A translation of Glanville

by Ranulf de Glanville

With respect to the Work itself now submitted to the Public in an English dress, it is said to be the first performance that has any thing like the appearance of a Treatise on the subject of Jurisprudence, since the dissolution of the Roman Empire.[19] But this is not correct, if the Assises of Jerusalem, compiled, as we are informed in the preamble, in 1099—the System of Feudal Law, composed by the two Milanese Lawyers in 1150, and the Decretum of Gratian, published about the same time, be considered as Treatises on Law. It seems, however, to be unquestionable, that the present Treatise is the earliest and most ancient work on the subject of English Jurisprudence, from which any clear and coherent account of it is to be obtained. Dr. Robertson, indeed, informs us, “that in no country of Europe was there at that time, any collection of Customs, nor had any attempt been made to render Law fixed. The first undertaking of that kind was by Glanville, Lord Chief Justice of England, in his Tractatus de Legibus et consuetudinibus,[20] composed about the Year 1181.”[21]

It has been thought, that Glanville drew up this compendium of the Laws of England for the public use, by the express command of Henry the Second, a conjecture which, Mr. Madox observes, is not only favored by a certain MS. remaining in the Library of Corpus Christi College, Cambridge, written in a hand of the age of Edward the Second, in which there is a Treatise entituled Leges Henrici Secundi, agreeing in many passages with the printed copy of Glanville, but also by the manner of our Author’s writing, especially in the Prologue.[22] There is also in the Cottonian collection a MS. of Glanville, which bears the Title of Laws of Henry the Second. But Mr. Reeves informs us, this manner of entituling Treatises was not then uncommon.[23]

The present work appears to have remained in MS. until the Year 1554, when, as Sir Edward Coke apprises us, it was, by the persuasion and procurement of Sir William Stanford, a grave and learned Judge of the common Pleas, first printed.[24] With many peculiar circumstances, however, to create an Interest in its favor, the fate of the work has been most singular. Indebted to its intrinsic merit alone for the high compliment it has long enjoyed, in being looked up to as an authority from which there was no appeal, curiosity has given way to an opinion, that whilst it was venerable for its antiquity, it was also useless, for it was obsolete. That many parts of it are obsolete, it would be idle to deny; but that the work itself is by no means so entirely obsolete as generally assumed, will be fully evident to every impartial and candid Reader. But were it entirely obsolete, it would not necessarily follow, that it would be useless, the terms not being, at least in the science of Jurisprudence, either convertible or synonymous, however fashionable, or, more properly speaking, convenient it may be to esteem them such. Multa ignoramus quæ nobis non laterent, si Veterum lectio nobis esset familiaris. The Law of Modern Times is intimately connected with that of our Forefathers, and the decisions of the present day are not unfrequently built upon principles that are enveloped in the almost impervious mist of far distant ages. But to these principles must the Student ascend, if he would merit the name of a Lawyer; and, if the labor be severe, he must reconcile it to himself by reflecting, that it was submitted to by a Coke, a Hale, a Blackstone. Led by the soundness of their judgments, to investigate the earlier ages of our Jurisprudence, those great men considered nothing useless, though it possibly might happen to be obsolete, which tended to enlighten their minds, and shew them the fundamental principles of those Laws, which they afterwards no less admirably illustrated, than ably administered. But the brightness of the example instead of exciting emulation seems to have depressed it: and Glanville, Bracton, and Fleta have been suffered to crumble on the shelf, whilst Edition has rapidly followed Edition of those more modern Authors, who have advocated their cause, by drawing so deeply from the rich and inexhaustible mines, which their pages present to the English Lawyer.

It remains to speak of the Translation now submitted to the Public. Fidelity has been the principal object of the Translator. If more be demanded, he would shelter himself under the high name of Sir William Jones. “Elegance, on a subject so delicate as Law, must be sacrificed, without mercy, to exactness.” Next to fidelity, simplicity has been aimed at, as most in unison with the original, and, perhaps, the best adapted for transfusing its spirit into the English Language. Not that with these two objects immediately before him, the Translator would be understood as conceding, that he has sacrificed any beauty, any elegance of expression generally abounding in, or spread over, the original work. He could not sacrifice that which never existed. The style of Glanville, destitute of every grace, and dry and harsh in the extreme, professedly aims at the peculiar qualities which characterise it. Stilo vulgari et verbis curialibus utens ex industria, ad notitiam comparandum eis, qui hujusmodi vulgaritate minus sunt exercitati, are the very terms in which he describes his own manner of writing. So successfully has he accomplished his object, that he imposes upon his Translator a Task not altogether unlike that of acquiring a new language. Yet to these difficulties the Translator reluctantly alludes, for though they may, in some measure, atone for those errors into which he is apprehensive he has often fallen, he is conscious, the merit of his attempt is not to be estimated by its arduousness, but its utility.

