, at different periods of his life, filled the rather opposite and inconsistent characters of an able General and a profound Lawyer—a skilful Courtier and an enlightened Legislator, is a doubt which has been entertained by some very respectable Writers. Nor has it passed without a question, whether the present Treatise was really composed by the person whose name it bears. Lord Littleton, indeed, is inclined to infer, that it was not written by Glanville, but by some Clergyman under his direction.[17] These doubts may serve to evince the ingenuity of those who have suggested them, but they prove nothing. When the various situations Glanville is stated to have filled are represented as incompatible, and we start at beholding the grave Lawyer divest himself of his robes to girt on the armour of the soldier, we forget the manners of the age when Glanville florished. When we suppose, that because the work is composed in Latin, it was not written by a Layman, we beg the question: and, having assumed, that no Layman, whatever his parts, whatever his application, could have been sufficiently skilled to write such Latin as our Author has employed, we pay but a sorry compliment to the age, and rather too hastily conclude that we have proved, what, indeed, we have merely taken for granted. When, in fine, we infer, that the knowledge of Law displayed in the Work, and the labor consumed in composing it, are no less inconsistent with the high and elevated station of Glanville, than incompatible with his employments, we forget, that his rise was progressive, and that, as there are but few things to which a truly great mind is inadequate, the production of a small volume upon that Law which it was daily in the habit of dispensing, ought not, whatever the merit of the work may be, to be ranked amongst the number. It must not, however, be concealed, that Mr. Selden mentions a circumstance which, at the first glance, appears to go a great way in determining the question. “I know the authority of that Treatise,” says he, in speaking of the present work, “is suspected, and some of the best and ancientest copies having the name of _E. de N._ which I have heard from diligent searchers in this kind of Learning affirmed to have been sometimes _E. de Narbrough_, and not _R. de Glanvilla_, it hath been thought to be another’s work, and of later time. But as, on the other side, I dare not be confident that it is Glanville’s, so I make little question, that it is as ancient as his time, if not his work. The _teste_ of the precedents of writs under his name, the language, especially the name of _Justitia_ always for that which we now from ancient time called _Justiciarius_, (and _Justitia_ was so used in writers under Henry the Second) and the Law delivered in it tasteth not of any later age.”[18] Though the latter part of this Extract may be reasonably thought to furnish a sufficient answer to the doubt expressed in the former part, the Translator cannot but observe upon the singularity, that none “of the best and ancientest copies” are forthcoming in support of the fact they are said to prove.

[Footnote 17: Hist. Hen. II.]

[Footnote 18: Selden. opera omnia. 1669.]

With respect to the Work itself now submitted to the Public in an English dress, it is said to be the first performance that has any thing like the appearance of a Treatise on the subject of Jurisprudence, since the dissolution of the Roman Empire.[19] But this is not correct, if the Assises of Jerusalem, compiled, as we are informed in the preamble, in 1099—the System of Feudal Law, composed by the two Milanese Lawyers in 1150, and the _Decretum_ of Gratian, published about the same time, be considered as Treatises on Law. It seems, however, to be unquestionable, that the present Treatise is the earliest and most ancient work on the subject of English Jurisprudence, from which any clear and coherent account of it is to be obtained. Dr. Robertson, indeed, informs us, “that in no country of Europe was there at that time, any collection of Customs, nor had any attempt been made to render Law fixed. The first undertaking of that kind was by Glanville, Lord Chief Justice of England, in his _Tractatus de Legibus et consuetudinibus_,[20] composed about the Year 1181.”[21]

[Footnote 19: See 1. Reeves’s Hist. Eng. Law. 223.]

[Footnote 20: Robertson’s Charles 5. Vol. 1. p. 296.]

[Footnote 21: Vide Infra p. 162. Note 2.]

It has been thought, that Glanville drew up this compendium of the Laws of England for the public use, by the express command of Henry the Second, a conjecture which, Mr. Madox observes, is not only favored by a certain MS. remaining in the Library of _Corpus Christi_ College, Cambridge, written in a hand of the age of Edward the Second, in which there is a Treatise entituled _Leges Henrici Secundi_, agreeing in many passages with the printed copy of Glanville, but also by the manner of our Author’s writing, especially in the Prologue.[22] There is also in the Cottonian collection a MS. of Glanville, which bears the Title of _Laws of Henry the Second_. But Mr. Reeves informs us, this manner of entituling Treatises was not then uncommon.[23]

[Footnote 22: Madox’s Exch. 123. and Note.]

