Tractatus of Glanvill

The title page of a 1780 edition of Glanvill's Tractatus de legibus et consuetudinibus regni Angliæ[1]

The Tractatus de legibus et consuetudinibus regni Angliae (English: Treatise on the laws and customs of the Kingdom of England) is the earliest treatise on English law. Commonly attributed to Ranulf de Glanvill (died 1190) and dated ca. 1188, it was revolutionary in its systematic codification that defined legal process and introduced writs, innovations that have survived to the present day. It is considered a book of authority in English common law.

Written for Henry II (reigned 1154 – 1189) as the culmination of his long struggle to return the kingdom to peace and prosperity following years of anarchy, the Tractatus is fairly described as the means to implement Henry's objectives. It would be supplanted as a primary source of English law by the De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England) of Henry de Bracton (ca. 1210 – 1268), which itself owes much of its heritage to the Tractatus.

There has been debate over the actual author of all or parts of the Tractatus. The legal opinions of Glanvill's nephew, Hubert Walter are certainly cited.[2] Whatever the case, Glanvill perhaps supervised and certainly approved the work, and the issue is sidestepped in the literature by using terminology such as "commonly attributed to Glanvill".

Concepts and Legacy

The treatise translates the Latin words "homo" and "homines", later used in the Magna Carta, to mean "free person, male or female" or "libero homine tam masculo quam femine".[3]

In later English constitutional documentation, such as the English Bill of Rights and the United States Constitution, only the English word "person" is used, not the word "man".

Ancestry

Background

Norman law in England was a combination of Norman law in Normandy as modified to address perceived defects in it, inventions to address any problems unique to Norman control of England, and adaptations from the customs of the English when it suited Norman purposes. Also, a nascent but evolving feudalism had existed in England since the late tenth century.[4]

The legal system was initiated by William the Conqueror (reigned 1066–1087) and fully in place in the time of Henry I (reigned 1100–1135), during which time English law evolved along its own path. That is the immediate provenance of the Tractatus, regardless of the ultimate origins of this "Anglo-Norman" law. Further, the author of the Tractatus was familiar with Civil Law[note 1] and Canon Law, had long practical experience in the administration of justice, and was intimately aware of weaknesses in the system and how best they might be corrected.

There seems to be consensus that the English law ultimately does not rely on earlier codifications. Scrutton noted the lack of a heritage owed to Roman law (i.e., the Corpus Juris Civilis) in the Tractatus,[6] stating that some terminology was borrowed solely to be fitted into the book discussing Contracts (Tractatus, Book X), but that the terms were applied to English concepts. Pollock and Maitland, in their History of English Law Before the Time of Edward I, describe Glanvill's contracts as "purely Germanic", and state that the "law of earnest is not from Roman influence".[7]

Context

By 1135, the evolution of Anglo-Norman law was showing its age, with some parts working acceptably but many parts being cumbersome, ineffectual, and vulnerable to opposition by local lords. The time of Stephen's reign (1135 – 1141, 1141 – 1154) was a disaster, known in English history as "The Anarchy". Reform was needed and wanted, and Henry II (reigned 1154 – 1189) was equal to the challenge.

Henry II
Reign: 1154 – 1189

Henry brought order out of legal chaos. He made the King's Court the common court throughout England, carefully defining its jurisdiction and those of the church, the lords, and the sheriff. He made it the guardian of the King's peace, with uniform protection for everyone.

The Tractatus was the culmination of Henry's efforts, the means to implement his objectives. That this is attributable to legal evolution over his reign, rather than to sudden change, is shown by its purposeful inclusion of the principles of his earlier reforms such as the Assize of Clarendon. While some portions of the content of the Tractatus were first noted as exceptional innovations of Henry I, Henry II deserves credit for the revolution that made the innovations common rather than exceptional.

Henry II is also noted for choosing strong and very capable men to implement his policies, and then giving them the latitude to do their jobs without interference. Among them was Glanvill, who was Chief Justiciar of England from 1180 to 1189, and who acted as regent in Henry's absence, which was often.

Document

In an age before widespread literacy and mechanical printing, it was common for all works, great and small, to borrow and copy from previous works without explicit attribution. The Preface of the Tractatus is commonly described as an admiring imitation of the Prœmium (Preface) to the Institutes of Justinian, with no negative implications of plagiarism. The Preface to the Institutes begins Imperatoriam Majestatem, but the Preface to the Tractatus begins Regiam Potestatem.

The Preface[8] lays out the objectives, in effect saying that good laws and government are in the interests of justice, and these are the objectives of the King. The Tractatus consists of fourteen books, and is largely confined to objects of jurisdiction in the Curia Regis.