With respect to the Annotations, it was the Translator’s original intention to have confined himself to a mere explanation of the obsolete Terms. But, anxious to render the work more extensively useful, he has not unfrequently departed from his first design. Among the works occasionally referred to, the Reader will recognise the Regiam Majestatem—so termed from the words with which it commences. This work has been sometimes received, as containing the genuine ancient Law of Scotland—sometimes rejected, as a mere spurious fabrication. Among the names in collision on this point are those of Skene, Erskine, Lord Kaims, Houard, Dalrymple, Craig, Lord Stair and Dr. Robertson. Nor has there been less dispute whether Glanville, or the Regiam Majestatem be the original work. But this question is said to be satisfactorily disposed of by Mr. Davidson, who has published a pamphlet expressly on the subject, and has proved, if it were necessary to prove, what is rendered indubitable by the internal Evidence of the two Works, that Glanville is the original; observing, at the same time, “that Glanville is regular, methodical, and consistent throughout; whereas the Regiam Majestatem goes out of Glanville’s method for no other assignable reason, than to disguise the matter, and is thereby rendered confused, unsystematical, and in many places contradictory.” The Translator has not been able to meet with Mr. Davidson’s work, but is indebted to the [preface] attached to the last Edition of Glanville for this Summary of it. “To this observation upon the method of the Regiam Majestatem,” says Mr. Reeves, “it may be added, that, on a comparison of the account given of things in that and in Glanville, it plainly appears, that the Scotch Author is more clear, explicit, and defined; and that he writes very often with a view to explain the other, in the same manner in which the writer of our Fleta, explains his predecessor Bracton. This is remarkable in numberless instances all through the Book, and is, perhaps, as decisive a mark of a copy as can be. The other Scotch Laws, which follow the Regiam Majestatem in Skene’s collection, contribute greatly to confirm the suspicion. These, as they are of a later date than several English Statutes which they resemble, must be admitted to be copied from them; and so closely are the originals followed, that the very words of them are retained. This is particularly remarkable of the Reign of Robert the Second, in which is the Statute of quia Emptores, and others plainly copied from our Laws, without any attempt to conceal the imitation. These Laws, at least, can impose upon no one; and when viewed with the Regiam Majestatem at their head, and compared with Glanville and the English Statute Book, they seem to declare very intelligibly to the world, that this piece of Scotch Jurisprudence is borrowed from ours.”[25] Nor is the enlightened and liberal Historian Dr. Robertson more favorably disposed towards that claim, which some of his countrymen have put in, for the originality of the Regiam Majestatem. “The Regiam Majestatem ascribed to David the first seems,” he observes, “to be an imitation and a servile one, of Glanville. Several Scottish Antiquaries, under the influence of that pious credulity, which disposes men to assent without hesitation to whatever they deem for the honor of their native country, contend zealously, that the Regiam Majestatem is a production prior to the Treatise of Glanville; and have brought themselves to believe, that a nation, in a superior state of improvement, borrowed its Laws from one considerably less advanced in its political progress. The internal Evidence (were it my province to examine it) by which this theory might be refuted is in my opinion decisive. The external circumstances, which have seduced Scottish Authors into this mistake, have been explained with so much precision and candor by Sir David Dalrymple, in his Examination of some of the arguments for the high antiquity of the Regiam Majestatem, Eding, 1767. 4to, that it is to be hoped, the controversy will not be again revived.”[26]

In dismissing this subject, it may be remarked in the words of Mr. Reeves, that it seems unnecessary to contend for the originality of the Regiam Majestatem, whilst a doubt of much more importance remains unsettled—whether that Treatise, as well as the others in the publication of Skene, are now, or ever were, any part of the Law of Scotland, on which, as we have already observed, so many eminent men differ. On the other hand, the authenticity of Glanville, as the code of Law existing in this country during the Reign of Henry the Second, has been admitted, either expressly or impliedly by all the English Lawyers, who have florished in the long interval which has elapsed from that period to the present, and never has been questioned, if we except a solitary dictum, which, as it equally affected the credit of Bracton, and was totally unauthorised, is refuted by a thousand circumstances, if it were an object to mention them.[27] But to return from this digression.

