Book I.

[Transcriber's Note: Obvious printer errors, as well as inconsistencies

in the format of legal citations, have been corrected without note.

Archaic English spellings have been retained as they appear in the

original.]

Legal Classic Series

VOLUME ONE

GLANVILLE

Legal Classic Series

GLANVILLE

Introduction by Joseph Henry Beale, Jr., A.M., LL.B.

LITTLETON’S TENURES

Introduction by Eugene Wambaugh, LL.D.

BRITTON

Introduction by Hon. Simeon E. Baldwin.

MIRROUR OF JUSTICE

Introduction by Hon. William C. Robinson.

also

FLETA, and others.

A TRANSLATION

OF

GLANVILLE

BY

JOHN BEAMES, ESQ.

OF LINCOLN’S INN, BARRISTER AT LAW

_TO WHICH ARE ADDED NOTES_

Multa ignoramus, quæ nobis non laterent, si Veterum lectio

nobis esset familiaris.

MACROB.

WITH AN INTRODUCTION

BY

JOSEPH HENRY BEALE, JR., A.M., LL.B.

PROFESSOR OF LAW IN HARVARD UNIVERSITY

WASHINGTON, D.C.

JOHN BYRNE & CO.

LAW PUBLISHERS AND BOOKSELLERS

1900

COPYRIGHTED, 1900

BY

JOHN BYRNE & COMPANY.

TO

SIR SAMUEL ROMILLY,

THE FOLLOWING WORK

IS INSCRIBED

AS A MARK OF THE HIGH RESPECT

WITH WHICH

HIS ABILITIES, AS A SENATOR,

AND HIS

TALENTS, AS AN ADVOCATE,

ARE VIEWED BY

THE TRANSLATOR.

A TREATISE

ON

THE LAWS AND CUSTOMS

OF THE

KINGDOM OF ENGLAND

COMPOSED IN THE TIME OF KING HENRY THE SECOND

_The illustrious Ranulph de Glanville, who of all in that

age was the most skilled in the Laws of the Realm, and the

ancient Customs thereof, then holding the helm of Justice._

_The present work contains those Laws and Customs only,

according to which Pleas are determined in the King’s

Court, the Exchequer, and before the Justices, wheresoever

they may be._

INTRODUCTION.

BY JOSEPH HENRY BEALE, JR., A.M., LL.B., PROFESSOR OF LAW IN HARVARD

UNIVERSITY.

I. RANULPH DE GLANVILLE.

Ranulph de Glanville was born in the Suffolk Stratford, about 1130

A.D. He is believed to have been the son of Sir Hervey de Glanville,

Chamberlain to King Stephen, and the grandson of that Ranulph de

Glanville who came over with the Conqueror. The family was an important

one, owning much land in the counties of Suffolk and Norfolk.

Glanville’s public life began in 1164, when he was appointed sheriff

of Yorkshire; an office which he continued to hold for six years. In

1171 he was appointed Governor of Richmond Castle, and in 1174, sheriff

of Lancashire. The Scots having invaded England in that year, he led

the forces of Lancashire and Richmond against them, and (joining the

sheriff of Yorkshire and his forces) surprised and routed the Scots

at Alnwick, and took King William the Lion prisoner. For this victory

Glanville deserved, as he certainly received, the credit; and from

that time no man stood higher than he in the favor of King Henry II.

He was sheriff of Westmoreland from 1175 to 1179; sheriff of Yorkshire

a second time, from 1177 to his death; judge of the King’s Court

in 1176, and Chief Justiciar in 1180. He was also employed in many

distinguished public services. In 1177 he was sent as ambassador to

Flanders. In 1182 he led an army against the Welsh. In 1184, with

Archbishop Baldwin, he was sent as ambassador to Rice ap Griffin,

Prince of South Wales. In his next Welsh expedition, a few years later

(again with Baldwin), he preached a crusade. In 1186 he was ambassador

to the King of France, and was active in negotiating the peace of

Gisors. In 1189, while Henry was struggling with his rebellious sons

and with Philip of France in Normandy, he was sent to Canterbury to

treat with the Chapter; was soon again in Normandy with Henry; and

finally returned to England to raise an army for his master’s service,

a work in which he was engaged at the time of Henry’s death.

These great offices were due to his personal merit and to the great

services he rendered to his country; but they appear to have been the

result, also, of the personal friendship and affection of the King. He

was one of the witnesses to Henry’s will, and a trustee of the King’s

bequest of 5,000 marks of silver to certain religious and charitable

institutions, and of 300 marks of gold for marrying poor free women

of England. He was named by Henry as custodian of Queen Eleanor, and

as treasurer of his private fortune. A pretty picture of the King’s

feeling toward him occurs in the account of the arrival of Glanville’s

messenger in London, after the battle of Alnwick. The messenger

arrived at midnight and insisted on seeing the King. Being admitted to

the royal chamber he boldly approached the King’s bed and roused him

from sleep. He, springing up, cried, “Who is it?” “I am the messenger

of Ranulph of Glanville, your faithful subject, and I come from him

to your highness as a bearer of good tidings.” “Is our Ranulph well?”

cried the King, moved less by the promised good tidings than by his

love for the sender of them. “My lord is well,” was the answer, “and he

holds your enemy, the King of the Scots, a prisoner at Richmond.”

Upon the death of Henry, Glanville’s position was a difficult one.

Henry, conservative, though a reformer, had established the government

of his kingdom on a foundation of law and justice, and had created an

effective and pure administrative machine. The new King appeared to

have no sympathy with his father’s principles of government. He was

rash, radical and careless of regular details of administration, and

Glanville, in the words of a contemporary, “In his old age saw the King

doing many things in a newfangled way, without wisdom or forethought.”

He was present at the coronation of Richard, and was sent by him to

quell a riot against the Jews which disgraced the ceremony. About his

next acts we have different accounts. He had taken the cross in 1186.

Whether he asked and received his dismissal from Richard in order to

join the army, then about to start for the Holy Land, or whether, as

another account has it, he was removed and imprisoned by Richard and

obliged to purchase his freedom by a fine of 15,000 pounds of silver,

we cannot certainly tell. At any rate, he set out for Palestine

together with Baldwin, Archbishop of Canterbury, and his nephew Hubert,

then bishop of Salisbury; the three were placed in command of the

English forces by Richard (who was obliged to delay his own departure),

and Glanville in 1190 died before Acre, by disease, the result of the

unhealthy climate. He left one son and three daughters, whom he had

already enriched from his great fortune. He founded the priory of

Butley, the Abbey of Leiston, and a hospital at Somerton.

Glanville impressed his contemporaries as a man strong both in body and

in mind. A man of integrity and prudence, “most faithful in fortune

or misfortune,” “Wise, grave and eloquent,” “The King’s eye;” “A name

above every name, who spoke among the princes and was adored by the

people.” He was a man wise, just and charitable, whose fellowship was

sought and opinions valued by wits and by scholars. One scandal only

attacked him. He is charged with falsely condemning to death for rape

Sir Gilbert de Plumpton, in order that his widow might be married

to Glanville’s friend and steward, Rainer; Sir Gilbert’s punishment

was commuted by the King to imprisonment for life. The tale is quite

inconsistent with all we know of Glanville’s character and with his

position in the King’s affection, and may safely be disbelieved.

His family shared in his success. No less than seven of his near

relatives held high judicial position under Henry or his sons. Few

other families have rendered greater service to England than that of

Ranulph de Glanville, ambassador, administrator, general, judge and

jurist.

[Incidents of Glanville’s life and character are reported

in all the chroniclers of the time. Especially valuable

are the accounts in Hoveden, Benedictus Abbas, Giraldus

Cambrensis, Newburgh, Richard of Devizes, and Diceto. The

fullest modern sketch of his life is by Professor Maitland,

in the Dictionary of National Biography. Other modern

biographies are those of Foss (Judges of England, i, 376);

Thomas Wright (Biographia Britannica, 275); Lord Campbell

(Lives of the Chief Justices, i, 19); and Professor Gross

(Sources and Literature of English History, 315).

Many interesting documents bearing on Glanville’s genealogy

and his property are printed in Glanville-Richards’

“Records of the Anglo-Norman House of Glanville.”]

