Tractatus of Glanvill
Encyclopedia
The Tractatus de legibus et consuetudinibus regni Angliae (Treatise on the laws and customs of the Kingdom of England) is the earliest treatise
on English law
. Commonly attributed to Ranulf de Glanvill (died 1190) and dated ca. 1188, it was revolutionary in its systematic codification that defined legal process
and introduced writ
s, innovations that have survived to the present day. It is considered a book of authority
in English common law
.
Written for Henry II
(reigned 1154 – 1189) as the culmination of his long struggle to return the kingdom to peace and prosperity following years of anarchy, the Tractatus is fairly described as the means to implement Henry's objectives. It would be supplanted as a primary source of English law by the De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England) of Henry de Bracton
(ca. 1210 – 1268), which itself owes much of its heritage to the Tractatus.
There has been debate over the actual author of all or parts of the Tractatus, with Hubert Walter
being a strong alternative candidate. Whatever the case, Glanvill perhaps supervised and certainly approved the work, and the issue is sidestepped in the literature by using terminology such as "commonly attributed to Glanvill".
in England was a combination of Norman law in Normandy
as modified to address perceived defects in it, inventions to address any problems unique to Norman control of England, and adaptations from the customs of the English when it suited Norman purposes. Also, a nascent but evolving feudalism
had existed in England since the late tenth century.
The legal system was initiated by William the Conqueror
(reigned 1066–1087) and fully in place in the time of Henry I
(reigned 1100–1135), during which time English law evolved along its own path. That is the immediate provenance of the Tractatus, regardless of the ultimate origins of this "Anglo-Norman" law. Further, the author of the Tractatus was familiar with Civil Law
and Canon Law
, had long practical experience in the administration of justice, and was intimately aware of weaknesses in the system and how best they might be corrected.
There seems to be consensus that the English law ultimately does not rely on earlier codifications. Scrutton
noted the lack of a heritage owed to Roman law (i.e., the Corpus Juris Civilis
) in the Tractatus, stating that some terminology was borrowed solely to be fitted into the book discussing Contracts (Tractatus, Book X), but that the terms were applied to English concepts. Pollock and Maitland
, in their History of English Law Before the Time of Edward I, describe Glanvill's contracts as "purely Germanic", and state that the "law of earnest is not from Roman influence".
's reign (1135 – 1141, 1141 – 1154) was a disaster, known in English history
as "The Anarchy
". Reform was needed and wanted, and Henry II
(reigned 1154 – 1189) was equal to the challenge.
Henry brought order out of legal chaos. He made the King's Court the common court throughout England, carefully defining its jurisdiction and those of the church, the lords, and the sheriff. He made it the guardian of the King's peace, with uniform protection for everyone.
The Tractatus was the culmination of Henry's efforts, the means to implement his objectives. That this is attributable to legal evolution over his reign, rather than to sudden change, is shown by its purposeful inclusion of the principles of his earlier reforms such as the Assize of Clarendon
. While some portions of the content of the Tractatus were first noted as exceptional innovations of Henry I, Henry II deserves credit for the revolution that made the innovations common rather than exceptional.
Henry II is also noted for choosing strong and very capable men to implement his policies, and then giving them the latitude to do their jobs without interference. Among them was Glanvill, who was Chief Justiciar of England from 1180 to 1189, and who acted as regent in Henry's absence, which was often.
The Preface lays out the objectives, in effect saying that good laws and government are in the interests of justice, and these are the objectives of the King. The Tractatus consists of fourteen books, and is largely confined to objects of jurisdiction in the Curia Regis
.
These first two books treat the Writ of Right, when originating in the Curia Regis, and all its stages. Taken with the third book, the three together are a description of the proceedings in a Writ of Right for the recovery of land, including all the stages relating to the Writ of Right.
