Legal Classic Series

VOLUME ONE

GLANVILLE

[Index]

Legal Classic Series

GLANVILLE
Introduction by Joseph Henry Beale, Jr., A.M., LL.B.
LITTLETON’S TENURES
Introduction by Eugene Wambaugh, LL.D.
BRITTON
Introduction by Hon. Simeon E. Baldwin.
MIRROUR OF JUSTICE
Introduction by Hon. William C. Robinson.

also

FLETA, and others.

A TRANSLATION
OF
GLANVILLE

BY
JOHN BEAMES, ESQ.
OF LINCOLN’S INN, BARRISTER AT LAW

TO WHICH ARE ADDED [NOTES]

Multa ignoramus, quæ nobis non laterent, si Veterum lectio
nobis esset familiaris. Macrob.

WITH AN [INTRODUCTION]

BY

JOSEPH HENRY BEALE, Jr., A.M., LL.B.
PROFESSOR OF LAW IN HARVARD UNIVERSITY

WASHINGTON, D.C.
JOHN BYRNE & CO.
LAW PUBLISHERS AND BOOKSELLERS
1900

Copyrighted, 1900
BY
JOHN BYRNE & COMPANY.

TO
SIR SAMUEL ROMILLY,
THE FOLLOWING WORK
IS INSCRIBED
AS A MARK OF THE HIGH RESPECT
WITH WHICH
HIS ABILITIES, AS A SENATOR,
AND HIS
TALENTS, AS AN ADVOCATE,
ARE VIEWED BY
THE TRANSLATOR.

A TREATISE
ON
THE LAWS AND CUSTOMS
OF THE
KINGDOM OF ENGLAND

COMPOSED IN THE TIME OF KING HENRY THE SECOND

The illustrious Ranulph de Glanville, who of all in that age was the most skilled in the Laws of the Realm, and the ancient Customs thereof, then holding the helm of Justice.

The present work contains those Laws and Customs only, according to which Pleas are determined in the King’s Court, the Exchequer, and before the Justices, wheresoever they may be.

INTRODUCTION.

BY JOSEPH HENRY BEALE, JR., A.M., LL.B., PROFESSOR
OF LAW IN HARVARD UNIVERSITY.

I. RANULPH DE GLANVILLE.

Ranulph de Glanville was born in the Suffolk Stratford, about 1130 A.D. He is believed to have been the son of Sir Hervey de Glanville, Chamberlain to King Stephen, and the grandson of that Ranulph de Glanville who came over with the Conqueror. The family was an important one, owning much land in the counties of Suffolk and Norfolk. Glanville’s public life began in 1164, when he was appointed sheriff of Yorkshire; an office which he continued to hold for six years. In 1171 he was appointed Governor of Richmond Castle, and in 1174, sheriff of Lancashire. The Scots having invaded England in that year, he led the forces of Lancashire and Richmond against them, and (joining the sheriff of Yorkshire and his forces) surprised and routed the Scots at Alnwick, and took King William the Lion prisoner. For this victory Glanville deserved, as he certainly received, the credit; and from that time no man stood higher than he in the favor of King Henry II. He was sheriff of Westmoreland from 1175 to 1179; sheriff of Yorkshire a second time, from 1177 to his death; judge of the King’s Court in 1176, and Chief Justiciar in 1180. He was also employed in many distinguished public services. In 1177 he was sent as ambassador to Flanders. In 1182 he led an army against the Welsh. In 1184, with Archbishop Baldwin, he was sent as ambassador to Rice ap Griffin, Prince of South Wales. In his next Welsh expedition, a few years later (again with Baldwin), he preached a crusade. In 1186 he was ambassador to the King of France, and was active in negotiating the peace of Gisors. In 1189, while Henry was struggling with his rebellious sons and with Philip of France in Normandy, he was sent to Canterbury to treat with the Chapter; was soon again in Normandy with Henry; and finally returned to England to raise an army for his master’s service, a work in which he was engaged at the time of Henry’s death.

These great offices were due to his personal merit and to the great services he rendered to his country; but they appear to have been the result, also, of the personal friendship and affection of the King. He was one of the witnesses to Henry’s will, and a trustee of the King’s bequest of 5,000 marks of silver to certain religious and charitable institutions, and of 300 marks of gold for marrying poor free women of England. He was named by Henry as custodian of Queen Eleanor, and as treasurer of his private fortune. A pretty picture of the King’s feeling toward him occurs in the account of the arrival of Glanville’s messenger in London, after the battle of Alnwick. The messenger arrived at midnight and insisted on seeing the King. Being admitted to the royal chamber he boldly approached the King’s bed and roused him from sleep. He, springing up, cried, “Who is it?” “I am the messenger of Ranulph of Glanville, your faithful subject, and I come from him to your highness as a bearer of good tidings.” “Is our Ranulph well?” cried the King, moved less by the promised good tidings than by his love for the sender of them. “My lord is well,” was the answer, “and he holds your enemy, the King of the Scots, a prisoner at Richmond.”

Upon the death of Henry, Glanville’s position was a difficult one. Henry, conservative, though a reformer, had established the government of his kingdom on a foundation of law and justice, and had created an effective and pure administrative machine. The new King appeared to have no sympathy with his father’s principles of government. He was rash, radical and careless of regular details of administration, and Glanville, in the words of a contemporary, “In his old age saw the King doing many things in a newfangled way, without wisdom or forethought.” He was present at the coronation of Richard, and was sent by him to quell a riot against the Jews which disgraced the ceremony. About his next acts we have different accounts. He had taken the cross in 1186. Whether he asked and received his dismissal from Richard in order to join the army, then about to start for the Holy Land, or whether, as another account has it, he was removed and imprisoned by Richard and obliged to purchase his freedom by a fine of 15,000 pounds of silver, we cannot certainly tell. At any rate, he set out for Palestine together with Baldwin, Archbishop of Canterbury, and his nephew Hubert, then bishop of Salisbury; the three were placed in command of the English forces by Richard (who was obliged to delay his own departure), and Glanville in 1190 died before Acre, by disease, the result of the unhealthy climate. He left one son and three daughters, whom he had already enriched from his great fortune. He founded the priory of Butley, the Abbey of Leiston, and a hospital at Somerton.

Glanville impressed his contemporaries as a man strong both in body and in mind. A man of integrity and prudence, “most faithful in fortune or misfortune,” “Wise, grave and eloquent,” “The King’s eye;” “A name above every name, who spoke among the princes and was adored by the people.” He was a man wise, just and charitable, whose fellowship was sought and opinions valued by wits and by scholars. One scandal only attacked him. He is charged with falsely condemning to death for rape Sir Gilbert de Plumpton, in order that his widow might be married to Glanville’s friend and steward, Rainer; Sir Gilbert’s punishment was commuted by the King to imprisonment for life. The tale is quite inconsistent with all we know of Glanville’s character and with his position in the King’s affection, and may safely be disbelieved.

His family shared in his success. No less than seven of his near relatives held high judicial position under Henry or his sons. Few other families have rendered greater service to England than that of Ranulph de Glanville, ambassador, administrator, general, judge and jurist.

[Incidents of Glanville’s life and character are reported in all the chroniclers of the time. Especially valuable are the accounts in Hoveden, Benedictus Abbas, Giraldus Cambrensis, Newburgh, Richard of Devizes, and Diceto. The fullest modern sketch of his life is by Professor Maitland, in the Dictionary of National Biography. Other modern biographies are those of Foss (Judges of England, i, 376); Thomas Wright (Biographia Britannica, 275); Lord Campbell (Lives of the Chief Justices, i, 19); and Professor Gross (Sources and Literature of English History, 315).

Many interesting documents bearing on Glanville’s genealogy and his property are printed in Glanville-Richards’ “Records of the Anglo-Norman House of Glanville.”]

II. THE AUTHORSHIP OF THE TREATISE.

The following “Treatise on the Laws and Customs of the Kingdom of England,” was published between 1187 and 1189; it mentions a fine made in the former year, and it is filled with references to Henry, as then King. It had a high contemporary reputation. Copies of the book were multiplied, and many manuscripts still exist. It forms part of several collections of laws made by contemporaries of Glanville himself. It was translated, or partly translated, into French immediately after Glanville’s death, and it was revised and an attempt made to bring it down to date two generations later. It was finally superseded by Bracton’s completer and more elaborate treatise.

The work itself is anonymous, the manuscripts stating only that it was composed in the time of Henry II., “Glanville then holding the helm of justice.” Early tradition, however, asserts that it was written by Glanville himself, and that fact was accepted as undoubted from the thirteenth to the nineteenth century. Modern scholars have expressed doubt of it. Littleton’s objection (in his “Life of Henry II.”) that Glanville could not have written the book because he was not in orders, may be dismissed at once. The greater officers of the administration, whether in orders or not, must have had sufficient Latin to dictate a Latin treatise to a clerk, and Glanville was particularly commended for his eloquence by more than one contemporary. Hunter’s objection (in the preface to his “Fines”) is that Glanville, at the time the treatise was written, was too busy in public affairs to have composed such a work, and he suggests that the author may have been William de Glanville, a justice in the next reign; who was, in fact, Glanville’s son, and (from 1186) his secretary. But this is the merest guess. Professor Maitland conjectures (for a rather fanciful reason, perhaps) that the author may have been Hubert Walter. Liebermann, on the other hand, defends Glanville’s authorship. Certainly there is little external proof that Glanville was the author of the treatise, though it must have been written by some one in high position and repute to have obtained so immediate a success. The internal evidence does not lead us much further. The style is that of a person speaking with authority, but not necessarily the authority of the Chief Justiciar himself. The claim of Hubert Walter to the authorship cannot be dismissed without further examination.

Hubert was a nephew of Glanville’s wife; according to one account, of Glanville himself, Glanville’s younger brother having married his wife’s sister. Whether Hervey Walter, Hubert’s father, was really, as this account has it, Hervey de Glanville or not, it is certain that Hubert was brought up in intimacy with Glanville’s family, became his secretary, and was regarded by him as a valued counsellor. He was made Dean of York in 1186, being succeeded as secretary by Glanville’s son William. He soon became Bishop of Salisbury, Archbishop of Canterbury, and later Chief Justiciar and Chancellor of the Kingdom. He is described as a man of foresight and wisdom; it is said of him that his heart was in human affairs rather than divine, and that he knew all the laws of the kingdom. He was, however, a man “of little eloquence;” indeed, one chronicler ridicules his Latin style.

Did Glanville write the whole treatise? or did Hubert Walter write it? Or did they collaborate on it? Perhaps we can reach a conjectural conclusion by a more careful examination of the treatise itself.

The most striking feature of the treatise is, that it is based upon a collection of writs. Omitting the [Introduction] and the [last book], on Pleas of the Crown, just one-third of the chapters into which it is divided consists of writs. These are of all kinds, directed to Lords’ Courts, to County Courts, and to Ecclesiastical Courts, as well as writs returnable in the King’s Courts. Later writers have made free use of writs, but here they are the skeleton of the whole treatise. They fulfil the function of judgment-rolls in Bracton’s book, and of decisions in Coke and later writers. The collection of these eighty writs must have been a work of several years, since some of the writs were certainly of rare occurrence. The Chief Justice, or his clerk, attested all the writs, and either of them had both opportunity and reason for making such a collection; hardly another man in the kingdom would have been likely to do it.

