A Translation of Glanville | Project Gutenberg

[411] Mr. Madox, in treating of the Exchequer, informs us, that “in general, accomptants were obliged to come in person to render their accounts. If they made an Attorney to account for them, it was usual to have the King’s leave for it. Sometimes, the accomptant nominated his Attorney before the King: and thereupon the King by his Writ commanded the Treasurer and Barons to admit such person, as Attorney, accordingly. But sometimes, especially towards the latter part of the second period, the Accomptant’s Attorney was admitted by warrant or leave of the Treasurer, Chancellor of the Exchequer, or Barons, or one of them.” (Madox’s Excheq. c. 23. s. 5.) Supposing there was a certain uniformity of proceeding observed in the superior Courts, this extract may furnish us with an idea of the gradual deviations from the strict rule of our text.

[412] The Norman Code lays down a contrary doctrine, asserting that it was not lawful to constitute any Attorney in the absence of the party, unless in the presence of the Prince, whose testimony alone sufficed to make a Record. (Grand. Cust. c. 65.)

[413] Ballivum. It is the opinion of Sir Henry Spelman, that we received the term from the Normans. There is, indeed, frequent mention of such an officer in the Grand Custumary. (c. 4. &c.) But Lord Coke thinks, we received it from the Saxons. It occurs in a law of Edward the Confessor, if it be not an interpolation of a later age. (Ed. Conf. LL. c. 35.) It has been received in a variety of significations—As meaning a Judge, an Officer of the Crown, a Bailiff of a hundred, of a Liberty, and of a Borough, of a Manor and of an Estate. (Spelm. Gloss. ad voc.) Cowell, who deduces the word from the French, thinks our Sheriffs were formerly called Bailiffs, as their Counties are termed Bailiwicks. (Cowell ad voc.) See Fleta L. 2.

[414] Seneschallum—“Is,” says Cowell, “a French word, but borrowed from Germany, being, as Tilius saith, compounded of Schal, i.e. servus aut officialis, and gesnid, i.e. familia. We English it Steward.” (Cowell’s Interp. ad voc. Seneshall. See also Madox’s Excheq. c. 3. s. 6.) “It is derived,” says Lord Coke, “of Sein a house or place and schalc an officer or governor, &c.” (Vide Co. Litt. 61. a. for other derivations.) See Fleta L. 2.

[415] Yet, from the form of the writ which our Author gives us, L. 13. c. 13. it seems perfectly clear, that a Bailiff was allowed to hear a Recognition for his principal. The reason of the distinction, perhaps, might be found in the different nature of the functions—to perform the duty of an Attorney being an active, that of merely hearing a Recognition, of a passive nature—the one, requiring skill—the other, not.

[416] Here is another instance of confusion, arising from the inaccurate manner in which these letters are inserted!

[417] “The Essoin of the Procurator only shall have place, until the procuratory be revoked.” (Reg. Maj. L. 3. c. 16.) Mr. Reeves appears to have viewed the passage of the Text in a different light. (Vide Hist. Eng. Law. 1. 170.)

[418] Vide Mirror, c. 5. s. 5.—Ante 97. Not. 3. and M. Houard’s Traités sur les Coutumes Anglo-Norm. Tom. 1. 451. where he adopts the same reading, as I contend for, and observes that under the ancient Norman Custumary the wife could not reclaim her Dower.

[420] I have retained the original word, not merely because I know of no word answering to the complex idea of Skene, but that it is very questionable, whether Skene be correct. He thus interprets the word—“If they dwell in cells, separate from abbies or monasteries.” (Reg. Maj. L. 3. c. 18.) From other authorities, I should rather have inferred, that the cellarii were a species of monks, invested with the power of providing for their Brethren, and regulating the internal part of their monasteries. But this again is with difficulty to be reconciled to the terms, in which one of them is spoken of—secundus pater in monasterio, unless we concur with Spelman, who says, when speaking of the word, crevisse videtur in amplitudinem. (Vide Spelman. Gloss, ad voc.)

