¹ Ed. by Woodbine, G. E. (4 vols. New Haven 1915–42) and by Sir Travers Twyss (6 vols. Rolls Series; London 1878–83). In this study my references are primarily to Woodbine's edition.Google Scholar

² Schulz, F., ‘A New Approach to Bracton,’ Seminar (Annual Extraordinary Number of The Jurist) 2 (1944) 42. See also Kantorowicz, H., Bractonian Problems (Glasgow 1941); and the answers to his criticisms of Woodbine's edition: Schulz, , ‘Critical Studies on Bracton's Treatise,’ Law Quarterly Review (= LQR) 59 (1943) 172–80; McIlwain, C. H., ‘The Present Status of the Problem of the Bracton Text,’ Harvard Law Review 57 (1943) 220–37; and Richardson, H. G., ‘Azo, Drogheda, and Bracton,’ English Historical Review (= EHR) 59 (1944) 22–47. Additional references are given below, n. 96.Google Scholar

³ Vinogradoff, P., ‘Les maximes dans l'ancien droit commun anglais,’ Revue historique de droit français et étranger, 4^e sér. (= RHD⁴) 2 (1923) 341, does say that Bracton knew the maxim, but he does not offer a true illustration (Bracton II, 21; below n. 98). Maude V. Clarke, stating that the maxim was widely known in England but almost invariably in an ecclesiastical context, rightly says that the passage referred to by Vinogradoff means simply a general consent to legislation; Medieval Representation and Consent (London 1936) 264.Google Scholar

⁴ See the writs of Edward I, 1294 and 1295, in Stubbs, William, Select Charters (9th ed. by Davis, H. W. C., Oxford 1913 [hereafter cited as S.C.]) 476, 479; and of Pnilip IV, 1302, in Picot, G., Documents relatifs aux états généraux et assemblées réunis sous Philippe le Bel (Paris 1901) nos. 1ff.; Jusselin, M., ‘Lettres de Philippe le Bel,’ Bibliothèque de l'École des Chartes 67 (1906) 470f.: ‘Super pluribus arduis negotiis, nos, statum et libertatem nostros, ac regni nostri, nec non ecclesiarum et ecclesiasticarum, nobilium, secularium personarum et universorum et singulorum incolarum ejusdem regni, non mediocriter tangentibus. …’ For examples in England, from 1258 on, see below to nn. 245, 248–57.Google Scholar

⁵ Stubbs, , S.C. 480.Google Scholar

⁶ Pasquet, D., An Essay on the Origins of the House of Commons (transl. Laffan, R. G. D., Cambridge 1925) 25, 173f.; G. Lapsley flatly denies that q.o.t. had any influence on English representation, notes on Pasquet, 244, n. to 174; Petit-Dutaillis, Ch. and Lefebvre, G., Studies and Notes Supplementary to Stubbs' Constitutional History (Manchester 1930) 345 n.; White, A. B., Making of the English Constitution (2nd ed. New York and London 1925) 371f.; Pollard, A. P., Evolution of Parliament (2nd ed. London 1926) 59; Jolliffe, J. E. A., Constitutional History of England (London 1937) 349ff.; Riess, Ludwig, History of the English Electoral Law in the Middle Ages (transl. Wood-Legh, K. L., Cambridge 1940) 2, and Wood-Legh, , n. 5; Adams, G. B., Constitutional History of England (New York 1921) 186.Google Scholar

⁷ See the review of Clarke, , Medieval Representation and Consent , in The Times Literary Supplement (Jan. 2, 1937) 6; quoted by Haskins, George L., ‘Representation and Consent,’ Notes and Queries 172 (1937) 258.Google Scholar

⁸ Stubbs, William, Constitutional History of England, II (4th ed. Oxford 1896) 133f. 369; Clarke, , op. cit. 160f. 247–316. Rightly connecting plena potestas, full powers, with q.o.t., J. G. Edwards develops this interpretation, ‘The Plena Potestas of English Parliamentary Representatives,’ Oxford Essays in Medieval History Presented to H. E. Salter (Oxford 1934) 141–54. But Edwards does not go so far as to make plena pot. and q.o.t. stand for any sovereign consent of the commons that limited the power of the king; they signify rather the development of the sovereignty of Parliament—of king, council, magnates, and representatives together in Parliament. Hence my statements in Traditio 1, 355f. need modification, for there I assumed that Edwards was speaking of the sovereignty of the commons. But I am doubtful that one can speak of the sovereignty of Parliament even in the fourteenth century.Google Scholar

⁹ Growth of Political Thought in the West (New York 1932) 302 n. 3; cf. McIlwain, , ‘Medieval Estates,’ CMH 7, 679; and ‘Mediaeval Institutions in the Modern World,’ Speculum 16 (1941) 280f.Google Scholar

¹⁰ CMH 7, 679; for a fine discussion of q.o.t. in relation to the enactment of law in the fourteenth century, and a sound appreciation of the problem of minorities and of the community as a whole, see McIlwain, , Constitutionalism and the Changing World (New York 1939) 145ff.Google Scholar

¹¹ The Statute of York and the Interest of the Commons (Cambridge 1935) 9–13, 20–30, 45–81.Google Scholar

¹² For a preliminary summary see my study, ‘Plena Potestas and Consent in Medieval Assemblies,’ Traditio 1, 370–83, and in general, 355–408.Google Scholar

¹³ Heretofore historians of law and institutions have been content to observe that the maxim was familiar to legists and canonists and was well recognized in ecclesiastical court procedure by the middle of the century. See Leicht, P. S., ‘Un principio politico medioevale,’ Rendiconti della Reale Accademia Nazionale dei Lincei (Cl. di Scienze morali, storiche) 29 (1921) 232–45; Vinogradoff, P., ‘Lesmaximes … ’ (n. 3 above) 333–43, and Collected Papers (Oxford 1928) II, 245f. These studies are general and inadecate, for the legal meaning of q.o.t. is not examined.Google Scholar

¹⁴ Buckland, W. W., Textbook of Roman Law from Augustus to Justinian (2nd ed. Cambridge 1932) 161–6.Google Scholar

¹⁵ Wenger, L., Institutes of the Roman Law of Civil Procedure (transl. Fisk, O. H., New York 1940) 85; D. 11, 2, 2: ‘Cum ex pluribus tutoribus unus, quod ceteri non sint idonei, convenitur, postulante eo omnes ad eundem iudicem mittuntur: et hoc rescriptis principum continetur.’ The judgment need not affect all the tutores equally, although all must be summoned. This is consent under compulsion by the decision of the case in court. See Buckland, , Textbook 162f. 166.Google Scholar

¹⁶ D. 39, 3, 8 (Ulpian): ‘In concedendo iure aquae ducendae non tantum eorum, in quorum loco aqua oritur, verum eorum etiam, ad quos eius aquae usus pertinet, voluntas exquiritur, id est eorum, quibus servitus aquae debebatur, nec immerito: cum enim minuitur ius eorum, consequens fuit exquiri, an consentiant. …’ Google Scholar

¹⁷ D. 3, 3, 31 §1; 3, 5, 30 §7; C. 3, 40; Wenger, , Institutes 83. As Buckland says, in the earlier Roman law each consors was entitled to the whole, subject to the claims of the others; but all the consortes might arrange that one should act for them; ‘Alienation and Manumission by One of Consortes,’ LQR 58 (1942) 483–6.Google Scholar

¹⁸ D. 8, 5, 4 §3; 10, 1, 4 §5; Wenger, , Institutes 84.Google Scholar

¹⁹ Wenger 84; D. 8, 5, 4 §4. As Wenger says, ‘the Roman legal order aims rather at attaining the same effect of a judgment for several interested persons, by ascribing to a suit conducted between two persons effect also for or against other persons not parties to the suit but interested in the juristic relationship, instead of the actual, here also possible but more inconvenient requirement of several persons as plaintiffs or defendants.’ Google Scholar

²⁰ D. 10, 2, 48 Si familiae erciscundae; D. 10, 2, 27; cf. Buckland, , Textbook 314f. on coheirs and one of them acting as procurator. Google Scholar

²¹ Wenger, , Institutes 85; cf. D, 11, 2, 2; C. 5, 51, 5.Google Scholar

²² Of course, in some cases relating to the common ownership of property, the court must judge only on the basis of individual and unanimous consent, e.g., to a division, unless the parties could not arrive at a unanimous agreement; Buckland, , Textbook 252, 536.Google Scholar

²³ Q.o.t. is here associated with public, or quasi-public, law, since the imperial fiscus was the state treasury in spite of its belonging to the emperor. See Mcílwain, C. H., Constitutionalism Ancient and Modern (Ithaca 1940) 48f.; Inst. 1, 2; and Hugh Last, CMH 11, 422f.Google Scholar

²⁴ D. 42, 1, 47 §1, and 53; C. 7, 44.Google Scholar

²⁵ Decr. Greg. IX 1, 33, 8: ‘Iuris namque ratio postulat, ut in eorum praeiudicium, quibus eaedem ecclesiae sunt subiectae nihil ordinemus de ipsis quum nec citati sunt, nec convicti, nec per contumaciam se absentent.’ An. 1206 (Potthast 2860).Google Scholar

²⁶ Decr. 1, 23, 7 Ad haec.Google Scholar

²⁷ Decr. 2, 28, 48 Significavit; the gloss occurs in an Apparatus to Compilatio III, 2, 19 (De appellat.) c. 6, ad v. (tarn) archiepiscopum (quam rectorem): ‘§Ut defenderet … Omnes enim … tangit; ar. III. Q. VI Hec quippe [c. 10], ff. de aqua plu. ar. in concedendo [D. 39, 3, 8], C. de aut. tu. veter. [5, 59, 5], C. de servit. aquam [3, 34, 4];’ in Paris, Bibl. Nat. MS lat. 15898 fol. 152^v, and Bamberg MS Can. 19 fol. 169. On the MSS and the Apparatus see Post, G., Jurist 2 (1942) 5–31.Google Scholar

²⁸ To Compilatio IV, 2, 11 (De sent, et re iud.) c. 3 Cum in presentia, ad vv. (quia cum inter te et episcopum fuisset) causa commissa (ipso episcopo non citato contra ipsos monachos): ‘§Tantum [al. Tamen] hec causa fuit commissa, quod episcopus nolebat confirmare eius electionem, et occasione huius mandati fuerunt vocati contradictores omnes, quia etsi non fiat mentio de ipsis in litteris, tamen omnes illi quos res tangit vocandi sunt …, ff. de re iudi. de uno quoque, et 1. sepe [D. 42, 1, 47 and 63]. … Item quia episcopus non fuit citatus [al. accusatus], de quo principaliter mandatum receperunt, cassatur id quod factum est. … Sed si episcopus esset vocatus et non monachi, quorum interest, tenet sententia lata contra episcopum. … Preiudicatur autem [al. tamen] illi qui scit causam agi, cuius defensio principaliter ad ipsum spectet … ff. de re iudi. sepe. Jo.;’ in MS Vat. lat. 1377, fol. 296^r. The variants included above in brackets are those of the edition by Augustinus, Antonius, Antiquae collectiones decretalium (Ilerdae 1576) fol. ccc3^v .Google Scholar

