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Treatise of Glanvill

Treatise of Glanvill

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Published by: Marcos on Jul 31, 2009
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III. Glanvill
Glanvill is a legal treatise written around 1188, probably not by anyone named Glanvill.The treatise is organized around the writs and details procedure; in a few instances, theauthor abandons the writs and seems to write in terms of substantive law, detailing commoncustom. There had been other books on English law before, preeminently The Laws of Henry I, but they were not organized treatises, nor did they reflect anything more thandiversity of law. Glanvill is carefully organized and reflects a growing centralized court.Moreover, if examined in excruciating detail, it shows the law in transition from thediscretionary justice before 1176 to adherence to rules of law, from tenures as contractualarrangements to tenures as property. Glanvill is, finally, our best look at early law. Theking's court has left written records (plea rolls) from 1194; although a bit sparse at the beginning, by 1200 the records have survived almost intact down to the twentieth century,constituting the longest run of European secular court records. Glanvill is an overview of the law written about six years before the plea rolls begin. Information from the early plearolls is difficult to glean; the author of Glanvill was both literate and knowledgeable aboutthe law and is of immense help in gaining insight into what was happening at the beginnings of English common law. The information, as always, is not without ambiguity.There is currently much debate about the interpretation of much of Glanvill. (If you areinterested in seeing the difference between schools of thought about the origins of the law,see Palmer, "The Feudal Framework of English Law," 79 Michigan Law Review 1130-1140(1981).)III.A. Procedure in the King's Court for LandGiven the nature of Glanvill, questions will be interspersed with the text. The text, asalways, is indented; the numbered paragraphs are the traditional citation references to thetext.Here begins the discussion of pleas1.5. When anyone complains to the lord king or his justices concerning his fee or freetenement,[68] and the case is such that it ought to be, or the lord king is willing that itshould be, tried in the king's court, then the complainant shall have the following writ of summons:The writ for making the first summons1.6. The king to the sheriff, greeting. Command [Precipe] N. to render to R. justly andwithout delay one hide of land in such-and-such a vill, which the said R. complains that theaforesaid N. is withholding from him. If he does not do so, summon him by goodsummoners to be before me or my justices on the day after the octaves of Easter, to showwhy he has not done so. And have there the summoners and this writ. Witness Ranulf Glanvill, at Clarendon.
 
1. Glanvill I.6 we shall simply call the precipe (pray-ki-pay) for land, after the first wordsucceeding the salutation. It is a standardized writ, with Chancery really only having to fillin the blanks with the right sheriff, the right names, the place and the amount of land, andthe appropriate return day. The "return day" here is octaves of Easter; that is the date onwhich the writ physically must be returned to the king's court with a report from the sheriff endorsed (written on the back) concerning what he was able to do. Since it was returned,this is a returnable writ, as distinct from other writs which ordered sheriffs or others to dosomething but did not require a report. Returnable writs are a prerequisite for a regularlyfunctioning central court; the court had to have some means of communication with thesheriffs who were executing the process. The existence of returnable writs that were alsostandardized indicates the existence of a central court developing a legal bureaucraticroutine.2. For whom is this writ appropriate? Why would one use this writ to claim a parcel of land,rather than the writ of right retailed in assignment II.C? Would it be appropriate for anyclaimant of land, or simply for those claimants who claim to hold directly of the king?Could there be any doubts about land tenures held directly from the king? What differencedoes the answer make, concerning the appropriate purchasers of the writ?What the law is when the party summoned neither comes nor sends an essoiner in responseto the first summonsI.7. On the appointed return day the party summoned either comes or does not. If he doesnot come, then he sends a representative or an essoiner,[69] or neither. If he neither comesnor sends anyone, the other party who is claiming against him should appear before the justices on the appointed return day and present his case against the tenant: and he shallwait three days in court. If the tenant does not come on the fourth day, but the summonersappear and allege that he has been properly summoned and offer to prove this in whatever way the court may decide, then the court shall direct that the tenant be summoned again bya further writ to come on a return day at least a fortnight later. This writ[70] shall direct himto come and answer both as to the principal plea and as to his not coming at the firstsummons.Three summonses shall be sent out in this way. If the tenant neither comes nor sendsanyone at the third summons, then the land shall be taken into the lord king's hand, andshall remain thus for a fortnight; if the tenant does not come within the fortnight, seisinshall be adjudged to the other party, and the tenant shall not be allowed to reopen the issueexcept on the question of property by means of a writ of right. If, however, the tenantcomes within the fortnight and wishes to replevy the tenement, he shall be ordered to comeon the fourth day, when he shall have justice done to him; and so, if he comes then, he canget back his seisin.
 
[The treatise then continues to retail the different essoins (excuses for non-appearance) thatthe tenant can cast. This consumes 22 chapters; some essoins can easily delay the plea for awhole year, as with the essoin of bed-sickness.]The Presence of both parties2.1. When both demandant and tenant appear together in court and the demandant claimsthe disputed tenement from the tenant, the tenant can ask for a view of the land. To decidewhether this postponement can be allowed to him it is necessary to distinguish whether thetenant has other lands in the vill where the disputed land lies or not. For if he has no other lands there, this delay shall not be granted him. If, however, he has other lands there, a postponement shall be allowed to him, and another day assigned him to be in court. In sucha case, when the tenant has left the court he can again have three reasonable essoins, andthe sheriff of the county wherein the tenement lies shall be commanded by the followingwrit to send free men from his county to view the land: [here omitted].The demandant's claim2.3. When both parties appear again in court after the three reasonable essoins and the view,the demandant sets out his claim and suit as follows [this oral rendition of the claim iscalled the "count"]: "I claim against this N. the fee of half a knight and two carucates of land in such-and-such a vill as my right and my inheritance, of which my father (or grandfather) was seised in his demesne as of fee in the time of King Henry the First[71] (or since the coronation of the lord king),[72] and from which he took profits to the value of five shillings at least, in corn and hay and other profits; and this I am ready to prove by thisfree man of mine, H., and if any evil befalls him then by this other man or by this thirdman, who saw and heard it." (He can name as many as he likes but only one of them shallwage battle.) Or the claim may be in other words, thus: "And this I am ready to prove bythis free man of mine, H., whose father in his last minutes enjoined him, by the faith binding son to father, that if ever he heard of a suit concerning this land, he should offer to prove it as something seen and heard by the dying man."When the suit and claim of the demandant have been heard, it is for the tenant to choosewhether he will defend himself against the demandant by battle or will put himself upon theassize of the lord king and seek a recognition to determine which of the parties has thegreater right in the land. If he chooses to defend himself by battle, then he himself, or somesuitable person on his behalf, must deny the right of the demandant word for word as he hasset it out. It should be noted that once the battle has been waged [i.e., once security has been given for proceeding with the battle], the tenant must defend the land by battle, andcannot any longer put himself upon the [grand] assize.. . .When the battle has been fought, the vanquished champion is liable to a penalty of sixtyshillings for crying craven and shall lose also his law. Moreover, if the tenant's champion isdefeated, his principal shall restore the disputed land with the fruits and profits found on thefee at the time when seisin is delivered and shall never again be allowed to bring this same

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