[421] The Regiam Majestatem, on the contrary, asserts, that they shall be received, without the Letter of their Abbot or Grand Prior. (L. 3. c. 18.)

[422] Of these Orders the Reader will find some mention in 2 Inst. 431.

[423] “It is answered,” says the Reg. Maj. “he may not do so, because all things are forbidden to a procurator, which are not expressly granted and committed to him.” (L. 3. c. 19.)

[424] Vide L. 6. c. 8.

[425] Vide F.N.B. 2.

[426] Arbelastarium from the French arbalestier. In the distribution of Estates by William the Conqueror, the Arbelastarii were reckoned among those noble and military chiefs, the Peers of the Realm. This appears from some passages in Domesday. (Spelman Gloss. ad voc.)

[427] The Regiam Majestatem and Bracton avail themselves of the same excuse, for declining to enlarge on the subject, though the latter observes, that in demanding a view—in vouching to warranty—in proposing exceptions and in waging the Duel, &c. such Courts followed the King’s Court—(329. b.)

[428] Reseantisam. Vide ante p. 10. Note 1.

[429] With this concur the Mirror, (c. 2. s. 28.) (Bracton 330. a.) and the Grand Custumary of Normandy, (c. 6. and 61.)

[430] Vide 2 Inst. 21.

[431] Vide F.N.B. 21.

[432] Cum totâ sequelâ suâ. Mr. Barrington having observed, that if Villeins were born within a certain District, they and their issue were the Bondmen of the Lord, proceeds thus,—“This explains what frequently occurs in ancient grants of Villeins, cum totâ sequelâ suâ, which, according to Sir James Ware, in his account of the Betaghii, (who were the Irish Villeins,) included not only Children but Nephews, p. 149. See also Madox’s Form. Angl. p. 416.” (Barr. Obs. on Anc. Stat. p. 306.)

[433] Vide F.N.B. 152.

[434] Aisiamenta—from the French aise, voluptas. (Spelm. Gloss. ad voc.)

[435] Bosco. This word sometimes means the wood merely—sometimes it includes the land on which the wood grows. (Co. Litt. 4. b.)

[436] Vide L. 9. c. 14. where a similar writ occurs.

[437] Vide 2 Inst. 311.

[438] Vide ante p. 133. Note 1.—As to the latter part of the present Writ, our author surpasses even himself in quaintness of expression.

[439] Ad Justicias. Justicia, a Justice, or Judge, or, as it has in subsequent times been written, Justiciarius. (Vide Selden op. Omn. 1669. Madox’s Exch. 24. &c.) Mr. Selden considers the use of this term by Glanville as a proof, that the work itself is of the age of Henry the 2nd, as we have already observed, in our introductory address to the Reader.

[440] Vide F.N.B. 90.

[441] This Writ stands also in need of a Transposition of the Capitals to render it intelligible.

[442] Namely, the services really due in respect of the Tenement.

[443] Vide Bracton 252. a. et seq.

[444] Vide F.N.B. 433.

[445] This, Lord Coke informs us, was the 20th of October 1154. (2 Inst. 94.) A limitation of between 30 and 40 years.

[446] Vide F.N.B. 434. In this Writ, says Fitzherbert, it sufficeth, if he were seised the day he went out of the Land and took the Sea, although it was not the day of his death. (Ubi supra.)

[447] “Before this Statute,” says Lord Coke, commenting on Mag. Carta, “the Writs of Assise, of Novel Disseisin and Mortdanc’ were returnable either coram rege, or into the Court of Common Pleas: and this appeareth by Glanville—coram me vel coram Justiciariis meis. But, since this Statute, these Writs are returnable, coram Justiciariis nostris ad Assisas cum in partes illas venerint.” (2 Inst. 24.)

[448] Vide Fitz. N.B. 434.

[449] Though the Writs inserted in the three foregoing Chapters appear to be framed with a view to the death of the Demandant’s Father, yet we are not from thence to infer, that the remedy, now under consideration, was confined in its application to the death of a Parent only, since the Ancestor in a Writ of mort d’auncestor was intended of the Father, Mother, Brother, Sister, Uncle, Aunt, Nephew, or Niece of the Demandant. But here it ended. (See Bracton 254. 261. and 2 Inst. 399.)