A large part of the treatise is written in a crabbed and inelegant, though usually a clear style. In a few passages, however, near the beginning of the book, we find an elevation of thought and elegance of diction often admired and imitated. The [Introduction], in particular, and the [seventh chapter of the second book], in praise of the assize (which, according to tradition, Glanville had a hand in inventing, or, at least, in establishing), are worthy of a man “sapiens simul et eloquens”; in sharp contrast with other parts of the work, which indicate an author who “omnia regni novit jura,” but was surely “non eloquio pollens.”

The first ten books of the treatise are carefully written, the commentary is full, the subject well developed. The last four books, on the other hand, seem to have been hurriedly thrown together. The proportion of writ to text is more than twice that in the preceding books; indeed, in the book devoted to the County Courts (in which Glanville had presided for years, and must have become as familiar with the law and procedure as with those of the King’s Courts), there is almost no comment. It seems possible that a proposed full commentary on the County Court practice, for which an elaborate collection of writs was at hand, was abandoned.

The exact date of the work is fixed by the only two dated documents—two fines, of June 27 and about November 1, 1187. Fines were then novel, and they were described carefully. It seems likely that the passage, which occurs toward the end of the treatise, was written soon after the dates of enrollment. Both fines were enrolled in Glanville’s presence.

We may now conjecture that the author, or authors, of the treatise had for years been collecting writs, either for preservation as useful precedents, or possibly with the object of composing a commentary upon them. The collection finished, it would not be a matter of much time or difficulty for one who knew the law, writs in hand, to dictate his commentary to a secretary also learned in the law. If the collector was Glanville, and the secretary Hubert, we may suppose that the actual work of composition was begun in 1185, or 1186; not, apparently, a time of strenuous labor for either. Passages of particular importance or of especial interest to Glanville would be composed by him with care; the actual form of the remainder might safely be left to his competent secretary, subject only to revision by himself. In 1186 the Dean of York died, and the succession was given to Hubert; and Glanville soon set out on his embassy to the King of France. In spite of this, however, time still remained for the completion of the work in the rather less polished form of the later books. In February, 1187, Glanville and Hubert were sitting together in the Court at Westminster; and from that month to the beginning of 1189 (with the exception of Lent, 1188, when Glanville was preaching his crusade in Wales), both appear to have remained in England, without serious interruption from public business. The year 1188, in fact, seems to have been one of the least busy of Glanville’s official life; and, until his time was absorbed by the troubles of the closing year of the reign, there was nothing to prevent a continuance of the work. The last hurried chapters may well, therefore, have been completed in 1188.

There is, then, nothing against the early and persistent tradition that Glanville wrote the treatise, and much in its favor; though most of the actual composition may have been the work of Hubert Walter.

[The fullest discussion of the authorship of “Glanville” may be found in Pollock and Maitland’s “History of the English Law,” i, 163. Reeves’ discussion (“History of the English Law,” Finlayson’s Edition, i, 254) and Foss’s (“Judges of England,” i, 180) are also worth consulting upon this point. Liebermann (“Einleitung,” p. 73) supports the theory of Glanville’s authorship; and in the “Zeitschrift für romanische Philologie,” xix, 81, he gives interesting proof of the early popularity of the treatise. See also Professor Maitland’s article, “Glanville Revised,” in the Harvard Law Review, vi, 1.

The life and character of Hubert may be found in the “Actus Pontificum Cantuariensium” of Gervase. Glanville’s and Hubert’s itineraries may be found in Eyton’s “Itinerary of Henry II.”]

III. THE CHARACTER OF THE TREATISE.

“A Treatise on the Law and Customs of the Kingdom of England” is the earliest systematic treatise on law written in modern times. A few collections of law and decretals, like the Decretum of Gratian and the “Assises of Jerusalem,” had, to be sure, been published earlier; but they were not, like this book, regular expositions of an existing system of law. Bracton’s work was modelled on Glanville, and, through Bracton, Glanville thus fixed the type of the modern commentary on law. An imitation, in many parts an exact copy, of this book was later published in Scotland under the title “Regiam Majestatem,” and the claim was vigorously made for a time that it was the original, Glanville the imitation. This notion, improbable on its face, was absolutely disproved by arguments set forth in Beames’ [Introduction].

The first edition of the treatise was printed by R. Tottel in small 12mo, about the year 1554. Coke says that this was done by suggestion of Sir William Stanford, the learned judge and author. The second edition was printed by Thomas Wright in 1604. The text was corrected by the collation of “various manuscripts.” This edition was exactly reprinted, omitting the [preface], in 1673. The treatise was again printed in the first volume of Houard’s “Traités sur les Coutumes Anglo-Normandes” in quarto, Rouen, 1776. The last Latin edition was published by John Rayner, 8vo, 1780, collated with the Bodleian, the Cottonian, the Harleian and Doctor Milles’s manuscripts by J.E. Wilmot. The Latin text is also printed as an appendix to Phillips’s “Englische Reichs und Rechtsgeschichte,” ii, 335: Berlin, 1828. A collation of Glanville with the “Regiam Majestatem” may be found in the Acts of the Parliament of Scotland, i, 133. An English translation by John Beames, with notes, was published in octavo, London, 1812, and is reprinted in the present edition.

This treatise is more than a mere law book. It is a monument to the genius of one of the greatest legal reformers of all time. Henry II. came to the throne, after a long period of anarchy, to find countless systems of law administered by a confused and confusing mass of popular courts and feudal courts. He at once set himself to bring order and unity out of anarchy and chaos. He made the King’s Court the common court of the land; he determined its jurisdiction as against the church, the lords and the sheriffs; and he made it the guardian of a King’s peace, which should protect high and low throughout the whole land. The establishment of peace was in fact the chief object of his stormy career. Glanville’s treatise shows us the method he took to secure his object.

By a free use of writs running from the King or his Justiciar, he limited the jurisdiction of all other courts, and subordinated them to the King’s Court. By a regular system of removal from lord to county, and from county to King, he secured the gradual unification of the law. The lord’s courts had administered the customs of each manor; each county court, too, had its customs, all based upon the Germanic law, but differing materially in the several counties, and especially in the several ancient divisions of the kingdom. The King’s Court now began to develop a common law, partly Anglo-Saxon in its origin, partly Norman, but molded largely by Henry’s formal or informal legislation, and tempered, as Glanville several times asserts, by equity.

To increase the influence of the King’s courts and to bring them to the people, Henry relied on an already existing institution, the iter or eyre; but he so improved the system as to make it almost a new invention. The Kingdom was divided into circuits, each made up of a number of neighboring counties; and judges were appointed to ride each circuit, holding a King’s court in each county, and thus bringing every part of the Kingdom under the direct control of the King. Glanville himself became one of the first judges of the Northern Circuit.

One of the most important of Henry’s provisions for securing the King’s peace was the invention of writs for the protection of peaceful seisin, and the prevention of disseisin, even by the true owner. These writs put an end to forcible self-help, and brought every legal dispute over dispossession into the King’s Court. The writs of novel disseisin, of mort d’auncestor, and of darrein presentment, established by Henry’s legislation, became the basis of the land law.

Another reform, of even more far-reaching consequence, was his invention of a more rational method of establishing the truth of facts. In place of trial by ordeal, by compurgation, or by battle, he provided the assise (soon followed by the jury) as a means of eliciting truth. Trial by jury in the King’s Court, by favor or by right, became so popular as eventually to deprive the other courts of their litigation; and so satisfactory as to cultivate in the people of England a respect for law and a willingness to abide by its decisions that have been characteristic of the race for centuries.

The doctrine of res judicata seems to have been adopted at this time as another rule tending to the preservation of peace. When Glanville wrote, it had not been fully settled that the judgment even in a writ of right was necessarily final; Glanville’s strong opinion that it was so no doubt settled the law as we now have it.

In the work of reform Henry appears to have found in Glanville an enthusiastic and an able helper. This treatise is full of praise of the King and his legislation. The peaceful governing of its people is a great object of regal power, it is asserted. The king, who loves peace and is the author of it, conducts himself justly, discreetly, and mercifully toward his subjects. His will is law, if promulgated as such by the advice of his nobles; that and reasonable customs, long used, form the Laws of England, which may usefully, in part at least, be reduced to writing.

IV. THE TREATISE AND THE LAW.

It is possible from Glanville’s treatise to get a rather complete picture of the common law at the end of the reign of Henry II. In the lord’s courts were regularly brought not only the suits of the villein tenants, but all suits concerning land held of the lord. Suits of the latter sort, however, must be begun by the King’s writ; if the lord refused justice, resort might be had to the county court in all suits involving freehold land; and the lord might on his own motion adjourn a question of difficulty into the King’s court. The county court had original jurisdiction of questions of villeinage and of customary service, and of any question sent to it by the King’s writ; and it had jurisdiction over writs of right removed from the lord’s court. It apparently, also, had jurisdiction of disputes as to title or possession of personal property. The ecclesiastical courts had jurisdiction of questions of marriage and legitimacy, of wills, and of disputes involving ecclesiastical questions only; the King’s court would prohibit them by writ from interfering in other matters.

The procedure in the King’s court did not differ greatly from the present procedure. A suit was begun by writ, served by the sheriff, and enforced by the distraint of the defendant’s land. The most important feature of the procedure was the elaborate system of rules governing essoins or continuances. By a skilful use of essoins the defendant or tenant could prolong proceedings on a writ of right for years; the fact that in the new possessory assises few essoins were allowed, and the proceedings were therefore much prompter, contributed greatly to the favor with which they were received. Final judgment in the King’s court was by this time enrolled; and the method of conveying land by levying a fine was in full operation.

The law of real property in its essential features was fully formed. The whole law of tenures and incidents had been finally settled; but the rules of inheritance and of transfer by will were still uncertain. The doctrines of warranty (now obsolete), according to which the grantor of a party could be called into a suit, or in the technical phrase vouched to warranty, and thus substituted for the original party, were still of the highest importance in practice. The modern mortgage, i.e. the grant on condition, was as yet unknown: Glanville’s mortgage of land, like the pledge of personalty in his time, is a mere grant of custody by way of security.

The law of personal property was little developed. Doctrines as to pledge and bailment, derived from the old Germanic law, were applied in the county courts; there, for instance, the absolute responsibility of the bailee was still enforced. Through the writ of detinue and the action on the case, the King’s courts were soon to take control of these subjects, and to establish the modern law of bailments and carriers.

Certain formal contracts were enforced by the King’s court. The writ of debt would lie as a result of a loan, a sale, or an obligation created by charter. Redress for breach of ordinary contracts could be obtained only in the ecclesiastical courts, which might deal with the sin of deceit. Not for three centuries did the King’s court work out a doctrine by which a party might be held to perform his simple contract.

No action of damages for tort would lie. There is as yet no trace of the process by which (working from appeals of felony to writ of trespass against the King’s peace and actions on the case) the King’s court would eventually work out the modern law of tort. So far as there was any remedy for torts it was in the inferior courts.

The King’s court could at this time punish all felonies except theft, jurisdiction over which it obtained by Magna Carta. It was a long time before it obtained exclusive jurisdiction over felony, or took control, as “custos morum,” of misdemeanors.

Such law, it may be admitted, was rude and unsatisfactory; but it was a long advance over what had gone before, and it had within itself the germ of the modern Common Law.

Joseph H. Beale, Jr.

Harvard University,
October, 1900.

THE TRANSLATOR
TO THE
READER.

