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

his contemporary, may mean that he did write it; but they are obscure words.⁸¹ On the other hand, the title which it generally bears in the manuscripts seems to imply that he did not write it. It is called “A Treatise on the Laws and Customs of England composed in the time of King Henry the Second while the honourable (illustris vir) Ranulf Glanvill held the helm of justice”; but we cannot be certain that this title is as old as the book. Such a title would sufficiently explain the fact that in the thirteenth century the book was already known as the “Summa quae vocatur Glaunvile.”⁸² From internal evidence we infer that it was written before Henry’s death, that is before the 6th of July, 1189, and yet that it was not completed before the month of November, 1187.⁸³ Certainly we cannot say that [p.143] Glanvill was incapable of writing it, for, though a book written by a layman would at this time have been an extremely rare thing, we know that Glanvill was not illiterate and could pass remarks on the illiteracy of the English gentry.⁸⁴ It is a more serious objection that during the stormy last years of Henry’s reign the faithful and hardworked justiciar can have had but little leisure for writing books.⁸⁵ To this we must add that the author of the treatise writes, not as a statesman, but as a lawyer. He speaks not as one in authority, but as one who is keenly interested in the problems of private law and civil procedure, and he is not ashamed to confess that he raises more questions than he can answer. He feels the impulse of scientific curiosity. No doubt Ranulf Glanvill was, like his master, a many-sided man, but his life was very busy, and we cannot but think that such a book as this came from the pen of some clerk who had time for reading and for juristic speculations. We should not be surprised if it were the work of Glanvill’s kinsman and secretary, Hubert Walter, who in his turn was to become a chief justiciar.⁸⁶ The question is interesting rather than important, for, though we would gladly know the name of the man who wrote our first classical text-book, it is plain that he was one who was very familiar with the justice done in the king’s court during the last years of Henry II. We may go further, we may safely say that it was not written without Glanvill’s permission or without Henry’s.

Roman and canon law in the Tractatus.The writer knew something of Roman and of canon law. Perhaps [p.144] he had read the Institutes; probably his idea of what a law-book should be had been derived from some one of the many small manuals of romano-canonical procedure that were becoming current.⁸⁷ He does not however adopt the arrangement of the Institutes as the plan of his treatise, and he cannot have followed any foreign model very far. The first sentences of his book are a good example of his method:—“Of pleas some are civil, some are criminal. Again, of criminal pleas some pertain to the crown of our lord the king, others to the sheriffs of the counties. To the king’s crown belong these: the crime which in the [Roman] laws is called crimen laesae maiestatis, —as by slaying the king or by a betrayal of his person or realm or army,—the concealment of treasure trove, breach of his peace, homicide, arson, robbery, rape, forgery, and the like.” We have but to contrast these sentences with the parallel passages, if such we may call them, in the Leges Henrici to see the work of the new jurisprudence.⁸⁸ The dilemma “criminal or civil” is offered to every plea. This is new and has been foreign to English law. In the disorderly list of the pleas of the crown a great simplification has been effected: homicide, for example, is now always a plea of the crown and we can finish the list with a “si quae sunt similia” which leaves scope for rationalism. And yet the materials that are used are ancient; the terms which describe the crimen laesae maiestatis are rooted in the old law. And so throughout: we have no reason to suspect that the writer is giving us his theories instead of the practice of the king’s court. What he has borrowed from the new jurisprudence consists first of a few general distinctions, such as that between criminal and civil pleas, that between possessory and proprietary actions—distinctions which are already becoming well-marked outlines in the procedure of the royal court,—and secondly a logical method which we may call dilemmatic. We have to consider—for naturally procedure is placed in the forefront—how [p.145] an action is carried on. The defendant is summoned. Either he appears or he does not appear. If he does not appear, either he sends an excuse or he sends none. If he sends an excuse, it must be of this kind or of that:—and so forth. And at every turn the writer has to consider the wording of those royal writs that are becoming the skeleton of English law. Substantive law comes in incidentally, and we are allowed to see that some very elementary problems are still unsolved, for example, that simple problem in the law of primogenitary inheritance which on King Richard’s death will be raised between John and Arthur.⁸⁹ Again, there is a great deal of customary law administered in the local courts of which he professes his ignorance.⁹⁰ Old rules about wer and wíte and bót may still be lurking in out-of-the-way places; but he says nothing of them. He says nothing of the laga Eadwardi and betrays no acquaintance with those books which have professed to set forth that ancient system. He is concerned only with the “chief” or “principal” court of our lord the king, and just because that court is making a common law by way of commentary on royal assizes and royal writs and is not much hampered by custom or even by precedent,—for as yet we have no citation of precedents, no “case law”—he is able to write his lucid book. It became popular. Many manuscripts of it are yet extant. Seventy years after it was written lawyers were still using it and endeavouring to bring it up to date.⁹¹ Someone was at pains to translate it from Latin into French.⁹² A version of it known as Regiam Maiestatem became current in Scotland.⁹³

English and continental literature.We may fairly say that under Henry II., England takes for a short while the lead among the states of Europe in the production [p.146] of law and of a national legal literature. No other prince in Europe could have enforced those stringent assizes, and he could not have enforced them in all of his continental dominions. The most in the way of legislation that a king of the French could do, the most that an emperor could do in Germany, was to make for the maintenance of the peace rather a treaty with his vassals than a law for his subjects.⁹⁴ No one had been legislating since the last Carolingians issued the last capitularies; law had been taking the form of multi-tudinous local customs. The claims of the renovated, the scientific, Roman law were unbounded; but north of the Alps it was only beginning to influence the practice of the temporal tribunals. We cannot call Glanvill’s treatise the earliest text-book of feudal jurisprudence, for parts at least of the Libri Feudorum, the work of Lombard lawyers, belong to the first half of the twelfth century, and some parts of the Assizes of Jerusalem, though not in the form in which they have come down to us, may be older than the English book; but in the production of such a book England stands well in advance of France and Germany.⁹⁵ Moreover it is noticeable that in France the provinces which are the first to come by written statements of their law are those which have been under Henry’s sway. Foremost stands Normandy, which in or about the year 1200 has already a brief written custumal, Normandy where exchequer rolls are compiled and preserved, and where the judgments of the duke’s court are collected by lawyers; and it is not impossible that the second place must be conceded to Touraine or Anjou.⁹⁶

The limit of legal memory.It is a well-known doctrine not yet obsolete among us that our legal [p.147] memory is limited by the date of Richard I.’s coronation. The origin of this doctrine is to be found in certain statutes of Edward I.’s reign.⁹⁷ Probably this date was then chosen because it was just possible that a living man should have been told by his father of what that father had seen in the year 1189, and in a proprietary action for land the demandant’s champion was allowed to speak of what his father had seen. And yet had Edward and his parliament been concerned to mark a boundary beyond which the history of English law could not be profitably traced for practical purposes, they could hardly have hit upon a better date than the 3rd of September, 1189. The restless Henry had gone to his rest; his reforms were beginning to take effect; our first classical text-book had just been written; the strong central court was doing justice term after term on a large scale; it was beginning to have a written memory which would endure for all ages in the form of a magnificent series of judicial records. Our extant