THE SCIENCE OF THE ENGLISH COMMON LAW

It is more than coincidence that the revolution in legal technique and legal practice which was effected under Henry II was accomplished by the writing of the first systematic treatise on the English common law, Glanvill Treatise on the Laws and Customs of the Kingdom of England (Tractatus de Legibus et Consuetudinibus Regni Angliae).

The treatise -- which is usually dated about 1187, nearly a decade after the publication of another important (but much less systematic) English law book, The Dialogue of the Exchequer -- evidently was written not by Glanvill, who was justiciar in the reign of both Stephen and Henry II, but very likely by his nephew, Hubert Walter, who in 1170 succeeded Thomas Becket as Archbishop of Canterbury and who ruled England from 1193 to 1198 while Richard I was on crusade. The likelihood that the author of Glanvill was a leading ecclesiastic -- Hubert Walter was not only archbishop but also a papal legate -­would support the view that English law in its formative period was heavily influenced by ecclesiastical legal ideas.

At the same time, there is nothing in the book about canon law. The ecclesiastical author confines himself chiefly to a summary of English royal law-law as distinct from administration, and royal as distinct from local, feudal, and ecclesiastical. This is a fact not only of legal but also of high political significance. In the opening words of the treatise the writer states:

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; so that in time of both peace and war our glorious king may so successfully perform his office that, crushing the pride of the unbridled and ungovernable with the right hand of strength and tempering justice for the humble and meek with the rod of equity, he may both be always victorious in wars with his enemies and also show himself continually impartial in dealing with his subjects.

Thus " Glanvill" ranked the king's laws with his armies as a basis of his authority. Thereby he legitimated royal power.

Further, Henry II's laws were reproduced in the treatise and were termed "royal benefits granted to the people by the goodness of the king

-457-

acting on the advice of his magnates." Thus the king's legislative power was justified and his enactments were given permanence as part of the "laws and customs of England."

In that connection the very writing was a matter of importance. That royal law was set forth in writing gave it a certain dignity, perhaps even a sanctity. The writing also gave the law a certain fixity, a certain stability. In addition, it laid a foundation for further elaboration and hence for organic change. Bracton's treatise, written during the next seventy years, built on Glanvill.

Finally, Glanvill's treatise focused on procedure, and especially on the writs. He was not nearly as scholarly or as philosophical as Gratian. A little political theory appeared at the beginning, but soon the author devoted his energy to reproducing various types of writs, with only occasional arguments explaining their virtues. Why was this so? At least part of the answer is that the king's legal authority stemmed from his command of a procedure for resolving conflicts which was more highly developed, more sophisticated, more rational than that available in local and feudal courts. The king was not yet in a position to legislate many substantive norms of the law of contract, property, tort, or crime, let alone matters like family law and inheritance which were in the exclusive competence of the church. But the king had -- for the first time -- established a central court of professional judges to hear cases throughout the land, cases commenced by writs issued by his chancellor. By focusing primarily on the writs, Glanvill's book made history, for the writs themselves, by defining particular types of remedies for particular types of wrongs, created what the English historian J.E.A.

The emphasis on procedure is of significance not only as an expression of royal power but also as a limitation on royal power. The king had greatly extended his jurisdiction as against that of both feudal and ecclesiastical courts; but the conditions of his assertion of royal jurisdiction were expressly stated and they would therefore serve as limitations. The categorization of types of remedies, as well as the statement of the procedures for invoking them, defined the royal jurisdiction. Thus, to quote Jolliffe again, the "growth of definition" as means of confining power, which was applied both to ecclesiastical and feudal power, was also applicable to royal power.

No assertion of absolute royal power, or of royal omnicompetence, such as is found in the legislation of King Roger II of Sicily, is to be found either in the legislation of Henry II or in the treatise attributed to Glanvill. On the contrary, Glanvill, by defining royal jurisdiction in terms of writs, limited that jurisdiction. In Maitland's words, the rule of writs is the rule of law. The king, to be sure, could not be prevented from usurping power beyond the limits which he set for himself; for him

-458

to do so, however, would be to weaken public confidence in the legality on which his legitimacy rested and therefore to increase the likelihood that he would have to resort to the inefficiency of force in order to maintain his power. This is implicit in Glanvill's analysis of the dual character of royal power: its need for military arms to subdue rebels and foreign enemies and its need for just laws to govern peaceful subjects. Two generations later Glanvill's concept was carried much further in Bracton Treatise on the Laws and Customs of England. Bracton also started by saying, "To rule well a king requires two things, arms and laws." He went on, however, to say that the very power of the king was derived from law____ it was lex that made him rex_____ and that when he ruled only by force

of arms, he ceased to be king.