Reforms of Henry II: Glanvill Lecture Overview
The reforms of Henry II are discussed in the Glanvill Lecture, providing insights into the legal and constitutional history of England. The lecture covers the importance of laws in governing peaceful peoples, the context of royal power during war and peace, and the attribution of the Glanvill treatise to key figures like Ranulf de Glanvill and Geoffrey Fitz Peter.
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English Constitutional and Legal History: The Reforms of Henry II Glanvill Lecture 5a Click here for a printed outline.
Introduction I did not record a lecture on Glanvill the last time I gave this course. I had hoped that the students would get the ideas out of the text itself as it is in the Materials, so that we could talk about it in class. I still hope that you will do that, but experience suggested that you needed some help before you were willing to talk about it. So I recorded this lecture. This lecture takes Glanvill in the order of the extracts in the Materials. The first class on Glanvillwill begin at slide 13. We ll get to the prologue and Roman law in the next class. There are a lot of quotations in the lecture, which are sometimes hard to read on the slides, so it would be a good idea to have a copy of the lecture outline available either in hard copy or on some device other than the one that you are using to view the lecture.
Introduction (contd) Our sources for what Henry II did about the law are good, but annoyingly incomplete. The surviving plea rolls, records of cases heard in the central royal courts, do not begin until a few years after his death. Legislative texts, of which the Assize of Clarendon of 1166 and the Assize of Northampton of 1176 are the most important for our purposes. Glanvill, a treatise on the practice of the central royal courts, written sometime between 1187 and 1189, the year of Henry II s death.
Glanvill Introduction The treatise was traditionally attributed to Rannulf de Glanvill, the chief justiciar at the time. Evidence for that attribution is very weak. Other proposed authors are: treatise was traditionally attributed to Ranulf de Glanvill, the chief justiciar at the time. Evidence for that Hubert Walter, shortly to become chief justiciar and then archbishop of Canterbury Geoffrey fitz Peter, who became chief justiciar after Hubert. Geoffrey s connection with the book has recently been enhanced because of the relationship between some positions that the book takes and known events in Geoffrey s life. We know enough of the cast of characters that we probably know the name of the author, but there is nothing firmly linking a known man to the book. Hence, we still call the book Glanvill, though we put it in italics.
Glanvill Prologue Not only must royal power be furnished with arms against rebels and nations which rise up against the king and the realm, but it is also fitting that it should be adorend with laws for the governance of subject and peaceful peoples; so that in time of both peach and war our glorious king may so successfully perform his office that, by crushing the pride of the unbridled and ungovernable with the right hand of strength and tempering justice for the humble and meek with the rod of equity, he may both be always victorious in wars with his enemies and also show himself continually impartial in dealing with his subjects. A fine Latin period Some political theory: The king functions in both war and peace. He has arms for war and laws for peace. He applies the laws with justice and equity, justice for the proud, equity for the weak.
GlanvillPrologue (contd) This sentence is largely derived from Justinian s Institutes, which was written in 533 of our era, but with interesting changes. Justinian said: The imperial majesty should be armed with laws as well as glorified with arms, that there may be good government in times of both war and of peace, and the ruler of Rome may not only be victorious over his enemies, but may show himself as scrupulously regardful of justice as triumphant over his conquered foes. There are also some verbal similarities to the prologue of the Dialogus de Scaccario, the treatise on the English Exchequer, written a decade or so before Glanvill and that we have already discussed, but the sentiments reflected in both are common-place enough.