[450] “The reason why Assises were more expeditious than other remedies, arose from no Essoin being allowed in them”—says Mr. Barrington, (Observations on Ancient Statutes, p. 105.) which, from the text of Glanville, appears evidently to be an inaccuracy, as a general position.

[451] No one of full age was allowed by the Norman Code to prosecute a mort d’auncestor, unless he had purchased his writ within a year and a day after his Ancestor’s death had been publicly proclaimed. (Grand Cust. c. 99.)

[452] See Bracton 274. a. et seq.

[453] Bracton 270. b.

[454] Bracton 271. b.

[455] Bracton 271. b. and Ante L. 5. c. 5.

[456] Bracton 280. a. and Ante L. 7. c. 13.

[457] Bracton 272. b.—See ante p. 126. Note 2.

[458] Vide ante L. 2. c. 6.

[459] Vide ante L. 7. c. 1.

[460] Vide ante L. 7. c. 1.

[461] Bracton 272. b.

[462] We may conjecture, that this Law was corroborative of the particular Customs of certain Cities and Boroughs, under which the Citizens and Burgesses could make a Will of Lands.

Where such Customs prevailed, it was an idle thing to inquire whether the Ancestor died seised. It seems, London and Oxford enjoyed these Customs. (Bracton fo. 272.) Mr. Somner conceives, that the utility aimed at by the Law in question and the foundation of it was, the good of the Commonwealth, by the maintenance of traffic, which was much encouraged by the liberty of a free devise, though this is somewhat darkly pointed at, as he says, by Glanville in the present passage. (Somner on Gavelkynd, p. 97.)

[463] Vide L. 7. c. 9. &c.

[464] Vide F.N.B. 569. where twelve Jurors are mentioned.

[465] Impetitionem pro impetitiones. The term appears to be generally employed to designate a criminal proceeding; and, if we meet with it connected with the term waste—sine impetitione vasti, we must recollect, that waste under the feudal law was considered as a criminal offence. A much greater latitude was afterwards allowed in the application of the term. (Vide Spelm. Gloss. ad voc. impetitus and impetitio and Cowell ad voc. impeachment. &c.)

[466] Vide Bracton 237. b. et seq. It is not, perhaps, irrelative to observe, that Lord Coke refers to this and the two following chapters among other authorities to prove, that, at Common Law, if a stranger had presented his clerk and he had been admitted and instituted to a church, whereof any subject had been lawful Patron, the Patron had no other remedy to recover his advowson, but a writ of right of advowson, wherein the Incumbent was not to be removed. (Co. Litt. 344. a.)

[468] “A worthy man, qualified in literature, life, and manners”—are the words of the Reg. Maj. L. 1. c. 2. Vide 1 Bl. Comm. 389.

[469] “And, in the mean time, let them view the Tenement”—added in Cotton. and Bodln. MSS.

[470] Sit laicum feodum. “A Juris Utrum did lie at the Common Law for a Parson against a Layman, and for a Layman against a Parson: but no Juris Utrum did lie for one Parson against another, before this Act, (Westmr. 2d.) because it was the Right of the Church and no Lay Fee. And the words of the writ at the Common Law were, an sit laicum feodum, &c.” (Vide 2 Inst. 407. and the authorities cited by Lord Coke.)

[471] The text is obscure, and contradictory: most probably, falsely transmitted to us.

This is answered in the affirmative by the Regiam Majestatem. L. 2. c. 35.

[472] As to the term novel, when the Action was brought before the Eyre, or Circuit, the Action or Disseisin was ancient, whilst, if the Disseisin were done since the last Eyre, then it was a novel Disseisin. Bracton treats largely upon the subject of novel Disseisin 160, et seq. See also 2 Inst. 24. The remedy of novel Disseisin is also treated of in the Assises of Jerusalem, with some peculiar provisions adapted to the singular circumstances in which the Holy Land was situated, (c. 63. et seq.) The respectable Translator of the Code Napoleon observes, that he has not met with the term novel disseisin before Magna Carta.—Amidst the attention of preparing his work for the press, he must have forgotten not only Glanville, but the Mirror.—Whatever doubt maybe entertained respecting the authority of the Mirror, yet Glanville indubitably proves, that the term was well known to our lawyers antecedent to the Great Charter. (See Mirror, c. 2. s. 25.)

