Ranulf de Glanville

“ 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. ”

“ 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. ”

“ 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. ”

“ But Homage may be done to any free person, whether Male or Female, whether of full age or otherwise, whether Clergy or Lay. Yet should it be understood, that if a person has done Homage for a Tenement to a Woman who afterwards marries any man, he shall be compelled to repeat it to her Husband for the same Tenement. But, if any one has by Concord made in Court recovered a Tenement against another who had previously paid a Relief for it to the Chief Lord, it may be questioned, whether the person so recovering the Tenement ought to pay any Relief for it. ”

“ The obligation upon a man to defend himself, when another starts forward to accuse him, seems the necessary result of men living together in a state of society, and, as coeval with society itself, is strongly enforced by the municipal Laws of every Nation. This seems to have been the object of the punishment peine forte et dure. That singular institution shewed a strong, but rough, hand in the Legislature, more capable of directing its laws to a good and wise end, than nice or happy in selecting the means. The proceeding was naturally abolished as the Law became more refined—more humanized. ”

“ Yet, as it sometimes happens, that a Tenement is demanded by less service than is due in respect of it, or than has been accustomed to be rendered to the Lord, it may be asked, whether the Lord is bound by the Writ to do right to the detriment of his own service? He is, indeed, bound; but should the Demandant happen to prevail, the Lord after Eviction may recover against the party evicting him. ”

“ 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. ”

“ If, however, the Heir be a Male and a Minor, the Lord of the Fee is not entitled by Law to the Custody, either of the Heir, or his Inheritance, until he has received the Homage of the Heir; because, it is a general principle, that no one can exact from an Heir, whether he is of age, or not, any service, consisting in a Relief or otherwise, until he has received the Homage of the Heir, in respect of that Tenement, for which the service is claimed. But a person may perform Homage to several Lords on account of different Fees ”

“ 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. ”

“ But, if she was of full age at that time, although she continue some time in her Lord’s Custody before she is married, her Husband shall pay a Relief. When, however, the Relief has been once paid by the Husband of a Woman, it shall exempt both the Husband and the Wife during their several lives from payment of another Relief, on account of such Inheritance; because, neither the Woman herself, nor her second Husband, if she should espouse a second upon the death of the former, nor her first Husband, should he survive her, shall again pay a Relief for the same Land. ”

“ Every free Man of full age is admissible as an Accuser, in a prosecution of this kind. Should, however, a Minor bring an Appeal, he shall be attached, in the manner we have before stated. A Rustic [503] is also admissible; but a Woman shall not be received to make an accusation in any plea of Felony, unless in some particular instances, concerning which we shall presently speak. But the Accuser may, in Pleas of the kind we are discussing, decline the Duel, either on account of his age, or by reason of his being adjudged to have received a Mayhem. ”

“ If the Lord of the Tenant, being present in Court, fail in the Warranty, the matter may be interpleaded between them, provided that the Tenant declare, that his Lord had unjustly failed in the Warranty, and, therefore unjustly, because he or his Ancestors had performed such and such specific services to the Lord or his Ancestors, as Lords of that fee, adding that of this fact he has those who have heard and seen it, and, in particular, a proper witness to prove it, or some other adequate and sufficient testimony ready to be adduced, as the Court shall direct. ”

“ 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. ”

“ The principle that we have just laid down, that no one, unless present in Court, can effectually put another in his place, seems contrary to what is contained in the first Book, upon the doctrine of Essoins. [419] For, it is there stated, that if any one should, after his third Essoin, send an Attorney, whoever he happen to be, with Letters, he should be received in Court. But this happens by force of the Judgment. A different Rule-229- prevails where, urged by an order of the Court, or by a Distress, a person prays to put another in his place in a Suit, to gain or lose for him. ”

“ 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. ”

“ Besides, if the Eldest Son, after having in his Father’s lifetime done Homage to the Chief Lord for his paternal Inheritance, should die before his Father, there is no question but that his Son shall be preferred to the Uncle. ”

“ But, if a man should marry different Women, and by each of them should have one Daughter, or more, all the Daughters are equally entitled to the Inheritance of the Father, in the same manner as if they were all sprung from the same Mother. [233] But when a Man dies without leaving any Son, or Daughter, his Heir, if he has any Grand Children, then, undoubtedly, they shall succeed to him, in the same manner as we have above mentioned, his Son or Daughter would have succeeded, and under similar distinctions. ”

“ When the Pledges appear in Court, they will either confess their Suretyship, or they will deny it. Should they adopt the former course, they are then bound [376] to satisfy the Creditor, at a convenient time appointed in Court for such purpose; or they are bound in a legal manner to prove, that they are discharged from such suretyship by payment, or by some other lawful means. But, if there are many Pledges, each of them is answerable for the whole Debt, unless it was otherwise stipulated when they became Sureties; and they are all to be distrained to satisfy the Debt. ”

“ 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. ”

“ For since the Wife herself is in a legal sense under the absolute power of her Husband, it is not singular, if the Dower, as well as the Woman herself and all other things belonging to her, should be considered to be fully at the disposal of the Husband. But any one, having a Wife, may either give or sell her Dower, or, by any other mode he pleases, may alienate it in his lifetime ”

“ 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. ”

“ The opinion that prevails is, that they cannot by right distrain their Tenants for such purpose, unless so far as the Tenants may feel disposed. But, with respect to the rendering of reasonable Aids, Lords may of right, without the King’s precept, or that of his Justices, but by the Judgment of their own Court, distrain their Tenants by such of their chattels as may be found within their Fees, or by their Fees, if necessary; provided the Tenants are dealt with according to the Judgment of the Court, and consistently with the reasonable Custom of it. ”

“ Thus may a man give, in his lifetime, the whole of his purchased Land; but he cannot make any one his Heir to it, neither a College, nor any particular individual, it being an Established Rule of Law, that God alone, and not Man, can make an Heir. [208] If, however, a Man possess both inheritable and purchased Lands, it is then unquestionably true, that he may absolutely give any part or the whole of the latter to such person as he pleases; [209] and of his inheritance he may notwithstanding dispose, according to what we have already observed, provided such disposition be a reasonable one. ”

“ But, when this last case has occurred in the King’s Court, it has sometimes been ordered by the Court, acting upon equitable principles, that the Land so given should remain to the Eldest son, especially if he has not any other Fee in possession, until the paternal Inheritance fall to him. Because, in the mean time, as he is not the Lord of the paternal Inheritance, the Rule, that no one can at once be Heir and Lord, does not stand in his way. ”

“ 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. ”