CHAPTER QNE Glanvill

Present at the Creation: here is a claim few jurists can make, a cachet borne by few jurisprudential works. That is, the rare distinction of witnessing, describing, or even effecting the creation of an entire system and structure of law, partaking of the almost mystical experience of discovering the fons et origo, the fountain and source, of law, of being Moses on Sinai when the Ten Commandments are handed down, of sensing Beginning as Genesis (“God”) or the Gospel according to St.

Glanvill’s fame rests as much upon its temporal situation, in that narrow window of a single generation in which the common law took its frame, as upon the considerable merit and even precocious originality of the work itself. From the outset of consciousness of an historical tradition in the common law, Glanvill has never failed of comment and usually praise. Sir Edward Coke in his Reports cited it frequently and invariably with an appro­bation that verged on reverence. Even John Cowell, a doctor of the civil law and contemporary of Coke whose profound differences with the common law tradition as represented by Coke were unbridgeable, said no more than was enough, that Glanvill “is the ancientest of any [book] extant, touching” the common law of England.¹ Sir William Blackstone, with more inclu­siveness than discrimination, wrote of “authors, to whom great veneration and respect is paid by the students of the common law.

We have no reason to suspect that the writer is giving us his theories instead of the practice of the king's court. What he has borrowed from the new [Roman law] jurisprudence consists first of a few general distinctions... and secondly a logical method which we may call dilemmatic.3

He concluded by paying Glanvill a measured but very high compliment:

We can not call Glanvill's treatise the earliest text-book of feudal jurisprudence... but in the production of such a book England stands well in advance of France and Germany.⁴

Theodore Plucknett, near the end of a long and distinguished career traced in Maitland’s footprints, wrote of the “dilemmatic” challenge Glanvill faced in determining what went on in the King’s court acceptable as authority, that

It must have been a bewildering situation, but we must acknowledge with re­spectful admiration how brilliantly Glanvill acquitted himself. He saw clearly the points in debate and explained them lucidly. He firmly turned his eyes away from the past, and in effect laid down the law of the future..................................................................................... Glanvill

was above all the sentimental talk about the laga Edwardi [the putative laws of Edward the Confessor] and wrote—consciously and deliberately it must have been—the law of the future. Written in a moment of supreme crisis in our legal history [the challenge of Roman law], before there were as yet any authoritative documents to guide him, the courage and mastery which produced Glanvill's Book VII are unsurpassed in our legal history.⁵

Admitting some skepticism about Glanvill’s clairvoyance (it is a rare achievement ever to write future law even co-incidentally, let alone “con­sciously and deliberately”), Plucknett’s compliment is well taken.

The Tractatus indeed provided a new start as well as summed up a great period [of legal creativity]. It was a stepping stone for future achievements. It drew the balance, and as it showed what had been achieved, people could better see what was left to be done.⁶

These conclusions resonate in G. D. G. Hall's careful and searching intro­duction to his edition of Glanvill, which like its subject is original, com­prehensive, and persuasive: “free of the tradition and necessity of extensive textual quotation.... [reflecting] a freedom to innovate and a reliance on the fruits of practical experience.”⁷

We would like to know who such an author was. Derek Hall's rejection of the three magnati most frequently credited by historians over the past century—Ranulf Glanvill, Hubert Walter, Geoffrey fitz Peter—reflects the best recent consensus. His suggestion that the author was a lesser figure, possessed of a modicum of academic training and thoroughly familiar with the practice of the King's courts of Henry II, is both fruitful and frustrating. That Glanvill so long appeared the best candidate was not discreditable. The wealth of documentary materials in the treatise allows dating from internal evidence with great exactness. It was produced sometime in a period of twenty months: Derek Hall, with the medievalist textual scholar's instinctu­al caution, concluded that there “is nothing in the treatise inconsistent with a date anywhere between 29 November 1187 and 6 July 1189, when Henry II died.”⁸ This period corresponds with the last years of the justiciarship of Ranulf Glanvill, which began with his appointment by Henry II about April 1180 and ended with his dismissal by Richard I on September 17, 1189. Little wonder the treatise was “commonly called Glanvill.” That Justiciar Glanvill played some other role in it than merely providing an ascriptive name is not hard to credit.