[Footnote 23: Reeves’s Hist. Eng. Law. 1. 213.]

The present work appears to have remained in MS. until the Year 1554, when, as Sir Edward Coke apprises us, it was, by the persuasion and procurement of Sir William Stanford, a grave and learned Judge of the common Pleas, first printed.[24] With many peculiar circumstances, however, to create an Interest in its favor, the fate of the work has been most singular. Indebted to its intrinsic merit alone for the high compliment it has long enjoyed, in being looked up to as an authority from which there was no appeal, curiosity has given way to an opinion, that whilst it was venerable for its antiquity, it was also useless, for it was obsolete. That many parts of it are obsolete, it would be idle to deny; but that the work itself is by no means so entirely obsolete as generally assumed, will be fully evident to every impartial and candid Reader. But were it entirely obsolete, it would not necessarily follow, that it would be useless, the terms not being, at least in the science of Jurisprudence, either convertible or synonymous, however fashionable, or, more properly speaking, convenient it may be to esteem them such. _Multa ignoramus quæ nobis non laterent, si Veterum lectio nobis esset familiaris._ The Law of Modern Times is intimately connected with that of our Forefathers, and the decisions of the present day are not unfrequently built upon principles that are enveloped in the almost impervious mist of far distant ages. But to these principles must the Student ascend, if he would merit the name of a Lawyer; and, if the labor be severe, he must reconcile it to himself by reflecting, that it was submitted to by a Coke, a Hale, a Blackstone. Led by the soundness of their judgments, to investigate the earlier ages of our Jurisprudence, those great men considered nothing useless, though it possibly might happen to be obsolete, which tended to enlighten their minds, and shew them the fundamental principles of those Laws, which they afterwards no less admirably illustrated, than ably administered. But the brightness of the example instead of exciting emulation seems to have depressed it: and Glanville, Bracton, and Fleta have been suffered to crumble on the shelf, whilst Edition has rapidly followed Edition of those more modern Authors, who have advocated their cause, by drawing so deeply from the rich and inexhaustible mines, which their pages present to the English Lawyer.

[Footnote 24: 4 Inst. 345.]

It remains to speak of the Translation now submitted to the Public. Fidelity has been the principal object of the Translator. If more be demanded, he would shelter himself under the high name of Sir William Jones. “Elegance, on a subject so delicate as Law, must be sacrificed, without mercy, to exactness.” Next to fidelity, simplicity has been aimed at, as most in unison with the original, and, perhaps, the best adapted for transfusing its spirit into the English Language. Not that with these two objects immediately before him, the Translator would be understood as conceding, that he has sacrificed any beauty, any elegance of expression generally abounding in, or spread over, the original work. He could not sacrifice that which never existed. The style of Glanville, destitute of every grace, and dry and harsh in the extreme, professedly aims at the peculiar qualities which characterise it. _Stilo vulgari et verbis curialibus utens ex industria, ad notitiam comparandum eis, qui hujusmodi vulgaritate minus sunt exercitati_, are the very terms in which he describes his own manner of writing. So successfully has he accomplished his object, that he imposes upon his Translator a Task not altogether unlike that of acquiring a new language. Yet to these difficulties the Translator reluctantly alludes, for though they may, in some measure, atone for those errors into which he is apprehensive he has often fallen, he is conscious, the merit of his attempt is not to be estimated by its arduousness, but its utility.