II. THE AUTHORSHIP OF THE TREATISE.

The following “Treatise on the Laws and Customs of the Kingdom of

England,” was published between 1187 and 1189; it mentions a fine made

in the former year, and it is filled with references to Henry, as then

King. It had a high contemporary reputation. Copies of the book were

multiplied, and many manuscripts still exist. It forms part of several

collections of laws made by contemporaries of Glanville himself. It

was translated, or partly translated, into French immediately after

Glanville’s death, and it was revised and an attempt made to bring

it down to date two generations later. It was finally superseded by

Bracton’s completer and more elaborate treatise.

The work itself is anonymous, the manuscripts stating only that it was

composed in the time of Henry II., “Glanville then holding the helm

of justice.” Early tradition, however, asserts that it was written by

Glanville himself, and that fact was accepted as undoubted from the

thirteenth to the nineteenth century. Modern scholars have expressed

doubt of it. Littleton’s objection (in his “Life of Henry II.”) that

Glanville could not have written the book because he was not in orders,

may be dismissed at once. The greater officers of the administration,

whether in orders or not, must have had sufficient Latin to dictate a

Latin treatise to a clerk, and Glanville was particularly commended for

his eloquence by more than one contemporary. Hunter’s objection (in the

preface to his “Fines”) is that Glanville, at the time the treatise was

written, was too busy in public affairs to have composed such a work,

and he suggests that the author may have been William de Glanville, a

justice in the next reign; who was, in fact, Glanville’s son, and (from

1186) his secretary. But this is the merest guess. Professor Maitland

conjectures (for a rather fanciful reason, perhaps) that the author

may have been Hubert Walter. Liebermann, on the other hand, defends

Glanville’s authorship. Certainly there is little external proof that

Glanville was the author of the treatise, though it must have been

written by some one in high position and repute to have obtained so

immediate a success. The internal evidence does not lead us much

further. The style is that of a person speaking with authority, but not

necessarily the authority of the Chief Justiciar himself. The claim of

Hubert Walter to the authorship cannot be dismissed without further

examination.

Hubert was a nephew of Glanville’s wife; according to one account,

of Glanville himself, Glanville’s younger brother having married his

wife’s sister. Whether Hervey Walter, Hubert’s father, was really, as

this account has it, Hervey de Glanville or not, it is certain that

Hubert was brought up in intimacy with Glanville’s family, became his

secretary, and was regarded by him as a valued counsellor. He was made

Dean of York in 1186, being succeeded as secretary by Glanville’s son

William. He soon became Bishop of Salisbury, Archbishop of Canterbury,

and later Chief Justiciar and Chancellor of the Kingdom. He is

described as a man of foresight and wisdom; it is said of him that his

heart was in human affairs rather than divine, and that he knew all

the laws of the kingdom. He was, however, a man “of little eloquence;”

indeed, one chronicler ridicules his Latin style.

Did Glanville write the whole treatise? or did Hubert Walter write

it? Or did they collaborate on it? Perhaps we can reach a conjectural

conclusion by a more careful examination of the treatise itself.

The most striking feature of the treatise is, that it is based upon a

collection of writs. Omitting the Introduction and the last book, on

Pleas of the Crown, just one-third of the chapters into which it is

divided consists of writs. These are of all kinds, directed to Lords’

Courts, to County Courts, and to Ecclesiastical Courts, as well as

writs returnable in the King’s Courts. Later writers have made free

use of writs, but here they are the skeleton of the whole treatise.

They fulfil the function of judgment-rolls in Bracton’s book, and of

decisions in Coke and later writers. The collection of these eighty

writs must have been a work of several years, since some of the writs

were certainly of rare occurrence. The Chief Justice, or his clerk,

attested all the writs, and either of them had both opportunity and

reason for making such a collection; hardly another man in the kingdom

would have been likely to do it.

A large part of the treatise is written in a crabbed and inelegant,

though usually a clear style. In a few passages, however, near the

beginning of the book, we find an elevation of thought and elegance of

diction often admired and imitated. The Introduction, in particular,

and the seventh chapter of the second book, in praise of the assize

(which, according to tradition, Glanville had a hand in inventing,

or, at least, in establishing), are worthy of a man “sapiens simul

et eloquens”; in sharp contrast with other parts of the work, which

indicate an author who “omnia regni novit jura,” but was surely “non

eloquio pollens.”

The first ten books of the treatise are carefully written, the

commentary is full, the subject well developed. The last four books,

on the other hand, seem to have been hurriedly thrown together. The

proportion of writ to text is more than twice that in the preceding

books; indeed, in the book devoted to the County Courts (in which

Glanville had presided for years, and must have become as familiar with

the law and procedure as with those of the King’s Courts), there is

almost no comment. It seems possible that a proposed full commentary on

the County Court practice, for which an elaborate collection of writs

was at hand, was abandoned.

The exact date of the work is fixed by the only two dated documents—two

fines, of June 27 and about November 1, 1187. Fines were then novel,

and they were described carefully. It seems likely that the passage,

which occurs toward the end of the treatise, was written soon after the

dates of enrollment. Both fines were enrolled in Glanville’s presence.

We may now conjecture that the author, or authors, of the treatise had

for years been collecting writs, either for preservation as useful

precedents, or possibly with the object of composing a commentary upon

them. The collection finished, it would not be a matter of much time

or difficulty for one who knew the law, writs in hand, to dictate his

commentary to a secretary also learned in the law. If the collector was

Glanville, and the secretary Hubert, we may suppose that the actual

work of composition was begun in 1185, or 1186; not, apparently, a

time of strenuous labor for either. Passages of particular importance

or of especial interest to Glanville would be composed by him with

care; the actual form of the remainder might safely be left to his

competent secretary, subject only to revision by himself. In 1186

the Dean of York died, and the succession was given to Hubert; and

Glanville soon set out on his embassy to the King of France. In spite

of this, however, time still remained for the completion of the work in

the rather less polished form of the later books. In February, 1187,

Glanville and Hubert were sitting together in the Court at Westminster;

and from that month to the beginning of 1189 (with the exception of

Lent, 1188, when Glanville was preaching his crusade in Wales), both

appear to have remained in England, without serious interruption from

public business. The year 1188, in fact, seems to have been one of

the least busy of Glanville’s official life; and, until his time was

absorbed by the troubles of the closing year of the reign, there was

nothing to prevent a continuance of the work. The last hurried chapters

may well, therefore, have been completed in 1188.

There is, then, nothing against the early and persistent tradition that

Glanville wrote the treatise, and much in its favor; though most of the

actual composition may have been the work of Hubert Walter.

[The fullest discussion of the authorship of “Glanville”

may be found in Pollock and Maitland’s “History of the

English Law,” i, 163. Reeves’ discussion (“History of the

English Law,” Finlayson’s Edition, i, 254) and Foss’s

(“Judges of England,” i, 180) are also worth consulting

upon this point. Liebermann (“Einleitung,” p. 73)

supports the theory of Glanville’s authorship; and in the

“Zeitschrift für romanische Philologie,” xix, 81, he gives

interesting proof of the early popularity of the treatise.

See also Professor Maitland’s article, “Glanville Revised,”

in the Harvard Law Review, vi, 1.

The life and character of Hubert may be found in the “Actus

Pontificum Cantuariensium” of Gervase. Glanville’s and

Hubert’s itineraries may be found in Eyton’s “Itinerary of

Henry II.”]

III. THE CHARACTER OF THE TREATISE.

“A Treatise on the Law and Customs of the Kingdom of England” is the

earliest systematic treatise on law written in modern times. A few

collections of law and decretals, like the _Decretum_ of Gratian and

the “Assises of Jerusalem,” had, to be sure, been published earlier;

but they were not, like this book, regular expositions of an existing

system of law. Bracton’s work was modelled on Glanville, and, through

Bracton, Glanville thus fixed the type of the modern commentary on

law. An imitation, in many parts an exact copy, of this book was

later published in Scotland under the title “Regiam Majestatem,” and

the claim was vigorously made for a time that it was the original,

Glanville the imitation. This notion, improbable on its face, was

absolutely disproved by arguments set forth in Beames’ Introduction.

The first edition of the treatise was printed by R. Tottel in small

12mo, about the year 1554. Coke says that this was done by suggestion

of Sir William Stanford, the learned judge and author. The second

edition was printed by Thomas Wright in 1604. The text was corrected

by the collation of “various manuscripts.” This edition was exactly

reprinted, omitting the preface, in 1673. The treatise was again

printed in the first volume of Houard’s “_Traités sur les Coutumes

Anglo-Normandes_” in quarto, Rouen, 1776. The last Latin edition was

published by John Rayner, 8vo, 1780, collated with the Bodleian, the

Cottonian, the Harleian and Doctor Milles’s manuscripts by J.E. Wilmot.

