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Plena Potestas and Consent in Medieval Assemblies: A Study in Romano-Canonical Procedure and the Rise of Representation, 1150–1325

Published online by Cambridge University Press:  17 July 2017

Gaines Post*
University of Wisconsin


By the end of the thirteenth century the royal writ of summons to Parliament usually specified that communities send representatives with “full power” to consent to whatever should be ordained by the king in his court and council. This “full power” was the famous plena potestas which was stated in the mandates carried by knights and burgesses to Parliament and by delegates of cities and towns to Cortes and States General, and which is still current in proxies for stockholders' meetings. It has, of course, like almost every word of the terminology in documents relating to representation, challenged interpretation: on the one side is the argument of J. G. Edwards, who confines himself to England, that plena potestas implied an almost political or sovereign consent which limited the royal authority; on the other, the assumption that it was an expression of involuntary consent to the acts and decisions of the royal government. In general, of course, whatever modern scholars have decided as to the right of consent has resulted either from modern conceptions of representation or from a strict interpretation of the terminology in the sources for the history of assemblies. No one has examined plena potestas in the light of the legal theory and procedure of the thirteenth century It is possible that by studying how legists and canonists viewed the meaning of plena potestas—for it, like most of the terminology in the mandate, came from Roman Law—we can find at least a relatively new approach to the problem of medieval consent.

Copyright © 1943 by Cosmopolitan Science & Art Service Co., Inc. 

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2 “The Plena Potestas of English Parliamentary Representatives,” Oxford Essays in Medieval History Presented to H. E. Salter (Oxford, 1934), pp. 141–54; this was the first attempt to interpret plena potestas as used in England; Edwards concludes that its origin lay in part in the king's wanting representatives with full power in order to obtain sure consent to taxation, and in part in the feudal law on consent to extraordinary aids: “Historically the legal sovereignty of Parliament sprang from a double root. One root was the character of Parliament as a high court. The second root was the plena potestas of the representatives of the Commons” (p. 154). Pollock, F and Maitland, F W, History of English Law (2nd. ed., 2 vols.; Cambridge, 1898), II, 228, do not interpret; they merely state how “full powers” arose in the law of agency and in procuration and representation in Parliament. McIlwain, C. H., “Medieval Estates,” C. M. H., VII, 679, seems to conclude that the consent expressed by plena potestas was more than a formality in that the representatives had some discretionary power (ad tractandum), which would naturally act as a brake on the king's demands. Similarly, but emphasizing more strongly the right of judgment and consent, Clarke, Maude V, Medieval Representation and Consent (London, 1936), p. 291; cf. pp. 200 f. For Spain, R. B. Merriman holds that the poderes were “one of the most important safeguards of Castilian parliamentary liberty” despite the king's right to interpret the powers of the delegates; Rise of the Spanish Empire, I (New York, 1918), 222 f.; and that consent limited the royal power effectively in Aragon; I, 461 f. See also Edwards, “Taxation and Consent in the Court of Common Pleas, 1338,” E.H.R., LVII (1942), 478. Google Scholar

3 For France, Jusselin, M., “Lettres de Philippe le Bel relatives à la convocation de l'assemblée de 1302,” Bibliothèque de l'École des chartes, LXVII (1906), 471; Langlois, C. V, in Lavisse, III, ii, 160 f., 261–4; McIlwain, , C. M. H., VII, 686, 690. For England, Plucknett, T. F T., “Parliament,” in Morris, English Government, I, 101 f. Google Scholar

4 I consider the century broadly as a period from about 1150 to 1325. Google Scholar

page 356 note 1 The mandatum was a contract by which an agent could act for his dominus in a business transaction or in lawsuits; the principal or dominus was so bound, if the agent honestly carried out the terms of the mandate, by the agent's conclusion of the contract or waging of the lawsuit, that he must accept the contract or the sentence of the court. Google Scholar

page 356 note 2 Accursius, Glos. ord., to C. 2, 12, 10, ad v. unam speciem: “Id est, ad causam, vel negotium.” Google Scholar

page 356 note 3 C. 2, 12, 10: “quod si plenam potestatem agendi habuit, rem iudicatam rescindi non oportet, cum, si quid fraude vel dolo egit, convenire eum more iudiciorum non prohiberis.” My interpretation is rather free but it is justified by the statement in an Epitome of the Codex of the ninth century (below, n. 5), and by the legists of the thirteenth and fourteenth centuries, below Google Scholar

page 356 note 4 Buckland, W. W, A Textbook of Roman Law from Augustus to Justinian (2nd. ed., Cambridge, 1932), p. 710.Google Scholar

page 356 note 5 Vinogradoff, P, Roman Law in Medieval Europe (2nd ed. by de Zulueta, F; Oxford, 1929), p. 40: a ninth century Epitome of the Codex, to 2, 12, 10, states that “if the representative (procurator) of a person had full powers to act in the latter's behalf, a decision against him in a trial ought to stand; for in the case of a fraud, the procurator might be sued by his principal” (“nota qui habet plenam potestatem agendi posse rem sine dolo firmiter finire,” p. 41). In the thirteenth century Odofredo also states that the remedy for the dominus, if his proctor acts collusively, is an action against the proctor; to C., 2 12, 10, below, n. 10. Google Scholar