Fourteen books

Tractatus, Books I – III
    No.     Chapters  Contents
I [9]
I – XXXIII
 Pleas belonging to the King's Court, or to the Sheriff; Essoins; the preparatory steps up to the time both parties to a suit appear in court
II [10]
I – XXI
 Summons, Appearance, Pleadings, Duel or Grand Assize, the Champion, Judgement and Execution
III [11]
I – VIII
 Vouching to Warranty; and of two Lords, under one of whom is the Demandant and under the other is the Tenant

These first two books treat the Writ of Right, when originating in the Curia Regis, and all its stages. Taken with the third book, the three together are a description of the proceedings in a Writ of Right for the recovery of land, including all the stages relating to the Writ of Right.

Tractatus, Books IV – XI
    No.     Chapters  Contents
IV [12]
I – XIV
 Rights of the Ecclesiastical Advowsons
V [13]
I – VI
 Condition and Villeinage
VI [14]
I – XIII
 Dower
VII [15]
I – XVIII
 Alienation, Descents, Succession, Wardship, Testaments
VIII [16]
I – X
 final Concords and Records in general
IX [17]
I – XIV
 Homage, Relief, Fealty, Services, Purprestures, and Boundaries Disturbed
X [18]
I – XVIII
 Debts arising from different types of Contracts, Pledges and Gages (whether Movable or Immovable), Charters containing Debts
XI [19]
I – IV
 Attorneys

These first eleven books dispense with actions commenced originally in the Curia Regis.

Tractatus, Books XII – XIV
    No.     Chapters  Contents
XII [20]
I – XXV
 Plea of Right and Writs of Right, when brought in the Lord's Court, and the manner of removing them to the County Court and Curia Regis; which leads to the mention some other Writs determinable before the Sheriff.
XIII [21]
I – XXXIX
 Pleas by Assises and Recognitions, different kinds of Disseisins
XIV [22]
I – VIII
 Criminal Pleas belonging to the Crown

Versions

Versions of the Tractatus[23]
  Year   Description
1265
 a revised version written or transcribed by Robert Carpenter of Haresdale, according to Glanvill Revised by Maitland[24]
1554
 Printed by R. Tottle in small 8vo;[25] this was at the suggestion of judge and author Sir William Stanford, according to Coke.
1557
1604
 Printed by Thomas Wight; the text was corrected by the collation of "various manuscripts".
1673
 Exact reprint of Wight's 1604 edition, but omitting the Preface.
1776
 Printed in the first volume of Houard's Traités sur les Coutoumes Anglo-Normandes in quarto, Rouen. An imperfect text according to Gross.[26]
1780
 Published by John Rayner, 8vo. Collated with the Bodleian, Cottonian, Harleian, and Milles' manuscripts by J. E. Wilmot.
1812
 English translation from Latin, published by John Beames in octavo, with notes.
1828
 Printed as an appendix to George Phillip's Englische Reichs und Rechtsgeschichte, ii, 335.

Descent

Immediate impact

The use of writs limited the jurisdiction of all other courts and transferred jurisdictions of lord and county courts to the King's Court. The mechanics of the eyre were used for a new institution, where several counties were combined into a circuit and a judge was appointed to ride the circuit, bringing the King's Court to every part of the kingdom. The general unwillingness to grant continuances (essoins) greatly reduced the time needed to complete judicial proceedings. The King's Court, through its writs, held ultimate jurisdiction in adversarial proceedings over real property. Establishing the "truth" of facts through the rational process of an Assize Court (later superseded by the jury) was given as an alternative to the options of trial by ordeal, or the use of champions as substitutes, or the use of character testimonials rather than evidence to determine the outcome of legal contests.[27]

The emergence at this time of the doctrine of res judicata brought finality to the verdicts rendered, complementing the Tractatus though not a part of it, and serving to emphasize that the Tractatus was itself a part of Henry's reforms, but not the only part.

Ecclesiastical courts retained jurisdiction over matters of marriage, legitimacy, wills, ecclesiastical issues, and redress for breach of ordinary contracts, but the writs of the King's Court prevented them from intruding elsewhere.

The effect was unifying, and trial by jury in the King's Court was so popular that it deprived other courts of litigation. More important for the future of England, it was so satisfactory that it contributed to English culture by cultivating a universal respect for law and a willingness to abide by its decision.

The writs and processes of the King's Court, together with the judicial organisation, are the germ of English common law. Similarly, the judicial oversight of property disputes through the use of writs are the germ for English land law. The option of the rational process of weighing evidence in a trial by jury would outlive all of its alternatives to become the only way to determine the "truth" of facts.

Glanvill is cited copiously by name in books on English law, whether chronological histories or subject-oriented legal books, and in the latter where there are a number of references relevant to the topic at hand, he is cited as the earliest authority. Spelling variations of the name include Glanvil, Glanvill (the most common), and Glanville.