²⁹ To Decr. Greg. IX 2, 27, 25 Quamvis, in Novella Commentaria (5 vols. Venice 1581).Google Scholar

³⁰ Accur. Glos. ord. to C. 5, 59, 5 ad v. similiter; Inn. IV, Apparatus to Decr. Greg. IX 1, 23, 7; cf. to n. 26.Google Scholar

³¹ Summa decretalium, ed. Laspeyres, E. A. T. (Ratisbon 1860) 75. Bernard, of course, refers specifically to the two laws mentioned.Google Scholar

³² Apparatus to Decr. Greg. IX 1, 36, 2 Statuimus (decretal of Alexander III, who states that a compositio over a tithe is valid when the two clerks making it do so with the consent of the bishop or archbishop).Google Scholar

³³ To Decretum Dist. 54, c. 1 Nullus, that no bishop shall promote the servus of another to clerical office ‘nisi forte eorum peticio aut voluntas accesserit, qui aliquid sibi in eo vendi cant potestatis,’ ad v. qui aliquid; from the Glossa ord. by Johannes Teutonicus. The gloss refers to Dist. 85, c. 1, and to extra. de off. deleg. super eo (Decr. Greg. IX, 1, 29, 15). Cf Joh. Andreae, above, to n. 29: ‘Tamen quando inquiritur de iuribus, debent vocari omnes etc.’ Google Scholar

³⁴ Glos. ord. to Decr. Greg. IX 1, 33, 17 Humilis. The glossator adds, on the pope's command that those who were unwilling to consent should be summoned before the papal court to prosecute ‘ius, si quod habere contendunt, et satisfacturi parti alteri, si succubuerint in expensis,’ ad v. noluerint: ‘No. quod ille cuius interest, ìmpedit provisionem papae: sicut aliquis retardat executionem sententiae. … Arg. quod non intendit papa alicui praeiudicare suas litteras.’ True, the pope does not mean to prejudice any one's legal rights; but such rights are subject to the final decision by the pope. Here is a good illustration of procedural consent; the voluntary element is subject to the court's decision of the case.Google Scholar

³⁵ To Decr. 1, 11, 6 ad v. ab omnibus: ‘Not. quod omnes tangit, ab omnibus comprobari debet, quia in concedendo haustum aquae omnes debent venire ad quos ius aquae spectat;’ other references to D. 39, 3, 9 and C. 5, 59, 5 §2.Google Scholar

³⁶ We shall see how William of Drogheda brings in exigere from D. 39, 3, 9; below, n. 110.Google Scholar

³⁷ Below, nn. 100, 101. He may do so elsewhere, but at the moment I am unable to check his Summa Codicis for this.Google Scholar

³⁸ See the Glos. ord. to these laws; I cannot take the space to quote the glosses here.Google Scholar

³⁹ Innocent III, Decr. Greg. IX 1, 23, 7 Ad haec; and on this Teutonicus, Johannes, Appar' Comp. IV, 1, 11 (De off. archid.) c. 1, ad v. imperialist ‘§ lxv[i] di. archiepiscopus [Dist 66, c. 1], et C. de auct. pres. 1. ult. [C. 5, 59, 5 §2]. Jo.’ in MS Vat. lat. 1377 fol. 287^v (ed Ant. Aug. fol. aaa 6). Decretum Dist. 66, c. 1, to which Joh. refers, is on the common interest of the suffragan bishops in the ordination of the archbishop; and to this a gloss (in the Glos. ord. of Joh. Teut. to the Decretum) says, ad v. ab omnibus: ‘Argum. quod omnes tangit, ab omnibus debet approbari …;’ see also Glos. ord. to Decr. Greg. IX 1, 11, 6, ad v. ab omnibus. Google Scholar

⁴⁰ Decr. Greg. IX 3, 10, 6 Ea noscitur (an. 1191–98); and on this the comments of Innocent IV, Hostiensis, and Johannes Andreae, which I shall examine in detail in my special study of q.o.t. in the two laws.Google Scholar

⁴¹ The glosses are too numerous and lengthy to give. here. But see Accursius to D. 50, 17, 160; Bartolus to D. 50, 1, 19; and Innocent IV, Bernard of Parma (Glos. ord.), and Joh. Andreae to Decr. Greg. IX 1, 2, 6, and 1, 11, 6. On the maior pars see below, n. 180.Google Scholar

⁴² Pollock, F. and Maitland, F. W., The History of English Law before the time of Edward I (2nd ed. Cambridge 1898) II, 592; but it is not necessary to speak of Germanic custom in relation to the three summonses, for they were in the Roman as well as in the Canon law.Google Scholar

⁴³ See the decretal of Innocent III, Decr. Greg. IX 2, 6, 5 §6; it laid down the essential rules for real actions and was frequently cited by canonists and even by legists. See also the title De dolo et contumacia (Decr. Greg. IX 2, 14) in general; and the corresponding rubric in the current ordines iudiciorum. Google Scholar

⁴⁴ Glos. ord. to D. 42, 1, 47.Google Scholar

⁴⁵ Summa aurea , ed. Wahrmund, L., Quellen zur Gesch. des röm.-kanon. Processes im Mittelalter (Innsbruck 1905ff.) II, ii, 161f.; below, nn. 105, 108, 111.Google Scholar

⁴⁶ Ordo iudic . ed. Wahrmund, III, i, 165; Aegidius refers to Decr. Greg. IX 2, 14, 10, and 3, 4, 11.Google Scholar

⁴⁷ Summa aurea, ed. Wahrmund, II, ii, 29; he refers to D. 43, 24, 4; 50, 17, 121 and 134 and 173; 9, 4, 13; 22, 6, 6.Google Scholar

⁴⁸ Decr. Greg. IX 2, 6, 5 §6.Google Scholar

⁴⁹ Decr. Greg. IX 2, 6, 5 §7.Google Scholar

⁵⁰ See below, to nn. 113–6.Google Scholar

⁵¹ Below, to nn. 146, 148.Google Scholar

⁵² Decr. Greg. IX 5, 1, 24 Qualiter et quando: ‘Debet igitur esse praesens is, contra quern facienda est inquisitio, nisi se per contumaciam absentaverit.’ Google Scholar

⁵³ Ordo iudic. ed. Wahrmund, III, i, 156–8.Google Scholar

⁵⁴ Gloss to Comp. III 2, 18, 5 (Decr. Greg. IX 2, 27, 15); in Paris, Bibl. Nat. MS lat. 15398 fol. 149 c. 2. The decretal relates to delays between sentence and appeal.Google Scholar

⁵⁵ Glos. ord. to Decr. Greg. IX 1, 2, 2 Cognoscentes, ad v. culpa caret; the gloss continues: 'Vel dicas, quod licet quandoque quis privetur iure suo sine culpa, non tamen fit illud sine causa. … In sex casibus privatur aliquis iure suo sine culpa sua. Unde versus: Google Scholar

Paupertas, odium, vitium, favor, et scelus, ordo,Google Scholar

Personas spoliant et loca iure suo.' Google Scholar

⁵⁶ Kuebner, Richard, ‘The Settlement and Colonisation of Europe,’ Cambridge Economic History (Cambridge 1941) I, 34 —on the Salic Law, Titulus de migrantibus (45). The veto of a single proprietor should decide against the new settler, even if ‘one or several want to admit him.’ No big village community is involved, for some three or four neighbors are not agreed about the admission of another. This was not a question of the communal disposal of shares in the land by the tribal assembly. It was the individual settlers who had to agree to the division. But Clovis declared that the migrans must be admitted if he came recommended by the king (34).Google Scholar

⁵⁷ Holdsworth, W. S., History of English Law III 4 (London 1935) 143–6; Pollock, and Maitland, , History of English Law I, 360–76, 620–30. For France, see Bloch, M., Cambr. Econ. Hist. I, 264–71. For English local custom and villagers' rights and common consent or action, see also Neilson, Nellie, ‘The Early Pattern of the Common Law,’ Amer. Hist. Rev. 49 (1944) 204.Google Scholar

⁵⁸ Holdsworth III⁴ , 143.Google Scholar

⁵⁹ Power, Eileen, The Wool Trade in English Medieval History (London 1941) 7.Google Scholar

⁶⁰ Pollock, and Maitland, I, 236.Google Scholar

⁶¹ Stutz, U., ‘The Proprietary Church as an Element of Mediaeval Germanic-Ecclesiastical Law,’ Mediaeval Germany 911–1250. Essays by German Historians (transl. Barraclough, G., Oxford 1938) II, 51.Google Scholar

⁶² Stutz 52; Holdsworth III⁴ , 138–42.Google Scholar

⁶³ Stutz 68.Google Scholar

⁶⁴ See below, n. 180.Google Scholar

⁶⁵ Neilson, , Amer. Hist. Rev. 49, 204, 208; on the common interest in the maintenance of walls, dykes and ditches, lest ‘the negligence of one might endanger all.’ Google Scholar

⁶⁶ Holdsworth II³, 57f. 377f.; III⁴, 143. In any society, primitive or modern, there must be some practical, if unconscious, observance of the same principle as that of q.o.t.; for all the members of a community are touched by any individual who tries by force or fraud to usurp the rights of others, just as all are touched by a brigand or murderer; and all are therefore interested in measures for law and order. Bracton in fact hints at q.o.t. in connection with the common interest in the king's peace: some crimes touch both the king and those who are injured (II, 298; Tw. II, 152). In saying that ‘though there are romanesque phrases in this section, it consists in the main of pure English law,’ Maitland fails to note Bracton's application of the maxim to royal jurisdiction and the king's peace; Select Passages from the Works of Bracton and Azo (London 1885) 186f. On the Germanic essence of the development of the king's peace see Lear, F. S., ‘The Public Law of the Ripuarian, Alemannic, and Bavarian Codes,’ Medievalia et Humanistica 2 (1944) 5, 25ff.: ‘It is a “king's peace” because the king has identified his rights with the rights of all and to that extent the royal peace, conceived in the Germanic personal sense, becomes a general peace of the land and a basis of public order, if one may speak of public in an order where rights remain personal’ (p. 26); id., on the contractual element in the king's peace, ‘Contractual Allegiance vs. Deferential Allegiance in Visigothic Law,’ Illinois Law Review 34 (1940) 557–66, and ‘The Idea of Majesty in Roman Political Thought,’ Essays in History and Political Theory in Honor of Charles Howard McIlwain (Cambridge 1936) 168–98. But in the thirteenth century the king's peace for the public utility, the common welfare, begins to control contractual individualism, and q.o.t. begins to be limited by the royal prerogative and the right of state—the revival of Roman law is of great importance in this development; see my remarks and references in Traditio 1, 372.Google Scholar