These first eleven books dispense with actions commenced originally in the Curia Regis.
were used for a new institution, where several counties were combined into a circuit
and a judge was appointed to ride the circuit, bringing the King's Court to every part of the kingdom. The general unwillingness to grant continuances (essoins) greatly reduced the time needed to complete judicial proceedings. The King's Court, through its writs, held ultimate jurisdiction in adversarial proceedings over real property
. Establishing the "truth" of facts through the rational process of an Assize Court (later superseded by the jury) was given as an alternative to the options of trial by ordeal, or the use of champions as substitutes, or the use of character testimonials rather than evidence to determine the outcome of legal contests.
The emergence at this time of the doctrine of res judicata brought finality to the verdicts rendered, complementing the Tractatus though not a part of it, and serving to emphasize that the Tractatus was itself a part of Henry's reforms, but not the only part.
Ecclesiastical court
s retained jurisdiction over matters of marriage, legitimacy, wills, ecclesiastical issues, and redress for breach of ordinary contracts, but the writs of the King's Court prevented them from intruding elsewhere.
The effect was unifying, and trial by jury in the King's Court was so popular that it deprived other courts of litigation. More important for the future of England, it was so satisfactory that it contributed to English culture by cultivating a universal respect for law and a willingness to abide by its decision.
Glanvill is cited copiously by name in books on English law, whether chronological histories or subject-oriented legal books, and in the latter where there are a number of references relevant to the topic at hand, he is cited as the earliest authority. Spelling variations of the name include Glanvil, Glanvill (the most common), and Glanville.
Regiam Majestatem
was written perhaps in the reign of Robert the Bruce
(1306 – 1329) but not earlier than 1318, as it includes a Scottish statute written in that year. Some two-thirds of it was adapted without change from chapters of the Tractatus, and some of the rest is different from the Tractatus but very similar to it. The remainder of the Regiam Majestatem is unrelated to the Tractatus, and mostly covers the area of crimes.
Treatise
A treatise is a formal and systematic written discourse on some subject, generally longer and treating it in greater depth than an essay, and more concerned with investigating or exposing the principles of the subject.-Noteworthy treatises:...
on English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. Commonly attributed to Ranulf de Glanvill (died 1190) and dated ca. 1188, it was revolutionary in its systematic codification that defined legal process
Legal process
Legal process , are the proceedings in any civil lawsuit or criminal prosecution and, particularly, describes the formal notice or writ used by a court to exercise jurisdiction over a person or property...
and introduced writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s, innovations that have survived to the present day. It is considered a book of authority
Books of authority
Books of authority is a term used by legal writers to refer to a number of early legal textbooks that are excepted from the rule that textbooks are not treated as authorities by the courts of England and Wales and other common law jurisdictions.These books are treated by the courts as...
in English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
Written for Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
(reigned 1154 – 1189) as the culmination of his long struggle to return the kingdom to peace and prosperity following years of anarchy, the Tractatus is fairly described as the means to implement Henry's objectives. It would be supplanted as a primary source of English law by the De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England) of Henry de Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
(ca. 1210 – 1268), which itself owes much of its heritage to the Tractatus.
There has been debate over the actual author of all or parts of the Tractatus, with Hubert Walter
Hubert Walter
Hubert Walter was an influential royal adviser in the late twelfth and early thirteenth centuries in the positions of Chief Justiciar of England, Archbishop of Canterbury, and Lord Chancellor. As chancellor, Walter began the keeping of the Charter Roll, a record of all charters issued by the...
being a strong alternative candidate. Whatever the case, Glanvill perhaps supervised and certainly approved the work, and the issue is sidestepped in the literature by using terminology such as "commonly attributed to Glanvill".
Background
Norman lawNorman law
Norman law refers to the customary law of Normandy which developed between the 10th and 13th centuries following the establishment of the Vikings there and which survives today still through the legal systems of Jersey and Guernsey in the Channel Islands....
in England was a combination of Norman law in Normandy
Normandy
Normandy is a geographical region corresponding to the former Duchy of Normandy. It is in France.The continental territory covers 30,627 km² and forms the preponderant part of Normandy and roughly 5% of the territory of France. It is divided for administrative purposes into two régions:...
as modified to address perceived defects in it, inventions to address any problems unique to Norman control of England, and adaptations from the customs of the English when it suited Norman purposes. Also, a nascent but evolving feudalism
Feudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...
had existed in England since the late tenth century.