Of Ranulph de Glanville, the reputed Author of the following Treatise, Lord Coke speaks in terms of the highest encomium. He informs us, that Glanville was Chief Justice in the Reign of Henry the Second, that he wrote profoundly on part of the Laws of England, and that his Works were extant at that day. “And,” continues his Lordship, “in token of my thankfulness to that worthy Judge, whom I cite many times in these Reports, (as I have done in my former) for the fruit which I confess myself to have reaped out of the fair field of his Labors, I will for the honor of him and of his name and posterity, which remain to this day (as I have good cause to know) impart and publish, both to all future and succeeding Ages, what I found of great antiquity and of undoubted verity, the original whereof remaineth with me at this day, and followeth in these words: Ranulphus de Glanvilla, Justiciarius Angliæ, Fundator fuit domus de Butteley, in Comitatu Suffolciæ, quæ fundata erat anno Regis Henrici, filii Imperatricis, decimo septimo, et anno Domini 1171. quo anno Thomas Becket, Cantuariensis Archiepiscopus, erat occisus. Et dictus Ranulphus nascebatur in Villa de Stratford, in comitatu Suffolciæ, et habuit Manerium de Benhall, cum toto Dominio, e dono dicti Regis Henrici. Et duxit in uxorem quandam Bertam, filiam Domini Theobaldi de Valeymz, Senioris domini de Parham: qui Theobaldus per Chartam suam dedit dicto Ranulpho et Bertæ Uxori suæ totam terram de Brochous, cum pertinentiis, in qua domus de Butteley sita est, cum aliis terris et tenementis, in libero maritagio. Prædictus vero Ranulphus procreavit tres filias de dicta Berta (viz.) Matildam, Amabiliam, et Helewisam, quibus dedit terram suam ante progressum suum versus Terram Sanctam.” The document then proceeds with a minute accuracy to trace our Author’s Descendants, and finishes the sketch by informing us—“quod præfatus Ranulphus de Glanvilla fuit vir præclarissimus genere, utpote de nobili sanguine, vir insuper strenuissimus corpore, qui provectiori ætate, ad Terram sanctam properavit, et ibidem contra inimicos Crucis Christi strenuissime usque ad necem dimicavit.”[1] The paucity of these facts may be, in some measure, remedied, by consulting the Annals of our Second Henry, where the name of Glanville not unfrequently occurs. We hear of him in 1171, as Fermour of the Honor of Earl Conan:[2]—in 1172, as having the custody of that Honor, and the Fair of Hoiland;[3]—and in 1174, as still retaining the same Honor, and accounting for the Capture and Ransoms of Prisoners, &c. taken in War.[4] In the latter year he is said to have distinguished himself, as the General who took the King of Scotland Prisoner.[5] In 1175, he still retained the Honor of Earl Conan,[6] and filled the Office of Sheriff of Yorkshire.[7] In 1176, he was made a Justice of the King’s Court, and a Justice Itinerant.[8] In the same year, he accounted for Westmoreland by the hands of Reiner, his Dapifer or Steward, a privilege conceded to the great alone.[9] In 1180, he was made Chief Justiciary of all England, as we are informed by his cotemporary Roger Hoveden, whose words are too remarkable to be omitted. Henricus Rex Angliæ pater constituit Ranulphum de Glanvilla summum Justiciarium totius Angliæ, cujus sapientia conditæ sunt leges subscriptæ, quas Anglicanas vocamus.[10] The Chief Justiciary, presided in the Curia Regis next to the King, as Chief Judge in all civil and criminal questions; and governed the Realm like a Vice-Roy, when the King was beyond Sea, an event of frequent recurrence in that age. In fine, this officer was invested with a power that placed him far above every other subject. No sooner had Glanville arrived at this elevated post, than he exerted himself to restore and confirm many ancient Laws calculated for the good of the Realm.[11] How much to the satisfaction of Henry the Second Glanville filled this arduous situation, we may infer, from finding additional honors heaped upon him by that able and politic Prince. In 1183, our Author held the place of Dapifer to the King,[12] and, in the same year, he was appointed Fermour of Yorkshire:[13] situations, it is to be presumed, not incompatible with that of Chief Justiciary, which he appears to have retained, until the death of Henry the Second,[14] and that with undiminished honor, if we except the imputation cast upon him for condemning Sir Gilbert de Plumptun to death, but which seems to be refuted by the confidence continued to be reposed in him by the discerning Henry.[15] Immediately after the death of that Prince, he assumed the Order of the Cross, and perished fighting valiantly at the Siege of Acon in the year 1190.[16]

But, whether the same identical person successively occupied these various situations, and, at different periods of his life, filled the rather opposite and inconsistent characters of an able General and a profound Lawyer—a skilful Courtier and an enlightened Legislator, is a doubt which has been entertained by some very respectable Writers. Nor has it passed without a question, whether the present Treatise was really composed by the person whose name it bears. Lord Littleton, indeed, is inclined to infer, that it was not written by Glanville, but by some Clergyman under his direction.[17] These doubts may serve to evince the ingenuity of those who have suggested them, but they prove nothing. When the various situations Glanville is stated to have filled are represented as incompatible, and we start at beholding the grave Lawyer divest himself of his robes to girt on the armour of the soldier, we forget the manners of the age when Glanville florished. When we suppose, that because the work is composed in Latin, it was not written by a Layman, we beg the question: and, having assumed, that no Layman, whatever his parts, whatever his application, could have been sufficiently skilled to write such Latin as our Author has employed, we pay but a sorry compliment to the age, and rather too hastily conclude that we have proved, what, indeed, we have merely taken for granted. When, in fine, we infer, that the knowledge of Law displayed in the Work, and the labor consumed in composing it, are no less inconsistent with the high and elevated station of Glanville, than incompatible with his employments, we forget, that his rise was progressive, and that, as there are but few things to which a truly great mind is inadequate, the production of a small volume upon that Law which it was daily in the habit of dispensing, ought not, whatever the merit of the work may be, to be ranked amongst the number. It must not, however, be concealed, that Mr. Selden mentions a circumstance which, at the first glance, appears to go a great way in determining the question. “I know the authority of that Treatise,” says he, in speaking of the present work, “is suspected, and some of the best and ancientest copies having the name of E. de N. which I have heard from diligent searchers in this kind of Learning affirmed to have been sometimes E. de Narbrough, and not R. de Glanvilla, it hath been thought to be another’s work, and of later time. But as, on the other side, I dare not be confident that it is Glanville’s, so I make little question, that it is as ancient as his time, if not his work. The teste of the precedents of writs under his name, the language, especially the name of Justitia always for that which we now from ancient time called Justiciarius, (and Justitia was so used in writers under Henry the Second) and the Law delivered in it tasteth not of any later age.”[18] Though the latter part of this Extract may be reasonably thought to furnish a sufficient answer to the doubt expressed in the former part, the Translator cannot but observe upon the singularity, that none “of the best and ancientest copies” are forthcoming in support of the fact they are said to prove.

With respect to the Work itself now submitted to the Public in an English dress, it is said to be the first performance that has any thing like the appearance of a Treatise on the subject of Jurisprudence, since the dissolution of the Roman Empire.[19] But this is not correct, if the Assises of Jerusalem, compiled, as we are informed in the preamble, in 1099—the System of Feudal Law, composed by the two Milanese Lawyers in 1150, and the Decretum of Gratian, published about the same time, be considered as Treatises on Law. It seems, however, to be unquestionable, that the present Treatise is the earliest and most ancient work on the subject of English Jurisprudence, from which any clear and coherent account of it is to be obtained. Dr. Robertson, indeed, informs us, “that in no country of Europe was there at that time, any collection of Customs, nor had any attempt been made to render Law fixed. The first undertaking of that kind was by Glanville, Lord Chief Justice of England, in his Tractatus de Legibus et consuetudinibus,[20] composed about the Year 1181.”[21]

It has been thought, that Glanville drew up this compendium of the Laws of England for the public use, by the express command of Henry the Second, a conjecture which, Mr. Madox observes, is not only favored by a certain MS. remaining in the Library of Corpus Christi College, Cambridge, written in a hand of the age of Edward the Second, in which there is a Treatise entituled Leges Henrici Secundi, agreeing in many passages with the printed copy of Glanville, but also by the manner of our Author’s writing, especially in the Prologue.[22] There is also in the Cottonian collection a MS. of Glanville, which bears the Title of Laws of Henry the Second. But Mr. Reeves informs us, this manner of entituling Treatises was not then uncommon.[23]

The present work appears to have remained in MS. until the Year 1554, when, as Sir Edward Coke apprises us, it was, by the persuasion and procurement of Sir William Stanford, a grave and learned Judge of the common Pleas, first printed.[24] With many peculiar circumstances, however, to create an Interest in its favor, the fate of the work has been most singular. Indebted to its intrinsic merit alone for the high compliment it has long enjoyed, in being looked up to as an authority from which there was no appeal, curiosity has given way to an opinion, that whilst it was venerable for its antiquity, it was also useless, for it was obsolete. That many parts of it are obsolete, it would be idle to deny; but that the work itself is by no means so entirely obsolete as generally assumed, will be fully evident to every impartial and candid Reader. But were it entirely obsolete, it would not necessarily follow, that it would be useless, the terms not being, at least in the science of Jurisprudence, either convertible or synonymous, however fashionable, or, more properly speaking, convenient it may be to esteem them such. Multa ignoramus quæ nobis non laterent, si Veterum lectio nobis esset familiaris. The Law of Modern Times is intimately connected with that of our Forefathers, and the decisions of the present day are not unfrequently built upon principles that are enveloped in the almost impervious mist of far distant ages. But to these principles must the Student ascend, if he would merit the name of a Lawyer; and, if the labor be severe, he must reconcile it to himself by reflecting, that it was submitted to by a Coke, a Hale, a Blackstone. Led by the soundness of their judgments, to investigate the earlier ages of our Jurisprudence, those great men considered nothing useless, though it possibly might happen to be obsolete, which tended to enlighten their minds, and shew them the fundamental principles of those Laws, which they afterwards no less admirably illustrated, than ably administered. But the brightness of the example instead of exciting emulation seems to have depressed it: and Glanville, Bracton, and Fleta have been suffered to crumble on the shelf, whilst Edition has rapidly followed Edition of those more modern Authors, who have advocated their cause, by drawing so deeply from the rich and inexhaustible mines, which their pages present to the English Lawyer.

It remains to speak of the Translation now submitted to the Public. Fidelity has been the principal object of the Translator. If more be demanded, he would shelter himself under the high name of Sir William Jones. “Elegance, on a subject so delicate as Law, must be sacrificed, without mercy, to exactness.” Next to fidelity, simplicity has been aimed at, as most in unison with the original, and, perhaps, the best adapted for transfusing its spirit into the English Language. Not that with these two objects immediately before him, the Translator would be understood as conceding, that he has sacrificed any beauty, any elegance of expression generally abounding in, or spread over, the original work. He could not sacrifice that which never existed. The style of Glanville, destitute of every grace, and dry and harsh in the extreme, professedly aims at the peculiar qualities which characterise it. Stilo vulgari et verbis curialibus utens ex industria, ad notitiam comparandum eis, qui hujusmodi vulgaritate minus sunt exercitati, are the very terms in which he describes his own manner of writing. So successfully has he accomplished his object, that he imposes upon his Translator a Task not altogether unlike that of acquiring a new language. Yet to these difficulties the Translator reluctantly alludes, for though they may, in some measure, atone for those errors into which he is apprehensive he has often fallen, he is conscious, the merit of his attempt is not to be estimated by its arduousness, but its utility.