“Not written without Glanvill's permission or without Henry's”—that begs the bigger issue, which is not what either justiciar or king permit­ted, but what they had done, in the absence of which no treatise would have been necessary or relevant. The King is far the more important of the two: Henry II, King of England (1154-1189), Duke of Normandy, Count of Maine, of Touraine, of Anjou, and by marriage Duke of Aquitaine, known also as Henry Plantagenet, Henry of Anjou, born 1133. He was the son of Geoffrey Count of Anjou and Matilda, daughter of Henry I of England, who was the relict of the Holy Roman Emperor Henry V Matilda, with the support of her second husband, Geoffrey, and latterly championed by their son Henry and in his interest, contended with her half-brother Stephen for the English crown throughout his uneasy reign (1135-1154). Henry of Anjou early showed his mettle and his aggressiveness when in 1147 at age fourteen he mounted a filibustering expedition from Normandy to further his own ambitions more than those of his parents. Defeated and deserted by his followers and his mercenaries, the young man managed to raise enough money to pay off his troops and return home—the donor was none other than his uncle and target, King Stephen, whose prudence in thus ridding himself of a youthful adversary nicely complemented the youth's cheek. The episode demonstrated Henry's phenomenal good luck, which deserted him only once in his long life, when his angry and vengeful words led to murder in the cathedral with the martyrdom of Thomas a Becket and Henry's abject humiliation by the Pope.

Henry was a powerful character and personality beyond the martial qualities which were the first attributes of the medieval monarch. He had received considerable formal education for the age: he was literate (and read), commanding languages, including Latin. He enjoyed the conversa­tion and the controversion of scholars in discourse; alas, the film Becket slighted the intellectual intercourse between Henry II and his Chancellor Becket in favor of the other kind between them and peasant strumpets. A disposition to corpulence was tamed by relentless exercise, he was lionized for unparalleled feats of strength and stamina, he kept irregular hours and frequently worked throughout the night, and he was at once volatile and energetic, yet always courteous and usually patient. Fearless in action, he was reflective at rest. He was a strong—even unyielding—advocate of what he believed in, of a cause embraced. It might be said of Henry as one de­tractor said of Theodore Roosevelt, that he was a combination of St. Paul and St. Vitus. He bore a certain resemblance to his namesake, the Eighth of the Henries, in intellect, energy, activity, but differed markedly from him in lacking that murderous ruthlessness which made Henry VIII a monster, the violence which amounted to bloodlust, and the sanguinary martial bel­licosity in which he gloried.

Perhaps Henry II's appeal has outlived him, even to our own time. In the fall of i960, why should the author's students in English medieval con­stitutional history have been surprised when the arrogant, young, lecturer arrived in a Berkeley classroom with a large homemade campaign button proclaiming “Henry of Anjou for President”? The lecturer had been mad about Harry, twice madly for Adlai, despaired as the nation was gently anesthetized by Ike (especially after what had been done about Suez and not done about Budapest in i956), could not trust Dick Nixon, and had already sensed the Young Emperor's moral nakedness.

Henry II's most thorough biographer does not shrink from attributing to him personal contributions to governance and statecraft which the pau­city of direct eye-witness literary evidence might cause us to doubt. The bi­ographer's instincts are no less correct than his judgment. For clearly Henry did make a difference: he ruled as well as reigned in a way which even a few centuries later would become less likely and more ambiguous in a monarch. As W. L. Warren weighs Henry's aims and accomplishments, especially in creating the trans-Channel Angevin Empire, he is not using the king as a term for collective government, he is not referring to the crown, but to the head that wore it:

The territories which came to Henry as the result of two marriages—the mar­riage of his father [Geoffrey] to the heiress [Matilda] of England and Nor­mandy, and his own marriage to the heiress [Eleanor] of Aquitaine—were al­most beyond the possibility of effective control. In other hands than his they almost certainly would have been. Henry II's consolidation and defense of his authority in these vast dominions rested upon his mastery of the art of warfare, and this in turn rested upon his ability to turn his capital resources into avail­able wealth. Henry's technique for enhancing his wealth was not conquest and plunder but efficient management. This meant, above all, the efficient manage­ment of England, for England was his principal source of wealth. Of course, if this had been all, Henry II might have been remembered simply as an efficient exploiter; but it was not all, for it was Henry's genius to make efficient manage­ment synonymous with sound government.¹⁰