The legal system was initiated by William the Conqueror
William I of England
William I , also known as William the Conqueror , was the first Norman King of England from Christmas 1066 until his death. He was also Duke of Normandy from 3 July 1035 until his death, under the name William II...
(reigned 1066–1087) and fully in place in the time of Henry I
Henry I of England
Henry I was the fourth son of William I of England. He succeeded his elder brother William II as King of England in 1100 and defeated his eldest brother, Robert Curthose, to become Duke of Normandy in 1106...
(reigned 1100–1135), during which time English law evolved along its own path. That is the immediate provenance of the Tractatus, regardless of the ultimate origins of this "Anglo-Norman" law. Further, the author of the Tractatus was familiar with Civil Law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and Canon Law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
, had long practical experience in the administration of justice, and was intimately aware of weaknesses in the system and how best they might be corrected.
There seems to be consensus that the English law ultimately does not rely on earlier codifications. Scrutton
Thomas Edward Scrutton
Sir Thomas Edward Scrutton was an English legal text-writer and judge.-Biography:Thomas Edward Scrutton was born in London, UK. He studied as a scholar at Trinity College, Cambridge, then at University College London...
noted the lack of a heritage owed to Roman law (i.e., the Corpus Juris Civilis
Corpus Juris Civilis
The Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor...
) in the Tractatus, stating that some terminology was borrowed solely to be fitted into the book discussing Contracts (Tractatus, Book X), but that the terms were applied to English concepts. Pollock and Maitland
Frederic William Maitland
Frederic William Maitland was an English jurist and historian, generally regarded as the modern father of English legal history.-Biography:...
, in their History of English Law Before the Time of Edward I, describe Glanvill's contracts as "purely Germanic", and state that the "law of earnest is not from Roman influence".
Context
By 1135, the evolution of Anglo-Norman law was showing its age, with some parts working acceptably but many parts being cumbersome, ineffectual, and vulnerable to opposition by local lords. The time of StephenStephen of England
Stephen , often referred to as Stephen of Blois , was a grandson of William the Conqueror. He was King of England from 1135 to his death, and also the Count of Boulogne by right of his wife. Stephen's reign was marked by the Anarchy, a civil war with his cousin and rival, the Empress Matilda...
's reign (1135 – 1141, 1141 – 1154) was a disaster, known in English history
History of England
The history of England concerns the study of the human past in one of Europe's oldest and most influential national territories. What is now England, a country within the United Kingdom, was inhabited by Neanderthals 230,000 years ago. Continuous human habitation dates to around 12,000 years ago,...
as "The Anarchy
The Anarchy
The Anarchy or The Nineteen-Year Winter was a period of English history during the reign of King Stephen, which was characterised by civil war and unsettled government...
". Reform was needed and wanted, and Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
(reigned 1154 – 1189) was equal to the challenge.
The Tractatus was the culmination of Henry's efforts, the means to implement his objectives. That this is attributable to legal evolution over his reign, rather than to sudden change, is shown by its purposeful inclusion of the principles of his earlier reforms such as the Assize of Clarendon
Assize of Clarendon
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case as trial by ordeal or trial by battle to an evidentiary model, in which evidence and inspection was made by laymen...
. While some portions of the content of the Tractatus were first noted as exceptional innovations of Henry I, Henry II deserves credit for the revolution that made the innovations common rather than exceptional.
Henry II is also noted for choosing strong and very capable men to implement his policies, and then giving them the latitude to do their jobs without interference. Among them was Glanvill, who was Chief Justiciar of England from 1180 to 1189, and who acted as regent in Henry's absence, which was often.