⁶⁷ C. 39: ‘Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur … nisi per legale judicium parium suorum vel per legem terrae.’ McIlwain, , Constitutionalism and the Changing World, ch. V, concludes that c. 39 meant legal judgment by peers or ‘by the justices of the king in cases in which this has become the common procedure, “the law of the land in effect everywhere and accepted as such”,’ p. 124; but the lex terrae also meant ‘the substantive principles of the customary law’, p. 125; it meant the ‘law of the land’ both in the procedural and in the substantive sense of the law, pp. 114, 116. Radin, Max, Handbook of Anglo-American Legal History (St. Paul 1936) 166f. emphasizes too much, I think, the ‘local and special and—in England—very exceptional custom’ as the meaning of per legem terrae. It does mean local and special custom, but it also means the general law of the land and procedure which embrace and recognize local custom. In the Church the same theory prevailed among the canonists. As to due process, Plucknett, T. F. T., Concise History of the Common Law (2nd ed. Rochester 1936) 25, 41: ‘Could anything be more mediaeval than the ideal of due process … ?’—and p. 338; also, McIlwain, , op. cit. 114, on per legem terrae as ‘par due proces de lei’ in 1354.Google Scholar

⁶⁸ Cf. Holdsworth II³ , 57f.; and III⁴, 143–51.Google Scholar

⁶⁹ See ‘Plena Potestas,’ Traditio 1, 367f.Google Scholar

⁷⁰ Ibid.Google Scholar

⁷¹ Paris, Matthew, Chronica Majora (ed. Luard, H. R. R.S.) III, 97, 103, and IV, 37, 375; Powicke, F. M., Stephen Langton (Oxford 1928) 158f.; Lunt, W. E., Financial Relations of the Papacy with England to 1827 (Cambridge, Mass. 1939) 178ff. For Pope Honorius III's recognition of q.o.t. in provincial councils, see Decr. Greg. IX 3, 10, 10; below, nn. 218, 220, 252.Google Scholar

⁷² On Englishmen who were canonists and decretalists in the early thirteenth century, see von Schulte, J. F., Geschichte der Quellen und Literatur des Canonischen Rechts I (Stuttgart 1875) 183, 188, 189; Kuttner, Stephan, Repertorium der Kanonistik (1140–1234) (Città del Vaticano 1937), Index, s. v. Anglo-normannische Schule; id., ‘Bernardus Compostellanus Antiquus,’ Traditio 1, 284 n. 25, 285, 289, 301, 311, 321, 326 n. 32; Russell, J. C., Dictionary of Writers of Thirteenth Century England (London 1936) 111. On churchmen as royal judges and their training and influence, Pollock and Maitland I, 132f.; Holdsworth II⁴, 177, 227; Richardson, H. G., ‘The Oxford Law School under John,’ LQR 57 (1941) 322f.; and on a clerk who was employed by Henry III in ecclesiastical business, Powicke, F. M., ‘Master Simon the Norman,’ EHR 58 (1943) 330–43.Google Scholar

⁷³ Pollock, and Maitland, I, xxxiif.; Holdsworth II⁴, 7–28; Senior, W., ‘Roman Law in England before Vacarius,’ LQR 46 (1930) 191–206; Scrutton, T. E., The Influence of the Roman Law on the Law of England (Cambridge 1885) Part I; Levy-Ullman, H., The English Legal Tradition (London 1935) 173–5.Google Scholar

⁷⁴ de Zulueta, F. (ed.), The Liber Pauperum of Vacarius (Selden Society; London 1927) xiii–xxiii. But Vacarius omits C. 5. 59. 5 §2, and has no gloss either on it or on D. 42, 1, 47.Google Scholar

⁷⁵ Kuttner, , Traditio 1, 301f.; Dictionary of National Biography, art. on Thomas; below, n. 186. Thomas taught Roman law at Oxford (and—or—at Exeter?), was a monk at Evesham, 1199–1229, and was made abbot of the monastery in 1229.Google Scholar

⁷⁶ Pollock, and Maitland, I, 118–21; Holdsworth II⁴, 147f.; Richardson, LQR 57, 324ff.; Plucknett, T. F. T., ‘The Relations between Roman Law and English Common Law down to the Sixteenth Century,’ Univ. Toronto Law Jour. 3 (1939) 24–50.Google Scholar

⁷⁷ Senior, W., ‘Roman Law MSS. in England,’ LQR 47 (1931) 337–44; Scrutton, , op. cit. 79f.; Plucknett, , Concise History of the Common Law 210f.Google Scholar

⁷⁸ Richardson, , ‘Azo, Drogheda, and Bracton,’ EHR 59, 40–43.Google Scholar

⁷⁹ Richardson, , LQR 57, 324–35; id., ‘An Oxford Teacher of the Fifteenth Century,’ Bulletin of the John Rylands Library 23, 2 (1939) 18.Google Scholar

⁸⁰ Barraclough, G., ‘Praxis Beneficiorum,’ Zeitschrift der Savigny-Stiftung, Kanon. Abt. 27 (1937) 96f., thinks that few of the officials in English episcopal courts, and few of the many notaries, proctors, advocates and syndics, attended a University or received a degree in Canon or Roman law. But this does not mean that the Roman law was not a vital part of the procedure in church courts, for it formed the background of the treatises on procedure and the notarial art which were used by those who had little formal education in the two laws. Of course, the province of the common law was barred to these notaries in England; they could practice only in ecclesiastical courts (Richardson, LQR 57, 333). But the notarial art perhaps had some influence outside.Google Scholar

⁸¹ Schulte, , Quellen II, 124; Pollock, and Maitland, I, 122; Kantorowicz, H., Studies in the Glossators of the Roman Law (Cambridge 1938) 91.Google Scholar

⁸² Haskins, G. L., ‘Three English Documents Relating to Francis Accursius,’ LQR 54 (1938) 87–94; id., ‘Francis Accursius: A New Document,’ Speculum 13 (1938) 76: ‘The presence of a civil lawyer among the councillors and close advisers of Edward I, in a period of one of the great advances of English law, is a matter of no slight importance for legal history.’ Without contradicting this statement, I would remind the reader that the Roman terminology and procedure for corporate representation were familiar to English secular institutions and law before Accursius was employed by Edward; see Traditio 1, 367, 369.Google Scholar

⁸³ Richardson, H. G. and Sayles, G. O., ‘The King's Ministers in Parliament,’ EHR 46 (1931) 550; quoted by Haskins, G. L., Statute of York (above, n. 11) 30 n. 1.Google Scholar

⁸⁴ Stubbs, , S.C. 277, 325, 358, 403, 406f.; and Bracton IV, 295f. (Tw. VI, 288): ‘generaliter tractatum esset de communi utilitate totius regni super pluribus articulis regem et regnum tangentibus’—on the Provisions of Merton, 1236; the words ‘regem et regnum tangentibus’ do not appear in the document (Statutes of the Realm I, 1; Close Rolls H. III, 1234–37, 337), but Bracton violates no tradition in adding these words as a reflection of q.o.t. In 1258 one encounters similar words that relate to the summons and the consent of the magnates as the community of the realm in Henry III's consent to a plan for reforming the status regni: ‘Cum pro negotiis nostris arduis nos et regnum nostrum contingentibus, proceres et fideles regni nostri … faceremus convocari;’ Stubbs, , S.C. 371. See below, nn. 123, 246, 248.Google Scholar

⁸⁵ Pollock, and Maitland, I, 134; Holdsworth II⁴, 283.Google Scholar

⁸⁶ Pollock, and Maitland, I, 217f. On the maxims see Williams, James (q.o.t., however, is not mentioned), ‘Latin Maxims in English Law,’ Law Magazine and Review 20 (1895) 283–95; and Vinogradoff, , RHD⁴ 2, 333–43 (Coll. Papers II, 245f.).Google Scholar

⁸⁷ Vinogradoff, , Roman Law in Medieval Europe (2nd ed. by de Zulueta, F.; Oxford 1929) 98. Henry III's prohibition indicates no hostility to Roman law; it was probably issued to protect the monopoly of Roman law at Oxford; Richardson, EHR 59, 40.Google Scholar

⁸⁸ I, 122, 134.Google Scholar

⁸⁹ Roman Law 97.Google Scholar

⁹⁰ Holdsworth II⁴, 117; Vinogradoff, , Rom. Law 118.Google Scholar

⁹¹ Univ. Toronto Law Jour. 3, 44.Google Scholar

⁹² Plucknett, , Com. Law ² 338–40; above, n. 67.Google Scholar

⁹³ Plucknett 364, n. 1, on the meaning of the Statute de conjunctim feoffatis, 34 Ed. I (1306), which was intended to prevent delays by the use of ‘an old rule that all joint-tenants must be made defendants (or “tenants”) in a real action.’ The old rule, of course, is similar to that of q.o.t. strictly applied; see below for a solution known in Roman law and also in Bracton and in the Statutes, nn. 142–49.Google Scholar

⁹⁴ Holdsworth II⁴ , 177f.Google Scholar

⁹⁵ Pollock, and Maitland, I, 122, 165f.; Holdsworth II⁴, 202f., 228, 232ff., 253f., 267ff.; Woodbine, (ed.), Glanville De legibus 187. On the Roman part of the ‘constitutionalism’ in Bracton, see McIlwain, , Constitutionalism Ancient and Modern 69–94; and Schulz, Fr., ‘Bracton on Kingship,’ EHR 60 (1945) 136–76.Google Scholar