With respect to the Annotations, it was the Translator’s original intention to have confined himself to a mere explanation of the obsolete Terms. But, anxious to render the work more extensively useful, he has not unfrequently departed from his first design. Among the works occasionally referred to, the Reader will recognise the Regiam Majestatem—so termed from the words with which it commences. This work has been sometimes received, as containing the genuine ancient Law of Scotland—sometimes rejected, as a mere spurious fabrication. Among the names in collision on this point are those of Skene, Erskine, Lord Kaims, Houard, Dalrymple, Craig, Lord Stair and Dr. Robertson. Nor has there been less dispute whether Glanville, or the Regiam Majestatem be the original work. But this question is said to be satisfactorily disposed of by Mr. Davidson, who has published a pamphlet expressly on the subject, and has proved, if it were necessary to prove, what is rendered indubitable by the internal Evidence of the two Works, that Glanville is the original; observing, at the same time, “that Glanville is regular, methodical, and consistent throughout; whereas the Regiam Majestatem goes out of Glanville’s method for no other assignable reason, than to disguise the matter, and is thereby rendered confused, unsystematical, and in many places contradictory.” The Translator has not been able to meet with Mr. Davidson’s work, but is indebted to the [preface] attached to the last Edition of Glanville for this Summary of it. “To this observation upon the method of the Regiam Majestatem,” says Mr. Reeves, “it may be added, that, on a comparison of the account given of things in that and in Glanville, it plainly appears, that the Scotch Author is more clear, explicit, and defined; and that he writes very often with a view to explain the other, in the same manner in which the writer of our Fleta, explains his predecessor Bracton. This is remarkable in numberless instances all through the Book, and is, perhaps, as decisive a mark of a copy as can be. The other Scotch Laws, which follow the Regiam Majestatem in Skene’s collection, contribute greatly to confirm the suspicion. These, as they are of a later date than several English Statutes which they resemble, must be admitted to be copied from them; and so closely are the originals followed, that the very words of them are retained. This is particularly remarkable of the Reign of Robert the Second, in which is the Statute of quia Emptores, and others plainly copied from our Laws, without any attempt to conceal the imitation. These Laws, at least, can impose upon no one; and when viewed with the Regiam Majestatem at their head, and compared with Glanville and the English Statute Book, they seem to declare very intelligibly to the world, that this piece of Scotch Jurisprudence is borrowed from ours.”[25] Nor is the enlightened and liberal Historian Dr. Robertson more favorably disposed towards that claim, which some of his countrymen have put in, for the originality of the Regiam Majestatem. “The Regiam Majestatem ascribed to David the first seems,” he observes, “to be an imitation and a servile one, of Glanville. Several Scottish Antiquaries, under the influence of that pious credulity, which disposes men to assent without hesitation to whatever they deem for the honor of their native country, contend zealously, that the Regiam Majestatem is a production prior to the Treatise of Glanville; and have brought themselves to believe, that a nation, in a superior state of improvement, borrowed its Laws from one considerably less advanced in its political progress. The internal Evidence (were it my province to examine it) by which this theory might be refuted is in my opinion decisive. The external circumstances, which have seduced Scottish Authors into this mistake, have been explained with so much precision and candor by Sir David Dalrymple, in his Examination of some of the arguments for the high antiquity of the Regiam Majestatem, Eding, 1767. 4to, that it is to be hoped, the controversy will not be again revived.”[26]

In dismissing this subject, it may be remarked in the words of Mr. Reeves, that it seems unnecessary to contend for the originality of the Regiam Majestatem, whilst a doubt of much more importance remains unsettled—whether that Treatise, as well as the others in the publication of Skene, are now, or ever were, any part of the Law of Scotland, on which, as we have already observed, so many eminent men differ. On the other hand, the authenticity of Glanville, as the code of Law existing in this country during the Reign of Henry the Second, has been admitted, either expressly or impliedly by all the English Lawyers, who have florished in the long interval which has elapsed from that period to the present, and never has been questioned, if we except a solitary dictum, which, as it equally affected the credit of Bracton, and was totally unauthorised, is refuted by a thousand circumstances, if it were an object to mention them.[27] But to return from this digression.

Though the Translator had not the good fortune to meet with Mr. Davidson’s Pamphlet, he was more successful in discovering Skene’s translation of the Regiam Majestatem, deposited in Lincoln’s Inn Library. The Translator intended to have noticed such parts of the Regiam Majestatem, as coincided with Glanville. But, after having, with some attention, perused the former Book, he found the similarity between the two works so very general, and the correspondence so exact, that the Regiam Majestatem might frequently be taken verbal Translation of Glanville, or, at least, as another Edition of the same Treatise, in which the writer had made some slight additions and alterations, and had capriciously amused himself in contriving an arrangement totally different, though far less happy and systematical. The Translator has, therefore, generally contented himself with noticing those deviations between the two works, which were more immediately relevant to his subjects. Nor has he always stopped here, but has availed himself of the Regiam Majestatem, whenever it was less ambiguous, or more decided than Glanville, which from the very circumstance of its being a posterior publication, it sometimes naturally will happen to be. In addition to the Regiam Majestatem, reference has been occasionally made to the Grand Custumary of Normandy, Bracton, Fleta, Britton, Coke, Hale, &c. &c. Some of these references serve to corroborate—some to illustrate the Text: some tend to shew that a Law was not peculiar to this Country, and some that a similar Rule has been adopted even in Modern Times by a neighboring State. In consulting the Laws of that state, and noticing those instances of strong or faint resemblance between them and the Code of Henry the Second, the Translator acted in deference to the suggestions of a Gentleman, who, though possessed of the most profound legal knowledge, is yet more entitled to our admiration for his singular liberality of sentiment, and urbanity of manners. If the more enlightened mind derive no benefit from the plan which has been adopted in the notes, and anticipate the Result; yet, it is hoped, the Student may receive some advantage from it. But, if the Translator has been too diffuse in some instances, he has, on other occasions, contented himself with a bare reference. He has been averse to swell the [Notes], where a bare citation would serve to direct the Student, if disposed to extend his inquiries. In addition to the Translator’s own [Notes], the Reader is furnished with a few annotations extracted from a copy of Glanville, formerly belonging to Mr. Justice Aland, and now deposited in the collection of the Royal Institution. Yet, should it be observed, it is not perfectly clear whether these annotations were made by that learned Judge, or by the Reverend Mr. Elstob, a gentleman deeply versed in Anglo-Saxon Literature. By way of distinction, these Annotations are particularised by (Al. MS.)

In order to render the work as complete as the limited ability of the Translator would allow, he has subjoined the more important, and only the more important various Readings, as furnished by the Bodleian, the Cottonian, the Harleian and Dr. Milles’s MSS. The MS. of Glanville deposited in Lincoln’s Inn Library has not been consulted.

The Translator concludes these cursory observations with a brief summary of the contents of Glanville, availing himself, in some measure, of that contained in Mr. Reeves’s History.

Our Author in general confines himself to such matters only as were the objects of jurisdiction in the Curia Regis, and divides his work into fourteen Books. The two [first] of which treat of the Writ of Right, when originally commenced in the Curia Regis, and of all its stages, the Summons—Essoins—Appearance—Pleadings—Duel or Grand Assise—Judgment and Execution. The [third] speaks of vouching to Warranty, which with the two former Books, comprises a lucid account of the proceedings in a Writ of Right for the recovery of Land. The [fourth Book] is employed upon rights of Advowson, the [fifth] upon Villenage, and the [sixth] upon Dower. The [seventh] treats upon Alienation, Descents, Succession, Wardship, and Testaments. The [eighth] is upon final Concords, and Records in general. The [ninth] is upon Homage, Relief, Fealty, Services, and Purprestures. The [tenth] treats of Debts and matters of Contract; and the [eleventh] upon Attornies. Having thus disposed of Actions commenced originally in the Curia Regis, our author, in his [twelfth Book], speaks of Writs of Right, when brought in the Lord’s Court, and the manner of removing them from thence to the County Court and Curia Regis, which leads him to mention some other Writs determinable before the Sheriff. In his [thirteenth Book], he treats of Assises, and Disseisins. The [last Book] is wholly taken up in discussing the doctrine of Pleas of the Crown.

JOHN BEAMES.

It was intended to have added the names of all those Gentlemen, who subscribed for the work. But the list having been consumed in the fire which destroyed Mr. Reed’s Premises, and many of the names having been thereby lost, it is become impossible.

PREFACE.

The Regal Power should not merely be decorated with Arms to restrain Rebels and Nations making head against it and its realm, but ought likewise to be adorned with Laws for the peaceful governing of its Subjects and its People.[28] With such felicity may our Most Illustrious King conduct himself, in the periods both of Peace and of War, by the force of his right hand, crushing the insolence of the violent and intractable, and, with the sceptre of Equity, moderating his Justice towards the humble and obedient, that as he may be always victorious in subduing his Enemies, so may he on all occasions shew himself impartially just in the government of his Subjects. But how gracefully—how vigorously—how skilfully, in counteracting the malice of his Foes, our Most Excellent King has, in the season of hostility, conducted his Arms, is manifest to all: since his fame has now spread over the whole World, and his splendid actions reached even the confines of the Globe. How justly—how discreetly—and how mercifully—he, who loves Peace and is the Author of it, has conducted himself towards his subjects in the time of Peace, is evident, since the Court of his Highness is regulated with so strict a regard to Equity, that none of the Judges have so hardened a front, or so rash a presumption, as to dare to deviate, however slightly, from the path of Justice, or to utter a sentence, in any measure contrary to the truth. For there, indeed, the power of his adversary oppresses not the poor Man, nor does either the favor or credit of another’s Friends, drive any person from the seat of Judgment. Since each decision is governed by the Laws of the Realm, and by those Customs which, founded on reason in their introduction, have for a long time prevailed; and, what is still more laudable, our King disdains not to avail himself of the advice of such men (although his subjects) whom, in gravity of manners, in skill in the Law and Customs of the Realm, in the superiority of their wisdom and Eloquence, he knows to surpass others, and whom he has found by experience most prompt, as far as consistent with reason, in the administration of Justice, by determining Causes and ending suits, acting now with more severity, and now with more lenity, as they see most expedient.[29] For the English Laws, although not written, may as it should seem, and that without any absurdity, be termed Laws, (since this itself is a Law—that which pleases the Prince has the force of Law[30]) I mean, those Laws which it is evident were promulgated by the advice of the Nobles and the authority of the Prince, concerning doubts to be settled in their Assembly. For, if from the mere want of writing only, they should not be considered as Laws, then, unquestionably, writing would seem to confer more authority upon Laws themselves, than either the Equity of the persons constituting, or the reason of those framing, them. But, to reduce in every instance the Laws and Constitutions of the Realm into writing, would be, in our times, absolutely impossible, as well on account of the ignorance of writers, as of the confused multiplicity of the Laws. But, there are some, which, as they more generally occur in Court, and are more frequently used, it appears to me not presumptuous to put into writing, but rather very useful to most persons, and highly necessary to assist the memory. A certain portion of those I therefore intend to reduce into writing, purposely making use of a vulgar style, and of words occurring in Court, in order to instruct those who are less accustomed to this kind of vulgarity. In proof of which, I have distinguished the present work by Books and Chapters.

Book I.

OF PLEAS WHICH BELONG TO THE KING’S COURT, OR TO THE SHERIFF; AND OF ESSOINS; AND OTHER PREPARATORY STEPS USUALLY RESORTED TO IN SUITS, UNTIL BOTH PARTIES APPEAR TOGETHER IN COURT.

CHAP. I.

Pleas are either Criminal or Civil.[31] The former are divided into such as appertain to the King’s Crown, and such as belong to the Sheriffs of Counties. These Pleas belong to the King’s Crown.[32]

CHAP. II.