The Latin text is also printed as an appendix to Phillips’s “Englische

Reichs und Rechtsgeschichte,” ii, 335: Berlin, 1828. A collation of

Glanville with the “Regiam Majestatem” may be found in the Acts of the

Parliament of Scotland, i, 133. An English translation by John Beames,

with notes, was published in octavo, London, 1812, and is reprinted in

the present edition.

This treatise is more than a mere law book. It is a monument to the

genius of one of the greatest legal reformers of all time. Henry II.

came to the throne, after a long period of anarchy, to find countless

systems of law administered by a confused and confusing mass of popular

courts and feudal courts. He at once set himself to bring order and

unity out of anarchy and chaos. He made the King’s Court the common

court of the land; he determined its jurisdiction as against the

church, the lords and the sheriffs; and he made it the guardian of a

King’s peace, which should protect high and low throughout the whole

land. The establishment of peace was in fact the chief object of his

stormy career. Glanville’s treatise shows us the method he took to

secure his object.

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.

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]

[Footnote 1: Co. 8. Rep. pref.]

[Footnote 2: Madox’s Exch. 439.]

[Footnote 3: Ibid. 203.]

[Footnote 4: Ibid. 253.]

[Footnote 5: Hume’s Hist.]

[Footnote 6: Mad. Exch. 297.]

[Footnote 7: Ibid. 87.]

[Footnote 8: Hoveden, p. 600.]

[Footnote 9: Mad. Exch. 662.]

[Footnote 10: Hoveden, p. 600. n. 40.]

[Footnote 11: Mad. Exch. 24.]

[Footnote 12: Mad. Exch. 35.]

[Footnote 13: Ibid. 225.]

[Footnote 14: Leg. Anglo-Sax. p. 339.]

[Footnote 15: Hoveden, p. 622, 623. Note 10.]

[Footnote 16: Spelm. Gloss. ad voc. Justitia; and Plowden, 368. b.]

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.

[Footnote 17: Hist. Hen. II.]

[Footnote 18: Selden. opera omnia. 1669.]

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]

[Footnote 19: See 1. Reeves’s Hist. Eng. Law. 223.]

[Footnote 20: Robertson’s Charles 5. Vol. 1. p. 296.]

[Footnote 21: Vide Infra p. 162. Note 2.]

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]

[Footnote 22: Madox’s Exch. 123. and Note.]

[Footnote 23: Reeves’s Hist. Eng. Law. 1. 213.]

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.

[Footnote 24: 4 Inst. 345.]

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]

[Footnote 25: Reeves’s Hist. Eng. Law 225.]

[Footnote 26: Hist. Charles 5. Vol. 1. p. 296.]

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.

[Footnote 27: Plowd. 357.]

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.

JOHN BEAMES.

It was intended to have added the names of all those Gentlemen, who

subscribed for the work. But the list having been consumed in the fire

which destroyed Mr. Reed’s Premises, and many of the names having been

thereby lost, it is become impossible.

PREFACE.

The Regal Power should not merely be decorated with Arms to restrain

Rebels and Nations making head against it and its realm, but ought

likewise to be adorned with Laws for the peaceful governing of

its Subjects and its People.[28] With such felicity may our Most

Illustrious King conduct himself, in the periods both of Peace and of

War, by the force of his right hand, crushing the insolence of the

violent and intractable, and, with the sceptre of Equity, moderating

his Justice towards the humble and obedient, that as he may be always

victorious in subduing his Enemies, so may he on all occasions shew

himself impartially just in the government of his Subjects. But how

gracefully—how vigorously—how skilfully, in counteracting the malice

of his Foes, our Most Excellent King has, in the season of hostility,

conducted his Arms, is manifest to all: since his fame has now spread

over the whole World, and his splendid actions reached even the

confines of the Globe. How justly—how discreetly—and how mercifully—he,

who loves Peace and is the Author of it, has conducted himself towards

his subjects in the time of Peace, is evident, since the Court of his

Highness is regulated with so strict a regard to Equity, that none of

the Judges have so hardened a front, or so rash a presumption, as to

dare to deviate, however slightly, from the path of Justice, or to

utter a sentence, in any measure contrary to the truth. For there,

indeed, the power of his adversary oppresses not the poor Man, nor

does either the favor or credit of another’s Friends, drive any person

from the seat of Judgment. Since each decision is governed by the Laws

of the Realm, and by those Customs which, founded on reason in their

introduction, have for a long time prevailed; and, what is still more

laudable, our King disdains not to avail himself of the advice of such

men (although his subjects) whom, in gravity of manners, in skill in

the Law and Customs of the Realm, in the superiority of their wisdom

and Eloquence, he knows to surpass others, and whom he has found by

experience most prompt, as far as consistent with reason, in the

administration of Justice, by determining Causes and ending suits,

acting now with more severity, and now with more lenity, as they see

most expedient.[29] For the English Laws, although not written, may as

it should seem, and that without any absurdity, be termed Laws, (since

this itself is a Law—that which pleases the Prince has the force of

Law[30]) I mean, those Laws which it is evident were promulgated by the

advice of the Nobles and the authority of the Prince, concerning doubts

to be settled in their Assembly. For, if from the mere want of writing

only, they should not be considered as Laws, then, unquestionably,

writing would seem to confer more authority upon Laws themselves,

than either the Equity of the persons constituting, or the reason

of those framing, them. But, to reduce in every instance the Laws

and Constitutions of the Realm into writing, would be, in our times,

absolutely impossible, as well on account of the ignorance of writers,

as of the confused multiplicity of the Laws. But, there are some,

which, as they more generally occur in Court, and are more frequently

used, it appears to me not presumptuous to put into writing, but rather

very useful to most persons, and highly necessary to assist the memory.

A certain portion of those I therefore intend to reduce into writing,

purposely making use of a vulgar style, and of words occurring in

Court, in order to instruct those who are less accustomed to this kind

of vulgarity. In proof of which, I have distinguished the present work

by Books and Chapters.

[Footnote 28: The introductory part of this Preface is in imitation of

that of Justinian’s Institutes, and seems strangely to have taken the

fancy of the law writers of the age, since Glanville is more or less

followed by the Regiam Majestatem, Bracton and Fleta.]

[Footnote 29: “On these last words,” says Lord Littleton, “I would

observe, that, as in those days there was no distinct Court of Equity,

the Judges of the King’s Court had probably a power of mitigating in

some cases the rigour of the Law.” (Hist. of Life Hen. 2. Vol. 3. p.

315. Oct. Ed.) A strong instance in point the Reader will find in L. 7.

c. 1. or the present Translation p. 149.]

[Footnote 30: This principle, the very basis of despotism occurs

in the Roman code. (Justin. Instit. L. 1. t. 2. s. 6.) It may very

justly be questioned, whether it is not here cited ironically. At all

events, the passage of our text can scarcely warrant the conclusion the

celebrated M. Houard has drawn from it. But the Reader shall have his

own words—_Le Texte de notre Auteur prouve qu’après la conquête, les

Anglois reçurent, de Guillaume le Bâtard, les mêmes Maximes que nous

avions jusques-là suivies, a l’égard du Droit exclusif, que nos Rois

avoient toujours exercé, de faire les Loix._ (Traités sur les coutumes

Anglo-Normandes par M. Houard. 1. 378.)]

Book I.

OF PLEAS WHICH BELONG TO THE KING’S COURT, OR TO THE

SHERIFF; AND OF ESSOINS; AND OTHER PREPARATORY STEPS

USUALLY RESORTED TO IN SUITS, UNTIL BOTH PARTIES APPEAR

TOGETHER IN COURT.

CHAP. I.

Pleas are either Criminal or Civil.[31] The former are divided into

such as appertain to the King’s Crown, and such as belong to the

Sheriffs of Counties. These Pleas belong to the King’s Crown.[32]

[Footnote 31: “Now, as out of the old Fields must come the new corn, so

our old Books do excellently expound and express this matter, as the

Law is holden at this day; and, therefore, Glanville saith, _Placitorum

aliud est criminale, aliud Civile_, where _Placitum criminale_ is

_Placitum coronæ_, and _Placitum civile_, _Placitum commune_, named in

this Statute.” (Magna Carta.) (Vide 2 Inst. 21.)]