⁹⁶ Güterbock, C., Bracton and His Relation to the Roman Law (transl. Coxe, Brinton, Philadelphia 1866), in general; Maitland, , Bracton and Azo xiv ff. 84, 130f. 221–25, and passim; Holdsworth IP, 267–86, 356, and III⁴, 154ff., VII, 323f.; Woodbine, G. E., ‘The Roman Element in Bracton's De adquirendo rerum dominio,’ Yale Law Jour. 31 (1921–22) 827–47; Vinogradoff, P., ‘The Roman Element in Bracton's Treatise,’ Coll. Papers I, 237–44; Levy-Ullmann, , Engl. Legal Tradition 137, 177ff.; Kantorowicz, , Brac. Problems 17f. 58–61; Schulz, Fr., ‘Critical Studies,’ LQR 59, 172–80; id., ‘A New Approach to Bracton,’ Seminar 2, 42–50; id., ‘Bracton on Kingship,’ EHR 60, 136–76; id., ‘Bracton and Raymond de Peñafort,’ LQR 61 (1945) 286–92; Richardson, , ‘Azo, Drogheda, and Bracton,’ EHR 59, 22–47; id., ‘Tancred, Raymond, and Bracton,’ EHR 59, 376–84; Schulz, , ‘Bracton as a Computist,’ Traditio 3 (1945) 267. See n. 104, below.—Professor Stephan Kuttner has recently written me that he does not believe that Bracton read Bernard of Pavia, whose work was outmoded by his time.Google Scholar

⁹⁷ Rom. Law 117f., and Coll. Papers I, 237–44; cf. Plucknett, , Com. Law ² 233.Google Scholar

⁹⁸ RHD⁴ 2, 341. Remarking on the importance of q.o.t. as stated by Edward I in 1295, Vinogradoff refers (n. 3) to Bracton, fol. 1 (Woodbine II, 21): ‘Quae quidem [leges], cum fuerint approbatae consensu utentium et sacramento regum confirmatae; mutari non poterunt nec destrui sine communi consensu eorum omnium quorum consilio et consensu fuerunt promulgatae.’ But Bracton is not here stating q.o.t.; he is merely giving the theory of consent by magnates and prelates in the king's council as it was expressed in the familiar medieval fashion. Of course q.o.t. expressed the same theory for like circumstances.Google Scholar

⁹⁹ Laspeyres, Ed. (Ratisbon 1860) 75.Google Scholar

¹⁰⁰ Summa Codicis (Venice 1610), to C. 5, 59, 5: if several tutores act in the interest of a ward, ‘tunc necesse est omnes tutores authoritatem suam prestare, ut quod omnes simpliciter tangit, ab omnibus comprobetur’ (551). Similiter should no doubt be read for simpliciter .Google Scholar

¹⁰¹ Summa Cod. XL, 27, no. 3 (979), to C. 11, 18 (17), 1 §1: ‘Eliguntur autem in collegiis in locum mortuorum, vel eorum, qui removentur, praedicto muneri sufficientes, cum iudicio primatum eius qui surrogatur. Hoc (inquam) sic intelligo, i.e., iudicio primatum illius muneris, in quo surrogatur, caeteris forsan collegiatis consentientibus vel non contradicentibus electioni, ut quod omnes tangit, etc., ut C. de autho. prestan. 1. ult. Vel primatum [privatum in ed. of 1610] obtinebit iudicium, si non veniant ceteri, ut ff. de pac. 1. maiorem [D. 2, 14,8].’ Google Scholar

¹⁰² Lectura (Lyon 1596), to C. 5, 59, 5 §§2, 3, ad vv. ut quod omnes tangit and plures .Google Scholar

¹⁰³ He may have read other relevant passages, e.g., D. 42, 1, 47, and the passages noted above in ch. I. On Bracton's use of the Corpus juris civilis see Kantorowicz, , Bractonian Problems 58f. and Güterbock, , Bracton 50 n. But neither Güterbock nor Kantorowicz seems to think of the possibility cf Bracton's having read passages which he neither refers to nor quotes literally.Google Scholar

¹⁰⁴ Bracton was acquainted with Tancred's, Ordo iudiciarius (ed. Bergmann, ), as Schulz points ouf, Seminar 2, 42–50, and LQR 59, 172ff. But in the Ordo I have found no references to, or quotations of q.o.t. as in C. 5, 59, 5 or D. 39, 3, 8 and 42, 1, 47. However, Tancred's, Apparatus of glosses of such decretalists as Silvester, Laurentius, Vincentius, Joh. Galensis, Alanus and Joh. Teutonicus, on the Compilationes I, II, III; and the several Appar. of Joh. Teut., Laur. and Vinc. to Comp. III; of Joh. Teut. to Comp. IV, and of Jacobus de Albenga to Comp. V; such commentaries as these on the decretals of popes from the middle of the twelfth century to Honorius III (1216–27) circulated among the prelates and canonists of England—but in how many MSS, and where, needs study. Moreover, glosses of the decretists on the Decretum, especially in the Glos. ordinaria by Joh. Teut., were available in some ecclesiastical libraries, or were in the possession of prelates. Here and there, we have seen, these sets of glosses contained references to, and paraphrases of the Roman laws on q.o.t. (above, nn. 24–28, 31; on the work of the canonists to 1234 see Kuttner, S., Repertorium der Kanonistik, I; Schulte, , Quellen I; on the decretalists who glossed Comp. III , Post, , Jurist 2, 3–29 and references). We must remember that in each of Comp. IV and V there is a papal decretal which quotes or paraphrases q.o.t.: Decr. Greg. IX 1, 23, 7 and 3, 10, 10. Much of the work of the earlier decretalists was incorporated in Bernard of Parma's Glos. ord. to the Gregorian Decretals. On the respective dates of the Glos. ord. and of Bracton's treatise see Kuttner, S. and Smalley, Beryl, ‘The “Glossa ordinaria” to the Gregorian Decretals,’ EHR 60 (1945) 97–105 (first redaction 1234-ca. 1241; second 1243–45; third 1245-ca. 1253; final 1263–66); and n. 105 below.Google Scholar

¹⁰⁵ The Summa was written about 1239; ed. Wahrmund, , Quellen II, ii (Innsbruck 1914). Recently Kantorowicz has argued that at least the first pages of Bracton were written as early as 1239, and that Drogheda borrowed citations of the Institutes from Bracton; Bractonian Problems 29–32. But G. E. Woodbine in a review of Kantorowicz, , Yale Law Jour. 52 (1943) 428, adheres to Maitland's dating of Bracton's treatise, 1250–59. So does McIlwain, C. H., ‘The Present Status of the Bracton Text,’ Harvard Law Rev. 57, 230. H. G. Richardson likewise refutes Kantorowicz, and adds important information about Bracton's studying at Oxford just before 1239; he concludes that Bracton got at least a little from the Summa aurea and possibly, earlier, from Drogheda's teaching at Oxford; ‘Bracton, Azo, and Drogheda,’ EHR 59, 22–47.Google Scholar

¹⁰⁶ Wahrmund II, ii, 305–7.Google Scholar

¹⁰⁷ Ibid. 115. The consent of the judge is needed because he might suffer from the appointment, ‘unde eius est requirendus consensus,’ as in D. 39, 3, 8.Google Scholar

¹⁰⁸ ‘Cum igitur per partem absentem possit negotium aperire et reformatio tangat eum, in ipsius praesentia vel per contumaciam absentia est restitutio sive reformatio agitanda;’ II, ii, 161.Google Scholar

¹⁰⁹ Wahrmund II, ii, 161: ‘Sic adhibita praesentia partis adversae, quae contradiceret reformationi, tractabitur ea.’ Google Scholar

¹¹⁰ II, ii, 161: ‘ff. de aqua pluvia arcenda, 1. in concedendo (D. 39, 3, 8), ubi dicitur, quod ubi minuitur ius alicuius, eius voluntas exigitur, igitur exigitur voluntas, ne ignorans iniuriam accipiat.’ Here Drogheda is referring also to D. 39, 3, 9 §1: ‘Ideo autem voluntas exigitur, ne dominus ignorans iniuriam accipiat.’ Google Scholar

¹¹¹ II, ii, 161f.: ‘Ad hoc dico, quod restitutio sive reformatio non potest fieri in alterius absentia, nisi per contumaciam fuerit absens vere vel interpretative. Vere, quando constat, eum vocatum fuisse et nolle venire ad iudicium. Interpretative, quando constat, quod vocatus fuit, non autem comparet impeditus forte alia ex causa, nec constat, eum nolle venire. In eo casu est contumacia praesumpta.’ See above, nn. 44–47.Google Scholar

¹¹² See above, ch. I.Google Scholar

¹¹³ Wahrmund, II, ii, 403.Google Scholar

¹¹⁴ The nature of these various rights in property owned or possessed by another is a subject too complex to treat here.Google Scholar

¹¹⁵ Wahrmund II, ii, 403f. Drogheda refers, on the last, to C. 3, 19, 2; 2, 4, 23; and Decr. Greg. IX 2, 6, 5. On all this see above, nn. 44–47.Google Scholar

¹¹⁶ Here the text is not clear; perhaps Wahrmund has kept a corrupt text and misunderstood it. As it stands it reads (II, ii, 406): ‘Hoc tamen adiecto, quod vicaria nomen iuris, quatinus tangit ius suum, potest deducere (ratio) in iudicium … rectore tamen prius ammonito, ut ff. de re iudicata, 1. unoquoque (D. 42, 1, 47).’ But if one reads vicarius for vicaria and omits ratio, which Wahrmund adds, the passage makes sense thus: ‘quod vicarius nomen iuris, quatinus tangit ius suum, potest deducere in iudicium … rectore tamen prius ammonito …’ Google Scholar

¹¹⁷ Drogheda adds that if the vicar alone has the potestas restituendi he alone need be summoned.Google Scholar

¹¹⁸ Wahrmund II, ii, 404–6.Google Scholar

¹¹⁹ Publication had a legal significance likewise in the two laws. When a business touched the whole community and it was difficult to send individual summonses, or when a case touched individuals who might be hard to find, publication in public places by crier or by posting on the church door was considered sufficient information and summons to prevent pleas of ignorance of the fact as an excuse for not responding and not accepting the decision of court or assembly. Ignorance of the fact excused no one who was legally and properly summoned. Those thus summoned and thereafter absent were in default; in other words they were interpretative present and the business of the court could proceed.Google Scholar

Similarly the promulgation of a statute was followed by the publication of it in open (not necessarily full) county and hundred courts, and in cities and boroughs and market places, in order to prevent excuses based on the plea of ignorance of the law. See, among many examples, Statutes of the Realm I, 4, 39; Close Rolls H. III, 1234–37, 338. At first it may have been held that only those who were actually present in the county court and heard the proclamation were bound by the statute. But it was more practical to accept the theory, borrowed from the procedure of summoning parties to court, that if all who ought to hear, because they were affected by the law or had to administer it, had been properly summoned, then all heard—even the absent heard because present interpretative. Still later, with the rise of representation, in part under the influence of Romano-canonical theories of the corporation, it was held that a statute made in Parliament was binding if promulgated and published in Parliament, since the whole community of the realm was there present in the magnates and the representatives of the communes, and therefore all heard and were thus informed. See Sayles, G. O., Select Cases (Selden Society Publ. 58) xvii; Plucknett, , Com. Law ² 292. Publication, however, was still necessary and practiced because, in my opinion, the common people were not represented in Parliament, and they could be informed only through local publication.Google Scholar

