OBSERVATIONS

ON THE

REGIAM MAJESTATEM.

SECOND EDITION.

[This Pamphlet was considered to have set at rest the question between the English and Scotch Jurists, whether the Regiam Majestatem or the Work of Glanville be the original-See the Preface to BEAMES' Translation of Glanville, 8vo. 1812.]

LONDON:

1825.

OBSERVATION S,

&c. &c.

THE Regiam Majestatem bears so great a resemblance to a book, wrote, as the English maintain, by Ranulph de Glanville, who was Lord Chief Justice of England from the 1180 to the 1189, that it must be evident to every person who inspects those two books, that the one is made up or rather copied from the other. Hence arises a question, confessedly difficult, Which of these two books is the copy, and which is the original? The determination of this question is the more difficult on this account, that it appears the person, whoever he was, that composed the one of these books out of the materials of the other, did all that was in his power to cover the fraud. And this has so far had the desired effect, that learned men have appeared on both sides of the question; and the evidence produced by either party being but slender, people have thought themselves at liberty to determine it according to their wishes and inclinations. Craig and Lord Stair have gone into the opinion, that the Regiam Majestatem is not a book of Scottish law, but is merely a transcript of Glanville's book. On the other hand, Sir John Skene, Sir James Dalrymple, Mr. James Anderson, and others, have maintained, that the Regiam Majestatem is a book of Scottish law, and was written in the days of David I. who reigned from the 1124 to the 1153.

In considering this question, the writer of these few pages remembered, that fraud is a thing not easy to be concealed; and that those very arts which are employed to cover it, have often the contrary effect, and afford the highest evidence of the imposture. For this reason, he thought it worth his pains attentively to peruse the two books, imagining that some evidence might be gathered from them for determining the dispute; especially as Craig had said in general, that, from comparing the two books, it was so plain, that the Regiam Majestatem was a transcript of Glanville's

book, "ut ne cæcum quidem latere possit." And certainly, if, from this comparison, there arises any such evidence, it merits a very particular regard; because intrinsic evidence is always of great weight, and loses nothing by time; and is the more valuable in a case of this nature, where other evidence is so scarce and so uncertain.

Before we come to the result of the inquiry, we may premise an observation or two. Glanville has been held, by the antiquaries of England, to be the first who reduced their laws to a system;2 and the English law-book now in our view has been always held as this system, and has borne Glanville's name; and it also

has his name in the teste of some of the brieves of the first book.3 The author of the Regiam Potestatem could say, when he wrote, "Tempore H. Regis avi Dom. Regis." lib. 9. cap. 13. et alibi; which answers to Henry II.'s time: and as it was wrote after the 20th of the King, lib. 13. cap. 4. and 5. it appears to be wrote when Glanville was Chief Justiciar. Whereas the Regiam Majestatem, though a book of the greatest importance, containing, as is said, the laws of the kingdom, wrote, at the command of King David, by some famous lawyer, is owned by nobody; and, notwithstanding all the noise that a work so new must have made in Scotland, yet its author is not mentioned by any one historian, This of itself is a suspicious circumstance: the work is anonymous, which agrees well with its being an imposture. Glanville's work bears his name, which is a presumption at least in his favor, that he was the composer of it; and it does not well appear, if the Regiam Majestatem had been wrote in St. David's days, how Glanville could, so soon thereafter, have had the boldness to republish it, and pass it for his own, in a kingdom too that lay so near, and with which our ancestors had so much correspondence.. We proceed to another suspicion, perhaps of some more weight. It is observable, that Glanville's work is divided, and indeed na turally divided, into fourteen separate books or treatises, concerning distinct matters; and these follow one another in order, agreeably to the divisions intimated in cap. 2. and 3. of the first book. But the Regiam Majestatem is divided only into four books, which are for the most part composed of those fourteen of Glanville's. This division could not at all be natural; and no good reason can be given why it should have been chosen, but this, that it was designed to cover the imposture: for, except on this account, it might have been of any other number than four; and, with the

Craig, De feudis, lib. i. d. 8. §. 11.
Justiciarii, p. 338.

2 Vid. Spelman, Gloss. voce
3 Vid. Reg. Pot. lib. 8 cap. 2. and 3.
4 Vid. Reg. Maj. lib. 1. in procem. § 10.

greatest propriety, should have been composed of fourteen books, according to the method laid down by Glanville.

Although the order of treating matters, and the matters treated of, in both books, be generally the same; yet they are sometimes different; and when they differ, the transpositions in the Regiam Majestatem seem unaccountable. There are inserted, with little art or connection, into the Regiam Majestatem, pieces treating of matters quite foreign to the processes there treated of. The instances of transpositions are these: The Reg. Maj. lib. 1. cap. 3. § 3. makes mention of a plea for not keeping a final agreement of a process after it was made in court. This plea is the third process mentioned in that chapter, and accordingly it ought to have been treated in the third place; but in Reg. Maj. cap. 27. it is treated of before the second process mentioned in the said cap. 3. lib. 1. And it is pretty remarkable, that it is treated of there in a manner so superficial as not to be intelligible; whereas it is most distinctly treated of by Glanville. Thus also the cap. 23. of the 3d book of the Regiam Majestatem seems to come in there somewhat oddly; whereas it comes in very naturally in Glanville, lib. 8. cap. 9. &c. These are instances of transpositions: but the instances of pieces unnaturally inserted, and foreign to the matters in question, are rather more frequent. Such are cap. 2. 16. 17. 18. 19. 20. Reg. Maj. lib. 1.; and such also are the cap. 28. 29. 30. 31. of the same book, and from the 1st to the 11th chapter of the 2d book, and 15th chapter of that book. And, to finish the observation on this head, from cap. 9. to the end of the 4th book of the Regiam Majestatem, various inconsistencies appear; things are treated of, which were not mentioned in the distribution of the work in the beginning of the first book, and which are quite foreign to the points or crimes there to be treated.

One may observe at first, that, in the very beginning, the Regiam Majestatem and Glanville's book differ concerning the courts before which several actions are to be brought. But when the Regiam Majestatem comes to treat of these actions, it contradicts itself, and lays the processes, not before the courts it had mentioned in the beginning, but before the courts which Glanville's book had said were the proper courts. In the beginning of both of the books, the distinction is made betwixt pleas which belong to the crown, and those which belong to the sheriff, in criminal matters; and Glanville goes on in the same regular way to show, what civil causes come before the King's court. Now, those pleas which Glanville says are tried in the King's court, are, by the Regiam Majestatem, said to belong to the sheriff; though, when they come to be treated of in the Regiam Majestatem, they are said to pertain to the King's court, in opposition to that of the