GlanvillPrologue (contd): Encomium of Henry II No-one doubts how finely, how vigorously, how skilfully our most excellent king has practised armed warfare against the malice of his enemies in time of hostilities, for now his praise has gone out to all the earth and his mighty works to all the borders of the world. Nor is there any dispute how justly and how mercifully, how prudently he, who is the author and lover of peace, has behaved towards his subjects in time of peace, for his Highness s court is so impartial that no judge there is so shameless or audacious as to presume to turn aside at all from the path of justice or to digress in any respect from the way of truth. For there, indeed, a poor man is not oppressed by the power of his adversary, nor does favour or partiality drive any away from the threshold of judgment. For truly he does not scorn to be by the laws and customs of the realm which had their origin in reason and have long prevailed; (cont d on next slide)
GlanvillPrologue (contd): Encomium of Henry II (contd) and, what is more, he is even guided by those of his subjects most learned in the laws and customs of the realm whom he knows to excel all others in sobriety, wisdom and eloquence, and whom he has found to be most prompt and clear-sighted in deciding cases on the basis of justice and in settling disputes, acting now with severity and now with leniency as seems expedient to them. Remember the Angevin Empire. Impartiality and truth are values. Laws stop oppression. Even the king is guided by the laws and customs. He also gets guidance from his council. The author of Glanvill is putting in a plug here for himself and the others who run the central royal court.
GlanvillPrologue (contd) Although the laws of England are not written, the Prologue continues, it does not seem absurd to call them laws those, that is, which are known to have been promulgated about problems settled in council on the advice of the magnates and with the supporting authority of the prince for this is also a law, that what pleases the prince has the force of law. For if, merely for lack of writing, they were not deemed to be laws, then surely writing would seem to supply to written laws a force of greater authority than either the justice of him who decrees them or the reason of him who establishes them. There were those in this period who argued that written law, like Roman law, was better than unwritten law like most of English law. The answer is writing is not greater than justice and reason; that s what makes something worthy to be called law . In the middle of the passage there is a phrase taken out of Justinian s Institutes: what pleases the prince has the force of law. In the context of Justinian s Institutes this phrase is quite absolutistic; here is given an unabsolutistic context.
GlanvillPrologue (contd) It is, however, utterly impossible for the laws and legal rules of the realm to be wholly reduced to writing in our time, both because of the ignorance of scribes and because of the confused multiplicity of those same laws and rules. But there are some general rules frequently observed in court which it does not seem to me presumptuous to commit to writing, but rather very useful for most people and highly necessary to aid the memory. I have decided to put into writing at least a small part of these general rules, adopting intentionally a commonplace style and words used in court in order to provide knowledge of them for those who are not versed in this kind of inelegant language. Glanvill is well aware that there was a multiplicity of laws in England in his day. He can t cover it all, but he can tell you about the central royal court, which he calls simply the court . He fulfills his promise about the style of his writing. It changes dramatically at this point.
Glanvill Roman law in the structure of the work To make matters clear, I have distinguished the kinds of secular cause in the following manner: Pleas are either civil or criminal. Some criminal pleas belong to the crown of the lord king, and some to the sheriffs of counties. The following belong to the crown of the lord king: The civil-criminal distinction comes right out of Roman law. What follows is what is called the chapters in eyre , instructions to the justices of the central royal court, when they went out on eyre. The distinction between procedure and substance won t do for Glanvill s time though he does make some attempts at stating substantive law in books 6 8 of the treatise, where he talks about family property, and in book 9 where he talks about lay debts. The former discussion is much like the 13th-century treatises on French customary law, called coutumiers; the latter is suffused with Roman law and probably does not reflect the actual English law of the time.
Glanvill Roman law in the structure of the work (contd) There is one more piece of Roman law in Glanvill that is going to be critical for the discussion that follows: Some civil pleas are to be pleaded and determined only in the court of the lord king; others belong to the sheriffs of counties. The following must be dealt with in the court of the lord king: Pleas concerning baronies; pleas concerning advowsons of churches; the question of status; pleas of dower, when the woman has so far received none; complaints that fines made in the lord king s court have not been observed; pleas concerning the doing of homage and the receiving of relief; purprestures; debts of laymen. All these pleas concern solely claims to the property (proprietas) in the disputed subject-matter: those pleas in which the claim is based on possession (possessio), and which are determined by recognitions, will be discussed later in their proper place. The technical terms of the pleas are English, translated from French into Latin. The distinction, however, between property (proprietas) and possession (possessio) is straight out of Roman law and informs the structure of the whole book. The first twelve books are concerned with property; Glanvill does not reach possession until book 13.
