A translation of Glanville

by Ranulf de Glanville

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.