The document
In an age before widespread literacy and mechanical printing, it was common for all works, great and small, to borrow and copy from previous works without explicit attribution. The Preface of the Tractatus is commonly described as an admiring imitation of the Prœmium (Preface) to the Institutes of Justinian, with no negative implications of plagiarism. Where the Preface to the Institutes begins Imperatoriam Majestatem, the Preface to the Tractatus begins Regiam Potestatem.The Preface lays out the objectives, in effect saying that good laws and government are in the interests of justice, and these are the objectives of the King. The Tractatus consists of fourteen books, and is largely confined to objects of jurisdiction in the Curia Regis
Curia Regis
Curia regis is a Latin term meaning "royal council" or "king's court."- England :The Curia Regis, in the Kingdom of England, was a council of tenants-in-chief and ecclesiastics that advised the king of England on legislative matters...
.
Fourteen books
| No. | Chapters | Contents |
|---|---|---|
| |
|
Pleas belonging to the King's Court, or to the Sheriff; Essoin Essoin In old English law, an essoin is an excuse for nonappearance in court. Essoining is the seeking of the same. The person sent to deliver the excuse to the court is an essoiner or essoineur.... s; the preparatory steps up to the time both parties to a suit appear in court |
| |
|
Summons, Appearance, Pleadings, Duel or Grand Assize, the Champion, Judgement and Execution |
| |
|
Vouching to Warranty; and of two Lords, under one of whom is the Demandant and under the other is the Tenant |
These first two books treat the Writ of Right, when originating in the Curia Regis, and all its stages. Taken with the third book, the three together are a description of the proceedings in a Writ of Right for the recovery of land, including all the stages relating to the Writ of Right.
| No. | Chapters | Contents |
|---|---|---|
| |
|
Rights of the Ecclesiastical Advowson Advowson Advowson is the right in English law of a patron to present or appoint a nominee to a vacant ecclesiastical benefice or church living, a process known as presentation. In effect this means the right to nominate a person to hold a church office in a parish... s |
| |
|
Condition and Villeinage |
| |
|
Dower Dower Dower or morning gift was a provision accorded by law to a wife for her support in the event that she should survive her husband... |
| |
|
Alienation, Descents, Succession, Wardship, Testaments |
| |
|
final Concords and Records in general |
| |
|
Homage, Relief, Fealty, Services, Purprestures Public nuisance In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:... , and Boundaries Disturbed |
| |
|
Debts arising from different types of Contracts, Pledges and Gages (whether Movable or Immovable), Charters containing Debts |
| |
|
Attorneys |
These first eleven books dispense with actions commenced originally in the Curia Regis.
| No. | Chapters | Contents |
|---|---|---|
| |
|
Plea of Right and Writs of Right, when brought in the Lord's Court, and the manner of removing them to the County Court and Curia Regis; which leads to the mention some other Writs determinable before the Sheriff. |
| |
|
Pleas by Assises and Recognitions, different kinds of Disseisins Disseisor A Disseisor is the party in a case of adverse possession who has taken actual possession of the property, thus "dis-seizing" the true owner.A Disseisee, the correlative, is the party put out of an estate, unlawfully.... |
| |
|
Criminal Pleas belonging to the Crown |
Versions
| Year | Description |
|---|---|
| |
a revised version written or transcribed by Robert Carpenter of Haresdale, according to Glanvill Revised by Maitland Frederic William Maitland Frederic William Maitland was an English jurist and historian, generally regarded as the modern father of English legal history.-Biography:... |
| |
Printed by R. Tottle in small 12mo; this was at the suggestion of judge and author Sir William Stanford, according to Coke. |
| |
|
| |
Printed by Thomas Wight Thomas Wight Thomas Wight was a bookseller, publisher and draper in London. Wight published many important books, including many of the earliest law books in English.-Career:... ; the text was corrected by the collation of "various manuscripts". |
| |
Exact reprint of Wight's 1604 edition, but omitting the Preface. |
| |
Printed in the first volume of Houard's Traités sur les Coutoumes Anglo-Normandes in quarto, Rouen Rouen Rouen , in northern France on the River Seine, is the capital of the Haute-Normandie region and the historic capital city of Normandy. Once one of the largest and most prosperous cities of medieval Europe , it was the seat of the Exchequer of Normandy in the Middle Ages... . An imperfect text according to Gross. |
| |
Published by John Rayner, 8vo. Collated with the Bodleian, Cottonian, Harleian, and Doctor Mille's manuscripts by J. E. Wilmot. |
| |
English translation from Latin, published by John Beames in octavo, with notes. |
| |
Printed as an appendix to George Phillip's Englische Reichs und Rechtsgeschichte, ii, 335. |
Immediate impact
The use of writs limited the jurisdiction of all other courts and transferred jurisdictions of lord and county courts to the King's Court. The mechanics of the eyreEyre (legal term)
An Eyre or Iter was the name of a circuit traveled by an itinerant justice in medieval England, or the circuit court he presided over , or the right of the king to visit and inspect the holdings of any vassal...