Glanvill a hypothetical case Since this is a book principally about procedure, let us ask a procedural question. Suppose your client claims a virgate (approximately 30 acres) of land in Puddle Parva in 1200. (Puddle Parva is fictional, but there are a number of towns in Devon that have Puddle in their names, derived from the name of a river originally called Piddle , perhaps because of its contents.) The question is what more do you need to know about your client s case and how would you go about suing for it?
Glanvill a hypothetical case (contd) Where is Puddle Parva? This system only applies where the king s writ runs. That s most of what is today England, but not quite all. In a few places, probably county Durham and Chester, perhaps other places, you may have to go to the lord s court to start off with. In London, you would go to the court of Hustings. Does your client hold by free or servile tunure? This system is not available for unfree tenures: When anyone complains to the lord king or his justices concerning his fee or free tenement and the case is such that it ought to be, or the lord king is willing that it should be, tried in the king s court, then the complainant shall have the following writ of summons: If it s not a fee or a free tenement, the central royal court is not available. Of whom does the demandant (the plaintiff) claim to hold? Of whom does the tenant (the defendant) claim to hold? Both these questions are important for jurisdiction.
Glanvill the writ of right both claim to hold of the king If both parties claim to hold of the king, the following writ, known as the writ of right, will be used: The king to the sheriff, greeting. Command N. to render to R., justly and without delay, one hide of land in such-and- such a vill, which the said R. complains that the aforesaid N. is withholding from him. If he does not do so, summon him by good summoners to be before me or my justices on the day after the octave of Easter, to show why he has not done so. And have there the summoners and this writ. Witness Rannulf Glanvill, at Clarendon. Later this writ will be worded as follows: The king to the sheriff of N. greeting. Command A. that justly and without delay he render to B. one messuage with the appurtenances in D., which he claims to be his right and inheritance and to hold of us in chief, and whereof he complains that the aforesaid A. unjustly deforces him. And if he will not do so, and if the aforesaid B. shall give you security for pursuing his claim, then summon the aforesaid A. by good summoners that he be before our justices at Westminster [on such a day] to show why he has not done it. And have there the summoners and this writ. Witness, etc.
The writ of right in capite This form of writ appears shortly after Magna Carta in 1215. Clause 34 of Magna Carta says: Henceforth the writ called praecipe [from the first Latin word of the writ ( Command )] shall not be issued for any one concerning any tenement whereby a freeman may lose his court. But if the parties claim to hold of the king, no freeman is losing his court because the appropriate court to start off with is the court of the king.
Glanvill writ of right parties claim to hold of different lords If the parties claim to hold of two different lords, Glanvilldoesn t give us a writ, but he offers two comments that help to explain what the jurisdictional situation was: Moreover a case is often delayed by the absence of lords; for example, when the demandant claims that the tenement in question belongs to the fee of one lord, and the tenant says that he himself holds it as of the fee of another lord. In such a case both lords shall be summoned to court, so that the case may be heard and determined in due form in their presence, lest in their absence some injustice may seem to be done them. Hence, if the tenant claims to hold of one lord and the demandant of another, both lords must be summoned and appear. As Derek Hall, the editor of the text, notes, the assumption here seems to be that the case is being heard in the central royal court.
Glanvill writ of right different lords (contd) The writ [of right], must be directed to him of whom the demandant claims to hold, not to anyone else, not even the chief lord. But what if the demandant claims to hold of one lord and the tenant to hold of another? In such a case he to whom the writ is directed may not hold that plea, because he may not unjustly and without a judgment disseise another of the seisin of his court which he is deemed to have; therefore recourse must necessarily be had to the county court, and the plea will proceed there or in the chief Curia . . . .
Writ of right quia dominus remisit curiam By the middle of the 1260s, if not before, there was a writ for this reported in a register of writs of that date: The king to the sheriff greeting. Command B. that justly and without delay he render to A. so much land with appurtenances, in such a vill, which he claims to be his right and his inheritance and whereof he complains that the said B. unjustly deforces him. And if etc., and the said A. shall have given you security to prosecute his claim, then summon by good summoners, the aforesaid B. that he be before our justices at Westminster on such a day to show why he has not done this. And have there the summoners and this writ. [Witness, etc.] because the chief lord of that fee has remitted to us his court thereof. And thus that clause is always set down after the date of the writ. Clearer evidence that the final clause was an afterthought would be hard to come by. There is no other writ that has anything after the witness clause.