The crime which, in legal phrase, is termed that of Læse Majesty, as the death of the King, or a sedition moved in the Realm, or Army[33]—the fraudulent concealment of Treasure-trove—The Plea concerning the breaking of the King’s peace—Homicide—Burning—Robbery—Rape—the crime of Falsifying,[34] and such other Pleas as are of a similar nature.[35] These crimes are either punished capitally, or with loss of Member.[36] We must, however, except the crime of Theft, which belongs to the Sheriffs of Counties, and is discussed and determined in the County Courts.[37] It also appertains to Sheriffs, in case of neglect on the part of Lords of Franchise, to take cognizance of Scuffles,[38] blows, and wounds, unless the Accuser subjoin to his charge, that the offence was committed against the King’s Peace.[39]

CHAP. III.

Civil Pleas are divided into such as are discussed and determined in the King’s Court only, and such as fall within the Jurisdiction of the Sheriffs of Counties. In the former Court, are discussed and determined, all such Pleas as concern Baronies, Advowsons of Churches, questions of condition, Dower, when the Woman has been entirely debarred from receiving it; for breach of Fine made in the King’s Court; concerning the performing of Homage, and the receiving of Reliefs, and concerning Purprestures,[40] and Debts owing by lay persons. These Pleas, indeed, relate to the propriety of the thing only: concerning those which refer to the possession, and which are discussed and decided by Recognitions,[41] we shall speak in their proper place.

CHAP. IV.

To the Sheriffs of Counties these Pleas appertain: the Plea concerning the Right of Freehold, when the Courts of the Lords are proved to have failed in doing justice, the nature of which we shall speak of in another place; and the Plea concerning Villeins-born: such Pleas being, in each instance,[42] sanctioned by the King’s Writ.[43]

CHAP. V.

When any one complains[44] to the King, or his Justices, concerning his Fee, or his Freehold, if the complaint be such as be proper for the determination of the King’s Court, or the King is pleased that it should be decided there, then the party complaining shall have the following Writ of summons.

CHAP. VI.

“The King to the Sheriff, Health.[45] Command A. that, without delay, he render to B. one Hyde of Land, in such a Vill, of which the said B. complains, that the aforesaid A. hath deforced him; and, unless he does so, summon him by good summoners, that he be there, before me, or my Justices, in crastino post octabas clausi Paschæ at such a place, to show wherefore he has failed; and have there the Summoners and this Writ. Witness Ranulph de Glanville, at Clarendon.”

CHAP. VII.

The party who is thus summoned either appears at the day appointed, or makes default, or sends a Messenger, or Essoin,[46] or neither. If he neither appear, nor send an Essoin, his adversary, the Demandant, should, on the day appointed, appear before the Justices, and offer to proceed against him in the suit; and he shall thus await in Court during three days. If the Tenant appear not on the fourth day, the summoners being present, and alledging that they had duly cited him, and offering to prove it, according to the course of the Court, another Writ shall Issue to summon the Tenant to appear at the distance of fifteen days[47] at least, in which Writ he shall be required as well to answer to the original Suit, as for his default in disobeying the first summons.[48] In this manner, three Summonses shall issue; and, if the Tenant neither appear at the third summons, nor send, the Tenement shall be taken into the King’s hands, and shall so remain, during fifteen days.

And, if, within that period, he appear not, the Seisin[49] shall be adjudged to his adversary, so that from thenceforth the Tenant shall not be heard, unless in a suit concerning the propriety, and that authorised by the King’s Writ of Right.[50] If, however, he appear within the fifteen days, and be desirous of replevying the Tenement, he shall be commanded to appear on the fourth day, and he shall have that which he is legally entitled unto; and thus, if he appear, he may recover the Seisin. Should he, however, appear at the third Summons, and confess the former Summonses, he shall instantly lose the Seisin, unless he can excuse his default by the King’s Warrant, and by the Writ, which he should instantly produce.

CHAP. VIII.

“The King to the Justices, Health. I warrant B. who was at such a place, by my precept, on such a day, in my service, and, therefore, could not be present before you on that day at your Assizes; and I command you, that you put him not in default for his absence that day, nor that he in any respect suffer loss.

Witness, &c.”[51]

CHAP. IX.

If he should deny all the summonses, he shall, as to each of them individually, corroborate his denial with the oaths of twelve.[52] Should it happen on the day appointed that either of the Compurgators[53] fail, or should the person of either of them be justly excepted to, and the vacancy occasioned by either of these circumstances not be filled up, the Tenant shall, on account of his default, immediately lose his Seisin.[54] But, if the Tenant thus completely disprove the summonses, he shall on the same day answer to the Action.[55]

CHAP. X.

If the Tenant, being summoned, appear not on the first day, but Essoin himself, such Essoin shall, if reasonable, be received; and he may, in this manner, essoin himself three times successively; and, since the causes, on account of which a person may justly essoin himself, are various, let us consider the different kinds of Essoins.

CHAP. XI.

Of Essoins, some arise on account of ill health, others from other sources. Of those Essoins which arise from ill health—one kind is that ex infirmitate veniendi—another ex infirmitate de reseantisâ.[56]

CHAP. XII.

If the Tenant, being summoned, should, on the first day, cast the Essoin de infirmitate veniendi,[57] it is in the election of his Adversary, being present, either to require from the Essoiner a lawful proof of the truth of the Essoin in question, on that very day,[58] or that he should find pledges, or bind himself solemnly, that at the day appointed he will have his Warrantor of the Essoin; and he may thus Essoin himself three times successively. If, on the third day,[59] he neither appear nor essoin himself, then let it be ordered, that he be forthcoming in proper person on another day; or that he send a fit Attorney in his place, to gain or lose for him. Thus, whoever on the appointed day may appear in the place of the Tenant, offering to undertake his defence, whether authorised by his Letters, or without them, is immaterial, if it be known, that he be allied to the absent Tenant, he shall be received for him in Court, either to gain or lose.[60] It may be asked, what will be the consequence if the Tenant appear at the fourth day, after having cast three Essoins, and warrant all the Essoins? In that case, he shall prove the truth of each Essoin[61] by his own oath and that of another; and, on the same day, he shall answer to the suit. If, on the fourth day, he neither appear nor send an Attorney, let the Tenement be taken into the King’s hands, a Writ being issued by the Court for that purpose, directed to the Sheriff of the County, in which such Tenement is situated, which Writ is in the following words:

CHAP. XIII.

“The King to the Sheriff, Health. I command you that, without delay, you take into my hands the half of the lands in such a will, which M. claims, as her Dower, against R. concerning which there is a suit between them in my Court, and that you make known the day of the caption to my justices. And summon, by good Summoners, the aforesaid R., that he be before me[62] or my Justices at Westminster a crastino octabus clausi Paschæ in quindecim dies, to hear his judgment, and have there the Summoners and this Writ. Witness Ranulph de Glanville at Westminster, &c.” In addition, let the Sheriff of the County be commanded to take the Essoiners, as Defaulters, and to detain them, and for this purpose the following writ shall Issue:

CHAP. XIV.

“The King to the Sheriff, Health. I command you that, without delay, you diligently seek, through your County, A. who has falsely Essoined B. against C. in my Court, and that you safely keep him, until you have my other precept. Witness, &c.” The Defendant himself shall also, in the mean time, be summoned to appear before the King, or his Justices, to show why he has not warranted his Essoiner, and to answer to the principal suit. Besides, the Pledges of the Essoiners shall be summoned, by the following Writ.

CHAP. XV.

“The King to the Sheriff, Health. Summon by good Summoners T. that he be before me, or my Justices, at Westminster, in fifteen days from the Pentecost, to show why he has not had I. before me at Westminster, on such a day, to warrant the Essoin that I. made for him in my Court against M. as he pledged himself to have him. And have there the Summoners, and this Writ. Witness, &c.”

CHAP. XVI.

But, if the Tenant appear within the fifteen days, and be willing to replevy the Tenement, let him be commanded to attend, on a day appointed, that he may then have justice done him; and, if he appear on that day, and find pledges, he shall recover his seisin, and may retain it. If he deny all the Summonses, and all the Essoins, and disprove them individually with the oaths of twelve, or if he acknowledge the first Summons, and warrant the three Essoins, and save the fourth day by the King’s Writ of warranty, which he should forthwith produce, he may also retain his Seisin. But, if the Tenant appear not within the fifteen days, the seisin shall, on the following day, be adjudged to his adversary, so that the Tenant shall never again be heard concerning it, unless by the King’s Writ concerning the Right.[63] But the Demandant shall be put into the possession of the Tenement, by the following Writ, directed to the Sheriff.

CHAP. XVII.

“The King to the Sheriff, Health. I command you that, without delay, you deliver possession to M. of so much land in such a Vill, of which there was a suit in my Court, between him and R.; because the Seisin of such Land is adjudged to the said M. in my Court, for the default of R. Witness, &c.”

CHAP. XVIII.

If any one desire to cast the Essoin de infirmitate de Reseantisâ, he may thrice do it.[64] Yet should the Essoiner, on the third day preceding that appointed, at a proper place, and before a proper person, present his Essoin. If, on the third summons, the Tenant appear not, the Court should direct, that it may be seen whether his indisposition amount to a languor,[65] or not. For this purpose, let the following Writ issue directed to the Sheriff.

CHAP. XIX.

“The King to the Sheriff, Health. I command you that, without delay, you send four lawful men[66] of your County to see of the infirmity of which B. hath essoined himself in my Court, against R. be a languor or not. And, if they perceive that it is a languor, then, that they should put to him a day of one year and one day, from the day of the view, to appear before me, or my justices, or that he send a sufficient Attorney to answer for him. And if they see that it be not a languor, then, that they put him a certain day, on which he shall appear, or send a sufficient Attorney to answer for him. And Summon, by good Summoners, the aforesaid four Knights, that they be then there to testify their view, and the day they put him; and have there the summoners and this Writ. Witness, &c.” It should be observed, that two Essoiners, at least, are necessary to cast this Essoin.

CHAP. XX.

It should also be remarked, that the two first essoins may be cast de infirmitate veniendi, and the third de reseantisâ.

Should that course be adopted, the Court should send to ascertain, whether the indisposition amount to a languor, or not. If, however, the two first essoins should be de reseantisâ, and the third de infirmitate veniendi, it shall be ordered as if they were all de infirmitate veniendi, because the judgment must always follow the nature of the last essoin.

CHAP. XXI.

Should it upon any of these occasions happen, that the party himself should answer in Court, and whilst he was present, a future day should have been appointed him; if, at that day, he neither come nor send an Attorney, let his land be taken into the King’s hands, and let him be debarred the power of replevying it. And he shall be summoned to appear and hear the judgment at an appointed day—and thus, whether he appear or not, he shall lose the Seisin, on account of his default; because he cannot afterwards deny the summons, unless by the King’s Writ, which he should forthwith produce, and by which he may save his default. But although on any of the days appointed for his appearance, the Tenant should answer in Court, if he lawfully depart, he may recur to his three Essoins, unless he has precluded himself by an agreement to waive them. If, on the first day, the party should essoin himself, but, on the second, should neither appear nor essoin himself, let the Sheriff be commanded to attach the Essoiner, as a defaulter, and for this purpose let the foregoing Writ be directed to him.

CHAP. XXII.

But it should be observed, that when a party to a suit has Essoined himself, the Essoiner may also avail himself of a reasonable Essoin. For if any one desirous of casting a reasonable Essoin, should commission a person for this purpose, and the Essoiner meets with some reasonable impediment in the way, by which he is prevented being present at the appointed day, he shall be awaited until the fourth day, as his Principal would have been; and if within that period he appear, his Essoin shall be received, on whatever day he should come; and he may thus save the days which are past for the same causes for which his principal[67] could.

CHAP. XXIII.