[Footnote 32: LL. Æthelbyrti, c. 1. 2. 3. 4. 5. &c. (Al. MS.)]

CHAP. II.

The crime which, in legal phrase, is termed that of Læse

Majesty, as the death of the King, or a sedition moved

in the Realm, or Army[33]—the fraudulent concealment of

Treasure-trove—The Plea concerning the breaking of the King’s

peace—Homicide—Burning—Robbery—Rape—the crime of Falsifying,[34]

and such other Pleas as are of a similar nature.[35] These crimes

are either punished capitally, or with loss of Member.[36] We must,

however, except the crime of Theft, which belongs to the Sheriffs of

Counties, and is discussed and determined in the County Courts.[37]

It also appertains to Sheriffs, in case of neglect on the part of

Lords of Franchise, to take cognizance of Scuffles,[38] blows, and

wounds, unless the Accuser subjoin to his charge, that the offence was

committed against the King’s Peace.[39]

[Footnote 33: “The Committers of these Crimes,” says the Regiam

Majestatem, “may be punished not only for any fact or deed, but also

for the intent and purpose.” (Reg. Maj. L. 1. c. 1.)]

[Footnote 34: _Crimen falsi_, an expression borrowed from the Civil

Law. (Vide Justin. Inst. 4. 18. 7. &c.) Our author explains its import,

L. 14. c. 7.]

[Footnote 35: Cap. 2. Hengham Magna, c. 2. p. 7. LL. Canuti R. secul.

c. 61. et Somneri Gloss. in voce _emenda_. (Al. MS.)

The Law of Canute alluded to, is in these words: _Irruptio in domum

et incendium et furtum manifestum et cædes publica et domini proditio

juxta leges humanas sunt inexpiabilia._ (Vide LL. Anglo-Saxon. Ed.

Wilkins, p. 143.)]

[Footnote 36: Among the Laws of Canute, are some inflicting the

punishment of loss of members. (LL. Canuti, c. 15. 33. &c.)

From hence it has been inferred, that Canute first introduced this

species of punishment into England.

However that may be, the Conqueror’s Law forms too remarkable a feature

in his Legislation to be passed over in silence. It forbids the

punishments of death and hanging for any crime, but orders, that the

eyes of the offenders should be plucked out, or their feet or hands &c.

amputated, _ita quod truncus vivus remaneat in signum proditionis et

nequitiæ suæ_!! (LL. Gul. Conq. p. 218. Ed. Wilkins.)]

[Footnote 37: “Theft and manslaughter,” says the Regiam Majestatem,

“belong to the Sheriff when any certain accuser appears: not so when

those crimes are taken up by _dittay_.” (c. 1. L. 1.) “The Sheriff in

the Tourn (for that is to be intended) held plea of Theft,” says Lord

Coke. But this part of his jurisdiction was taken away by 17. c. Mag.

Cart. (Vide 2 Inst. 30-1.)]

[Footnote 38: _Medletis_, or, as in Harl. Cotton. and Bodl. MSS.

_melletis_. From Bracton it is to be collected, that some instances of

this offence fell under the Jurisdiction of Lords of Franchise, and on

their default, reverted to the Sheriff; whilst other instances fell

under cognizance of the crown, a distinction confirmed by the Reg.

Majestatem (vide Bracton 154. B. Reg. Maj. L. 1. c. 2.) The term is

said to be derived from the French _mesler_. (Vide 3 Inst. 66. Spelm.

Gloss. and Cowell’s Interpreter.)]

[Footnote 39: The Reg. Maj. makes this allegation a ground of the

Sheriff’s Jurisdiction (L. 1. c. 3.) “In this distinction, between the

Sheriff’s Jurisdiction and that of the King, we see the reason of the

allegation in modern Indictments and Writs, “_vi et armis_,” “_of the

king’s crown and dignity_,” “_the king’s peace_,” and “_the peace_,”

this last expression being sufficient, after the peace of the Sheriff

had ceased to be distinguished as a separate Jurisdiction.” (Vide

Reeves’s Hist. Eng. Law. 1. 113.)]

CHAP. III.

Civil Pleas are divided into such as are discussed and determined

in the King’s Court only, and such as fall within the Jurisdiction

of the Sheriffs of Counties. In the former Court, are discussed

and determined, all such Pleas as concern Baronies, Advowsons of

Churches, questions of condition, Dower, when the Woman has been

entirely debarred from receiving it; for breach of Fine made in the

King’s Court; concerning the performing of Homage, and the receiving

of Reliefs, and concerning Purprestures,[40] and Debts owing by lay

persons. These Pleas, indeed, relate to the propriety of the thing

only: concerning those which refer to the possession, and which are

discussed and decided by Recognitions,[41] we shall speak in their

proper place.

[Footnote 40: Our author explains this term, B. 9. c. 11.]

[Footnote 41: _Recognitiones._ Upon the words _facere recognitionem_,

Sir Edward Coke thus comments.—“_Cognitio_ is knowledge or

knowledgement, or opinion, and Recognition is a serious

acknowledgement, or opinion upon such matters of fact as they shall

have in charge, and thereupon the Jurors are called _Recognitores

Assisæ_,” (Vide Co. Litt. 158. b.) Our author treats largely on

Recognitions in the 12th Book, to which we refer the reader.]

CHAP. IV.

To the Sheriffs of Counties these Pleas appertain: the Plea concerning

the Right of Freehold, when the Courts of the Lords are proved to have

failed in doing justice, the nature of which we shall speak of in

another place; and the Plea concerning Villeins-born: such Pleas being,

in each instance,[42] sanctioned by the King’s Writ.[43]

[Footnote 42: We learn from Bracton, that the Sheriff was in the habit

of exercising Jurisdiction over many Pleas which did _not_ belong to

him _ex officio_; but, in such cases, he acted by the King’s precept,

not as Sheriff, but as _Justiciarius Regis_, (Bracton 154. b.) The

distinction is important, and seems not unknown to the Grand Custumary

of Normandy. (Vide c. 2.)]

[Footnote 43: _Breve_, a Writ. When causes became so frequent that the

king was unable to attend to them, says Craig, he remitted them to the

Judge, by means of Instruments containing a brief summary of the chief

points. Hence the name _Breve_. (Craig Jus Feud. L. 2. Dieg. 17, s.

24.) So early as Henry the first we find, that _contemptus Brevium_ was

an offence, subjecting the person guilty of it to be amerced to the

king. (LL. Hen. 1. c. 14.)]

CHAP. V.

When any one complains[44] to the King, or his Justices, concerning

his Fee, or his Freehold, if the complaint be such as be proper for

the determination of the King’s Court, or the King is pleased that it

should be decided there, then the party complaining shall have the

following Writ of summons.

[Footnote 44: _Clamat._ Vide Spelm. Gloss. ad voc. Craig Jus Feud. L.

2. Dieg. 17. s. 25. and L. 3. Dieg. 5. s. 2.]

CHAP. VI.

“The King to the Sheriff, Health.[45] Command _A._ that, without delay,

he render to _B._ one Hyde of Land, in such a Vill, of which the said

_B._ complains, that the aforesaid _A._ hath deforced him; and, unless

he does so, summon him by good summoners, that he be there, before me,

or my Justices, _in crastino post octabas clausi Paschæ_ at such a

place, to show wherefore he has failed; and have there the Summoners

and this Writ. Witness Ranulph de Glanville, at Clarendon.”

[Footnote 45: Vide Fitz. Nat. Brev. p. 5. Ed. 1687. As this is the

first writ we meet with, it may not be improper to observe, that, in

rendering the writs, the Translator has for obvious reasons endeavoured

to adhere to the technical phraseology generally used in that species

of process.]

CHAP. VII.

The party who is thus summoned either appears at the day appointed,

or makes default, or sends a Messenger, or Essoin,[46] or neither. If

he neither appear, nor send an Essoin, his adversary, the Demandant,

should, on the day appointed, appear before the Justices, and offer

to proceed against him in the suit; and he shall thus await in Court

during three days. If the Tenant appear not on the fourth day, the

summoners being present, and alledging that they had duly cited him,

and offering to prove it, according to the course of the Court, another

Writ shall Issue to summon the Tenant to appear at the distance of

fifteen days[47] at least, in which Writ he shall be required as well

to answer to the original Suit, as for his default in disobeying the

first summons.[48] In this manner, three Summonses shall issue; and, if

the Tenant neither appear at the third summons, nor send, the Tenement

shall be taken into the King’s hands, and shall so remain, during

fifteen days.

