of the land. The tendency however of the action of the Curia Regis, subject to these and other important exceptions, was to establish a uniform system of law and to override local custom.

The treatise of Glanvill being principally upon procedure, the rights recognised and enforced by the Curia Regis are only incidentally noticed. The following extracts will however be found to throw light on some of the most important points in the early law of land.

EXTRACTS FROM GLANVILL.

§ 1. Customary and Positive Law.

The following extract from Glanvill's preface illustrates the transition above indicated from customary law to positive law properly so called, and the introduction of the allusion to Roman Law seems to show how powerful an influence the conception of a systematic body of written law had upon the writer's mind.

GLANVILL. De Legibus et Consuetudinibus Regni Angliae.

Regiam potestatem non solum armis contra rebelles et gentes sibi regnoque insurgentes oportet esse decoratam sed, et legibus ad subditos et populos pacifice regendos decet esse ornatam. . .. Cum tantae aequitatis sit suae celsitudinis curia, ut in ea nullus judicum tam attritae frontis, tam temerariae sit praesumptionis, qui a justitiae tramite aliquatenus audeat declinare, aut veritati ullatenus praesumat contraire. Ibi enim pauperem non opprimit adversarii potentia, nec a limitibus judiciorum propellit quemquam amicorum favor aut gratia. Legibus namque regni et consuetudinibus de ratione introductis et diu obtentis, et, quod laudabilius est, talium virorum, licet subditorum, Rex noster non dedignatur consilio, quos morum gravitate, peritia juris et Regni consuetudinibus, suae sapientiae et eloquentiae praerogativa, aliis novit praecellere, et ad causas mediante justitia decidendas, et lites dirimendas, nunc severius nunc mitius agendo, prout viderint expedire, ipsis rerum argumentis comperit cum ratione promp

tissimos. Leges namque Anglicanas, licet non scriptas, leges appellari non videtur absurdum, cum hoc ipsum lex sit quod principi placet et legis habet vigorem', eas scilicet quas super dubiis in consilio definiendis procerum quidem consilio, et principis accedente auctoritate, constat esse promulgatas. Si enim ob scripturae solummodo defectum leges minime censerentur, majoris procul dubio auctoritatis robur ipsis legibus videretur accommodare scriptura, quam vel decernentis aequitas, vel ratio statuentis. Leges autem et jura regni scripto universaliter concludi nostris temporibus omnino quidem impossibile est, cum propter scribentium ignorantiam, tum propter earum multitudinem confusam; verum sunt quaedam in curia generalia et frequentius usitata, quae scripto commendare non mihi videtur praesumptuosum, sed et plerisque perutile, et ad adjuvandam memoriam admodum necessarium. Horum itaque particulam quandam in scripta redigere decrevi, stilo vulgari, et verbis curialibus utens ex industria, ad notitiam comparandam eis qui hujusmodi vulgaritate minus sint exercitati.

2. Supremacy of Curia Regis in matters relating to the Freehold.

The following passages illustrate what has been said above as to the concentration of jurisdiction relating to the freehold in the hands of the Curia Regis, and the consequent establishment of a uniform system of law.

The fundamental rule, now completely recognised, which produced this result was that no one was bound to answer in the court of his lord concerning his freehold without the king's writ.

1 See Just. Inst. i. 2. 6. Glanvill is here defending the application of the term 'law' to the body of customs which prevailed in England. He contends that at any rate that portion of the customs prevailing throughout England, which have been recognised and acted upon by the king and his council, may legitimately be called 'laws,' and for this position the authority of the Institutes is referred to. As to the apparent reluctance to use the term 'law,' see Stubbs, Const. Hist. i. p. 574,

note I.

The writs given below (lib. i. cap. 6, lib. xii. cap. 3,) constitute the appropriate mode of commencing that form of real1 action called a writ of right. The object of this is to determine a disputed right of property in the land, the question to be decided being-which of the two litigants majus jus habet in the land in question. Opposed to the writ of right is, as will be seen later, the mode of remedy which only goes to decide which of the two has the right to the possession of the land. A writ of right might before Magna Carta either be brought directly in the Curia Regis, in which case the writ is addressed to the sheriff, and is similar in form to other actions ; or it might be commenced in the territorial court by writ from the king; thence, if the court should be proved to have failed in doing right, the suit might be removed into the county court by precept of the sheriff, and from thence again by writ from the king into the Curia Regis. By an important provision of Magna Carta the right to issue the writ so as in the first instance to bring the suit in the king's court was abandoned 2. After this enactment proceedings were instituted in the first instance in the branch of the Curia Regis called after Magna

1 The distinction between real and personal actions is given by Bracton (102, see Reeves, vol. i. 336). Real actions had for their object the assertion of the claimant's right to the possession or property of a freehold interest in land, and resulted in the recovery of the right. Personal actions usually had for their object the assertion of the right to damages for injuries to persons or to property, or for breaches of contract. Like many other distinctions in our law, this phraseology was borrowed from the Roman Law, and is derived from the distinction between actiones in rem and actiones in personam. The Roman actio in rem had for its object the assertion of the right of property in anything which was the subject of property, whether moveable or immoveable. Actiones in personam had for their object the assertion of an obligation incumbent on a particular person to do or render something to the plaintiff. The prominence of freehold interests in lands, as the subjectmatter of rights, accounts for the narrower scope of 'real actions' in English Law. See further as to real actions below, § 9.