The principal Essoiner is also at liberty, if so disposed, to essoin himself by another Essoiner. In this case the second Essoiner must state to the Court, that the Tenant, having a just cause of Essoin, had been detained, so that he could not appear at the day appointed, neither to lose nor gain, and that, therefore, he had appointed a certain other person to essoin him; and that the Essoiner himself had met with such an impediment, which had prevented his appearance on that day:—and this he is prepared to prove according to the practice of the Court. By these means, such Essoiner shall be received, and a day shall be granted to the Tenant, through the medium of such Essoiner, upon his undertaking to produce his Warrantor on such a given day, when the Tenant ought to guarantee his principal Essoiner, and to prove his Essoin in the usual manner. In the same manner, the first Essoiner is to guarantee the second, unless on the first day he himself has proved his Essoins, upon the requisition of the adverse party.

CHAP. XXIV.

But if the Tenant, desirous of proceeding in the cause, should, after his Essoin cast in Court and within the fourth day, appear, then, if the day was in the first instance fixed through the intervention of the Essoiner, and the adverse party has under these circumstances left the Court, the Demandant[68] cannot recover, as he might on the day past.

CHAP. XXV.

There is another species of Essoin; which is permitted from the necessity of the case; and this happens when any one casts the Essoin de ultra mare.[69] In that case, if the Essoin be received, the period of forty days, at least, shall be given to the party essoined. But if, by means of this or any other reasonable Essoin, a man would essoin himself for a longer period, the usual course of the Court shall be followed in giving time.

CHAP. XXVI.

There are other Essoins which eventually may be resorted to, in order to save the four days, or one of them, by means of which Essoins the adverse party should be awaited in Court: as, for Example, a sudden inundation, or any other unexpected event which could not be foreseen.

CHAP. XXVII.

The service of the King is also another reasonable cause of Essoin,[70] and when this Essoin is proved in Court and allowed, the Suit shall stand over sine die, until it appear that the party has returned from the King’s service. Hence those who are continually in the King’s service, as his Servants,[71] shall not avail themselves of this Essoin; but, with respect to their persons, the ordinary course of the Court, and the order of the Law, shall be observed. We must, however, make a distinction, with respect to the foregoing Essoin. The party desirous of availing himself of the Essoin per servitium Regis, will either have been summoned by his adversary previously to entering into such service, or he will have entered into such service in the first instance, and have afterwards been summoned.

If he were in the first instance in the King’s service, and in the mean time be summoned to answer the suit, the Rule we have above laid down must unquestionably prevail. On the other hand, if a party be impleaded in the first instance, and he afterwards cast the Essoin per servitium Regis, it is material to ascertain, whether he act by a mandate of the King, or a general or special precept, and be from necessity in such service, or otherwise. If he were called by a precept of the King into his service, then, indeed, the same Law prevails, as in the former instance. But if, on the other hand, voluntarily and without any such precept, he has recently entered into the King’s service, it must be distinguished, whether he has gone beyond sea in that service, or remains within the Realm. If he has gone beyond Sea, a respite[72] of forty days, at least, shall be allowed him, but, if he should not return within that period, the accustomed course of the Court, and the order of Law shall be observed. At whatever period he appears in Court, and whether personally, or by his Attorney, he must immediately produce the King’s Writ, to warrant his preceding Essoins. But if, on the other hand, the Defendant be within the Realm, and in the service of the King, in that Case it must be regulated by the will and pleasure of the King’s Justices, whether a less or a greater period[73] be allowed him to appear and answer, according as it may best suit the King, and may be consistent with the course of Justice.

CHAP. XXVIII.

It may also happen, that a party is essoined in Court, on account of some indisposition by which he is confined in the same Town where the Court is sitting, having arrived there to prosecute his plea. In this case, let the Court direct, that he appear on the morrow; and thus let him be awaited during three successive days—and for this cause, he shall have a delay of three successive days. If, on the third day, he then so essoin himself, then four Knights should be directed by the Court to attend him for the purpose of ascertaining, whether he is in such a state as to be able to make his appearance in Court, or not; and, should they be of opinion that he is able, then, they should command him, to attend in Court, and do that which he ought. But, if they should think him unable, and should testify this to the Court, then shall a reasonable time, a delay of fifteen days at the least, be allowed him.

CHAP. XXIX.

There is also another Essoin, which is sometimes presented in Court—I allude to that, de esse in peregrinatione. But here a distinction must be made, whether the party who would thus essoin himself was impleaded before he undertook his Voyage, or not. Because, in the former case, the course of the Court and the order of Justice shall be observed. But, if he was not summoned previously to his beginning his Travels, then again it must be distinguished whether he went to Jerusalem, or to another place. If to the former place, then a year and a day, at least, is generally allowed him; but with respect to other Travels, the time allowed must be regulated by the Will and pleasure of the King, or his Justices, who, keeping in view the length or shortness of the Journey, are to temper the Rule as they may think proper.[74]

CHAP. XXX.

In the Writ directed to the Sheriff, for the purpose of summoning the party, there is the following clause inserted, “and have there the summoners and this Writ.”

When, therefore, the Demandant offers himself in Court on the appointed day, the first inquiry is, whether the Sheriff has the Summoners, and the Writ there present or not; if he have, and the Summons be proved, the Suit must be proceeded in, in the manner we have mentioned. But, if the Sheriff should neither be present on that day, nor appear within the fourth day, to which time the Tenant must be awaited, then let the Sheriff be again commanded by the King’s Writ, to summon the Tenant, concerning the principal cause, by a Writ of second Summons, and that he himself appear to shew why he neglected to make the Summons, as enjoined him by the first Writ. The Writ of second Summons contains that which first issued, with the addition of the following clause: “and be you yourself then there present to shew wherefore you did not summon him, as it was commanded you by my other Writ, and have there this Writ, and that other Writ.” At the day appointed, the Sheriff appearing, either says that he executed the King’s precept, or confesses that he has not done it.

Should he acknowledge the latter, then he shall be amerced to the King. But, in this case, the Demandant shall lose his first day, and the Tenant must be again summoned. But should the Sheriff allege that he had injoined lawful Summoners to execute the first Summons—and they, being present, acknowledge the fact, then not only the Sheriff, but the Summoners shall be amerced,[75] if they have not executed such Summons as it was their duty to do; and thus again the first day will become useless to the Demandant.

But if those whom the Sheriff nominated as Summoners, being present, should assert that the Sheriff did not injoin them to summon the Tenant, we must then distinguish, whether the Sheriff delivered his order to them in the County Court, as he always ought to do, (in order that, if the complaint be presented some time before a County Court, the party may be attached until the County Court, and then there may be a full Summons,) or in any other manner. If the Sheriff gave his orders to them in the County Court, and this be properly proved, the Summoners shall be amerced, because they cannot contradict a fact, which has been transacted in a County Court.[76] But if the Sheriff, being out of the County Court, and less publicly than he ought, injoin them to summon the Tenant, and they deny that he did so injoin them, the Sheriff shall be amerced for not having executed the King’s Writ in the manner that he ought. For public Acts of this nature, such as, the injoining Summoners—the taking of Pledges for the prosecuting of Actions—and for Appearances,[77] ought to be publicly transacted, lest concerning these steps, which are merely preparatory to a final determination, a difficulty should arise, in itself the occasion of procrastinating the decision. But if, on the first day, the Summoners should not appear and assert that they had in a legal way executed the first Summons, but should send their Essoiners on the first day, who essoin them, and add, that they had properly executed the first Summons, then the Demandant shall not lose his first day, and they shall be amerced, because they have not appeared at the first day to prove that they had executed the Summons as was injoined them, unless they can excuse their default on that day, by the King’s Warrant. We must, however, not forget, that either the one or the other of the Summoners is permitted legally to excuse himself on the first day, and in that case the Demandant shall not lose the day in question.

CHAP. XXXI.

We have spoken concerning the absence of the Tenant, when he is merely summoned, and no Pledges are given. But, if the suit be of a nature to make it requisite, that the Tenant should find Pledges for his appearance, and the Justices or the County Court have recorded them, (which happens in the civil matter of a breach of a Final Concord made in the King’s Court before the King or his Justices, and in Novel Desseisins) then, if the Tenant neither appear at the first day, nor essoin himself, the Pledges are adjudged to be amerced to the King; and the Pledges shall be increased as to the principal Cause; and thus, should the Tenant absent himself on all the three days, the Suit must be proceeded in; and if at the third Summons he should not appear,[78] let his Tenement be taken into the King’s Hands, and retained in the manner before expressed; the Pledges being amerced, who are to be summoned to be present in Court on a certain day, to hear their Judgment. Should, however, the Plea be of a criminal nature, as, for example, concerning a breach of the King’s Peace, then, the proceedings must be according to the course of the Law, as in the above case, with this only difference, that as the party is accused,[79] if he fail to appear at the third Summons, his body shall be taken, and his Pledges shall be amerced.[80]

CHAP. XXXII.

Having discussed those points which more frequently arise, in consequence of the absence of the Tenant, it remains to speak, concerning the Demandant’s not appearing. If the Demandant indeed appear not on the first day, he may avail himself of the same reasonable Essoins as the Tenant, and that by the same means.

If, however, he neither appear nor essoin himself, then, the Court should award, that the Tenant, if present, either personally, or by another, as he ought to be, should be unconditionally dismissed. Yet this is not to preclude the Demandant from recovering, under certain restrictions, the same property, if he feel inclined to institute another suit concerning it.

And, if the Demandant be again inclined to implead the same Tenant, it may be questioned, what the Law is in that case, and how his default should be punished? As to this, opinions differ. For some say, he shall lose nothing but his Cost[81] and his Expenses, and his first Writ, but not his cause of Action; but merely be obliged again to begin his suit. Others say, that he shall forfeit his Action against the Tenant totally, and irrevocably, and, on account of the contempt he has been guilty of towards the Court, that he shall likewise be amerced to the King. Others again are of opinion, that he must be amerced to the King, and that it afterwards depends upon the King’s pleasure, whether he will be admitted again to institute that Action, or reinstated either unconditionally, or subject to certain restrictions. Thus far it will suffice to have treated, where the Action is prosecuted without any Pledges being given. But, if the Demandant find Pledges for prosecuting his Suit and fail to appear, either personally or by another, on the day appointed, then the Tenant shall be unconditionally dismissed. And the Demandant shall lose his Writ, according to the opinion of some, and the whole of his Cost; and his Pledges shall be amerced, as before stated.

But others think, that he shall forfeit his Action, and his Pledges, &c. But this is the consequence when the suit belongs to the Demandant only, as it generally does in civil cases. When, however, the Suit does not belong to him only, but the King has an interest in it, as in a criminal Plea, concerning a breach of the King’s peace, then, as the Demandant cannot lose the suit, unless as to himself, but is bound to prosecute it, his Body shall afterwards be imprisoned and kept safely, until he chuses to prosecute his Appeal,[82] and, in addition, his Pledges shall be amerced.

CHAP. XXXIII.

When it happens that the Demandant and Tenant are both absent, then the King or his Justices may at their pleasure, if so disposed, punish both parties, the one for his contempt of Court, and the other for his false claim.

Book II.

OF THE PROCEEDINGS USUALLY RESORTED TO ABOUT, OR IMMEDIATELY AFTER THE COMMENCEMENT OF THE SUIT; AND OF THE DERAIGNING OF THE TENEMENT BY THE DUEL, OR GRAND ASSISE; AND OF THE CHAMPIONS; AND OF THOSE THINGS WHICH APPERTAIN TO THE DUEL OR GRAND ASSISE.

CHAP. I.