[Footnote 46: _Essonium_, an Excuse. Sir Edward Coke derives the

term from the French verb _essonier_ or _exonier_. He tells us,

it is all one with what the civilians call _excusatio_. Sir Henry

Spelman mentions the same derivation, and adds, _ex_, _privativum_,

_soing_, _cura_. The Greek word ἐξὸμνυσθαι has been proposed as another

derivation, implying an excuse by means of an oath. The term occurs so

early as the Assizes of Jerusalem, (c. 58.) So limited is the doctrine

of Essoins in the present day, that it will here suffice to observe,

there were five _principal_ kinds in the reign of Henry the second;

I say principal, because there were necessarily many others of less

importance. These, as enumerated by Sir Edward Coke, were; 1. _de

servitio Regis_. 2. _In terram sanctam_. 3. _Ultra mare_. 4. _De malo

lecti_. 5. _De malo veniendi_; the two last being the same as those _ex

infirmitate de reseantisâ_ and _ex infirmitate veniendi_, so frequently

mentioned by our author, in the present book. Essoins are said to have

been derived to us from the Normans. (Vide Assises of Jerusalem, c. 58.

le Grand Custum. de Norm. sparsim. Bracton 336. b. et seq. Fleta L. 6.

c. 7. Mirror, 117. et seq. 2 Inst. 125. Spelm. Cowell. Les termes de la

ley, &c. &c.)]

[Footnote 47: In affirmance of this period of time, see _Articuli super

chartas_, c. 15. and Lord Coke’s comment. (2 Inst. 567.) The Norman

code required the same period to render a summons lawful, Grand Custum.

de Norm. c. 49. See also Bracton 334. a. and Fleta L. 6. c. 6. s. 11.

12.]

[Footnote 48: It seems from the _Regiam Majestatem_, that if the

summons were made by one summoner, in the presence of lawful and

sufficient witnesses, it was good. These witnesses were to verify the

summons, before the defendant could be compelled to answer. (Reg. Maj.

L. 1. c. 6.)]

And, if, within that period, he appear not, the Seisin[49] shall be

adjudged to his adversary, so that from thenceforth the Tenant shall

not be heard, unless in a suit concerning the propriety, and that

authorised by the King’s Writ of Right.[50] If, however, he appear

within the fifteen days, and be desirous of replevying the Tenement,

he shall be commanded to appear on the fourth day, and he shall have

that which he is legally entitled unto; and thus, if he appear, he may

recover the Seisin. Should he, however, appear at the third Summons,

and confess the former Summonses, he shall instantly lose the Seisin,

unless he can excuse his default by the King’s Warrant, and by the

Writ, which he should instantly produce.

[Footnote 49: _Seisina_ “is borrowed of the French _seisine_,

‘_possessio_,’ and so it signifieth in our common Law.” (Cowell ad

voc.) _Craig_ concludes, that as we had the term, so we had the

doctrine from the French. (Craig Jus Feud. L. 2. Dieg. 7. s. 1.) Sir

Edward Coke and Sir Henry Spelman coincided with Cowell and Craig in

the derivation. (Co. Litt. 17. a. Spelm. Gloss. ad voc.) The term,

it seems, was used, both by the canonists and civilians. (Cowell

ubi supra: vide also Index ad Anglo-Sax. LL. verb. _saisiare_ and

references there.)]

[Footnote 50: Vide Bracton 367. a.]

CHAP. VIII.

“The King to the Justices, Health. I warrant _B._ who was at such a

place, by my precept, on such a day, in my service, and, therefore,

could not be present before you on that day at your Assizes; and I

command you, that you put him not in default for his absence that day,

nor that he in any respect suffer loss.

Witness, &c.”[51]

[Footnote 51: Vide F.N.B. 36. 37. Ed. 1687.]

CHAP. IX.

If he should deny all the summonses, he shall, as to each of them

individually, corroborate his denial with the oaths of twelve.[52]

Should it happen on the day appointed that either of the

Compurgators[53] fail, or should the person of either of them be

justly excepted to, and the vacancy occasioned by either of these

circumstances not be filled up, the Tenant shall, on account of his

default, immediately lose his Seisin.[54] But, if the Tenant thus

completely disprove the summonses, he shall on the same day answer to

the Action.[55]

[Footnote 52: _Duodecimâ manu._ The author of the commentaries renders

this expression eleven, besides the principal, an interpretation which

is more or less confirmed by the following authorities: Co. Litt. 295.

a. 2. Inst. 44, and the Diversity of Courts, p. 324. On the other hand,

Les Termes de la Ley, in describing the ceremony as applied to the

very object of the text, expressly says, that the principal should be

accompanied by twelve. (Ibid. ad voc. _ley_.)

Bracton, when treating of the subject, employs the same expression,

and observes, that the land was not to be replevied, before the tenant

had waged his law, nor, if he failed in waging it; and he lays it

down, that the Tenant could not wage his Law by means of an Attorney

constituted for that purpose, but must do it personally. (Bracton 366.

a. 410. a.) As to the _origin_ of waging Law, the reader may consult

Cowell ad voc. _Law_ and les Termes de la ley _ubi supra_ and Bl. comm.

3. 341. &c.

Before we quit this chapter, it may not be amiss to observe, that Sir

Edward Coke refers to it to show, that previous to Magna Carta, he that

would make his Law in any Court of Record, must bring with him _fideles

Testes_. (Co. Litt. 168. b.)]

[Footnote 53: Bracton tells us, that it was not necessary that the

compurgators should be of the same rank as their Principal: it was

sufficient if they were trust-worthy, and of good characters. (Bracton

410. a.)]

[Footnote 54: Mr. Reeves observes, that the waging of Law is not

mentioned by Glanville, as a mode of proof for the defendant in civil

suits. That judicious writer must be understood, as speaking of that

proof, which constituted the defence to the Action.]

[Footnote 55: Vide Mirror, c. 4. s. 7. Bracton 366. a. b. 368. a. b.]

CHAP. X.

If the Tenant, being summoned, appear not on the first day, but Essoin

himself, such Essoin shall, if reasonable, be received; and he may, in

this manner, essoin himself three times successively; and, since the

causes, on account of which a person may justly essoin himself, are

various, let us consider the different kinds of Essoins.

CHAP. XI.

Of Essoins, some arise on account of ill health, others from other

sources. Of those Essoins which arise from ill health—one kind is that

_ex infirmitate veniendi_—another _ex infirmitate de reseantisâ_.[56]

[Footnote 56: _Reseantisâ_, from the French _reseant_, or _resiant_,

or when anglicised, resiance, a term which Dr. Johnson explains in

his dictionary, as meaning a residence, though, as he remarks, it is

now only used in Law. In this, its simple sense, our author has used

it, in a subsequent part of his work. (L. 12. c. 7.) Yet it assumes a

different meaning, as used by the old English and Scotch Lawyers to

denote an Essoin, when it indicated, as Skene expresses it, “a long

and old sickness, or a resident, heavy infirmity and sore sickness.”

(Regiam Majestatem, L. 1. c. 8.) An observation in the margin of our

author informs us, that this Essoin was synonymous with that _de malo

lecti_; in other words, this Essoin was resorted to on account of such

a severe indisposition as necessarily confined a man to his house or

bed.]

CHAP. XII.