Glanvill writ of right same lord, not the king If the parties claim to hold of the same lord, and not of the king, then the writ of right patent is used: The king to Earl William, greeting. I command you to do full right without delay to N. in respect of ten carucates of land in Middleton which he claims to hold of you by the free service of one hundred shillings a year for all service [Glanvill then lists a number of other forms of free service, making it clear that any form of free service will do] which Robert son of William is withholding from him. If you do not do it the sheriff of Devonshire will, that I may hear no further complaint for default of right in this matter. Witness, etc. As the example from Baker given on the outline shows, this form remained basically unchanged until the writ fell out of use in sixteenth century.
Glanvill writ of right substantive claim What is the substantive claim that you can bring in a writ of right? Here Glanvill describes what is known as the count : When both parties appear again in court after the three reasonable essoins and the view, the demandant sets out his claim and suit as follows: I claim against this N. the fee of half a knight and two carucates of land in such-and-such a vill as my right and my inheritance, of which my father (or grandfather) was seised in his demesne as of fee in the time of King Henry the First (or since the first coronation of the lord king), and from which he took profits to the value of five shillings at least, in corn and hay and other profits: and this I am ready to prove by this free man of mine, H., and if any evil befalls him then by this other man or by this third man, who saw and heard it. (He can name as many as he likes but only one of them shall wage battle.) Or the claim may be in other words, thus: And this I am ready to prove by this free man of mine, H., whose father in his last minutes enjoined him, by the faith binding son to father, that if ever he heard of a suit concerning this land, he should offer to prove it as something seen and heard by the dying man. The claim, then, is that the lord has let in the wrong man. This may be a clue as to why the lords courts default, which we will see they regularly do.
Glanvill writ of right alternatives Why would a litigant want to bring something other than the writ of right if he could? The writ of right was subject to substantial delays, called essoins . Glanvill devotes a lot of space to them. In the writ of right tenant chose the method of proof. It could be trial by battle or could be a complicated form of jury, known as the grand assize.
Glanvill alternatives mort dancestor The king to the sheriff, greeting. If G. son of O. gives you security for prosecuting his claim, then summon by good summoners twelve free and lawful men from the neighbourhood of such-and-such a vill to be before me or my justices on a certain day, ready to declare on oath whether O. the father of the aforesaid G. was seised in his demesne as of his fee of one virgate of land in that vill on the day he died, whether he died after my first coronation, and whether the said G. is his next heir. And meanwhile let them view the land; and you are to see that their names are endorsed on this writ. And summon by good summoners R., who holds that land, to be there then to hear the recognition. And have there the summoners and this writ. Witness, etc.
Glanvill alternatives novel disseisin The king to the sheriff, greeting. N. has complained to me that R. unjustly and without a judgment has disseised him of his free tenement in such-and-such a vill since my last voyage to Normandy. Therefore I command you that, if N. gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until the Sunday after Easter. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighbourhood, and their names endorsed on this writ. And summon them by good summoners to be before me or my justices on the Sunday after Easter, ready to make the recognition. And summon R., or his bailiff if he himself cannot be found, on the security of gage and reliable sureties to be there then to hear the recognition. And have there the summoners, and this writ and the names of the sureties. Witness, etc.
Glanvill alternatives ?proto-writs of entry The king to the sheriff, greeting. Summon by good summoners twelve free and lawful men from the neighbourhood of such-and-such a vill to be before me or my justices on a certain day, ready to declare on oath whether N. holds one carucate of land in that vill, which R. claims from him by my writ, in fee or as a gage pledged to him by R. (or by R. s ancestor H.). (Or thus: whether the carucate of land in that vill which R. claims from N. by my writ is the inheritance or fee of N., or a gage pledged to him by R. or by R. s ancestor H.). And meanwhile let them view the land; and you are to see that their names are endorsed on this writ. And summon by good summoners N., the tenant of that land, to be there then to hear the recognition. And have there the summoners and this writ. Witness, etc.