There is some danger in seeing Henry II's efficient management, includ­ing his formative impact on the origins and development of the common law revealed in Glanvill, as motivated merely by profit and dictated only by economic materialism. A useful antidote is provided by van Caenegem, who noted that while there were profits of justice, these amounted to a few hundred pounds against a total revenue of about £35,000per annum: “What an elaborate, onerous and farfetched way of filling the royal chest, when the king could and did use such simple methods as levying huge ar­bitrary forest fines or leaving some bishopric vacant for a little longer to receive a yearly extra income of over £1000, without any trouble.”¹¹

We are aware that power is as alluring an objective as money, perhaps more so to any but the most rapacious of rulers. The legal and judicial re­forms moved by Henry II with the assistance of his justiciars and other officials made his power palpable among a feudal baronage of a bare three generations’ standing. This baronage’s great-grandfathers had comprised that knightly band of thugs whose instincts were still hardly elevated above the piratical level of their Norse recent-forebears when they joined Henry’s great-grandfather—William the Bastard, Duke of Normandy—in a conquest that was one of the best-rewarded acts of aggression, acqui­sition, and annexation in history. The essentially centrifugal thrust of the feudal contract, nexus, counsel, aid was erosive of kingship and corrosive of order. It required much curbing—as King Stephen learned, as Henry II knew because he helped teach Stephen, and as Henry’s son, John, would learn too late at Runnymede in 1215. Henry could plait in a network of genuine interdependence not only his own barons but the barons of his barons by litigation in his court. There remedy was made freely and cheaply available, rationally and quickly acquirable, efficaciously implemented, and even-handedly extended in that most critical and contentious area of inter­est, the meum et tuum of land. By the end of the reign of Henry II, it was established “law” that no man need answer for his free-tenement, whether he held it of the King or not, save he be impleaded by the King’s writ. So popular was this invasion of the long-established feudal responsibility of the lord to do justice to his vassal, that the baronage of England, when it revolted against John for his oppressive actions, demanded paradoxically better access to and more of his justice. Magna Carta, Article 17, provided that the royal court of “common pleas shall not follow our court, but shall be held in some definite place.” Article 40 asserted that “to no one will we sell, to no one will we deny or delay right or justice.” The curia regis, the King’s court, of Henry II was a kind of proto-Versailles where a monarch no less enamored of power and cognizant of how to acquire and maintain it than Louis XIV five centuries later and across the water bound up a frac­tious nobility in law-doing. Historians have long shrugged off the arms/law observation with which Glanvill’s Prologue begins:

Not only must royal power be furnished with arms against rebels and nations which rise up against the king and the realm, but it is also fitting that it should be adorned with laws for the governance of subject and peaceful peoples.¹²

This has been treated as an imitative Romanist conceit, proving Glanvill was familiar with Justinian’s Institutes but hackneyed in his use of it.¹³ That is to ignore a salient fact of Glanvill’s own experience, that law in the hands of Henry II was a powerful “arm against rebels.”

Moreover, it can be easily overlooked that the law that Henry fashioned with which to govern his francophone subjects, the barons and greater free­men of the realm, was also applicable to the anglophone race who still bore the Norman Yoke imposed by the Conquest-provided that they were free­men, not villeins (which the vast majority still were), “subject and peace­ful peoples.” The acculturating power of that law should never be under­estimated. It would become the birthright of an undifferentiated English people by the fourteenth century. Old English lambs would finally lie down with Old Norman lions, not to be devoured by them. The process was al­ready well-begun by intermarriage at the level of the aristocracy in Henry II’s time, was much advanced after the Anglo-Norman barons lost their Norman lands in 1204 and were forced to bend to domestic tranquility on the island, and was finally accomplished in a merging of language, culture, genetic traits, and social identification by Chaucer’s age, two centuries after Glanvill’s.