If the Tenant, being summoned, should, on the first day, cast the

Essoin _de infirmitate veniendi_,[57] it is in the election of his

Adversary, being present, either to require from the Essoiner a lawful

proof of the truth of the Essoin in question, on that very day,[58]

or that he should find pledges, or bind himself solemnly, that at

the day appointed he will have his Warrantor of the Essoin; and he

may thus Essoin himself three times successively. If, on the third

day,[59] he neither appear nor essoin himself, then let it be ordered,

that he be forthcoming in proper person on another day; or that he

send a fit Attorney in his place, to gain or lose for him. Thus,

whoever on the appointed day may appear in the place of the Tenant,

offering to undertake his defence, whether authorised by his Letters,

or without them, is immaterial, if it be known, that he be allied to

the absent Tenant, he shall be received for him in Court, either to

gain or lose.[60] It may be asked, what will be the consequence if the

Tenant appear at the fourth day, after having cast three Essoins, and

warrant all the Essoins? In that case, he shall prove the truth of each

Essoin[61] by his own oath and that of another; and, on the same day,

he shall answer to the suit. If, on the fourth day, he neither appear

nor send an Attorney, let the Tenement be taken into the King’s hands,

a Writ being issued by the Court for that purpose, directed to the

Sheriff of the County, in which such Tenement is situated, which Writ

is in the following words:

[Footnote 57: Or _de via Curiæ_, as it is termed in the Norman code.

This Essoin was cast, when the party on his way to Court had fallen

suddenly sick, and was thereby prevented attending. (Le grand Custum.

de Norm. c. 39.)]

[Footnote 58: “_Or on another_,” according to the Cotton. Bodl. and Dr.

Milles’s MSS.]

[Footnote 59: “_Fourth_,” according to Dr. Milles’s MS. and so it

undoubtedly ought to be, as the context evinces.]

[Footnote 60: Vide Infra, L. 11. c. 5.]

[Footnote 61: It should seem, from Bracton and Fleta, that such persons

only as were inferior in dignity to Barons, were required to prove the

truth of their Essoins by their own oaths. (Bracton 351. b. Fleta L. 6.

c. 10. s. 15.) By the 19th c. of Marlbridge, even these persons were

relieved from the obligation. (2 Inst. 136.)]

CHAP. XIII.

“The King to the Sheriff, Health. I command you that, without delay,

you take into my hands the half of the lands in such a will, which

_M._ claims, as her Dower, against _R._ concerning which there is

a suit between them in my Court, and that you make known the day

of the caption to my justices. And summon, by good Summoners, the

aforesaid _R._, that he be before me[62] or my Justices at Westminster

_a crastino octabus clausi Paschæ in quindecim dies_, to hear his

judgment, and have there the Summoners and this Writ. Witness Ranulph

de Glanville at Westminster, &c.” In addition, let the Sheriff of the

County be commanded to take the Essoiners, as Defaulters, and to detain

them, and for this purpose the following writ shall Issue:

[Footnote 62: Vide Madox’s Excheq. c. 3. s. 3.]

CHAP. XIV.

“The King to the Sheriff, Health. I command you that, without delay,

you diligently seek, through your County, _A._ who has falsely

Essoined _B._ against _C._ in my Court, and that you safely keep him,

until you have my other precept. Witness, &c.” The Defendant himself

shall also, in the mean time, be summoned to appear before the King,

or his Justices, to show why he has not warranted his Essoiner, and to

answer to the principal suit. Besides, the Pledges of the Essoiners

shall be summoned, by the following Writ.

CHAP. XV.

“The King to the Sheriff, Health. Summon by good Summoners _T._ that he

be before me, or my Justices, at Westminster, in fifteen days from the

Pentecost, to show why he has not had _I._ before me at Westminster, on

such a day, to warrant the Essoin that _I._ made for him in my Court

against _M._ as he pledged himself to have him. And have there the

Summoners, and this Writ. Witness, &c.”

CHAP. XVI.

But, if the Tenant appear within the fifteen days, and be willing

to replevy the Tenement, let him be commanded to attend, on a day

appointed, that he may then have justice done him; and, if he appear on

that day, and find pledges, he shall recover his seisin, and may retain

it. If he deny all the Summonses, and all the Essoins, and disprove

them individually with the oaths of twelve, or if he acknowledge the

first Summons, and warrant the three Essoins, and save the fourth day

by the King’s Writ of warranty, which he should forthwith produce, he

may also retain his Seisin. But, if the Tenant appear not within the

fifteen days, the seisin shall, on the following day, be adjudged to

his adversary, so that the Tenant shall never again be heard concerning

it, unless by the King’s Writ concerning the Right.[63] But the

Demandant shall be put into the possession of the Tenement, by the

following Writ, directed to the Sheriff.

[Footnote 63: The severity of this Law was mitigated by 9 Ed. 3. c.

2. whereby none were to lose their land, by reason of _non-plevin_. A

note to this effect is inserted in the margin of our Author; but the

reference to the chapter is erroneous.]

CHAP. XVII.

“The King to the Sheriff, Health. I command you that, without delay,

you deliver possession to _M._ of so much land in such a Vill, of which

there was a suit in my Court, between him and _R._; because the Seisin

of such Land is adjudged to the said _M._ in my Court, for the default

of _R._ Witness, &c.”

CHAP. XVIII.

If any one desire to cast the _Essoin de infirmitate de Reseantisâ_,

he may thrice do it.[64] Yet should the Essoiner, on the third day

preceding that appointed, at a proper place, and before a proper

person, present his Essoin. If, on the third summons, the Tenant

appear not, the Court should direct, that it may be seen whether his

indisposition amount to a languor,[65] or not. For this purpose, let

the following Writ issue directed to the Sheriff.

[Footnote 64: “_And by two Essoiners_,” according to Cotton. and Dr.

Milles’s MSS.]

[Footnote 65: Skene explains a languor by “a vehement sickness of body,

or of mind.” (Reg. Maj. L. 1. c. 8.)]

CHAP. XIX.

“The King to the Sheriff, Health. I command you that, without delay,

you send four lawful men[66] of your County to see of the infirmity

of which _B._ hath essoined himself in my Court, against _R._ be a

languor or not. And, if they perceive that it is a languor, then, that

they should put to him a day of one year and one day, from the day

of the view, to appear before me, or my justices, or that he send a

sufficient Attorney to answer for him. And if they see that it be not

a languor, then, that they put him a certain day, on which he shall

appear, or send a sufficient Attorney to answer for him. And Summon,

by good Summoners, the aforesaid four Knights, that they be then there

to testify their view, and the day they put him; and have there the

summoners and this Writ. Witness, &c.” It should be observed, that two

Essoiners, at least, are necessary to cast this Essoin.

[Footnote 66: The text is _Homines_. The Translator submits that it

should be _milites_, a reading warranted by the latter part of this

very writ; and authorised by the concurring testimony of Bracton,

Fleta, Grand Custum. of Norm. &c. See also chapter 28. of the present

Book—where, a similar object being in view, four _Knights_ are directed

to be sent.]

CHAP. XX.

It should also be remarked, that the two first essoins may be cast _de

infirmitate veniendi_, and the third _de reseantisâ_.

Should that course be adopted, the Court should send to ascertain,

whether the indisposition amount to a languor, or not. If, however,

the two first essoins should be _de reseantisâ_, and the third _de

infirmitate veniendi_, it shall be ordered as if they were all _de

infirmitate veniendi_, because the judgment must always follow the

nature of the last essoin.

CHAP. XXI.

Should it upon any of these occasions happen, that the party himself

should answer in Court, and whilst he was present, a future day should

have been appointed him; if, at that day, he neither come nor send

an Attorney, let his land be taken into the King’s hands, and let him

be debarred the power of replevying it. And he shall be summoned to

appear and hear the judgment at an appointed day—and thus, whether he

appear or not, he shall lose the Seisin, on account of his default;

because he cannot afterwards deny the summons, unless by the King’s

Writ, which he should forthwith produce, and by which he may save his

default. But although on any of the days appointed for his appearance,

the Tenant should answer in Court, if he lawfully depart, he may recur

to his three Essoins, unless he has precluded himself by an agreement

to waive them. If, on the first day, the party should essoin himself,

but, on the second, should neither appear nor essoin himself, let the

Sheriff be commanded to attach the Essoiner, as a defaulter, and for

this purpose let the foregoing Writ be directed to him.

CHAP. XXII.

But it should be observed, that when a party to a suit has Essoined

himself, the Essoiner may also avail himself of a reasonable Essoin.

For if any one desirous of casting a reasonable Essoin, should

commission a person for this purpose, and the Essoiner meets with

some reasonable impediment in the way, by which he is prevented being

present at the appointed day, he shall be awaited until the fourth day,

as his Principal would have been; and if within that period he appear,

his Essoin shall be received, on whatever day he should come; and he

may thus save the days which are past for the same causes for which his

principal[67] could.

[Footnote 67: _The Tenant_, according to Dr. Milles’s MS.]

CHAP. XXIII.