Glanvill alternatives ?proto-writs of entry (contd) The king to the sheriff, greeting. Command N. to restore, justly and without delay, so much land (or, certain specified land) in such-and- such a vill to R., who gaged it to him for a hundred marks until the end of a term which is now past, as R. alleges; and to accept payment from him (or, which he alleges he has redeemed by payment). If he does not do so, summon him by good summoners to be before me or my justices at a certain place on a certain day to show why he has not done so. And have there the summoners and this writ. Witness, etc. Both of these writs can lead to a recognition whether the land is held by the tenant as a gage or in fee.
Writs of entry after 1215 In the thirteenth century, writs like these were to develop into what were called writs of entry, a typical example of which is given on the outline: The king to the sheriff of N. greeting. Command A. that justly and without delay he render to B. one messuage with the appurtenances in D. which he claims to be his right and inheritance and into which the same A. has not entry except through C. to whom the aforesaid B. demised it for a term which has expired. And if he will not do so, and if the aforesaid B. shall give you security for pursuing his claim, then summon the aforesaid A. by good summoners that he be before our justices at Westminster [on such a day] to show why he has not done it. And have here the summoners and this writ. Witness, etc.
Glanvilltolt in the writ of right patent These pleas [on the writ of right patent] are tried in the courts of lords, or of those who stand in their place, in accordance with the reasonable customs of those courts, which cannot easily be written down because of their number and variety. Proof of default of right in these courts is made in the following way: when the demandant complains to the sheriff in the county court and produces the writ from the lord king, the sheriff will, on a day appointed to the litigants by the lord of the court, send to that court one of his servants, so that he may hear and see, in the presence of four or more lawful knights of that county who will be there by command of the sheriff, the demandant s proof that the court has made default of right to him in that plea; the demandant will prove this to be the case by his own oath and by the oath of two others who heard and understood it and who swear with him. With this formality, then, cases are transferred from certain courts to the county court, and are once again dealt with and determined there; and neither the lords of those courts nor their heirs may contest this or recover jurisdiction for their courts in respect of the particular plea. This process is known as tolt.
Glanvill warranty In another place Glanvill tells us that once the case is in the county court either party may remove it to the central royal court by a writ known as pone. Toltprocedure thus involves watching the lord s court sit on its hands. But why would the lord s court default? We must ask who the tenant, the defendant, is in the lord s court. He is, of course, the lord s man, who has done homage to the lord. That involved a lot of obligations of the tenant to the lord, but it also involved obligations of the lord to the tenant. The lord must warrant the tenant in his holding. Maybe the demandant is right. The lord or his ancestor let in the wrong man, but what is the lord to do about now that he has warranted the tenant, particularly when all the other tenants are standing around in the lord s court? He s going to do nothing.
Glanvillwarranty (contd) When the case proceeds by tolt and pone to the central royal court, Glanvill tells us what happens there: The presence of the third party . . . is required . . . if the tenant says [the land] is his, but that he has in respect of it a warrantor from whom he got it as a gift, or by sale, or in exchange, or some other such way. If the warrantor enters into the warranty, Glanvill tells us, there is no way that the tenant can lose. If the warrantor succeeds in defending the claim, the tenant gets the tenement. If he fails, the warrantor must provide the tenant with an exchange tenement, an escambium. If the warrantor does not enter into the warranty, then the tenant will lose, but then the warrantor has to face his other tenants back home. If he did that to this guy, they will say, what will he do us. A lord who does this is likely to end up with disloyal tenants, and his power depends on the loyalty of his tenants.
Origins mort dancestor the assize of Northampton (1176) chapter 4. Item, if any freeholder has died, let his heirs remain possessed of such seisin as their father had of his fief on the day of his death; and let them have his chattels from which they may execute the dead man s will. And afterwards let them seek out his lord and pay him a relief and the other things which they ought to pay him from the fief. And if the heir be under age, let the lord of the fief receive his homage and keep him in ward so long as he ought. Let the other lords, if there are several, likewise receive his homage, and let him render them what is due. And let the widow of the deceased have her dower and that portion of his chattels which belongs to her. And should the lord of the fief deny the heirs of the deceased seisin of the said deceased which they claim, let the justices of the lord king thereupon cause an inquisition to be made by twelve lawful men as to what seisin the deceased held there on the day of his death. And according to the result of the inquest let restitution be made to his heirs. And if anyone shall do anything contrary to this and shall be convicted of it, let him remain at the king s mercy. It is pretty clear that the tenant (defendant) contemplated in the assize of mort d ancestor is the lord.