The Regiam Majestatem

The Scottish Regiam Majestatem was written perhaps in the reign of Robert the Bruce (1306 – 1329) but not earlier than 1318, as it includes a Scottish statute written in that year.[28] Some two-thirds of it was adapted without change from chapters of the Tractatus, and some of the rest is different from the Tractatus but very similar to it. The remainder of the Regiam Majestatem is unrelated to the Tractatus, and mostly covers the area of crimes.[29]

See also

References

Notes

  1. ↑ The long-lost civil law was nowhere restored until a copy of the sixth century Pandects of Justinian I was found in Italy in 1127, and spread from there. This civil law was taught at Oxford in 1150.[5] However, that is not to say that the Tractatus owes a heritage to it.

Citations

  1. ↑ Ranulfo de Glanvilla [Ranulf de Glanville] (1780), Tractatus de Legibus et Consuetudinibus Regni Angliæ, tempore regis Henrici Secundi compositus, justiciæ gubernacula tenente illustri viro Ranvlpho de Glanvilla, Juris Regni et antiquarum Consuetudinum eo tempore peritissimo. Et illas solum leges continet et consuetudines secundum quas placitatur in Curiâ regis, ad Scaccarium, et coram justiciis ubicunque fuerint. Cum MSS. Harl. Cott. Bodl. et Mill. collatus, London: Prostant venales apud J. White et E. Brooke, OCLC 437769980.
  2. ↑ Robert C. Stacey, ‘Walter, Hubert (d. 1205)’, Oxford Dictionary of National Biography, Oxford University Press, 2004
  3. ↑ Coke, Sir Edward; Littleton, Sir Thomas; Hargrave, Francis; Butler, Charles; Hale, Sir Matthew; Nottingham, Heneage Finch Earl of (1809-01-01). The First Part of the Institutes of the Laws of England, Or, A Commentary Upon Littleton: Not the Name of the Author Only, But of the Law Itself. L. Hansard & Sons.
  4. ↑ Stubbs 1895:13–19
  5. ↑ Cameron, Peter Hay (1883), "Regiam Majestatem", Summary of the Law of Intestate Succession in Scotland (Second, Revised and Enlarged ed.), Edinburgh: Bell & Bradfute (published 1884), p. 3
  6. ↑ Scrutton, Thomas Edward (1884), "Roman Law in Glanvil", The Influence of the Roman Law on the Law of England, Cambridge (published 1885), pp. 74–77
  7. ↑ Pollock 1898:207–208 History of English Law: Contract
  8. ↑ Beames 1812:xxxv – xxxix Tractatus, Preface
  9. ↑ Beames 1812:1–30 Tractatus, Book I
  10. ↑ Beames 1812:31–58 Tractatus, Book II
  11. ↑ Beames 1812:59–68 Tractatus, Book III
  12. ↑ Beames 1812:69–82 Tractatus, Book IV
  13. ↑ Beames 1812:83–92 Tractatus, Book V
  14. ↑ Beames 1812:93–112 Tractatus, Book VI
  15. ↑ Beames 1812:113–160 Tractatus, Book VII
  16. ↑ Beames 1812:161–174 Tractatus, Book VIII
  17. ↑ Beames 1812:175–197 Tractatus, Book IX
  18. ↑ Beames 1812:198–222 Tractatus, Book X
  19. ↑ Beames 1812:223–230 Tractatus, Book XI
  20. ↑ Beames 1812:231–245 Tractatus, Book XII
  21. ↑ Beames 1812:246–277 Tractatus, Book XIII
  22. ↑ Beames 1812:278–291 Tractatus, Book XIV
  23. ↑ Beames 1812:xiii – xiv Tractatus, Introduction to Beame's translation, by Joseph Henry Beale
  24. ↑ Maitland, Frederic William (November 1891), "Glanvill Revised", Harvard Law Review, VI (1), Cambridge: Harvard Law Review Publishing Association (published 1892), pp. 1–7
  25. ↑ http://hollis.harvard.edu/?q=Tractatus%20de%20legibus%20et%20consuetudinibus
  26. ↑ Gross, Charles (1914), "Law Writers", The Sources and Literature of English History from the Earliest Times to About 1485 (Second ed.), London: Longmans, Green, and Co (published 1915)
  27. ↑ Beames 1812:xv – xvii Tractatus, Introduction to Beame's translation, by Joseph Henry Beale
  28. ↑ Kidd, Colin (1993), Subverting Scotland's Past: Scottish Whig Historians and the Creation of an Anglo-British Identity 1689 – c. 1830, Cambridge: Cambridge University Press (published 2003), p. 149, ISBN 0-521-52019-3
  29. ↑ Neilson, George (1890), "In the Regiam", Trial by Combat, Glasgow: William Hodge & Co, p. 104

Bibliography

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