The History of English Law before the Time of Edward I. Frederic William Maitland

to hear his cause, and at length by the king’s grace and the judgment of the king’s court he obtained the wished for lands.⁶² Many comments might be made upon this story. It will not escape us that in these early years of Henry’s reign royal justice is still very royal indeed. Though the king has left his justiciar in England, there is no one here who can issue what we might have supposed to be ordinary writs. A great change in this most important particular must soon have taken place. The judicial rolls of Richard I.’s reign are largely occupied by accounts of law-suits about very small pieces of ground between men of humble station, men who could not have laboured as Anesty laboured or spent money as he spent it. But throughout his reign Henry took an active share in the work of justice. Even when he had appointed judges to hear a cause, they would advise the successful litigant to wait until a judgment could be given by the king’s own mouth.⁶³ He was at heart a lawyer, quite competent to criticize minutely the wording of a charter, to frame a new clause and give his vice-chancellor a lesson in conveyancing;⁶⁴ quite willing on the other hand to confess that there were problems that he could not solve.⁶⁵ No doubt he sold his aid; he would take gifts with both hands; he expected to be paid for his trouble. He sold justice, but it was a better article than was to be had elsewhere.

      The Spanish suit.Walter Map has told us how in the Exchequer a poor man obtained an expeditious judgment against a rich antagonist. Of this [p.139] as of a marvellous thing he spoke to Ranulf Glanvill. Yes, said the justiciar, we are quicker about our business than your bishops are. Very true, replied Map, but you would be as dilatory as they are if the king were as far away from you as the pope is from the bishops. Glanvill smiled.⁶⁶ And then Map tells how all who had a good cause wished that it might come before the king himself, and he recalls a great day in the history of English law, the day when our king’s court entertained a plea between the king of Castile and the king of Navarre.⁶⁷ Certainly this was no mean event; the kings of the south had acknowledged that there was excellent justice to be had in England, and if this was so, to Henry II. the praise is due.⁶⁸ In the middle of the next century Henry III. had quarrelled with Bracton’s master and patron, Bishop William Raleigh, and a proposal was made that the dispute should be referred to the legal faculty at Paris. Raleigh rejected this plan, saying that there were good enough lawyers in England, and that time was when the greatest princes of the earth submitted their causes to English lawyers.⁶⁹ This boast was not baseless: Henry II. had made it true.

Law and letters.After many experiments he committed the ordinary work of justice to a court of experts, to a learned court. It was well leavened by laymen; a layman presided over it; there was no fear of its meekly accepting the romano-canonical system; but among its most active members were great clerks, and the high rank that they had won, for they had become bishops, would have made them influential members, even had they been less able than they were. But they were able. We speak of such men as Richard of Ilchester, John of Oxford and Geoffrey Ridel, who had lived in the large world, who had been in France, Germany, Italy, who had seen men and cities, pope and emperor, and had written the dispatches of a prince whose policy was at work in every corner of Western Christendom. Very different were they from the English judges of the fourteenth century. Law and literature grew up together in the court of Henry II. Roger Hoveden the chronicler⁷⁰ and Walter Map the satirist⁷¹ were among his itinerant justices. Law becomes the subject of literature in the Dialogue on the Exchequer and the treatise ascribed to Glanvill.

Richard Fitz Neal.The Dialogus de Scaccario is an anonymous book, but there can [p.140] be little doubt that we are right in ascribing it to Richard Fitz Neal; that is to say, to Richard the son of that Nigel, Bishop of Ely, who was the nephew of Roger, Bishop of Salisbury, the great minister of Henry I.⁷² For three generations, first Roger, then Nigel, then Richard, held high offices in the king’s court and exchequer. Richard himself became treasurer in or about the year 1158; in 1189 he became Bishop of London, but he retained the treasurership until his death in 1198.⁷³ He was a well-educated man, knew something of the classical Latin literature, had heard of Aristotle and Plato, could make a hexameter upon occasion, and was fond of the technical terms of logic;⁷⁴ he acted as a royal justice; he wrote a history of his own time, the lost Tricolumnis;⁷⁵ but above all he was a financier and knew all that experience and tradition could teach about the history and practice of the exchequer. He seems to have set to work on his Dialogue in the year 1177, and to have finished it in 1179 or thereabouts, when already for twenty years he had been the king’s treasurer.⁷⁶

Dialogue on the Exchequer.The book stands out as an unique book in the history of medieval England, perhaps in the history of medieval Europe. A high officer of state, the trusted counsellor of a powerful king, undertakes to explain to all whom it may concern the machinery of government. He will not deal in generalities, he will condescend to minute details. Perhaps the book was not meant for the general public so much as for the numerous clerks who were learning their business in the exchequer,⁷⁷ but still that such a book should be written, is one of the wonderful things of Henry’s wonderful reign. We may safely say that it was not published without the king’s licence, and yet it exposes to the light of day many things which kings and ministers are wont to treat as solemn mysteries of state. We should know far more of the history of government than ever will be known, could we have a Dialogue on the Exchequer from every century; but we have one only, and it comes from the reign of Henry II. Henry was [p.141] so strong that he had nothing to conceal; he could stand criticism; his will and pleasure if properly explained to his subjects would appear as reasonable, and at any rate would not be resisted.⁷⁸ And so his treasurer expounded the course of proceedings in the exchequer, the constitution of this financial board, its writs and its rolls, the various sources of royal income, the danegeld and the murder fine, the collection of the debts due to the king, the treatment of his debtors, and, coming to details, he described the chess-board and the counters, the tallies, the scales and the melting-pot. But for him, we should have known little of the administrative and fiscal law of his time or of later times—for the rolls of the exchequer sadly need a commentary—but, as it is, we may know much.

Ranulf Glanvill.What the treasurer’s Dialogue did for administrative and fiscal law was done by another book for private and criminal law. That book has long been attributed to one who held a yet higher office than the treasurer’s, to Ranulf Glanvill, the chief justiciar.

      His life.Ranulf Glanvill⁷⁹ came of a family which ever since the Conquest had held lands in Suffolk; it was not among the wealthiest or most powerful of the Norman houses, but was neither poor nor insignificant. Probably for some time before 1163, when he was made sheriff of Yorkshire, he had been in the king’s service; he had lately been one of those “friends, helpers and pleaders” who had aided Richard of Anesty in his famous law-suit.⁸⁰ The shrievalty of Yorkshire was an office that Henry would not have bestowed upon an untried man; Glanvill held it for seven years. In 1174, being then sheriff of Lancashire and custodian of the honour of Richmond, he did a signal service to the king and the kingdom. At a critical moment he surprised the invading Scots near Alnwick, defeated them and captured their king. From that time forward he was a prominent man, high in the king’s favour, a man to be employed as general, ambassador, judge and sheriff. In 1180 he became chief justiciar of [p.142] England, prime minister, we may say, and viceroy. Henry seems to have trusted him thoroughly and to have found in him the ablest and most faithful of servants. Henry’s friends had of necessity been Richard’s enemies, and when Henry died, Richard, it would seem, hardly knew what to do with Glanvill. He decided that the old statesman should go with him on the crusade. To Acre Glanvill went and there in the early autumn of 1190 he died of sickness.

Tractatus de Legibus. Whether he wrote the book that