¹²⁰ Bracton IV, 61 (Tw. V, 118–20): ‘Item summonitionum alia generalis alia specialis. Generalis autem sive communis est quae tangit aliquam universitatem, sicut omnes de comitatu vel omnes alicuius civitatis, burgi vel villae pro aliquo quod tangat* universitatem, sicut generalis summonitio quae fit ante iter iustitiariorum et huiusmodi, quae semper fieri debet in loco magis publico, et ideo dedici non poterit nec defendi, quia quod omnes de comitatu vel civitate sciverint vel cognoverint, unus vel plures hoc dedicere non possunt.’ But certain excuses for absence without default are permitted ‘si ad primum diem communis summonitionis non venerit, dum tamen veniat ad diem sibi datum ad warantizandum essonium et ita quod inde postmodum sine licentia non recedat.’ *Tangit is so customary, even where the subjunctive would be better, that it should have been retained, especially since in several of the MSS the reading is tangit (61, n. 23).Google Scholar

¹²¹ See Pollock, and Maitland, I, 545.Google Scholar

¹²² Holdsworth I⁵, 69; II³, 377f. On the county court see Holdsworth I, 69f.; Jolliffe, , Const. Hist. of England (above, n. 6) 305–12; White, , Making of the English Const. 184, 197–201, 9–63, 76–79; Pollock and Maitland I, 411, 532–60; and Ke Chin Wang, H., ‘The Corporate Entity Concept (or Fiction Theory) in the Year Book Period,’ LQR 58 (1942) 498–511.Google Scholar

¹²³ In his discussion of the Provisions, or Statute, of Merton, 1236 (IV, 295f.; Tw. VI, 288): ‘coram … Cantuariensi archiepiscopo, et coram suffraganeis suis omnibus, et coram maiore parte comitum et baronum Angliae tunc ibi existentium pro coronatione regis et reginae pro quo omnes vocati fuerunt, generaliter tractatum esset de communi utilitate totius regni super pluribus articulis regem et regnum tangentibus …’ The reflection of q.o.t. is Bracton's; it does not appear in the Statute: ‘cum tractatum esset de communi utilitate regni super articulis subscriptis;’ Statutes of the Realm I, 1; in C. R. H. III, 1234–37, 337, ‘pro communi utilitate totius regni nostri provisum fuit, etc.’ Google Scholar

¹²⁴ Bracton nowhere discusses national taxation as something apart from feudal aids. But as is evident from the king's writ for the collection of the thirtieth, 1237, the prelates, magnates, and ‘milites et liberi homines,’ who were summoned to a parliament, represented both themselves and the villeins of the kingdom—‘pro se et suis villanis’—in granting the subsidy; Stubbs, , S.C. 358. See Cam, Helen M., ‘L'Assiette et la perception des indemnités des représentants des comtés dans l'Angleterre médiévale,’ RHD⁴ 18 (1939) 219ff.Google Scholar

¹²⁵ Bracton II, 40; III, 128, 130 (Tw. I, 58; III, 368, 372); cf. D. 1, 8, 6 §1. Nor does the kingdom exist as a corporation in the technical, strictly legal, sense; yet, by fiction, with the king acting as the head and representative, it acts as a corporation when the king and council in the name and with the consent of the community of the realm take common action for the common utility, send ambassadors, or appeal (as in France, 1302) from pope to general council.Google Scholar

¹²⁶ Pollock and Maitland I, 627ff. object to the terms corporate and quasi-corporate for the English community. And certainly so far as the community of county or hundred's owning property is concerned, there is no corporateness. Nor is there a Fiction Theory involved, for ‘the English community has not yet been detached from individual members’ (Ke Chin Wang, LQR 58, 511); it is an aggregate with group liability; ‘the capacity to act as a unit could be claimed by incorporate as well as unincorporate bodies’ (id. 500, 506). Cf. Pollock and Maitland I, 529f., 558f., 615–32; Plucknett, , Com. Law² 84f. But it must be remembered that even in the fiction theory of Innocent IV there was still some aggregateness, some collectivity and joint liability in the corporation; that individual members were after all made responsible for the corporate obligations; that the corporation was a fictive person precisely because it was not a real person that could be treated in some matters apart from the individual members. In any case, I use the term corporate in a restricted sense as applied to the county and its duties and obligations. There is after all something corporate about the county when through the sheriff the county court, as the essential corporation of the county, is commanded by the king to send to him representatives provided with plena potestas; this is corporate representation; see Traditio 1, 355–408.Google Scholar

¹²⁷ Bracton, III, 183; Tw. III, 538.Google Scholar

¹²⁸ Plucknett, , Com. Law² 140.Google Scholar

¹²⁹ Pollock, and Maitland, I, 534–37, 547f., 554f.; Plucknett, , op. cit. 345.Google Scholar

¹³⁰ IV, 79; Tw. V, 172.Google Scholar

¹³¹ This belongs to the discussion of legitimate excuses for not responding to a summons: the knights are excused and granted delays if summoned by a lower court while they are appearing before the higher court of the king, for the king's business was more important than that in any lower court.Google Scholar

¹³² See White, A. B., ‘Some Early Instances of Concentration of Representatives in England,’ Amer. Hist. Rev. 19 (1913) 738. But White thinks that in 1227 it is merely ‘bearing the record’, not litigation by the knights in their own interest.Google Scholar

¹³³ Holdsworth II⁴, 251, 282; Pollock and Maitland I, 134.Google Scholar

¹³⁴ Bracton IV, 330f. (Tw. VI, 378–82): ‘Competit etiam tenenti exceptio peremptoria et quandoque dilatoria tarn ex persona alterius quam petentis, quia sine alio agere non poterit per se qui tantundem iuris habet quam ipse qui petit, ut sunt plures participes.’ For example, where interests are common, a man cannot sue without his wife's being consulted; nor a chapter of canons or a convent without the consent of the dean, abbot, or prior; nor a dean and chapter without the consent of the bishop (see also p. 335; Tw. VI, 390–92). This reflects the Canon law. Coparceners who have ‘tantundem iuris’ in a thing must all be named in the writ whether as plaintiffs or defendants (on coparceners see Pollock and Maitland, II, 274f., 306, 313), for they are ‘quasi unum corpus in eo quod unum ius habent, et oportet quod corpus sit integrum, et quod in aliqua parte non sit defectus’; IV, 330; cf. IV, 83f. If an inheritance is divided among several, and only one of the heirs is sued for his part, he is permitted one delay, and in his person the case is terminated so far as his part is concerned. But if it be that he claim that ‘sine particibus suis non debeat responded,’ in that event ‘summonendi sunt participes quod sint ad respondendum cum eo et sine quibus etcetera;’ IV, 83; Tw. V, 184. Cf. below, nn. 155, 156.Google Scholar

¹³⁵ When one tutor was the defendant but demanded that the others be summoned (D. 11, 2, 2: ‘Cum ex pluribus tutoribus unus, quod ceteri non sint idonei, convenitur, postulante eo omnes ad eundem iudicem mittuntur: et hoc rescriptis principum continetur’); cf. C. 5, 59, 5 §2; C. 7, 56, 2 and 4; C. 7, 60, 1 and 2.Google Scholar

¹³⁶ On the problem of joint tenancy and tenancy in common see Holdsworth III⁴, 126f.Google Scholar

¹³⁷ IV, 331f.;Tw. VI, 382.Google Scholar

¹³⁸ IV, 332f. (Tw. VI, 386): ‘Sed omnes nominandi sunt de quibus certum est vel dubium utrum capere possint vel non, quia in dubio in benignam partem erit interpretandum, videlicet quod capere possint donec probetur in contrarium.’ Google Scholar

¹³⁹ IV, 334 (Tw. VI, 390): ‘si plures petant [as plaintiffs] non est necesse omnes nominari in uno brevi quia diversae sunt actiones, quia quilibet petat partem suam propriam quae eum contingit sine alio participe … ’ Google Scholar

¹⁴⁰ IV, 336f.;Tw. VI, 394–8.Google Scholar

¹⁴¹ Loc. cit.Google Scholar

¹⁴² Plucknett, , Com. Law ² 364.Google Scholar

¹⁴³ Ibid. 364.Google Scholar

¹⁴⁴ See below, nn. 146–9, 160–62.Google Scholar

¹⁴⁵ Plucknett, , op. cit. 364.Google Scholar

¹⁴⁶ See in general Pollock and Maitland II, 48f. 158, 163, 611–13, 662; Plucknett 364; Sayles, , Select Cases III, xxxiv. Several statutes, 1275, 1292, 1340, established special procedures in certain cases in the attempt to remedy abuses; Statutes of the Realm I, 36, 108; below, nn. 186–9.Google Scholar

¹⁴⁷ Above, nn. 48, 49, 113–8.Google Scholar

¹⁴⁸ II, 301, on placita de baroniis, which are terminated before the royal justices or before the king: ‘ubi ipse petens tenere clamat immediate de domino rege in capite per breve de recto, quod vocatur praecipe in capite, et hoc ideo, quia hoc tangit ipsum regem in toto vel in parte.’ Google Scholar

¹⁴⁹ Statutes of the Realm I, 42; Sayles, , Select Cases xliii-xlvi. Sayles points out how litigants tried to protract the action and avoid amercements and damages by making the king a party to the proceedings; but the king tried to suppress this practice.Google Scholar

¹⁵⁰ Pollard, , Evolution of Parliament (above, n. 6) 35f.; Stat. of the Realm I, 165, c. 29. Pollard believes that the main business of Parliament was to deal out justice, and that (42ff.) the financial necessities of the king were secondary to justice in causing the rise of Parliament, for ‘the frequent summons of parliaments was a measure required not by the crown so much as by its subjects.’ But in my opinion the king's business of administration and taxation was equally important, and perhaps prior to justice, in that the summoning of representatives of the communes for taxes and the like, or for bearing the record, gave the communes the opportunity, or rather acquainted them with the means, to pursue their own interests in Parliament. See also to n. 132, above. The magnates had long had the opportunity to go to the king's curia in the feudal sense to obtain justice; in 1311 they were trying to go back to the good old days when access to the king's person was easier than in Edward I's time, perhaps because of the development of the king's courts in which he was not always present in person; in reality, they intended to limit the prerogative.Google Scholar