In Glanvill Henry II’s revolution stands revealed. This was an emperor with clothes. Most of Henry II’s legislation, those famous “constitutions” and “assizes” evocative of what are today sleepy country towns which every legal historian feels obliged to toll in at least one lecture, are explicitly or implicitly evident in the account. At least all of the writs relevant to the King’s court find a place, especially the praecipe quod reddat, the four posses­sory assizes, mort d^,ancestor, darrein presentment, utrum, and novel disseisin, and the first writs of a whole new class, those of gage (if not all in extenso, then at least by treatment). These were the first writs of course, boilerplate instruments which gave the King’s court jurisdiction and demanded the parties’ amenableness to it. They were the common law’s first forms of ac­tion, and so made it truly “common” in the sense that one law, of one procedure and one substance, for each writ was available to any freeman for the assertion of his interest in any free tenement with the mere purchase of the writ. Moreover, there are analyses of those specific developments and elements in the law which either did not depend at that time upon a writ (or, more aptly, a writ-form) or were subject to ambivalent approaches leading to ambiguous doctrine underwent treatment, some of it the most brilliant and speculatively powerful treatment: Book VII is the quintessen­tial example of that achievement. Crime receives scant attention, though sufficient (and appropriate, given the work's plan) explanation is accorded those delicts which were repressed in the King's courts. Likewise, writs proper to the old jurisdiction of the shire-reeve are dealt with summarily. But what is not stinted is Glanvill's detailed treatment of the almost cosmi­cally important institution of the common law, the recognitors or jury. This institution's critical role as a better probative mousetrap went an almost incalculable distance in promoting the jurisdiction of the King's courts. So complete is Glanvill's analysis, modern scholarship can occasionally escape lengthy explanation with, “Glanvill has given such a clear explanation of the procedure followed in a grand assize that a brief outline may be sufficient here.”¹⁴ In any case, when we begin discussing the jury, we begin—as in so many areas of our law—with Glanvill.

Henry II's revolution was more than a personal triumph and it was more than an extension of the dynastic vigor brought by the Conquest of 1066. Like every revolution, it was in part the product of certain “precondi­tions.” These were complex and mixed, even confused. But they are worth sorting out, because they determined the emergence of that peculiar insti­tution which is the common law and many of its attributes.

First and foremost, Henry II was a new-style monarch without any single contemporary exemplar and no regal peer in Latin Europe. Neither the Germano-Roman emperors, even the inimitable and energetic Fred­erick Barbarossa (1152-1190), nor the Capetian kings of France, least of all Henry's contemptible challenger Louis VII (1137-1180), wielded a regal­ity commensurate with Henry's. The reasons are not difficult to discover. First, both German and French feudal governance were consequences of a long process in which confrontation between lord and vassal—king and baronage—had fashioned checks and balances resulting at critical moments in stalemate. Not so in Anglo-Norman England. William, Duke of Nor­mandy, had introduced feudalism in 1066—and he was prudent never to al­low his vassals the power-base, stance, and attitude to challenge him which he, vassal of the King of France as Duke of Normandy, had so effectively turned against his lord. In short, William and his sons, William II and Hen­ry I, fashioned their own particular brand of feudalism, more feudal in form than in substance.

Secondly, William consciously and explicitly found the substance of his monarchy in the hegemonic and unifying qualities of Anglo-Saxon and Danish kingship, which had obtained since the West Saxon king, Alfred the Great, had created a unitary Anglo-Saxon kingdom holding sway over the whole of southern England in the latter part of the ninth century. In the two centuries before the Conquest, Alfred's construct had waned and waxed again, never so extensive but internally more cohesive and culturally more resistant than it had been before. It had survived Norse pillaging, absorbed conquest from the Danes to the north, and withstood internal rebellion. It was a monument to survival and resilient statecraft. William claimed he was nothing more than the rightful heir, successor, and assign of the last true Anglo-Saxon king, Edward the Confessor, and he let slip none of the powers and pre-eminences which the last Danish king, Cnut, had en­joyed a generation earlier. Anglo-Saxon kingship had created centralized in­stitutions, notably the gathering of great landholders and great ecclesiastics in the witenagemot, a precursor of the Anglo-Norman curia regis, blended with local jurisdictions based on the shires or counties with aeolderman and shire-reeve responsible for the preservation of order and the admin­istration of local government. Anglo-Saxon kings had legislated, within a consensual framework which fell short of the feudal consilium but went well beyond the constraints characteristic of Germanic tribal chieftainship. An­glo-Saxon kingship presented an attainable ideal of what monarchy could achieve by unitary action even in the pluralistic world of feudatories. All of the Anglo-Norman kings—even Stephen, the weakest and worst posi­tioned of them—were ready to attempt the ideal.