[473] Meaning the Parliament, according to Judge Blackstone. (1. 147. 148.)

[474] The words inserted in this parenthesis have been thought to be an interpolation of a later date. (1. Reeves’ Hist. Eng. Law. 189.) Yet this suggestion may very reasonably be questioned—as the passage seems merely assertive of what must necessarily be the fact. It was a consequence of fixing the time of limitation to the coronation of the king, his Journey into Normandy, or any other event, that the time itself must be altering daily. (Vide 2 Inst. 94.)

[475] Vide F.N.B. 394.

[476] Sc. 1184. If the present Treatise was written in 1187, the remedy of novel disseisin stood limited to three years, which, of course, was every day lengthening until a new Æra was fixed.

[477] Affirmed by Statute of Merton, c. 37. (2 Inst. 235.)

[478] Vide Note 3. p. 225.

[479] Fossatum. This word occurs in Pliny. It seems to have been chiefly used by the old Lawyers in two senses—1. as denoting a camp, or intrenchment—2. as meaning a ditch, dyke, or moat. But it was not always confined to these significations—as the reader will perceive on turning to the Ancient Glossaries, particularly to that very valuable one given to the world by Spelman.

[480] Stagnum, Sir Edward Coke informs us, “doth consist of Water and Land, and, therefore, by the name of Stagnum, or a pool, the water and land shall pass also.” (Co. Litt. 5. a.)

[481] Vide F.N.B. 408. 409.

[482] Vide F.N.B. 407.

[483] See Bl. Com. 3. 220.

[484] Vide F.N.B. 399.

[485] But one Essoin, and one default allowed by the Norman Code! (Grand Custum. c. 94.)

[486] The Norman Code describes the whole proceeding at length. The names of the Jurors having been called over in open Court, the Parties are at liberty to take any Legal Exceptions to them. The Jurors are then individually sworn to speak the truth. After this, no person shall be allowed to hold any private communication with them, unless it be the Judge. The Judge shall in the next place solemnly charge them to return a true verdict, briefly stating to them the object for their consideration. The Jurors shall then consult upon their verdict, and, in the mean time, shall be strictly guarded, least they be corrupted. Having considered of their verdict, if they all agree, one of them shall deliver it into the Judge in open Court. (Le Grand Custum. de Norm. c. 96.)

[487] The Norman Code, acting, in this instance, upon a more pure and refined principle of legislation, allowed no Warrantor to be vouched to justify a novel Disseisin—Violentum enim est et nullo modo sustinendum, &c. (Grand Cust. de Norm. c. 94.)

[488] Appellans sive appellatus. These terms are generally used in a criminal sense. Their application in the present instance may be accounted for by reflecting, that a Disseisin, being in the eye of the law accompanied by force and a violation and disturbance of the peace, was to a certain degree a criminal offence.—See Mirror, c. 2. s. 23.

[489] “And, moreover, the Pursuer, who has proved the Ejectment may effectually desire, that command shall be given to the Sheriff to deliver to him so much of the moveable Goods pertaining to the Defender, or of the fruits of the Land which was arrested by the King’s precept, as extends to the sum of ten Marks.” (Regiam Majestatem, L. 3. c. 36.) The Reader must not start at the modern term Ejectment. It is only the language of Skene, the Translator.

[490] The same writ is to be found, L. 12. c. 18.