¹⁵¹ Cf. Pollock and Maitland II, 562f. 577, 592–95; Plucknett, , Com. Law ² 343.Google Scholar

¹⁵² IV, 61–190, 82f.; Tw. V, 118–491, 178ff.Google Scholar

¹⁵³ On the triple summons see Glanville, I, 7 (ed. Woodbine, 43f.); Pollock, and Maitland, 1,592, where it is wrongly assumed that the triple summons is solely Germanic—it is Roman, too.Google Scholar

¹⁵⁴ Pollock and Maitland II, 48f.; but sometimes the unavoidable absence of a party who could not be reached by the summons because of being abroad resulted in a postponement of a case to a future assize; see below, n. 186.Google Scholar

¹⁵⁵ IV, 83ff. 162; Tw. V, 184ff. 410ff. If one of the several defaults his portion of the thing sued for is seized as a penalty. If all the interested parties appoint an attorney and he defaults, then all lose. In his words on ‘dilationes immortales’ Bracton is echoing C. 3, 1, 13: ‘ne lites fiant paene immortales et vitae hominum modum excedant.’ Tw. V, 184, reads innumerabiles; Woodbine IV, 83, immortales, which is justified not only by some of the manuscripts but also by C. 3, 1, 13. It is interesting to note that in 1227–34 Gregory IX echoes C. 3, 1, 13: ‘Volentes finem imponi litibus, ne immortales exsistant;’ Decr. Greg. IX 2, 14, 10.Google Scholar

¹⁵⁶ See the decision of the royal court in the case of the division of the County of Chester among sisters, 1238–39, Bracton's, Notebook (ed. Maitland, ) III, 283: ‘… et preterea cum omnes sint quasi unus heres et nulla earum potest sine aliis petere vel respondere.’ But according to the Statutum hibernie de coheredibus (1236), if several daughters inherit from a tenant of a lord other than the king, the eldest shall do homage for herself and her sisters; the sisters are ‘quasi unus heres de unica hereditate;’ Stat, of the Realm I, 5. Cf. above, n. 134. Thus a kind of representation was permitted for feudal obligations such as homage and suit-service (below, nn. 159, 160)—but not for litigation when a case touched coheirs in common.Google Scholar

¹⁵⁷ IV, 83, 162.Google Scholar

¹⁵⁸ IV, 109f. (Tw. V, 264–6): ‘exigendi sunt omnes quos loquela tangit;’ and again: ‘In essonio reddendo … exigantur omnes illi quos causa tetigerit, sicut particeps, warantus et alii ut supra, etc.’ Google Scholar

¹⁵⁹ D. 11, 2, 2; 8, 5, 4 §4; 10, 2, 27 and 28; 21, 1, 31 §5. The Roman classical law tried to solve the problem not only by prescribing that in certain cases the coheirs should appoint a procurator, but also by limiting the number of summonses and delays (D. 42, 1, 47 and 53). Note also D. 10, 2, 48, quoted below, n. 173. The English solution was to be that of limiting the right of successive delays and making the coheirs, or several defendants who had no rights in common but were touched by the same suit, appear on the same day; see nn. 156, 161. But in matters of feudal obligations like homage and suit-service, representation of coheirs by the eldest was permitted; nn. 156, 160, 172. On several rights challenged by several complaints connected with the same case, see Provisions of King and Barons, 1259, c. 3 (Stubbs, , S.C. 390), and Stat. of Marlborough, 1267.Google Scholar

¹⁶⁰ Stat. of the Realm I, 8 and 21f.; Stubbs, , S.C. 390. In the fourteenth century the royal courts decided that the Statute of Marlborough, c. 9, applied only in seignorial courts; in the royal courts all the coheirs still owed individual suit-service; Plucknett, , Statutes and Their Interpretation (Cambridge 1922) 154. Note the analogy with homage, above, n. 156.Google Scholar

¹⁶¹ Stat. of the Realm I, 37. On fourcher and how in 1346 this statute was interpreted as affecting tenants, but not co-defendants in the action of Debt, see Plucknett, , Statutes 126 n. 3, and Com. Law ² 342. Fourcher was especially common in actions of Debt; Sayles, , Select Cases III, xxxiv; Holdsworth III, 625.Google Scholar

¹⁶² Stat. of the Realm I, 145f.—this for the assize of novel disseisin. Cf. Plucknett, , Com. Law ² 356 n. 1.Google Scholar

¹⁶³ See above to n. 146.Google Scholar

¹⁶⁴ See the example in an action of Debt, 1346; Plucknett, , Statutes 126.Google Scholar

¹⁶⁵ See Traditio 1, 386–402. By his prerogative the king could grant delays or excuses for absence, and he could postpone an assembly.Google Scholar

¹⁶⁶ This subject needs treatment that cannot be given here; but see Pollard, , Evolution of Parliament ² 139, 154f. 316–19, 387–444; and McKisack, May, Parliamentary Representation of the English Boroughs (Oxford 1932) 8–43, 66–99. The Modus tenendi Parl. says that it is a plenum parliamentum when, even if some are absent, all were informed by reasonable summonses; Stubbs, , S.C. 503.Google Scholar

¹⁶⁷ IV, 102; Tw. V, 240.Google Scholar

¹⁶⁸ In Bracton the attorney corresponds to the Romano-canonical proctor with a general mandate and full powers, the bailiff to the proctor with a special mandate for one particular act and powers limited to that act; see Traditio 1, 356–64; Holdsworth II³, 316; and Cohen, Herman, History of the English Bar and Attornatus to 1450 (London 1929) 141f.Google Scholar

¹⁶⁹ Summa aurea (Wahrmund II, ii, 14–36): in his long discussion of the three summonses and the peremptory summons, William shows how slow justice could be because of the many delays and excuses granted before a party could be judged contumacious. He then quotes passages on how rights must be protected (the law must not be too severe—‘rigor et aequitas solvunt contrarietates,’ 32), and therefore delays and extra summonses are to be approved. Nevertheless the court must have the power to declare a defendant to be at default: ‘frustra essent iura in civitate, nisi esset aliquis, qui ea regeret’ (36; D. 1, 2, 2 §13).Google Scholar

¹⁷⁰ IV, 63, on coertio, the summons, and contumacy.Google Scholar

¹⁷¹ IV, 83 (Tw. V, 184); cf. Holdsworth III⁴, 126–8; Pollock and Maitland II, 274f. 306, 313.Google Scholar

¹⁷² Stat. of the Realm I, 8, 21f.; Stubbs, , S.C. 390; above, nn. 156, 159, 160.Google Scholar

¹⁷³ Wenger, , Institutes 84; D. 10, 2, 48: ‘Si familiae erciscundae vel communi dividundo vel finium regundorum actum sit et unus ex litigatoribus decesserit pluribus heredibus relictis, non potest in partes iudicium scindi, sed aut omnes heredes accipere id debent aut dare unum procuratorem, in quem omnium nomine iudicium agatur.’ Cf. D. 10, 2, 27, and 8, 5, 4 §3–4; Buckland, , Textbook 535f.Google Scholar

¹⁷⁴ II, 158–60; Tw. I, 416ff.Google Scholar

¹⁷⁵ Cf. Holdsworth III⁴, 138–43.Google Scholar

¹⁷⁶ Nor in the Roman law on common ownership; Buckland, , The Main Institutions of Roman Private Law (Cambridge 1931) 288.Google Scholar

¹⁷⁷ II, 222; III, 205, 214, 225, 235, 239.Google Scholar

¹⁷⁸ II, 52, 63: ‘Item in quibusdam donationibus oportet quod aliorum consensus interveniat quam donatoris et donatarii: ut si archiepiscopus, episcopus, abbas vel prior, rector ecclesiarum, sindicus vel procurator donationem fecerint, omnium eorum quorum interfuerit requirendus erit consensus, sicut regis, et capituli vel conventus.’ See also II, 158ff. In these cases q.o.t. reflects the canonical principle which forbids the alienation of church goods. The consent of the chapter is required not so much in the corporate or common interest as to put a check on the prelate. Perhaps here q.o.t. is an artificial façade, but it was expressed in this connection by the canonists as well as by Bracton.Google Scholar

¹⁷⁹ II, 52; Tw. I, 94, 96.Google Scholar

¹⁸⁰ Legists and canonists frequently referred to passages in Digest and Code on consent and q.o.t. in this connection. The prelate or head and the corporation as a fictive person each had the right of consent, and both must consent if an act involving their rights in a common thing were to be valid. But how did the corporation consent as a person? Literally interpreted, q.o.t. meant that all the members had the right to consent to an act of the corporate body, and the dissent of one member was enough to make an action impossible. And this was the interpretation if the individual rights of the members were touched but not the corporate right of the whole body. But when something touched the rights of the corporation as a whole, the lawyers applied the theory of the maior pars to corporate consent : what was approved by the majority (sometimes of at least two-thirds of the members present in assembly) was approved, as it were, by all; a dissenting minority could not prevent action and had no legal right to maintain, after the decision was made, that the act did not bind them. On this for general accounts, but with no references to q.o.t., see v. Gierke, O., Das deutsche Genossenschaftsrecht III (Berlin 1881) 202–31, 312–30, 353–415; id., ‘Über die Geschichte des Majoritätsprinzips,’ Essays in Legal History (ed. Vinogradoff, P.; Oxford 1913) 312–27; Gillet, P., La personnalité juridique en droit canonique (Malines 1929) 137–40; and Esmein, A., ‘L'unanimité et la majorité dans les élections canoniques,’ Melanges H. Fitting (Montpellier 1907–8) I, 355–82. In a future study I shall show in detail how legists and canonists reconciled q.o.t. with consent by majority rather than by unanimity.Google Scholar

Bracton has nothing to say about the maior pars in the community of shire or kingdom. But in connection with joint and common consent in advowsons, where there is no corporate interest, he says that neitner maioritas nor pluralitas shall apply (III, 129f.; Tw. III, 370–74). Naturally the doctrine of the maior pars could develop in a corporation or corporate community but not in communities of men having joint or common rights but no ‘personality’. The group of coheirs can act only in common with the consent of all individually; a personified corporation need not—hence Bracton's statement.Google Scholar

¹⁸¹ A tenement may be held in common by several who are not coparceners for some use, and is neither the property of one person nor common to several, but is held by a city as a corporation; II, 40; III, 128, 130 (Tw. I, 58; III, 368, 372). See D. 1, 8, 6 §1.Google Scholar

