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]
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.