2 Magna Carta (John) c. 34:—' Breve quod vocatur "praecipe" de cetero non fiat alicui de aliquo tenemento unde liber homo amittere possit curiam

suam.'

1

Carta the Court of Common Pleas1 only when the lord gave, or was supposed to have given, license to the tenant to bring his action in that court, or when the lord held no court, or when the tenant held directly of the king3.

Lib. xii. c. 25. Praeterea sciendum quod secundum consuetudines regni nemo tenetur respondere in curia domini sui de aliquo libero tenemento suo sine praecepto domini regis vel ejus capitalis justiciae.

*

5

Lib. i. c. 5. Cum clamat quis domino regi aut ejus justiciis 7 de feodo 8 aut de libero tenemento suo, si fuerit querela talis, quod debeat vel quod dominus rex velit eam in curia sua deduci tunc is qui queritur tale breve de summonitione habebit :

c. 6. Rex Vicecomiti salutem. Praecipe A. quod sine dila

1 'Communia placita (suits between subject and subject) non sequantur curiam nostram, sed teneantur in aliquo loco certo.' (c. 17.) From this time forward the Court of Common Pleas had exclusive jurisdiction in the case of all real actions.

2 This was expressed by the addition at the end of the writ of the words 'Quia dominus remisit curiam suam.' This became in process of time a mere form. See Blackstone, vol. iii. Appendix 1, § 4.

See Blackstone, iii. p. 195; Fitzherbert, Natura Brevium, i. pp. 1-5. The word 'tenements' now becomes the technical expression for freehold interests in things immoveable, considered as subjects of property, they being not 'owned,' but 'holden.' This word is however not confined to this class of interests, but is also applied to the class of rights called incorporeal hereditaments; see below, Appendix to Part I, § 1 (7), (11). For the technical meaning of 'lands,' 'tenements,' and 'hereditaments,' see Blackstone, book ii. chap. 2.

5 The writ or precept addressed by the king to the sheriff or chief lord as the case might be. This was the regular mode of commencing an action at law.

6 As to the office and functions of the chief justiciar, see Stubbs, Select Charters, pp. 16, 17, and Const. Hist. i. p. 346.

7 As to the justices, see Stubbs, Select Charters, p. 17.

8 The word feodum' has now lost its original sense of land granted to be held as a benefice opposed to land granted to be held alodially: see above, p. 32. No alodial land remained in England. Feodum or fee is now always used in its secondary sense of an estate of inheritance' (see p. 61), i. e. an interest in land descendible to heirs. (As to who' heirs' are, see below, § 6.)

9 As to the office of the sheriff, see Stubbs, Select Charters, pp. 9, 14, 22, and for the history of the term vicecomes see Const. Hist. i. 269, note 1.

tione reddat B. unam hidam1 terrae in villa 2 illa unde idem B. queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum per bonos summonitores quod sit ibi coram me vel justiciariis meis in crastino post octabas clausi Paschae3 apud locum illum, ostensurus quare non fecerit. Et habeas ibi summonitores et hoc breve. Teste Ranulpho de Glanvilla apud Clarendon *.

Lib. xii. c. 1. Praedicta quidem placita de recto 5 directe et ab 1 initio veniunt in curia domini regis, et ibi, ut dictum est, dedu-r cuntur et terminantur. Quandoque etiam licet ab initio non veniant in curia domini regis quaedam placita de recto, veniunt tamen per translationem, ubi curiae diversorum dominorum probantur de recto defecisse: tunc enim mediante comitatu possunt a comitatu, ex diversis causis quae superius expositae sunt, ad capitalem curiam domini regis transferri 7.

1 As to the hide, see above, p. 7, note 2.

6

2 The writ specifies the district in which the lands are situate. As to the villa, see above, p. 44.

N

Easter

3 On the morrow after the octave of Whitsuntide.' (See Spelman, Glossary, s. v. Clausum.)

The mode of trial of a writ of right forms the subject of the remainder of the first and second book of Glanvill. His account, though very curious in reference to the history of the law of procedure, has no bearing on that of the law of land. The cause, when ripe for trial, was decided either by the duel, or, under the great improvement of the law effected by an ordinance of Henry II, of which we only hear in Glanvill, by the grand assize; that is, by the verdict of twelve milites of the neighbourhood, chosen by four other milites summoned by the sheriff for the purpose.

5 Placita de recto, 'suits concerning the (freehold) right to lands'; 'writs of right.'

For county courts held before the sheriff, see Stubbs, Const. Hist. i. pp. 114, 393, etc.

7 The writ by which the cause was removed into the county court was called the writ of tolt-that by which it was removed from the county court into the curia regis, the writ of pone; see specimens in Blackstone, vol. iii. App. 1. Bracton, foll. 329-333, gives an elaborate account of the grounds and mode of transfer of the writ of right from the court baron to the county court, and from the county court to the curia regis. This transfer must have been very common from the earliest times, and it became in process of time a matter of course, the grounds alleged in the writs of tolt and pone being merely fictitious.