With respect to the Annotations, it was the Translator’s original intention to have confined himself to a mere explanation of the obsolete Terms. But, anxious to render the work more extensively useful, he has not unfrequently departed from his first design. Among the works occasionally referred to, the Reader will recognise the Regiam Majestatem—so termed from the words with which it commences. This work has been sometimes received, as containing the genuine ancient Law of Scotland—sometimes rejected, as a mere spurious fabrication. Among the names in collision on this point are those of Skene, Erskine, Lord Kaims, Houard, Dalrymple, Craig, Lord Stair and Dr. Robertson. Nor has there been less dispute whether Glanville, or the Regiam Majestatem be the original work. But this question is said to be satisfactorily disposed of by Mr. Davidson, who has published a pamphlet expressly on the subject, and has proved, if it were necessary to prove, what is rendered indubitable by the internal Evidence of the two Works, that Glanville is the original; observing, at the same time, “that Glanville is regular, methodical, and consistent throughout; whereas the Regiam Majestatem goes out of Glanville’s method for no other assignable reason, than to disguise the matter, and is thereby rendered confused, unsystematical, and in many places contradictory.” The Translator has not been able to meet with Mr. Davidson’s work, but is indebted to the preface attached to the last Edition of Glanville for this Summary of it. “To this observation upon the method of the Regiam Majestatem,” says Mr. Reeves, “it may be added, that, on a comparison of the account given of things in that and in Glanville, it plainly appears, that the Scotch Author is more clear, explicit, and defined; and that he writes very often with a view to explain the other, in the same manner in which the writer of our Fleta, explains his predecessor Bracton. This is remarkable in numberless instances all through the Book, and is, perhaps, as decisive a mark of a copy as can be. The other Scotch Laws, which follow the Regiam Majestatem in Skene’s collection, contribute greatly to confirm the suspicion. These, as they are of a later date than several English Statutes which they resemble, must be admitted to be copied from them; and so closely are the originals followed, that the very words of them are retained. This is particularly remarkable of the Reign of Robert the Second, in which is the Statute of _quia Emptores_, and others plainly copied from our Laws, without any attempt to conceal the imitation. These Laws, at least, can impose upon no one; and when viewed with the Regiam Majestatem at their head, and compared with Glanville and the English Statute Book, they seem to declare very intelligibly to the world, that this piece of Scotch Jurisprudence is borrowed from ours.”[25] Nor is the enlightened and liberal Historian Dr. Robertson more favorably disposed towards that claim, which some of his countrymen have put in, for the originality of the Regiam Majestatem. “The Regiam Majestatem ascribed to David the first seems,” he observes, “to be an imitation and a servile one, of Glanville. Several Scottish Antiquaries, under the influence of that pious credulity, which disposes men to assent without hesitation to whatever they deem for the honor of their native country, contend zealously, that the Regiam Majestatem is a production prior to the Treatise of Glanville; and have brought themselves to believe, that a nation, in a superior state of improvement, borrowed its Laws from one considerably less advanced in its political progress. The internal Evidence (were it my province to examine it) by which this theory might be refuted is in my opinion decisive. The external circumstances, which have seduced Scottish Authors into this mistake, have been explained with so much precision and candor by Sir David Dalrymple, in his Examination of some of the arguments for the high antiquity of the Regiam Majestatem, Eding, 1767. 4to, that it is to be hoped, the controversy will not be again revived.”[26]

[Footnote 25: Reeves’s Hist. Eng. Law 225.]

[Footnote 26: Hist. Charles 5. Vol. 1. p. 296.]

In dismissing this subject, it may be remarked in the words of Mr. Reeves, that it seems unnecessary to contend for the originality of the Regiam Majestatem, whilst a doubt of much more importance remains unsettled—whether that Treatise, as well as the others in the publication of Skene, are now, or ever were, any part of the Law of Scotland, on which, as we have already observed, so many eminent men differ. On the other hand, the authenticity of Glanville, as the code of Law existing in this country during the Reign of Henry the Second, has been admitted, either expressly or impliedly by all the English Lawyers, who have florished in the long interval which has elapsed from that period to the present, and never has been questioned, if we except a solitary _dictum_, which, as it equally affected the credit of Bracton, and was totally unauthorised, is refuted by a thousand circumstances, if it were an object to mention them.[27] But to return from this digression.

[Footnote 27: Plowd. 357.]