¹⁸² See n. 180.Google Scholar

¹⁸³ Bracton illustrates it also in similar fashion, with allowances for differences pertaining to the relative speediness of the procedure, in his treatment of other kinds of assizes, e.g., mort d'ancestor, III, 247–317; Tw. IV, 115–331.Google Scholar

¹⁸⁴ The influence of Roman law on this assize, which corresponds to the Roman interdicts unde vi and uti possidetis, and to the actio (exceptio) spolii, remedium spoliationis, of Canon law, has been adequately discussed by Güterbock 159ff.; Scrutton 112–15; Maitland, , Bracton and Azo 184f.; Pollock, and Maitland, II, 48; Holdsworth II⁴, 204f. Cf. Plucknett, , Com. Law ² 233, 321.Google Scholar

¹⁸⁵ Holdsworth III⁴, 8f.Google Scholar

¹⁸⁶ Holdsworth III⁴, 9, acknowledges that exceptiones were allowed in the fourteenth century (also p. 11). But the Rolls of the Justices in Eyre reveal pleas made in actions of novel disseisin in 1221–22; see Selden Soc. Publ. 59, nos. 20, 29, 540, 603, 1044. An interesting example is that of the case in which the Abbot of Evesham was accused of disseising three men of their common pasture. When it was testified that one of the three plaintiffs was ‘in partibus Jerosolimitanis,’ the abbot ‘petit judicium si debeat sine eo respondere.’ As a result of this plea, which—since an abbot of Evesham probably was careful to take advantage of the rules of procedure in the Canon law—may have been a conscious application of q.o.t. as a procedural maxim, the assize was put in respite (no. 86). (Is it possible that Thomas of Marlborough's legal science was back of this plea? He was a monk at Evesham, and had already served the abbot in a legal capacity; above, n. 75.) Hence we find the royal justices recognizing the validity of the principle. For similar pleas see Bracton's Notebook, Index, under Assize of N. D. s. v. Pleas; and nos. 1195, 1197, 1242, 1284. Plucknett, , Com. Law ² 362, discusses pleas made in novel disseisin; also Pollock and Maitland II, 612f.Google Scholar

¹⁸⁷ Selden Soc. Publ. 59, no. 416.Google Scholar

¹⁸⁸ Plucknett, 343.Google Scholar

¹⁸⁹ See Holdsworth III⁴, 126–8. 143–51, on the meaning of the law on tenancy in common, joint tenancy, and common rights in field or pasture; Pollock and Maitland I, 620ff., 673, 685, and II, 245f.; and Digby, K. E., Introduction to the History of the Law of Real Property (3rd ed. Oxford 1884) 155–66.Google Scholar

¹⁹⁰ Cf. Radin, , Handbook (n. 67, above) 517.Google Scholar

¹⁹¹ III, 30f.; Tw. III, 51–8. Bracton adds that some think that if anyone plows the boundary ridges or removes a boundary stone or tree, this act constitutes a transgressio, trespass, rather than a disseisin, because the divisae are not ‘per partes divisae, sed iacent in communi, quia nullus scit nec scire poterit partem suam;’ but he thinks that the act is really a disseisin of a tenement in common.Google Scholar

¹⁹² III, 31. Bracton now offers several distinctions on common interests, which of course are subjected to many legal subtleties in the attempt to define common rights.Google Scholar

¹⁹³ See, for a general explanation, Plucknett, , Com. Law ² 353–67.Google Scholar

¹⁹⁴ III, 79; Tw. III, 210.Google Scholar

¹⁹⁵ III, 128ff.; Tw. III, 368–74.Google Scholar

¹⁹⁶ III, 128f., and IV, 335 (Tw. VI, 390): ‘Sunt etiam qui tenent in communi rem aliquam de communi consensu sicut participes et capaces, sed non tamen ut heredes, ut si de communi consensu aliquam vastitatem pro communi commodo reliquerint ad pasturam vel aliud commodum vel alium usum …’ None of the interested parties can sue or be sued without the consent of the others.Google Scholar

¹⁹⁷ III, 129: ‘et unde quod de communi consensu semel inter partes contrahitur quod tenementum remaneat in communi, sine contrario consensu omnium dissolvi vel dividi non potest, quia nihil adeo tam conveniens est naturali aequitati et cetera.’ Here Bracton has in mind Inst. 2, 1, 40: by natural law property is acquired; and nothing is more agreeable to natural equity than that the consent of the owner to the transfer of his property to another should be held valid.Google Scholar

¹⁹⁸ III, 130, where Bracton adds that the joint consent connected with an indivisible right must be given by all the interested parties individually and equally, not by a majority, plurality, or seniority of them; IV, 335.Google Scholar

¹⁹⁹ II, 40; III, 128, 130; cf. Inst. 2, 1, 6. Bracton fails to discuss the problem of the consent of the members of a corporation to any change made in the tenement belonging to the corporation itself.Google Scholar

²⁰⁰ III, 130: ‘sed commune omnium, sicut est via regia, litus maris …’ By implication Bracton approaches the idea—which was already understood on the continent, and at least in practice in England in the sense that the kingdom was composed of communities of shires, and the shires, of communities of hundreds and vills—that just as several individuals could be commonly interested in one thing, so could several corporations or communities, and several corporations and several individuals apart from the corporations. This was the practice of the thirteenth century, and it was vital to the rise of national representation, in that a ‘national’ business could touch not only all important individuals who had rights (and with them the right to consent to any sacrifice that was necessary for the common good) but also all communities of lesser free men and all legal corporations which had special franchises and liberties.Google Scholar

²⁰¹ Buckland, , Textbook 261, 259–68.Google Scholar

²⁰² Roby, J. J., Roman Private Law in the Times of Cicero and the Antonines (2 vols. Cambridge 1902) I, 484.Google Scholar

²⁰³ Buckland, 259–68; Roby, I 482–502.Google Scholar

²⁰⁴ Holdsworth III⁴ , 153.Google Scholar

²⁰⁵ He continues, §2: ‘Non autem solius eius, ad quem ius aquae pertinebit, voluntas exigitur in aquae cessione, sed etiam domini locorum, etsi dominus uti ea aqua non possit, quia reccidere ius solidum ad eum potest.’ Google Scholar

²⁰⁶ Above, n. 110.Google Scholar

²⁰⁷ Above, n. 158.Google Scholar

²⁰⁸ On Inst. 2, 1, 40 see below, n. 213. On gifts and advowsons, above, nn. 175–78. The influence of the Roman law on Bracton's treatment of easements has been pointed out by Maitland, , Bracton and Azo 84, 130f.; Holdsworth II⁴, 281–4, 356; III⁴, 154ff.; VII², 323f.; Güterbock 122; Digby, , Real Property (n. 189, above) 147–54. But these authorities do not mention q.o.t. in connection with easements in Bracton and in the legists and canonists. Perhaps, as Holdsworth says, Bracton's acceptance of Roman rules on easements does not mean that these rules were a part of “English law, which they were only long afterwards (III, 356, 154, 157; VII, 323). Yet, as stated above, ch. II, early English law deals with common consent and common rights in common or pasture; and it was easy for Bracton to state the common law in terms of q.o.t. Besides, in 1236 the Statute of Merton recognized the existence of the rights of lord and tenants in the common; below, n. 214.Google Scholar

²⁰⁹ Below, to n. 215.Google Scholar

²¹⁰ II, 158–60, and III, 162–90; Tw. I, 416ff., III, 472–563.Google Scholar

²¹¹ III, 163; Tw. III, 474–6.Google Scholar

²¹² III, 178; Tw. III, 520–22. Bracton adds a discussion of the problem of consent in relation to the holding of an easement by coparceners, heirs, neighboring tenants, or outsiders (extranet); and in relation to the division of the tenement subject to the easement. Consent thus becomes very complicated and must be considered in connection with the rules of procedure on summoning all interested parties.Google Scholar

²¹³ III, 167f.; Tw. III, 484–502. See above, n. 208; ‘… quia nihil adeo tam conveniens est naturali aequitati etcetera,’ from Inst. 2, 1, 40.Google Scholar

²¹⁴ III, 179; Tw. III, 524. On the effect of the Provisions of Merton and the Statute of Westminster II (1285) on rights of common, see Holdsworth III⁴, 147ff.; and Pollock and Maitland I, 620ff.: before 1236 the consent of the individual freeholder was necessary for the lord to subtract from his right ‘any part of the land over which it had been exercisable. That Statute gave the lord a right to “approve”, that is, to make his profit of, and hence to enclose, to subtract, the waste land, provided that he left sufficient pasture for the commoners’ (622f.); Plucknett, , Statutes (n. 160, above) 151.Google Scholar

²¹⁵ III, 183; Tw. III, 538.Google Scholar

²¹⁶ The same use of the maxim could be traced in Bracton's discussion of other assizes such as that of mort d'ancestor, whether he states it explicitly or implicitly. Once more he brings in a trace of q.o.t. in showing how a defendant might plead that the assize touched the king and he should not have to respond without the king. This was an attempt to vouch the king to warranty; as we have seen, the king refused to submit to such a procedure; above, nn. 148f. Bracton says: ‘Si assisa tangat regem et dicat tenens quod sine rege non possit respondere, capiatur nihilominus assisa, sed ponatur iudicium in respectum quousque dominus rex inde praeceperit voluntatem suam;’ III, 247–317, 250, 267f. (Tw. IV, 115–331, 128, 180). Again, on placita de baroniis: ‘ubi ipse petens tenere clamat immediate de domino rege in capite per breve de recto, quod vocatur praecipe in capite, et hoc ideo, quia hoc tangit ipsum regem in toto vel in parte;’ II, 301.Google Scholar

²¹⁷ Plucknett, , Com. Law ² 233: ‘We may probably assume, therefore, that when Bracton used foreign law he had a fairly good idea of what he was about.’ Similarly, Vinogradoff, , Rom. Law 117f.: ‘If we want definite traces of it (Roman Law) we have to look out not for references but for maxims, some of which, besides, had passed through the medium of Canon law. The only real test of its character and extent is afforded by the development of juridical ideas, and in this respect the initial influence of Roman teaching on English doctrines will be found to be considerable. On many subjects the judges and legal writers of England were, as it were, prompted by their Roman predecessors, and this intercourse of ideas is nowhere as conspicuous as in the frequent cases when English lawyers did not simply copy their Roman models, but borrowed suggestions from them in their own way.’ My study of q.o.t. in Bracton confirms these remarks but goes further: the juridical meaning of q.o.t. in procedural consent is more tangible than a suggestion.Google Scholar

²¹⁸ Summa aurea, Wahrmund II, ii, 353; also Decr. Greg. IX 3, 10, 10, in which we find pertinere and contingere. Google Scholar