were used for a new institution, where several counties were combined into a circuit
Circuit court
Circuit court is the name of court systems in several common law jurisdictions.-History:King Henry II instituted the custom of having judges ride around the countryside each year to hear appeals, rather than forcing everyone to bring their appeals to London...
and a judge was appointed to ride the circuit, bringing the King's Court to every part of the kingdom. The general unwillingness to grant continuances (essoins) greatly reduced the time needed to complete judicial proceedings. The King's Court, through its writs, held ultimate jurisdiction in adversarial proceedings over real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
. Establishing the "truth" of facts through the rational process of an Assize Court (later superseded by the jury) was given as an alternative to the options of trial by ordeal, or the use of champions as substitutes, or the use of character testimonials rather than evidence to determine the outcome of legal contests.
The emergence at this time of the doctrine of res judicata brought finality to the verdicts rendered, complementing the Tractatus though not a part of it, and serving to emphasize that the Tractatus was itself a part of Henry's reforms, but not the only part.
Ecclesiastical court
Ecclesiastical court
An ecclesiastical court is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages in many areas of Europe these courts had much wider powers than before the development of nation states...
s retained jurisdiction over matters of marriage, legitimacy, wills, ecclesiastical issues, and redress for breach of ordinary contracts, but the writs of the King's Court prevented them from intruding elsewhere.
The effect was unifying, and trial by jury in the King's Court was so popular that it deprived other courts of litigation. More important for the future of England, it was so satisfactory that it contributed to English culture by cultivating a universal respect for law and a willingness to abide by its decision.
In legal history
The writs and processes of the King's Court, together with the judicial organisation, are the germ of English common law. Similarly, the judicial oversight of property disputes through the use of writs are the germ for English land law. The option of the rational process of weighing evidence in a trial by jury would outlive all of its alternatives to become the only way to determine the "truth" of facts.Glanvill is cited copiously by name in books on English law, whether chronological histories or subject-oriented legal books, and in the latter where there are a number of references relevant to the topic at hand, he is cited as the earliest authority. Spelling variations of the name include Glanvil, Glanvill (the most common), and Glanville.
The Regiam Majestatem
The ScottishScotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
Regiam Majestatem
Regiam Majestatem
The Regiam Majestatem is the earliest surviving work giving a comprehensive digest of the Law of Scotland. The name of the document is derived from its first two words...
was written perhaps in the reign of Robert the Bruce
Robert I of Scotland
Robert I , popularly known as Robert the Bruce , was King of Scots from March 25, 1306, until his death in 1329.His paternal ancestors were of Scoto-Norman heritage , and...
(1306 – 1329) but not earlier than 1318, as it includes a Scottish statute written in that year. Some two-thirds of it was adapted without change from chapters of the Tractatus, and some of the rest is different from the Tractatus but very similar to it. The remainder of the Regiam Majestatem is unrelated to the Tractatus, and mostly covers the area of crimes.