The principal Essoiner is also at liberty, if so disposed, to essoin

himself by another Essoiner. In this case the second Essoiner must

state to the Court, that the Tenant, having a just cause of Essoin,

had been detained, so that he could not appear at the day appointed,

neither to lose nor gain, and that, therefore, he had appointed a

certain other person to essoin him; and that the Essoiner himself had

met with such an impediment, which had prevented his appearance on that

day:—and this he is prepared to prove according to the practice of

the Court. By these means, such Essoiner shall be received, and a day

shall be granted to the Tenant, through the medium of such Essoiner,

upon his undertaking to produce his Warrantor on such a given day, when

the Tenant ought to guarantee his principal Essoiner, and to prove his

Essoin in the usual manner. In the same manner, the first Essoiner is

to guarantee the second, unless on the first day he himself has proved

his Essoins, upon the requisition of the adverse party.

CHAP. XXIV.

But if the Tenant, desirous of proceeding in the cause, should, after

his Essoin cast in Court and within the fourth day, appear, then, if

the day was in the first instance fixed through the intervention of the

Essoiner, and the adverse party has under these circumstances left the

Court, the Demandant[68] cannot recover, as he might on the day past.

[Footnote 68: According to the Bodleian MS. it would stand, he (the

Tenant) cannot recover, &c.]

CHAP. XXV.

There is another species of Essoin; which is permitted from the

necessity of the case; and this happens when any one casts the Essoin

_de ultra mare_.[69] In that case, if the Essoin be received, the

period of forty days, at least, shall be given to the party essoined.

But if, by means of this or any other reasonable Essoin, a man would

essoin himself for a longer period, the usual course of the Court shall

be followed in giving time.

[Footnote 69: “There is,” says the Regiam Majestatem, “another kind of

Excuse or Essoin which is necessary, that is, when any one is essoined

because he is beyond the water of Forth or of Spey; and, if this Essoin

is found lawful, forty days shall be granted to him who is excused.”

(Vide Reg. Maj. L. 1. c. 8.) The inconveniences resulting from the

abuse of the Essoin in our text were remedied by West. 1. cap. 44. Vide

Sir Edward Coke’s Comment. 2 Inst. 251.]

CHAP. XXVI.

There are other Essoins which eventually may be resorted to, in order

to save the four days, or one of them, by means of which Essoins the

adverse party should be awaited in Court: as, for Example, a sudden

inundation, or any other unexpected event which could not be foreseen.

CHAP. XXVII.

The service of the King is also another reasonable cause of Essoin,[70]

and when this Essoin is proved in Court and allowed, the Suit shall

stand over _sine die_, until it appear that the party has returned

from the King’s service. Hence those who are continually in the King’s

service, as his Servants,[71] shall not avail themselves of this

Essoin; but, with respect to their persons, the ordinary course of the

Court, and the order of the Law, shall be observed. We must, however,

make a distinction, with respect to the foregoing Essoin. The party

desirous of availing himself of the Essoin _per servitium Regis_, will

either have been summoned by his adversary previously to entering into

such service, or he will have entered into such service in the first

instance, and have afterwards been summoned.

[Footnote 70: And, as this was founded upon a political _obligation_,

it did not extend to excuse the Defendant, if in the service of any

other person. (Bracton 336. b.)]

[Footnote 71: _Servientes._ This term was received in many different

senses. Sometimes it meant, persons holding military rank—Sometimes,

Vassals or Tenants only—Sometimes, Esquires. It is, in this latter

sense, that Lord Littleton and Dr. Brady seem inclined to think it was

more generally used (Litt. Hist. Hen. 2. Vol. 3. p. 87.) Mr. Selden,

however, has, in his Treatise on Titles of Honor, proved, that there

were some very material distinctions between the terms, and that they

were far from being synonymous. Dr. Sullivan, when he meets with the

word in a Law of the conqueror, explains it as meaning “the lower

soldiers, not knighted, who had not yet got lands, but were quartered

on the Abbies.” (Lectures on Laws of England, p. 266.) Sir John Skene

interprets, what I presume is the same Term, as meaning domestic

servants. (Reg. Maj. L. 1. c. 8.) This is, I apprehend, the true

meaning of the text, notwithstanding that _Servientes_, when connected

with the terms _domini Regis_, sometimes meant a particular description

of officers, residing in every County, and possessed of an authority,

perhaps, not altogether unlike that of Sheriffs or Coroners, after

whom, they are enumerated by Bracton. (L. 3. Tr. 2. c. 32.)]

If he were in the first instance in the King’s service, and in the mean

time be summoned to answer the suit, the Rule we have above laid down

must unquestionably prevail. On the other hand, if a party be impleaded

in the first instance, and he afterwards cast the Essoin _per servitium

Regis_, it is material to ascertain, whether he act by a mandate of

the King, or a general or special precept, and be from necessity in

such service, or otherwise. If he were called by a precept of the

King into his service, then, indeed, the same Law prevails, as in the

former instance. But if, on the other hand, voluntarily and without

any such precept, he has recently entered into the King’s service, it

must be distinguished, whether he has gone beyond sea in that service,

or remains within the Realm. If he has gone beyond Sea, a respite[72]

of forty days, at least, shall be allowed him, but, if he should not

return within that period, the accustomed course of the Court, and the

order of Law shall be observed. At whatever period he appears in Court,

and whether personally, or by his Attorney, he must immediately produce

the King’s Writ, to warrant his preceding Essoins. But if, on the other

hand, the Defendant be within the Realm, and in the service of the

King, in that Case it must be regulated by the will and pleasure of the

King’s Justices, whether a less or a greater period[73] be allowed him

to appear and answer, according as it may best suit the King, and may

be consistent with the course of Justice.

[Footnote 72: _Respectus, pro mora, dilatione vel continuatione

temporis._ In this sense, the term frequently occurs in our old law

books. (Vide Reg. Maj. L. 4. c. 20. and Spelm. Gloss. ad voc.) There

is in the Register a writ _respectu computi vicecomitis habendo_, for

the respiting a Sheriff’s accounts. There was also _respectus Homagii_,

delaying of Homage. (See Cowell ad voc.)]

[Footnote 73: _Terminum._ “In the Civil Law,” says Spelman, “it

signifieth a day set to the Defendant, and in that sense doth Bracton,

Glanville, and some others sometimes use it.” (Reliquiæ Spelmannianæ p.

71.)]

CHAP. XXVIII.

It may also happen, that a party is essoined in Court, on account of

some indisposition by which he is confined in the same Town where the

Court is sitting, having arrived there to prosecute his plea. In this

case, let the Court direct, that he appear on the morrow; and thus

let him be awaited during three successive days—and for this cause,

he shall have a delay of three successive days. If, on the third day,

he then so essoin himself, then four Knights should be directed by

the Court to attend him for the purpose of ascertaining, whether he

is in such a state as to be able to make his appearance in Court, or

not; and, should they be of opinion that he is able, then, they should

command him, to attend in Court, and do that which he ought. But, if

they should think him unable, and should testify this to the Court,

then shall a reasonable time, a delay of fifteen days at the least, be

allowed him.

CHAP. XXIX.

There is also another Essoin, which is sometimes presented in Court—I

allude to that, _de esse in peregrinatione_. But here a distinction

must be made, whether the party who would thus essoin himself was

impleaded before he undertook his Voyage, or not. Because, in the

former case, the course of the Court and the order of Justice shall

be observed. But, if he was not summoned previously to his beginning

his Travels, then again it must be distinguished whether he went to

Jerusalem, or to another place. If to the former place, then a year and

a day, at least, is generally allowed him; but with respect to other

Travels, the time allowed must be regulated by the Will and pleasure

of the King, or his Justices, who, keeping in view the length or

shortness of the Journey, are to temper the Rule as they may think

proper.[74]

[Footnote 74: The Regiam Majestatem lays down the doctrine of Essoins,

nearly word for word with Glanville: but adds one species of Essoin not

taken notice of by our author—the being absent at a public fair. (L. 1.

c. 8.)]

CHAP. XXX.

In the Writ directed to the Sheriff, for the purpose of summoning the

party, there is the following clause inserted, “and have there the

summoners and this Writ.”