[491] In quitting this Book, which treats so largely of Assises, I shall make no apology to the Reader for extracting the following observations from Mr. Reeves’s highly valuable work. “It must be observed of these Assises (for so they are sometimes called by Glanville, but more commonly Recognitions) that they are not all of the same kind; that de morte antecessoris being evidently an original proceeding, independent of any other; the rest (not excepting that de ultimâ presentatione, and that utrum laicum feodum vel ecclesiasticum) being merely for the decision of facts which arose in some original action or proceeding. Thus the writs for summoning Recognitions of the latter kind were simple writs of Summons: they mentioned that a Plea was depending in Court by the king’s writ; and they were granted at the prayer of either party: so that they seemed to be resorted to, by the assent of parties for settling an incidental question, on which they put the dispute between them. On the other hand, the writ de morte antecessoris has all the appearance of an original commencement of a suit. It issued only upon condition the Demandant gave security to prosecute it, Si G. filius T. fecerit te securum de clamore suo prosequendo, tunc summone, and made no mention of a plea depending. Of the same kind was the writ de novâ desseisinâ.” (Reeves’s Hist. Eng. Law, 188.)

[492] When any one, says Bracton, speaking of the crime of læse majesty, knows another to be guilty, he is instantly to apprise the king, or one of his ministers. He should not abide in one place for two nights nor two days; but disregarding every other affair, however urgent, he should hasten to the king, scarcely daring to wait to look behind him. (Bracton 118. b. See also Fleta L. 1. c. 21. 22. and Mirror c. 8. s. 1.) In the latter Author, we find the following despotically comprehensive definition.—“Treason is every mischief which a man knowingly does or procures to be done to one he is in duty bound to be a friend to.”

[493] This is a most singular part of the Code of the age when Glanville lived. The obligation upon a man to defend himself, when another starts forward to accuse him, seems the necessary result of men living together in a state of society, and, as coeval with society itself, is strongly enforced by the municipal Laws of every Nation. This seems to have been the object of the punishment peine forte et dure. That singular institution shewed a strong, but rough, hand in the Legislature, more capable of directing its laws to a good and wise end, than nice or happy in selecting the means. The proceeding was naturally abolished as the Law became more refined—more humanized. As to the passage of our Author’s text now before us, it receives some light from Bracton—a suggestion, for which I am indebted to Mr. Reeves’s valuable work. Bracton speaks of an Indictment per famam patriæ, which, in all probability, was the same proceeding our Author alludes to. The foundation of that proceeding was a presumption entertained by good and grave men who deserved credit, and not the flying report of common conversation. (143. a.) But the subject receives additional elucidation from the Norman Code. In criminalibus tamen manifestis seu notoriis maliciis quos famâ publicâ seu fide dignorum testimonium nunciant culpabiles, non expectato Juris ordine debent arrestari et carceribus mancipari. (Grand Cust. c. 4. and 68.) In Mr. Kelham’s translation of Britton’s Pleas of the Crown, (page 18. Note 15.) the Reader will find the valuable record of an Indictment on suspicion. The Reader may also be referred to Bracton 143.—LL. Hen. 1. c. 45.—Mirror c. 2. s. 22. and Fleta L. 1. c. 21.

[494] “At the Common Law a man accused or indicted of High Treason, or of any felony whatsoever, was bailable, upon good security: for at the Common Law the Gaol was his pledge or security that could find none.” (2 Inst. 189.) This serves to elucidate the text, which is obscure from its brevity. A similar explanation is given in the progress of the present chapter, but is qualified, with the exception of the plea of Homicide.

[495] Per legem apparentem. Alluding to the passage now before us, Sir Henry Spelman observes, “I do not think it should be understood of the Duel, but the Ordeal.” This conjecture is countenanced by the 87th Chapter of the Grand Norman Custumary, however true it may be, that the lex apparens was, in the general sense of the expression, applied to the Duel. (Spelm. Gloss. ad voc. lex and his Reliq. p. 80.)

[496] Ex regiæ dispensationis beneficio, tam vitæ, quam membrorum suorum ejus pendet judicium is the original passage. I have availed myself of the Translation of the Regiam Majestatem. “And, if any man is condemned of that crime, his judgment and punishment of his life and limbs depend only upon the king’s benefit and good will, as in all other pleas of felony and sedition against the realm.” (L. 4. c. 1.)