When, at last, both the litigating Parties are present in Court, and the Demandant has proceeded to claim the Tenement in question, the Tenant may pray a View of the Land.

But, with respect to the time which should be allowed him for this purpose, a distinction is to be made, whether the Tenant has more land in the Vill, where the Land in question is situated, or not. In the latter case, no delay shall be conceded him: but, if he has more Land in the Vill, further time shall be allowed him, and another day given him to appear in Court.[83] If he then depart from Court, he may again avail himself of three reasonable Essoins, and the Sheriff of the County, where the Lands in question are situated, shall be directed to send free men of his County to view the Land, by the following Writ:

CHAP. II.

“The King, to the Sheriff, Health. I command you that, without delay, you send free and lawful men of the neighbourhood[84] of such a Vill, to view one Hyde of Land in such a Vill, which M. claims against R. and of which there is a suit between them in my Court; and have four of them before me, or my Justices, such a day, to testify of their view, and what day they put to him. Witness, &c.”

CHAP. III.

After the three reasonable Essoins which accompany the view of the Land,[85] both parties being again present in Court, the Demandant should set forth his demand[86] and claim in this manner: “I demand against this H. half a Knight’s Fee or two ploughlands, in such a Vill, as my Right and Inheritance, of which my Father, or my Grand Father, was seised in his Demesne as of Fee in the time of King Henry the First, or after the first Coronation of our Lord the King, and from whence he took the profits to the Value of five shillings at least, as in Corn,[87] Hay, and other produce; and this I am ready to prove by my Freeman I. and, if any accident happen to him, by such a one, or by a third” (and the Demandant may thus name, as many as he chuses, but one of them only shall wage the Duel,[88]) “who saw this or heard it:”[89] or the Demandant may use other words thus—“and this I am ready to prove by my Freeman I. to whom his Father, when on his death-bed, injoined by the Faith which a Son owes to his Father, that if he ever heard a claim concerning that Land, he should prove this as that which his Father saw and heard.”[90]

The demand and claim of the Demandant being thus made, it shall be at the election of the Tenant, either to defend himself against the Demandant by the Duel,[91] or to put himself upon the King’s Grand Assise, and require a Recognition to ascertain, which of the two have the greater Right to the Land in dispute.

If he elect the former mode of proceeding, he must deny the right of the Demandant, word for word as the Demandant has set it forth, and this, either in person, or by some other fit man. But here we should observe, that after the Tenant has once waged the Duel he must abide by his choice, and cannot afterwards put himself upon the Assise.[92] In this stage of the suit, the Tenant may again avail himself of three reasonable Essoins in succession, with respect to his own person and of the same number with regard to the person of his Champion.[93] All the Essoins which can with propriety be resorted to having expired, it is requisite, before the Duel can take place, that the Demandant should appear in Court, accompanied by his Champion armed for the contest. Nor will it suffice, if he then produce any other Champion than one of those, upon whom he put the proof of his claim: neither, indeed, can any other contend for him, after the Duel has been once waged.

But if he who has waged the Duel should, in the interval pending the Suit, happen to die, a distinction is to be made. If he died a natural death, and this is declared by the Vicinage, (as it ought always to be, if there exist any doubt concerning the fact,) the Demandant may in the first place recur to one of those upon whom he placed his proof, or to another proper person, even if he have not named any other, provided that such other be an unobjectionable Witness—and thus the Plea may begin again. If, however, his death was occasioned by his own fault, his Principal shall lose the cause. It may be asked, whether the Champion of the Demandant can substitute another in Court, to make that proof which he took upon himself? According, indeed, to the Law, and ancient custom of the Realm,[94] he cannot appoint any other, unless it be his legitimate Son;[95] and here it may be observed, that the Champion of the Demandant should be such a person as is a proper Witness of the fact. Nor is it lawful for the Demandant to prosecute his appeal in his own person, because it is not permitted unless by the intervention of a proper Witness, who has both heard and seen the fact.

But the Tenant may defend himself, either in his own proper person, if he chuse so to do, or by any other unobjectionable Witness, if he prefer that course. But, if he has produced a Champion, and such Champion should die in the interval, it may be asked, what the Law is, whether the Tenant may defend himself by another Champion, or whether he ought to lose his suit, or his seisin only? We must here have recourse to our former distinction. It should also be remarked, that the Champion of the Tenant cannot substitute another in Court for the purpose of undertaking the defence, unless it be his own lawful[96] Son.

But, it frequently happens, that a hired Champion is produced in court, who, on account of a reward, has undertaken the proof. If the adverse party should except to the person of such a Champion, alleging him to be an improper witness, because he had accepted a reward to undertake the proof, and should add, that he was prepared to prove this accusation against the Champion, (if the latter chose to deny it) either by himself or by another, who was present when the Champion had taken the reward, the party shall be heard upon this charge, and the principal Duel shall be deferred. If, upon this charge, the Champion of the Demandant should be convicted and conquered in the Duel, then, his Principal shall lose the suit, and the Champion himself, as conquered, shall lose his law, namely, he shall from thenceforth never be admitted in Court, as a Witness, for the purpose of making proof by Duel, for any other person;[97] but, with respect to himself, he may be admitted, either in defending his own body, or in prosecuting any atrocious personal injury, as being a violation of the King’s Peace. He may also defend by Duel his right to his own Fee and Inheritance.

The Duel being finished, a fine of sixty shillings[98] shall be imposed upon the party conquered, in the name of Recreantise,[99] and besides which he shall lose his Law; and, if the Champion of the Tenant should be conquered, his Principal shall lose the Land in question, with all the fruits and produce found upon it at the time of Seisin of the Fee, and never again shall be heard in Court concerning the same Land.[100] For those matters, which have been once determined in the King’s Court by Duel, remain for ever after unalterable. Upon the determination of the suit, let the Sheriff be commanded by the following Writ, to give possession of the Land to the successful party.

CHAP. IV.

“The King to the Sheriff, Health. I command you that, without delay, you give possession to M. of one Hyde of Land, in such a Vill, concerning which there was a suit between him and R. in my Court; because such Hyde of Land is adjudged to him in my Court, by the Duel. Witness, &c.”

CHAP. V.

This is the course of proceeding, when the Demandant has been successful in the Duel. But if he has been conquered, in the person of his Champion, then the Tenant shall be freed from his claim, without any possibility of being again disturbed by him. Thus far concerning the Duel,[101] where the Tenant should chuse or elect that mode of defending himself, against his Adversary.

CHAP. VI.

But, if the Tenant should prefer putting himself upon the King’s Grand Assise, the Demandant must either adopt the same course, or decline it. If the Demandant has once conceded in Court that he would put himself upon the Assise, and has so expressed himself before the Justices of the Common Pleas,[102] he cannot afterwards retract, but ought either to stand or fall by the Assise.

If he object to put himself upon the Grand Assise, he ought in such case to shew some cause, why the Assise should not proceed between them—such as, that they were of the same blood, and sprung from the same kindred stock from whence the Inheritance itself descended; and if the Demandant take this objection, the Tenant will either admit its validity, or deny it. If he admit it in Court, the Assise itself shall thereby cease, so that the matter shall be verbally pleaded and determined in Court; because it is then a question in Law, which of the parties is the nearer to the original stock, and as such, the Heir most justly entitled to the inheritance; and, in this manner, the nearer Heir shall prove his title, unless his adversary can allege in Court any reason, why such Heir has lost his right, either for a time or perpetually, or that any Ancestor of his had so done; as, for Example, that he has given or sold or exchanged the Land in question, or, by any other mode which the Law permits, has alienated it; or if the Heir, or any of his Ancestors, have committed Felony,[103] and forfeited their rights entirely, concerning which we shall treat more fully hereafter. Should the suit on any of these grounds be delayed, the matter may incidentally, through the Effect of Pleading having such a tendency, be regularly brought to the Duel. But if he, who has put himself upon the Assise, deny all Relationship between him and the Demandant, or, at least, insist, that they were not sprung from the same stock, from which the Inheritance descended, then, recourse must be had to the[104] common Kindred of both parties, who for this purpose are to be called into Court, in order that the Relationship of the parties to the suit may be investigated on their testimony. If the Relations unanimously affirm, that the litigating parties have descended from the same stock, from whence the Inheritance moved, their assertion is conclusive, unless one of the parties strongly persist in asserting the contrary; and, in such case, recourse shall be had to the Vicinage, whose testimony upon this subject, if it coincide with that of the Relations, must be unreservedly acquiesced in. The same course must be pursued, if the Relations differ in their Testimony; for then the parties must abide by the Verdict of the Vicinage. The Inquisition having been made, if the Parties be unquestionably found and proved to have sprung from the same stock, from which the Inheritance descended, the Assise shall cease, and the suit must verbally proceed, as I have before mentioned. But, if the contrary should appear to the Court and the King’s Justices, then, the Demandant who took the objection, that both parties were sprung from the same stock, in order maliciously to prevent the Assise, shall lose his suit. If nothing intervene to impede the progress of the Assise, then the question shall be as finally terminated by that mode of decision as by the Duel.

CHAP. VII.

The Grand[105] Assise is a certain royal benefit bestowed upon the people, and emanating from the clemency of the prince, with the advice of his nobles. So effectually does this proceeding preserve the lives and civil condition of Men,[106] that every one may now possess his right in safety, at the same time that he avoids the doubtful event of the Duel. Nor is this all: the severe punishment of an unexpected and premature Death is evaded, or, at least the opprobrium of a lasting infamy, of that dreadful and ignominious word[107] that so disgracefully resounds from the mouth of the conquered Champion.

This legal Institution flows from the most profound Equity. For that Justice, which, after many and long delays, is scarcely, if ever, elicited by the Duel, is more advantageously and expeditiously attained, through the benefit of this Institution. This Assise, indeed, allows not so many Essoins as the Duel, as will be seen in the sequel. And by this course of proceeding, both the labor of Men, and the expences of the poor are saved. Besides, by so much as the testimony of many credible witnesses, in judicial proceedings, preponderates over that of one only, by so much greater Equity is this Institution regulated than that of the Duel. For since the Duel proceeds upon the testimony of one Juror, this constitution requires the oaths of twelve lawful men, at least. These are the proceedings which lead to the Assise. The party who puts himself upon the Assise should, from the first, and in order to prevent his Adversary from subsequently impleading him, sue out a Writ for keeping the peace, the suit being already pending between the parties concerning the Tenement, and the Tenant having put himself upon the Assise.

CHAP. VIII.

“The King to the Sheriff, Health. Prohibit N. that he hold not in his Court the Plea which is between M. and R. of one Hyde of Land, in such a Vill, which the said R. claims against the aforesaid M. by my Writ, unless the Duel be waged; because M. the Tenant hath put himself upon my Assise, and prays a Recognition to be made, which of them have the greater right to that Land. Witness &c.” If the suit be concerning a service, on account of which the Tenant has put himself on the Assise, as he is at liberty to do if he chuse, then, the Writ will be as follows.

CHAP. IX.

“The King to the Sheriff, Health. Prohibit N. that he holds not in his Court the Plea which is between M. and R. of the service of eight shillings, and of one Quart[108] of Honey, and two stikes[109] of Eels which the aforesaid M. exacts of the aforesaid R. for the Yearly service of his free Tenement that he holds of him, in such a Vill, for which Tenement the said R. acknowledges that he owes him eight shillings a year for every service, unless the Duel be waged between them, because R. from whom the service is required, puts himself on my Assise, and prays a Recognition, whether he owes eight Shillings a year for every service, and besides one Quart of Honey, and two stikes of Eels. Witness &c.”