When, therefore, the Demandant offers himself in Court on the appointed

day, the first inquiry is, whether the Sheriff has the Summoners, and

the Writ there present or not; if he have, and the Summons be proved,

the Suit must be proceeded in, in the manner we have mentioned. But, if

the Sheriff should neither be present on that day, nor appear within

the fourth day, to which time the Tenant must be awaited, then let the

Sheriff be again commanded by the King’s Writ, to summon the Tenant,

concerning the principal cause, by a Writ of second Summons, and that

he himself appear to shew why he neglected to make the Summons, as

enjoined him by the first Writ. The Writ of second Summons contains

that which first issued, with the addition of the following clause:

“_and be you yourself then there present to shew wherefore you did

not summon him, as it was commanded you by my other Writ, and have

there this Writ, and that other Writ_.” At the day appointed, the

Sheriff appearing, either says that he executed the King’s precept, or

confesses that he has not done it.

Should he acknowledge the latter, then he shall be amerced to the King.

But, in this case, the Demandant shall lose his first day, and the

Tenant must be again summoned. But should the Sheriff allege that he

had injoined lawful Summoners to execute the first Summons—and they,

being present, acknowledge the fact, then not only the Sheriff, but the

Summoners shall be amerced,[75] if they have not executed such Summons

as it was their duty to do; and thus again the first day will become

useless to the Demandant.

[Footnote 75: It should rather seem that in Bracton’s time the

Summoners only would be amerced. (Bracton 336. a.)]

But if those whom the Sheriff nominated as Summoners, being present,

should assert that the Sheriff did not injoin them to summon the

Tenant, we must then distinguish, whether the Sheriff delivered his

order to them in the County Court, as he always ought to do, (in order

that, if the complaint be presented some time before a County Court,

the party may be attached until the County Court, and then there may

be a full Summons,) or in any other manner. If the Sheriff gave his

orders to them in the County Court, and this be properly proved, the

Summoners shall be amerced, because they cannot contradict a fact,

which has been transacted in a County Court.[76] But if the Sheriff,

being out of the County Court, and less publicly than he ought, injoin

them to summon the Tenant, and they deny that he did so injoin them,

the Sheriff shall be amerced for not having executed the King’s Writ

in the manner that he ought. For public Acts of this nature, such as,

the injoining Summoners—the taking of Pledges for the prosecuting of

Actions—and for Appearances,[77] ought to be publicly transacted,

lest concerning these steps, which are merely preparatory to a final

determination, a difficulty should arise, in itself the occasion of

procrastinating the decision. But if, on the first day, the Summoners

should not appear and assert that they had in a legal way executed

the first Summons, but should send their Essoiners on the first day,

who essoin them, and add, that they had properly executed the first

Summons, then the Demandant shall not lose his first day, and they

shall be amerced, because they have not appeared at the first day to

prove that they had executed the Summons as was injoined them, unless

they can excuse their default on that day, by the King’s Warrant. We

must, however, not forget, that either the one or the other of the

Summoners is permitted legally to excuse himself on the first day, and

in that case the Demandant shall not lose the day in question.

[Footnote 76: Because, says Bracton, the County Court has for this

purpose a Record (Bracton 336. a.) The force of Bracton’s remark will

be seen in the sequel.]

[Footnote 77: _Tam in civili negotio, quam criminali._ (Bracton 336.

a.)]

CHAP. XXXI.

We have spoken concerning the absence of the Tenant, when he is merely

summoned, and no Pledges are given. But, if the suit be of a nature

to make it requisite, that the Tenant should find Pledges for his

appearance, and the Justices or the County Court have recorded them,

(which happens in the civil matter of a breach of a Final Concord made

in the King’s Court before the King or his Justices, and in Novel

Desseisins) then, if the Tenant neither appear at the first day, nor

essoin himself, the Pledges are adjudged to be amerced to the King; and

the Pledges shall be increased as to the principal Cause; and thus,

should the Tenant absent himself on all the three days, the Suit must

be proceeded in; and if at the third Summons he should not appear,[78]

let his Tenement be taken into the King’s Hands, and retained in

the manner before expressed; the Pledges being amerced, who are to

be summoned to be present in Court on a certain day, to hear their

Judgment. Should, however, the Plea be of a criminal nature, as, for

example, concerning a breach of the King’s Peace, then, the proceedings

must be according to the course of the Law, as in the above case, with

this only difference, that as the party is accused,[79] if he fail to

appear at the third Summons, his body shall be taken, and his Pledges

shall be amerced.[80]

[Footnote 78: There is in the original a marginal reference to the

44th, for the 45th, chap. of West. the 1st.]

[Footnote 79: “_Rectatus_,” ad rectum vocatus. (Spelm. Glossar. ad

voc.) _Rectum_ not unfrequently meant an accusation.]

[Footnote 80: _Misericordia_, a fine arbitrarily imposed upon

offenders, and so called, says Spelman, _quod lenissima imponitur

misericordia_, heavy fines being contradistinguished by the significant

term, _redemptiones_. (Gloss. ad voc. see also Co. Litt. 126. b. and

Madox’s Excheq. c. 14.) In our progress through Glanville, we meet with

the _misericordia_—_misericordia domini_—_misericordia vicecomitis_,

and _misericordia domini regis_—Vide Infra. L. 9. c. 11. et not.]

CHAP. XXXII.

Having discussed those points which more frequently arise, in

consequence of the absence of the Tenant, it remains to speak,

concerning the Demandant’s not appearing. If the Demandant indeed

appear not on the first day, he may avail himself of the same

reasonable Essoins as the Tenant, and that by the same means.

If, however, he neither appear nor essoin himself, then, the Court

should award, that the Tenant, if present, either personally, or by

another, as he ought to be, should be unconditionally dismissed. Yet

this is not to preclude the Demandant from recovering, under certain

restrictions, the same property, if he feel inclined to institute

another suit concerning it.

And, if the Demandant be again inclined to implead the same Tenant, it

may be questioned, what the Law is in that case, and how his default

should be punished? As to this, opinions differ. For some say, he shall

lose nothing but his Cost[81] and his Expenses, and his first Writ,

but not his cause of Action; but merely be obliged again to begin his

suit. Others say, that he shall forfeit his Action against the Tenant

totally, and irrevocably, and, on account of the contempt he has been

guilty of towards the Court, that he shall likewise be amerced to the

King. Others again are of opinion, that he must be amerced to the King,

and that it afterwards depends upon the King’s pleasure, whether he

will be admitted again to institute that Action, or reinstated either

unconditionally, or subject to certain restrictions. Thus far it will

suffice to have treated, where the Action is prosecuted without any

Pledges being given. But, if the Demandant find Pledges for prosecuting

his Suit and fail to appear, either personally or by another, on the

day appointed, then the Tenant shall be unconditionally dismissed. And

the Demandant shall lose his Writ, according to the opinion of some,

and the whole of his Cost; and his Pledges shall be amerced, as before

stated.

[Footnote 81: _Custum._ Sir Edward Coke, in his Commentary on the

Statute of Gloucester, observes, that “before that Statute at the

common Law, no man recovered any costs of suit, either in Plea real,

personal, or mixt:” and again, “this Statute was the first that gave

costs,” (2 Inst. 288.) In support of this position, he cites the

present chapter of our author. It is extremely difficult to discover,

how this chapter corroborates Lord Coke’s position. Our author merely

recites the opposite and floating opinions of others, and drops the

subject, without giving any thing like an opinion of his own. Lord

Coke’s doctrine may be correct; but, assuredly, Glanville cannot be

cited as one of the authorities, on which that doctrine is built.]

But others think, that he shall forfeit his Action, and his Pledges,

&c. But this is the consequence when the suit belongs to the Demandant

only, as it generally does in civil cases. When, however, the Suit does

not belong to him only, but the King has an interest in it, as in a

criminal Plea, concerning a breach of the King’s peace, then, as the

Demandant cannot lose the suit, unless as to himself, but is bound to

prosecute it, his Body shall afterwards be imprisoned and kept safely,

until he chuses to prosecute his Appeal,[82] and, in addition, his

Pledges shall be amerced.

[Footnote 82: Upon the word _Appeal_, as designating a criminal

proceeding, it will suffice to refer those readers not connected with

the profession to 4 Black. Comm. p. 312. et seq.]

CHAP. XXXIII.

When it happens that the Demandant and Tenant are both absent, then the

King or his Justices may at their pleasure, if so disposed, punish both

parties, the one for his contempt of Court, and the other for his false

claim.