Origins novel disseisin the words of the writ The king to the sheriff, greeting. N. has complained to me that R. unjustly and without a judgment has disseised him of his free tenement in such-and-such a vill since my last voyage to Normandy. Therefore I command you that, if N. gives you security for prosecuting his claim, you are to see that the chattels which were taken from the tenement are restored to it, and that the tenement and the chattels remain in peace until the Sunday after Easter. And meanwhile you are to see that the tenement is viewed by twelve free and lawful men of the neighbourhood, and their names endorsed on this writ. And summon them by good summoners to be before me or my justices on the Sunday after Easter, ready to make the recognition. And summon R., or his bailiff if he himself cannot be found, on the security of gage and reliable sureties to be there then to hear the recognition. And have there the summoners, and this writ and the names of the sureties. Witness, etc.
Origins novel disseisin the words of the writ (contd) This writ could be applied to anyone who wrongfully took possession of someone else s land, but it has language in it that seems superfluous for just any casual dispossessor. That the tenant acted unjustly and without a judgment suggests that he could have acted justly and with a judgment. Who is this tenant who took chattels from the land and put them in a place where the sheriff could find them? Who is this tenant who is confident enough of his acts that he leaves his bailiff on the land? Is it possible that the tenant was normally expected to be the lord of the land, who could, under certain circumstances, take the land back from his tenant, but the demandant in this case is claiming that he had no right to do so?
Origins writ of right upward-looking claims Of the origins of the writ of right patent, we have fewer specific clues. The count, however, does say that the seisin of demandant s ancestor was either in the reign of Henry I and or in that of Henry II. Stephen and Matilda are noticeable by their absence. Could it be that the wording of the writ as we now have it, was designed to implement Henry II s claim that he was going to return things to what they were in the time of his grandfather? Hence, all three writs look as if they were designed to allow a tenant or would-be tenant to sue his lord or would-be lord. They are upward- looking claims. The tenant is looking up to the lord and saying You did me wrong .
Origins writs of entry downward-looking claims If that is right, then writs of entry, which are only hinted at in Glanvill, are a different story, for which I can give you just the barest outlines. They may be the product of a development like the following: Novel disseisin meant that the lord can no longer do justice to his tenants. Technically, he could claim that he disseised his tenant justly and with a judgment, and a few of them do so claim. But in order to prove it, he has to have his court in the court that is hearing the claim of novel disseisin, and no essoins are allowed in novel disseisin. Rather than risking losing the judgment in novel disseisin, lords began to go to the central royal courts and ask for writs against their tenants. For example, the tenant was on the land for a term of ten years, and those years have expired. These are downward-looking claims. The lord is looking at his tenant and saying What are you doing there? Writs of entry may have developed out of these downward looking claims.
What does it all add up to? Unburdened with knowledge of Roman law, it seems relatively clear that what we are dealing with here originally was three types of claims that might be made by a tenant against a lord. Burdened with a knowledge of Roman law we see them as dealing with ownership and possession. Glanvill hints at this, and Bracton, who writes about a generation later, develops the idea to a fare-thee-well. But the writs of entry are a problem in this scheme, and it s the last development that may give a clue to the whole puzzle. So far we have a theory. In fact, we have two theories: (a) that the scheme of writs for land were developed in the time Henry II with the scheme of ownership vs. possession derived from Roman law in mind; (b) that the writs for land were developed in the time of Henry II with something quite different in mind, and the Roman-law scheme was later applied to them and doesn t quite fit. Next week, I want to look at some plea roll entries that come from the generation after Henry II. They are not going to prove that the second of the two theories is right, but they are going to suggest that the second of the two theories has quite a bit going for it.
