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