Though the Translator had not the good fortune to meet with Mr. Davidson’s Pamphlet, he was more successful in discovering Skene’s translation of the Regiam Majestatem, deposited in Lincoln’s Inn Library. The Translator intended to have noticed such parts of the Regiam Majestatem, as coincided with Glanville. But, after having, with some attention, perused the former Book, he found the similarity between the two works so very general, and the correspondence so exact, that the Regiam Majestatem might frequently be taken verbal Translation of Glanville, or, at least, as another Edition of the same Treatise, in which the writer had made some slight additions and alterations, and had capriciously amused himself in contriving an arrangement totally different, though far less happy and systematical. The Translator has, therefore, generally contented himself with noticing those deviations between the two works, which were more immediately relevant to his subjects. Nor has he always stopped here, but has availed himself of the Regiam Majestatem, whenever it was less ambiguous, or more decided than Glanville, which from the very circumstance of its being a _posterior_ publication, it sometimes naturally will happen to be. In addition to the Regiam Majestatem, reference has been occasionally made to the Grand Custumary of Normandy, Bracton, Fleta, Britton, Coke, Hale, &c. &c. Some of these references serve to corroborate—some to illustrate the Text: some tend to shew that a Law was not peculiar to this Country, and some that a similar Rule has been adopted even in Modern Times by a neighboring State. In consulting the Laws of that state, and noticing those instances of strong or faint resemblance between them and the Code of Henry the Second, the Translator acted in deference to the suggestions of a Gentleman, who, though possessed of the most profound legal knowledge, is yet more entitled to our admiration for his singular liberality of sentiment, and urbanity of manners. If the more enlightened mind derive no benefit from the plan which has been adopted in the notes, and anticipate the Result; yet, it is hoped, the Student may receive some advantage from it. But, if the Translator has been too diffuse in some instances, he has, on other occasions, contented himself with a bare reference. He has been averse to swell the Notes, where a bare citation would serve to direct the Student, if disposed to extend his inquiries. In addition to the Translator’s own Notes, the Reader is furnished with a few annotations extracted from a copy of Glanville, formerly belonging to Mr. Justice Aland, and now deposited in the collection of the Royal Institution. Yet, should it be observed, it is not perfectly clear whether these annotations were made by that learned Judge, or by the Reverend Mr. Elstob, a gentleman deeply versed in Anglo-Saxon Literature. By way of distinction, these Annotations are particularised by (Al. MS.)

In order to render the work as complete as the limited ability of the Translator would allow, he has subjoined the more important, and only the more important various Readings, as furnished by the Bodleian, the Cottonian, the Harleian and Dr. Milles’s MSS. The MS. of Glanville deposited in Lincoln’s Inn Library has not been consulted.

The Translator concludes these cursory observations with a brief summary of the contents of Glanville, availing himself, in some measure, of that contained in Mr. Reeves’s History.

Our Author _in general_ confines himself to such matters only as were the objects of jurisdiction in the _Curia Regis_, and divides his work into fourteen Books. The two first of which treat of the Writ of Right, when originally commenced in the _Curia Regis_, and of all its stages, the Summons—Essoins—Appearance—Pleadings—Duel or Grand Assise—Judgment and Execution. The third speaks of vouching to Warranty, which with the two former Books, comprises a lucid account of the proceedings in a Writ of Right for the recovery of Land. The fourth Book is employed upon rights of Advowson, the fifth upon Villenage, and the sixth upon Dower. The seventh treats upon Alienation, Descents, Succession, Wardship, and Testaments. The eighth is upon final Concords, and Records in general. The ninth is upon Homage, Relief, Fealty, Services, and Purprestures. The tenth treats of Debts and matters of Contract; and the eleventh upon Attornies. Having thus disposed of Actions commenced originally in the _Curia Regis_, our author, in his twelfth Book, speaks of Writs of Right, when brought in the Lord’s Court, and the manner of removing them from thence to the County Court and _Curia Regis_, which leads him to mention some other Writs determinable before the Sheriff. In his thirteenth Book, he treats of Assises, and Disseisins. The last Book is wholly taken up in discussing the doctrine of Pleas of the Crown.

JOHN BEAMES.

It was intended to have added the names of all those Gentlemen, who subscribed for the work. But the list having been consumed in the fire which destroyed Mr. Reed’s Premises, and many of the names having been thereby lost, it is become impossible.