CHAP. X.

By means of such Writs, the Tenant may protect himself, and may put himself upon the Assise, until his Adversary, appearing in Court, pray another Writ, in order that four lawful Knights of the County, and of the Vicinage, might elect twelve lawful Knights from the same Vicinage, who should say, upon their oaths, which of the litigating parties, have the greater right to the Land in question. The Writ for the summoning of the four Knights is as follows——

CHAP. XI.

“The King to the Sheriff, Health.[110] Summon, by good summoners, four lawful Knights of the Vicinage of Stoke, that they be at the Pentecost before me, or my Justices, at Westminster, to elect on their oaths, twelve lawful Knights of that Vicinage, who better know the truth, to return, on their oaths, whether M. or R. have the greater right in one Hyde of Land in Stoke, which M. claims against R. by my Writ, and of which R. the Tenant, hath put himself upon my Assise and prays a Recognition to be made, which of them have the greater right in that Land; and, cause their names to be imbreviated. And summon, by good Summoners, R. who holds the Land, that he be then there to hear the election, and have there the Summoners, &c.”

CHAP. XII.

At such day the Tenant may essoin himself, and again have recourse to three reasonable Essoins.

And this, indeed, appears but right; since, as we have explained in a former part of this Treatise, as often as any one appears in Court, and there performs that which the Law requires of him, he may again recur to his Essoins.

But, then, it would happen, or, at least it might so, that as many, if not a greater number, of Essoins, may intervene in the remedy of the Grand Assise, as of the Duel, which is by no means compatible with what we have already laid down. Let us, then, suppose, that the Tenant has cast three successive Essoins against the election of the twelve, by the four Knights. After these three Essoins, and upon the Tenant appearing in Court, one or more of the four Knights may on the same day cast an Essoin; and, if this be conceded, the Tenant might again, after the Essoins of the four Knights were expired, essoin himself afresh, and thus the Assise could scarcely, if ever, be brought to a conclusion. We should, therefore, observe, that a certain just Constitution[111] has been passed, under which the Court is authorised to expedite the suit, upon the four Knights appearing in Court on the day appointed them, and being prepared to proceed to the election of the twelve Knights. Upon this occasion, whether the Tenant appear or absent himself, the four Knights shall proceed upon their oaths to elect the twelve. But, if the Tenant himself be present in Court, he may possibly have a just cause of Exception against one or more of the Twelve, and concerning this he should be heard in Court. It is usual, indeed, for the purpose of satisfying the absent party, not to confine the number to be elected to twelve, but to comprise as many more as may incontrovertibly satisfy such absent party, when he return to Court. For Jurors may be excepted against by the same means by which Witnesses in the Court Christian are justly rejected.[112] It should also be observed, that if the party, who has put himself upon the grand Assise, appear, although some of the four Knights are absent, the twelve may be elected by one of the four taking to himself two or three other Knights from the same County, if such happen to be in Court, though not summoned for the purpose, provided such course of proceeding meet with the approbation of the Court, and be mutually consented to by the litigating parties. But, for greater caution, and to avoid all possible cavil, it is usual to summon six or more Knights to Court, for the purpose of making the election.

Indeed, if the object be to expedite the proceedings, it will more avail to follow the direction of the Court, than to observe the accustomed course of the Law. It is, therefore, committed to the discretion, and Judgment of the King or his Justices, so to temper the proceeding, as to render it more beneficial and equitable.

CHAP. XIII.

But any person may put himself upon the Assise concerning a Service, or Land, and besides, concerning demands of service, and concerning the Right of Advowson to any Church. Nor is the party confined to this remedy, as against a stranger merely, but he may avail himself of it against his Lord for the purpose of ascertaining, whether the Lord has greater Right to retain the object in question in his Demesne, or the Tenant to hold it of him. It is easy to form a Writ, adapted to the variety of circumstances.

CHAP. XIV.

The Election of the twelve Knights having been made, they should be summoned to appear in Court, prepared upon their oaths to declare, which of them, namely, whether the Tenant, or the Demandant, possess the greater right to the property in question. Let the Summons be made by the following Writ——

CHAP. XV.

“The King to the Sheriff, Health. Summon, by good Summoners, those twelve Knights R. and N. (naming each) that they be, on such a day, before me or my Justices at such a place, prepared on their oaths to return, whether R. or N. have greater right, in one Hyde of Land, or in the subject matter of dispute, which the aforesaid R. claims against the aforesaid N. and of which the aforesaid N. the Tenant, has put himself upon our Assise, and has prayed a Recognition, which of them have the greater right to the thing in question; and, in the mean time, let them view the Land or Tenement itself, of which the service is demanded; and Summon, by good Summoners, N. the Tenant, that he be then there to hear that Recognition, &c.”

CHAP. XVI.

On the day fixed for the attendance of the twelve Knights to take the Recognition, whether the Tenant appear, or absent himself, the Recognition shall proceed without delay; nor shall any Essoin avail the Tenant, because as his presence is not requisite, the Recognition may proceed without him;[113] since, if he were present, he would, by having, when in Court, put himself upon the Grand Assise, be precluded from alleging any reason, why it should be deferred. It is different with respect to the absence of the Demandant. If he should essoin himself, the Assise shall, for that day, be deferred, and another day shall be given in Court; because though a Party may lose by his default, no one when absent shall gain anything.

CHAP. XVII.

When the Assise proceeds to make the Recognition, the right will be well known either to all the Jurors, or some may know it, and some not, or all may be alike ignorant concerning it. If none of them are acquainted with the truth of the matter, and this be testified upon their oaths in Court, recourse must be had to others, until such can be found who do know the truth of it. Should it, however, happen that some of them know the truth of the matter, and some not, the latter are to be rejected, and others summoned to Court, until twelve, at least, can be found who are unanimous.[114] But, if some of the Jurors should decide for one party, and some of them for the other, then, others must be added, until twelve, at least, can be obtained who agree in favor of one side. Each of the Knights summoned for this purpose ought to swear, that he will neither utter that which is false, nor knowingly conceal the truth. With respect to the knowledge requisite on the part of those sworn, they should be acquainted with the merits of the cause, either from what they have personally seen and heard, or from the declarations of their Fathers, and from other sources equally entitled to credit, as if falling within their own immediate knowledge.[115]

CHAP. XVIII.

When the twelve Knights, who have appeared for the purpose of making Recognition, entertain no doubt about the truth of the thing, then, the Assise must proceed to ascertain, whether the Demandant, or Tenant, have the greater right to the subject in dispute.

But if they decide in favor of the Tenant, or make any other declaration, by which it should sufficiently appear to the King, or his Justices, that the Tenant has greater right to the subject in dispute, then, by the Judgment of the Court, he shall be dismissed, for ever released from the claim of the Demandant, who shall never again be heard in Court with effect concerning the matter. For those questions which have been once lawfully determined by the King’s Grand Assise, shall upon no subsequent occasion be with propriety revived. But, if by this Assise it be decided in Court in favor of the Demandant, then, his Adversary shall lose the Land in question, which shall be restored to the Demandant, together with all the fruits and produce found upon the Land at the time of Seisin.[116]

CHAP. XIX.[117]

A punishment is ordained for those who rashly swear in this Assise, and is with much propriety inserted in that Royal Institution.[118] For if the Jurors shall, by due course of Law, be convicted, or, by legal Confession, be proved to have perjured themselves in Court, they shall be despoiled of all their Chattels and Moveables, which shall be forfeited to the King, although by the great clemency of the Prince, their freehold Tenements are spared. They shall also be thrown into prison, and be there detained for one year at least. In fine, deprived for ever after of their Law, they shall justly incur the mark of perpetual infamy. This penalty is properly ordained, in order that a similarity[119] of punishment may deter Men in such a Case, from the unlawful use of an Oath.

It should be observed, that the Duel never shall be waged in a case where the Assise cannot be resorted to. The converse of the proposition equally holds.

If the Land in question be adjudged to the Demandant, he shall be remitted to the Sheriff of the County, where the Land is situated, in order to recover his possession.

And, for this purpose, he shall have the following Writ——

CHAP. XX.

“The King to the Sheriff, Health. I command you that, without delay, you deliver possession to N. of one Hyde of Land, in such a Vill, which he claims against R. of which the said R. put himself upon my Assise, because the said R.[120] has recovered that Land, in my Court by a Recognition. Witness, &c.”

CHAP. XXI.

But, if there are not any Knights to be found in the Vicinage, nor in the County itself, who are acquainted with the truth of the matter in dispute, it is a question, what steps shall be resorted to?

Whether, from that circumstance alone, the Tenant shall prevail against his Adversary?

If this be answered in the affirmative, shall the Demandant lose his Right, supposing he has any? A doubt, indeed, may be entertained upon this subject. Let us suppose that two or three lawful men, or even more, provided the number did not exceed twelve, who, as Witnesses of the fact, should offer themselves in Court, to prove it. Let us, even, suppose that they were of such an age as to be qualified to make proof by the Duel, and should make use of all such words in Court, on account of which the Duel is generally awarded. After all this, it may be doubted, whether any of them shall be heard upon the subject.

Book III.

OF WARRANTORS; AND OF TWO LORDS, UNDER ONE OF WHOM, THE DEMANDANT AVOWS, AND UNDER THE OTHER, THE TENANT.

CHAP. I.

When the presence of the Tenant only happens to be requisite, and in itself precludes the necessity of any other person appearing to answer, the order of Pleading which is observed in Court is such as we have described.

But the presence of another party becomes no less necessary than that of the Tenant, if the latter declare in Court, that the subject in dispute is not his own, but that he merely holds it, as a Loan,[121] or a Hireing, or a Pledge, or as committed to his Custody, or in some other mode entrusted to him by another; or if he should allege, that the property were his own, but that he had a Warrantor[122] from whom he had received it, either as a Gift, or Sale, or in Exchange, or, generally, found his Title to the thing upon any other cause of this nature.

If the Tenant should declare in Court, that the property is not his own, but belongs to another, then, such other person must be summoned by another Writ, but yet of a similar nature—and thus the plea shall be commenced anew against him. And when such other person at last appears in Court, he in the same manner will declare, either that the property belongs to him, or not. If the latter, then, the party who had first asserted in Court, that the property did belong to him, shall thereby lose the Land irretrievably, and he shall be summoned to appear in Court, and hear his Judgment; and thus, whether he appear or absent himself, his Adversary shall recover possession. When the Tenant call a person into Court to warrant the Land, then, a reasonable day shall be given him in Court to produce such person there; and thus he may anew recur to three Essoins, with respect to his own person, and to the same number, with regard to the person of his Warrantor. The person cited to warrant having at last appeared in Court, he will either enter into the warranty of the subject in dispute, or decline it. If he adopt the former course, he then becomes a Principal Party in the suit, so that the remainder of the cause shall be entirely carried on in his name; but if, previous to this step, he essoin himself, the Tenant cannot excuse himself by an Essoin, but, if absent, shall be adjudged in default. If, however, the person called to warrant, being present in Court, should fail in entering into the warranty, then, the plea must altogether be continued between him and the party who has called him—and thus, by means of pleading conducive to such an end, the matter may come to the decision of the Duel, and that, whether the Tenant can produce his Charter of Warranty, or not, if he be prepared with an unobjectionable Witness to make proof, and he is willing to undertake it. It should be observed, that when it is once ascertained, that the person cited to warrant ought to take that obligation upon him, the Tenant shall not afterwards lose the property in dispute, because if such property should be recovered in Court, the Warrantor shall be bound to make the Tenant a competent equivalent[123] if he possess sufficient means so to do.

CHAP. II.