Tractatus of Glanville
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The (''Treatise on the Laws and Customs of the Kingdom of England''), often called ''Glanvill treatise'', is the earliest
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 and its conclusions." Tre ...
on
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...
. Attributed to
Ranulf de Glanvill Ranulf de Glanvill (''alias'' Glanvil, Glanville, Granville, etc., died 1190) was Chief Justiciar of England during the reign of King Henry II (1154–89) and was the probable author of ''Tractatus de legibus et consuetudinibus regni Anglie'' ( ...
(died 1190) and dated 1187–1189, it was revolutionary in its systematic codification that defined
legal process Legal process (sometimes simply process) is any formal notice or writ by a court obtaining jurisdiction over a person or property. Common forms of process include a summons, subpoena, mandate, and warrant. Process normally takes effect by s ...
and introduced
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
s, innovations that have survived to the present day. It is considered a book of authority in English
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
. Written for Henry II () 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 of Bracton, also Henry de Bracton, also Henricus Bracton, or Henry Bratton also Henry Bretton (c. 1210 – c. 1268) was an English cleric and jurist. He is famous now for his writings on law, particularly ''De legibus et consuetudinibus ...
(), 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''. The legal opinions of Glanvill's nephew,
Hubert Walter Hubert Walter ( – 13 July 1205) 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 be ...
are certainly cited. 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".


Ancestry


Background

Law in England at the time of the publication of the Tractatus was a combination of Norman law in
Normandy Normandy (; french: link=no, Normandie ; nrf, Normaundie, Nouormandie ; from Old French , plural of ''Normant'', originally from the word for "northman" in several Scandinavian languages) is a geographical and cultural region in Northwestern ...
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, also known as the feudal system, was the combination of the legal, economic, military, cultural and political customs that flourished in medieval Europe between the 9th and 15th centuries. Broadly defined, it was a way of structu ...
had existed in England since the late tenth century. The legal system was initiated by
William the Conqueror William I; ang, WillelmI (Bates ''William the Conqueror'' p. 33– 9 September 1087), usually known as William the Conqueror and sometimes William the Bastard, was the first Norman king of England, reigning from 1066 until his death in 10 ...
(reigned 1066–1087) and was fully in place in the time of
Henry I Henry I may refer to: 876–1366 * Henry I the Fowler, King of Germany (876–936) * Henry I, Duke of Bavaria (died 955) * Henry I of Austria, Margrave of Austria (died 1018) * Henry I of France (1008–1060) * Henry I the Long, Margrave of the N ...
(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. Henry Bracton, author of the ''Tractatus'', was familiar with Civil Law and
Canon Law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is t ...
, 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.
Pollock Pollock or pollack (pronounced ) is the common name used for either of the two species of North Atlantic marine fish in the genus ''Pollachius''. '' Pollachius pollachius'' is referred to as pollock in North America, Ireland and the United Kingd ...
and
Maitland Maitland is an English and Scottish surname. It arrived in Britain after the Norman conquest of 1066. There are two theories about its source. It is either a nickname reference to "bad temper/disposition" (Old French, ''Maltalent''; Anglo Norm ...
, 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". The concept of the Norse
Lawspeaker A lawspeaker or lawman ( Swedish: ''lagman'', Old Swedish: ''laghmaþer'' or ''laghman'', Danish: ''lovsigemand'', Norwegian: ''lagmann'', Icelandic: , Faroese: '' løgmaður'', Finnish: ''laamanni'', kl, inatsitinuk) is a unique Scandina ...
may play a role as well, only converting it from spoken to written form. There seems to be consensus that the English law ultimately does not rely on earlier Roman codifications. Scrutton noted the lack of a heritage owed to Roman law (i.e., the
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperors, Byzantine Emperor. It is also ...
) 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.


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
Stephen Stephen or Steven is a common English first name. It is particularly significant to Christians, as it belonged to Saint Stephen ( grc-gre, Στέφανος ), an early disciple and deacon who, according to the Book of Acts, was stoned to death; ...
's reign (1135–1141, 1141–1154) was a disaster, known in
English history England became inhabited more than 800,000 years ago, as the discovery of stone tools and footprints at Happisburgh in Norfolk have indicated.; "Earliest footprints outside Africa discovered in Norfolk" (2014). BBC News. Retrieved 7 February ...
as "
The Anarchy The Anarchy was a civil war in England and Normandy between 1138 and 1153, which resulted in a widespread breakdown in law and order. The conflict was a war of succession precipitated by the accidental death of William Adelin, the only legi ...
". 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 The Assize of Clarendon was an act of Henry II of England in 1166 that began a transformation of English law and led to trial by jury in common law countries worldwide, and that established assize courts. Prior systems for deciding the winning ...
''. 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.


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. The Preface to the ''Institutes'' begins ''Imperatoriam Majestatem'', but 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''.


Fourteen books

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''.


Versions


Descent


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 eyre 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 In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or aff ...
. Establishing the "truth" of facts through the rational process of an
Assize Court The courts of assize, or assizes (), were periodic courts held around England and Wales until 1972, when together with the quarter sessions they were abolished by the Courts Act 1971 and replaced by a single permanent Crown Court. The assizes e ...
(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 ''Res judicata'' (RJ) or ''res iudicata'', also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final jud ...
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 An ecclesiastical court, also called court Christian or court spiritual, is any of certain courts having jurisdiction mainly in spiritual or religious matters. In the Middle Ages, these courts had much wider powers in many areas of Europe than be ...
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 Scottish '' Regiam Majestatem'' was written perhaps in the reign of
Robert the Bruce Robert I (11 July 1274 – 7 June 1329), popularly known as Robert the Bruce (Scottish Gaelic: ''Raibeart an Bruis''), was King of Scots from 1306 to his death in 1329. One of the most renowned warriors of his generation, Robert eventuall ...
(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.


See also

*
English land law English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal ...
*
English contract law English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries ...
*
English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...


References

Notes Citations Bibliography * * * * * * *


External links

*John Beames
Translation of Glanvill, ''Treatise on the Laws of England''
(1900)
Early English Laws website, electronic edition of translation forthcoming
{{Law 1180s in England 12th century in law
Tractatus de legibus et consuetudinibus regni Angliae The (''Treatise on the Laws and Customs of the Kingdom of England''), often called ''Glanvill treatise'', is the earliest treatise on English law. Attributed to Ranulf de Glanvill (died 1190) and dated 1187–1189, it was revolutionary in its s ...
Medieval English law Trials by combat Treatises