²¹⁹ See Teutonicus, Joh., above, n. 28; and Glos. ord. to Decr. Greg. IX 1, 33, 17—above, n. 34 and text.Google Scholar

²²⁰ Decr. Greg. IX 3, 10, 10; below, n. 252. On this the decretalists are careful to state that the prelates (bishops) had the decisive, the chapters only a consultative, vote.Google Scholar

²²¹ On Accursius and Innocent IV and similiter see above, to n. 30.Google Scholar

²²² Bracton, II, 307 (Tw. II, 178); cf. Liber Sextus (ed. Friedberg, , Corpus iuris canonici II) tit. De regulis iuris, no. 17: ‘Indultum a iure beneficium non est alicui auferendum;’ this rule was stated by canonists as early as the twelfth century. It will be recalled that Justinian's expression of q.o.t. is also among the maxims (no. 29) in this part of the Liber Sextus .Google Scholar

²²³ Liber Sextus tit. De reg. iur. 27, from D. 42, 8, 6 §9, and 50, 17, 116; Vinogradoff, RHD⁴ 2, 342.Google Scholar

²²⁴ D. 50, 17, 148. Did Bracton know this maxim? Google Scholar

²²⁵ See the report of the papal legate in 1213 on the negotiations between the English prelates and King John; Mercati, Angelo, ‘La prima relazione del Cardinale Nicolò de Romanis sulla sua legazione in Inghilterra,’ Essays in History Presented to Reginald Lane Poole (ed. Davis, H. W. C., Oxford 1927) 279, 280, 286; for example, the bishops replied, said the legate, ‘quod inde mihi respondere non poterant sine consensu et consilio aliorum quos predictum negotium contingebat.’ Google Scholar

²²⁶ Above, n. 186.Google Scholar

²²⁷ See Buckland, W. W. and McNair, A. D., Roman Law and Common Law (Cambridge 1936) 316f.Google Scholar

²²⁸ Ibid.Google Scholar

²²⁹ Cf. Maitland, , Bracton and Azo xxxiii; Holdsworth II, 237f. 286f.; Woodbine I, 1–20.Google Scholar

²³⁰ Buckland, and McNair, , 316, think that the underlying principles are not the same, that in the common law the ‘reluctance to give judgment against a defendant who had not appeared’ does not rest on the need for the consent of the parties, as in the early and classical Roman law, but on this basis, that ‘ “the law wants to be exceedingly fair, but is irritated by contumacy” ’ (quoting Pollock and Maitland II, 595). But it seems to me that the desire to be ‘exceedingly fair’ was quite important likewise in the Roman law—even in the late imperial law, as is clearly shown by the rules on summoning all interested parties and on obtaining consent and by the cherished maxims on fair trial, q.o.t. and the like. There is compulsion, but fairness in judicial process—at least for free men in civil suits. Moreover, one must not forget that consent was important in the common law on real actions.Google Scholar

²³¹ Buckland, and McNair, 80–86.Google Scholar

²³² Yet Güterbock asserts: ‘Procedure offers but little for our purposes in Bracton. In its main features the development of that branch of the law had been so much upon the basis of peculiarly English views and principles, and, as far as actions in rem were concerned, so much in the forms and spirit of the feudal system, that the Roman law had not been able to exercise the same influence there as elsewhere, and has left in it few and detached traces;’ Bracton and Roman Law 154.Google Scholar

²³³ On this I agree with Maitland, , Bracton and Azo 221, and Holdsworth II⁴, 268.Google Scholar

²³⁴ Holdsworth II⁴ , 286.Google Scholar

²³⁵ Above, n. 120.Google Scholar

²³⁶ Above, n. 123.Google Scholar

²³⁷ See n. 98; II, 21: ‘Quae quidem [leges], cum fuerint approbatae consensu utentium et sacramento regum confirmatae, mutari non poterunt nec destrui sine communi consensu eorum omnium quorum consilio et consensu fuerunt promulgatae.’ This is the traditional theory of law-finding, but with a suggestion of Roman terminology.Google Scholar

²³⁸ Traditio 1, 355–408.Google Scholar

²³⁹ Since I am dealing chiefly with Bracton in this paper I do not pretend to exhaust the subject of q.o.t. in English assemblies. I shall treat it more fully later on.Google Scholar

²⁴⁰ See McIlwain, , CMH 7, 673–5. Of course, those not summoned were not bound.Google Scholar

²⁴¹ Sayles, , Select Cases III (Selden Soc. 58) xvii. John de Baiuse made the plea that he had not been present at any shire or hundred court where the charter of liberties was read or proclaimed. As a result the question was postponed for jury trial even though the sheriff produced seven men who swore that John was not absent when the reading took place.Google Scholar

²⁴² See above, n. 119.Google Scholar

²⁴³ For example, in 1231 the sheriff was to summon to meet before the justices in eyre prelates, earls, barons, knights, and ‘omnes libere tenentes’; and four ‘legales homines et praepositum’ from each vill, two burgesses from each borough, and ‘omnes alios qui coram justitiariis itinerantibus venire solent et debent;’ Stubbs, , S.C. 354. See Bracton II, 310; Pollock and Maitland I, 545.Google Scholar

²⁴⁴ Stubbs, , S.C. 365f.Google Scholar

²⁴⁵ Stubbs, , S.C. 371; and below, n. 248.Google Scholar

²⁴⁶ IV, 295f.: ‘de communi utilitate totius regni super pluribus articulis regem et regnum tangentibus.’ Google Scholar

²⁴⁷ Stubbs, , S.C. 439.Google Scholar

²⁴⁸ Probably knights of the shire were summoned in 1258, for although the writ does no survive, later it is said that the knights attended ‘pro quibusdam negociis communitatem tocius comitatus praedicti tangentibus;’ Wilkinson, B., Studies in the Constitutional History of the Thirteenth and Fourteenth Centuries (Manchester 1937) 38. From the year 1268, G. O. Sayles has published a memorandum for the issue of writs of summons, and the king is to write to the mayor and citizens of York and to other cities and boroughs in this fashion: ‘Quia super arduissimis negociis nos et* regnum nostrum* statum et communitatem regni nostri* et vos* tangentibus … vobiscum ac aliis fidelibus regni nostri quos ad hoc fecimus convocari [et sine quibus negocia ipsa nequiunt expediri] tratatum et colloquium habere volumus speciale …;’ Sayles, 'Representation of Cities and Boroughs in 1268/ EHR 40 (1925) 584f.; Wilkinson, , Studies 39. (The asterisk indicates words struck out; the brackets, interlineations.) Google Scholar

²⁴⁹ Stubbs, , S.C. 469, 476, 479.Google Scholar

²⁵⁰ Knights of the shire had occasionally been summoned to the king's court and council still earlier, and for business that concerned their rights and interests rather than for the customary duty of bearing the record or bringing information. John summoned knights of the shire in 1213; Henry III summoned them in 1226–37 to represent the interests of all the knights of the shire (above, n. 132; below, n. 256); and knights were probably in an assembly of 1237, for they are mentioned among those who granted a subsidy to the king (Stubbs, , S.C. 358). Possibly q.o.t. was stated in this connection in the writs of 1237, for Matthew Paris says that the king summoned prelates, earls and barons, ‘ut omnes sine omissione … convenirent, regia negotia tractaturi totum regnum contingentia;’ Stubbs, , S.C. 326. Matthew fails to mention knights of the shire, but it is possible that they too were summoned, since the king relates that they along with the prelates and magnates consented to the tax.Google Scholar

²⁵¹ Above, n. 225.Google Scholar

²⁵² Decr. Greg. IX 3, 10, 10. The decretal is dated by Friedberg as of any time in the pontificate of Honorius III, 1216–27. But it is directed to the Archbishop of Sens, relates to the cathedral chapters in his province, and therefore may be the outcome of the French councils of 1225–26. The chapters claimed the right of representation for the business of a subsidy for the crusade against the Count of Toulouse, and they were treated with little consideration by the papal legate; hence they may have appealed to the pope. There can be little doubt that the pope had the Roman maxim in mind even if he did not quote it; the decretalists were soon connecting C. 5, 59, 5 with this decretal. See above, n. 220.Google Scholar

²⁵³ Chron. Maj. IV, 37. Note how in England Innocent III's decretal, Ad haec (Decr. Greg. IX 1, 23, 7), which applied to the administrative rights of bishop and archdeacon, and in which the pope quoted C. 5, 59, 5 §2, was extended to a national business touching all the bishops and their archdeacons. Note too that here the bishops led in making a plea, based on q.o.t., for lesser prelates.Google Scholar

²⁵⁴ Clarke, , Med. Representation 264, though accepting the importance of the maxim for the laity in 1295, says that before then it occurred almost invariably ‘in an ecclesiastical context,’ with the one exception of Bracton. But Clarke has in mind Bracton's statement of the consent of all to legislation in terms that do not express q.o.t. See above, nn. 3, 98.Google Scholar

²⁵⁵ Above, n. 253.Google Scholar

²⁵⁶ In 1290 we find the magnates granting a customary aid for the marriage of the king's daughter, and this ‘pro se et communitate totius regni quantum in ipsis est.’ This seems to indicate that they felt they could consent only for their class, not for the knights of the shire, who were separately summoned; see Stubbs, , S.C. 471f. There were no doubt precedents in such cases: in 1226, Henry III issued a writ for the summoning of four knights of the shire, not to bring the record (a purely administrative representation), but to represent the knights of the shire in complaints against the sheriffs arising from the interpretation of certain articles in Magna Carta (Stubbs, , S.C. 353; above, n. 132). The king states that this summons was the result of a petition of the magnates, in an assembly at Winchester, that he hold an assembly at Lincoln ‘ad terminandum contentiones ortas inter quosdam vicecomites nostros et homines comitatuum suorum super quibusdam articulis, etc.’ It seems that already the magnates find that they cannot represent the interests and rights of the class of knights.Google Scholar

²⁵⁷ Perhaps there is some analogy here with the way in which the English courts permitted third parties ‘to intervene in the proceedings, and even make good their claim to the property which was the subject of the action;’ Holdsworth II⁴, 249f., referring to Bracton's Notebook, cases 5, 525, 688. This principle was emphasized in Roman law, C. 7, 56, 2 and 4; 7, 60, 1 and 2; D. 42, 1, 63; and was frequently discussed by the canonists and legists of the thirteenth century.Google Scholar

²⁵⁸ See Treharne, R. F., ‘The Significance of the Baronial Reform Movement,’ Transactions of the Royal Historical Soc. 25 (1943) 49–53.Google Scholar

²⁵⁹ Traditio 1, 370–75, 397–408.Google Scholar