Though the Translator had not the good fortune to meet with Mr. Davidson’s Pamphlet, he was more successful in discovering Skene’s translation of the Regiam Majestatem, deposited in Lincoln’s Inn Library. The Translator intended to have noticed such parts of the Regiam Majestatem, as coincided with Glanville. But, after having, with some attention, perused the former Book, he found the similarity between the two works so very general, and the correspondence so exact, that the Regiam Majestatem might frequently be taken verbal Translation of Glanville, or, at least, as another Edition of the same Treatise, in which the writer had made some slight additions and alterations, and had capriciously amused himself in contriving an arrangement totally different, though far less happy and systematical. The Translator has, therefore, generally contented himself with noticing those deviations between the two works, which were more immediately relevant to his subjects. Nor has he always stopped here, but has availed himself of the Regiam Majestatem, whenever it was less ambiguous, or more decided than Glanville, which from the very circumstance of its being a posterior publication, it sometimes naturally will happen to be. In addition to the Regiam Majestatem, reference has been occasionally made to the Grand Custumary of Normandy, Bracton, Fleta, Britton, Coke, Hale, &c. &c. Some of these references serve to corroborate—some to illustrate the Text: some tend to shew that a Law was not peculiar to this Country, and some that a similar Rule has been adopted even in Modern Times by a neighboring State. In consulting the Laws of that state, and noticing those instances of strong or faint resemblance between them and the Code of Henry the Second, the Translator acted in deference to the suggestions of a Gentleman, who, though possessed of the most profound legal knowledge, is yet more entitled to our admiration for his singular liberality of sentiment, and urbanity of manners. If the more enlightened mind derive no benefit from the plan which has been adopted in the notes, and anticipate the Result; yet, it is hoped, the Student may receive some advantage from it. But, if the Translator has been too diffuse in some instances, he has, on other occasions, contented himself with a bare reference. He has been averse to swell the [Notes], where a bare citation would serve to direct the Student, if disposed to extend his inquiries. In addition to the Translator’s own [Notes], the Reader is furnished with a few annotations extracted from a copy of Glanville, formerly belonging to Mr. Justice Aland, and now deposited in the collection of the Royal Institution. Yet, should it be observed, it is not perfectly clear whether these annotations were made by that learned Judge, or by the Reverend Mr. Elstob, a gentleman deeply versed in Anglo-Saxon Literature. By way of distinction, these Annotations are particularised by (Al. MS.)

In order to render the work as complete as the limited ability of the Translator would allow, he has subjoined the more important, and only the more important various Readings, as furnished by the Bodleian, the Cottonian, the Harleian and Dr. Milles’s MSS. The MS. of Glanville deposited in Lincoln’s Inn Library has not been consulted.

The Translator concludes these cursory observations with a brief summary of the contents of Glanville, availing himself, in some measure, of that contained in Mr. Reeves’s History.

Our Author in general confines himself to such matters only as were the objects of jurisdiction in the Curia Regis, and divides his work into fourteen Books. The two [first] of which treat of the Writ of Right, when originally commenced in the Curia Regis, and of all its stages, the Summons—Essoins—Appearance—Pleadings—Duel or Grand Assise—Judgment and Execution. The [third] speaks of vouching to Warranty, which with the two former Books, comprises a lucid account of the proceedings in a Writ of Right for the recovery of Land. The [fourth Book] is employed upon rights of Advowson, the [fifth] upon Villenage, and the [sixth] upon Dower. The [seventh] treats upon Alienation, Descents, Succession, Wardship, and Testaments. The [eighth] is upon final Concords, and Records in general. The [ninth] is upon Homage, Relief, Fealty, Services, and Purprestures. The [tenth] treats of Debts and matters of Contract; and the [eleventh] upon Attornies. Having thus disposed of Actions commenced originally in the Curia Regis, our author, in his [twelfth Book], speaks of Writs of Right, when brought in the Lord’s Court, and the manner of removing them from thence to the County Court and Curia Regis, which leads him to mention some other Writs determinable before the Sheriff. In his [thirteenth Book], he treats of Assises, and Disseisins. The [last Book] is wholly taken up in discussing the doctrine of Pleas of the Crown.