Another significant precondition was what the great American medi­evalist of a couple of generations ago, Charles Homer Haskins, called the “twelfth century renaissance.” The allusion is a bit too studied, one suppos­es (renaissances are always diaphanous enough without multiplying them), but it calls attention to the remarkable intellectual and cultural efflorescence of the century. The phenomena are well-known, and a checklist of the more prominent will do: the foundation and rise of the universities; the rediscov­ery of classical learning (especially Aristotle); the creation of jurisprudence under the influence of Justinian's Roman law and the stimulation of papal hegemony in the raising of canon law; the new and more rigorous forms of Benedictine monasticism and the new worldly orders of friars, Domini­cans and Franciscans; the soaring openness, almost pyrotechnical brilliance, and daring of Gothic architecture in contrast to the more stolid, solid, and less imaginative qualities of the Romanesque; the new plasticity and sup­pleness in painting and sculpture; the broadened horizons created by the outward imperialistic urge loosed by the Crusades; the new wealth, com­mercial activity, and civic self-awareness and pride of the towns of Europe; the sudden, dramatic, absence of any pagan or particularly parlous infidel threats directly aimed at Latin Europe. It was an epoch in which there was enough leisure from getting and spending, killing and being killed, fearing and terrorizing, that energies could be released to gentler and more civil ends of mind and spirit. The most immediate result was something akin to an educational revolution. More people of more modest background were finding more opportunity to acquire more education and better prospects for better utilizing that education. This is the first age of an intellectual elite in Europe which was accorded a universal recognition outside the narrow confines of its own academies and fora. Perforce, much of that elite found role and function in the Church as clerics, though also serving the state in an age when the best theory saw Church and state as two edges of the same sword of faith and morals. But if the Church claimed most of the educated class, it did not absorb them all. Henry of Anjou could claim to be at least an adjunct to it. And he certainly was assiduous in advancing the perqui­sites, place, and powers of the intellectual elite to his own ends in his own service. Remarkably he encountered only one “treasonous clerk,” and even Becket was able to accomplish only in death the ecclesiological ends that had otherwise eluded him when quick.

England benefited from the twelfth-century renaissance in a way in which it would never again quite partake of a European-wide cultural ex­plosion. Its two universities were early foundations and eminent ones. The new monastic orders, prominent among them the energetic and capitalistic Cistercians, had enormous impact in the more remote parts of England; the friars arrived in a wave, and Robin Hood's Friar Tuck was a caricature of a real enough type. English clerics found ready employment in the services of secular rulers everywhere, and not least in the papal curia. One English­man became Pope Adrian IV (1154-1159) and, having tangled with Emperor Frederick Barbarossa, confessed he was sorry to have left England. English towns and commerce grew rapidly. English architecture was on the cutting edge of technology and aesthetics by the end of the century as evidenced by Salisbury Cathedral. The new English intelligentsia, in service of Church and state, took second place to none. John of Salisbury (d. 1180) was a Classical scholar of revered learning, and in his Policraticus (1159) provided the European world with its first original rather than simply derivative trea­tise on political theory, advancing the unsettling proposition that under certain clearly prescribed circumstances resistance to regal authority was not merely justified but a Christian duty even if it extended to tyrannicide. And that pragmatic and meticulous analysis of how the financial organ of Henry II’s state, the Exchequer, operated, written by Richard fitz Neal in the later 1170’s, had no parallel anywhere for another generation: the Dialo­gus de Scaccario. The Dialogue of the Exchequer was a monument to the most sophisticated and efficient instrument of government and bureaucracy that operated it anywhere in Europe—and it was Henry II’s, the deus ex machina of his state, imperial grasp, and good government. Indeed, Policraticus and the Dialogue of the Exchequer are not only singularly remarkable achieve­ments, but when taken with Glanvill demonstrate the precocity of English politico-constitutional letters in that age.