[497] Fidei suæ religionis—“his faithful promise is sufficient,” says the Regiam Majestatem. (L. 4. c. 1.) In the opinion of the canonists the fidei interpositio was equally binding with an oath. (Lyndwood’s Provinc. 271.)

[498] Bracton gives the same reason. (118. b.)

[499] But this the Mirror terms an abuse. (c. 5.)

[500] See Bracton 119. a. Fleta L. 1. c. 21. s. 2.

[501] Seriatim de verbo ad verbum. (Fleta L. 1. c. 21. s. 2.) Sufficit si communiter se defenderit dum tamen de causa: (Ibid.) a greater strictness in pleading being required on the part of the accuser than the accused.

[502] So great, indeed, is the crime, says Bracton, that scarcely is it permitted to the Heirs that they should live. (118.) In speaking of Treason, Bracton warms with his subject; and the grave Lawyer starts into the animated Orator.

[503] A Husbandman, says Skene. (Reg. Maj.) I translate the word literally, and refer the Reader to the last passage of the present chapter. Vide Mirror c. 2. s. 28.

[504] Mahemium is said to be derived from the old French word, mehaigne. (Co. Litt. 126. a. 288. a. Cowell and Spelm. Gloss.)

[505] The trial by Ordeal, the favorite offspring of Superstition, has been by Fleury, Le Brun, and others, supposed to be derived from the Ancients, because Pliny (L. 8. c. 2.) mentions a family in Tuscany, upon whom the sacred fire, made in honor of Apollo, had no effect. But M. Houard, with much more appearance of reason, imagines, that it originated from the Miracles attributed by the Christians to their Saints. (Traités sur les coutumes Anglo-Normand. Tom. 1. p. 577.) However that may be, this mode of Trial existed here so early as the Reign of Ina; and William the first found it in use in this country, when he mounted the throne. His Normans, attached by early habit to the Trial by Duel, rejected a mode of decision, which appeared to them as a superstitious formality, though it was still suffered to be resorted to by old and maimed men, and by women. According to the Laws of Ina, the accused had the choice of the Trial by fire, or that by water. If he preferred the former, an Iron was prepared that weighed three pounds at the most. No person, except the Priest, whose duty it was to preside on the occasion, entered the Temple, after the fire destined to heat the Iron was kindled. The Iron being placed upon the fire, two men posted themselves on each side of the Iron, to determine upon the degree of heat it ought to possess. As soon as they were agreed upon this point, the same number of men were introduced ab utroque latere, and they also placed themselves at the two extremities of the Iron. All these witnesses passed the night fasting, &c.

At day-break, the Priest, after sprinkling them with the holy-water, and making them drink, presented them with the Book of the Evangelists to kiss, and then crossed them. The Mass then began. From that moment, the fire was no more increased: but the Iron was left on the embers, until the last Collect. That finished, the Iron was raised, and the most profound silence was observed, in praying the Deity to manifest the truth. At this instant, the accused took the Iron into his hand, and carried it to the distance of nine feet, juxta mensuram pedum ejus. The Trial being ended, the hand of the accused was bound up, and the bandage sealed; and, three days after, the hand was examined, to ascertain whether it was or not impure, which M. Houard, thus explains: ce qui doit, je crois, faire entendre que l’on n’étoit pas coupable, quand la main conservoit des marques de brûlure mais seulement lorsque la brûlure tomboit en supuration. (ubi supra.) But, if the accused elected the Trial by Water, then, the Water was placed in a Vessel, and heated to the highest degree. For inferior Crimes, the accused plunged his arm up to the wrist: for crimes of deeper dye, he plunged it up to the Elbow. In every other part of the ceremony, the two species of Trial by water and fire agreed. (LL. Inæ c. 77.) The Mirror coincides with the text of Glanville, (c. 3. s. 23.) and Lord Hale informs us, “that in all the time of King John the purgation per ignem et aquam, or the Trial by Ordeal, continued, as appears by frequent Entries upon the Rolls; but, it seems to have ended with this king, for I do not find it in use in any time after.” (Hist. Com. Law. 152.)