Glanvill memorialized, even lauded, the vigorous and peculiar Anglo- Norman monarchy, while maintaining a tacitly respectful appreciation for the dynamics of feudalism. In this its author represented the reality of the age. He was also a child of the twelfth century renaissance. He was aware of and admired the Roman and canonical legal scholarship which was blos­soming on the Continent and attracting adherents in England. To a point, as Derek Hall makes clear, Glanvill was prepared to use the new scholarship for purposes of contrast and to assist in clarity. But he did not need it for form or structure: these he created largely by himself for his own ends and uses. Here was the achievement for which all the commentators praise the author of Glanvill, Creator.

In retrospect, Henry II, his justiciars and the curia regis, the common law, and not least Glanvill, arrived together at a critical moment to consoli­date old kingship into new monarchy, new feudalism into old statecraft, and create a legal system that united rather than divided, confirmed central­ization at the expense of the centrifugal force of provincialism, and worked by a procedure of such simplicity and suppleness that it could carry the sub­stantive law in its interstices. The structure of Anglo-Norman government and its common law matured to a tough amalgam in a single generation, resilient enough to survive a Romano-canonical “reception” of sorts in ar­eas of law-doing outside the arena of the common law, pragmatic enough to adapt new doctrines and new procedures to the common law’s needs, and attractive enough not to lose the affection and fidelity of King, judges, lawyers, and litigants. The Age of Henry II—it might be called the Age of Glanvill—built so soundly, so high, and so mighty a law that it survived all challenges and threats, the erosion of routine governance, and outlived all other institutions as well as those who would subvert it. There is something almost eerie in this. Hall remarks, that for Glanvill, “the authorities” upon which he perforce founded his work “were writs, the legislation of Henry II, the practice of the king’s court and the opinions of its judges.”¹⁵ Ana­lyze that observation for a moment, and one sees that in Glanvill are to be found gathered all the various, and at least superficially antagonistic, ways in which later jurists have looked at common law authority: John Austin's sovereign legislator, Oliver Wendell Holmes' experience, and John Chip­man Gray's judge. In Glanvill is the precious pluralism which has been the glory of our law, even when it has been the despair of the litigant.

A final observation. Glanvill's writs assume that the role of the law is to benefit private interests at least as much as to serve public ends. The point is fundamental to the nature of a free and liberal regime of law, for upon it rests not only the difference between private law and public law, but between rights and restrictions, ultimately between the individual and the state. The writs could not help but make the distinction, since they dealt with Blackacre, the very stuff of feudalism and all that flowed into it, through it, and from it. We were reminded of such “dilemmatics” in that year of miracles following the fall of the Berlin Wall, on November 9, 1989, when the long ballyhooed and mightily trumpeted “inevitable” triumph of the Marxist dialectic, of scientific socialism, of the eclipse of private property suddenly evaporated. Revealed stood an emperor not only without clothes, but even without hair. Soon we began to notice, in our law schools, and even in our law firms, earnest young Russian and Eastern European legists, who disavowed any faith in old-school socialist law and, with an engaging innocence that melted even the hardest heart of an old cold warrior, asked how they could restructure law to protect the rights of the individual. They had trouble understanding that there could be no easy solution: the United States Constitution, the rule of law, our criminal code, our jury, all our other institutions... even if instituted all together and with the best will in the world implemented with an assiduity and an unflaggingly high-minded unqualified respect for justice, would not answer their need or slake their thirst. We told them that they must start with private law, with the law of property and of contract, the law that does not wait upon Caesar for its being or its authority. They must start where we did. They must start with Glanvill. They too would have to be, as it were, present at the Creation.