page 356 note 6 In the Ordo iudiciarius Bambergensis (ca. 1182–85), ed. von Schulte, J. F, Sitzungsberichte d. Kais. Akademie der Wissenschaften zu Wien, Philos.-Hist. Cl., LXX (1872), 300: “Procurator super his, quae ad ipsam procurationem spectare noscuntur, plenariam recipit potestatem.” Google Scholar

page 356 note 7 Azo, Lectura (Lyons, 1596), to C. 2, 12, 10 (p. 159), ad vv. convenire eum more iudic.: “Quia conveniet eum actione mandati Si ergo [procurator] habet liberam [literam in this edition] et generalem administrationem, servatur quod fecit, sed tamen tenetur de dolo et fraude, et de lata culpa et levi” Rogerius, Summa Codicis, II, viii, De procuratoribus: the proctor for administratio, “sive habeat speciale mandatum, sive generale et liberam amministrationem, potest vendere, alienare et cetera facere: si autem generale nec liberam amministrationem, nec vendere, nec alienare, nec transigere potest”; ed. Palmieri, J. B., in Bibliotheca Iuridica Medii Aevi (ed. Gaudenzi, A.), I (Bologna, 1887), 27 f. Google Scholar

page 356 note 8 Buckland, , Roman Law, 2 p. 525.Google Scholar

page 356 note 9 Accursius says, to C. 2, 12, 10, ad v. plenam potestatem: “specialiter concessam, secundum quosdam. Tu dic, quod sufficit generalis cum libera [administratione] ad agendum et transigendum; sed generalis sola non sufficit ad transigendum, ut ff. eo. l. procurator cui generaliter, et l. mandato generali.” (The latter reference is to D. 3, 3, 60: “Mandato generali non contineri etiam transactionem decidendi causa interpositam. Et ideo si postea is, qui mandavit, transactionem ratam non habuit, non posse. eum repelli ab actionibus exercendis.”) Google Scholar

page 356 note 10 To C. 2, 12, 10: “si procurator habet liberam et generalem administrationem, sententia lata contra eum nocet domino; sed si dicitur procurator collusisse cum adversario, dominus mandati poterit contra eum agere.” Google Scholar

page 356 note 11 Commentarīa (Venice, 1602), VII; to C. 2, 12, 10: “quero quando quis dicatur habere plenam potestatem? Quidam dicunt, quando habet speciale mandatum. Alii dicunt, et istud tenet gl. [i.e., the gloss of Accursius], quando habet liberam, et tene menti, et vide gl. (§2) Et sic no., quod idem est dicere, ‘concedo tibi plenam administrationem’, et ‘concedo tibi liberam administrationem.’ Idem forte important illa verba, que communiter apponuntur, ut ‘possit facere omnia que ipse dominus posset’, ut per hoc videatur concedi libera, ut l. (1) de offi. procu. Caesa.” Google Scholar

page 356 note 12 Baldus super toto Codice (Lyons, 1519), to C. 2, 12, 10: “Quero quando quis dicitur habere plenam potestatem; et dicunt quidam quando specialiter hoc dicitur. Item quando dicitur habeas liberam, ut ff. de pecu. l. quam tuberonis. §. alia. Item si apponuntur ista verba, ‘quod posset quicquid posset dominus si presens est’ Bar. allegat l. i. de offi. proc. cesar. Ego allego tex. ff. manda. l. creditor. §. lucius.—§. Conclude ergo quod tria vocabula sunt, que idem important plenam potestatem; et idem ‘quod posset dominus’, idem si diceretur ‘concedo tibi [sibi in the 1519 edition] totalem potestatem’, per d. §. lucius. Nunquam tamen in his verbis includitur donatio vel dilapidatio Item nunquam includitur delictum.” Google Scholar

page 356 note 13 Bartolus, , Commentaria, to C. 2, 12, 10, §5, Antiqua lectura: “No. tex. cum glo. super verbo ‘plenam,’ quod idem est sive dicatur plena sive generalis et libera; quod si dicatur in aliquo procuratore generali, ‘et promitto me habere firmum et ratum quicquid procurator meus fecerit’, nunquid ex his verbis videatur induci libera potestas et administratio?” Some say no; but “hoc satis aequipollere videtur Fran. Tigr.” Google Scholar

page 356 note 14 Above, n. 12; Azo adds, in his Lectura, C. 2, 12, 10, ad vv nullum domino praeiudicium: “Non enim debet transgredi mandatum;” ad vv convenire eum more iudic.: “Quia conveniet eum actione mandati Si ergo habet liberam [literam in printed text] et generalem administrationem, servatur quod fecit, sed tamen tenetur [procurator] de dolo et fraude, et de lata culpa et levi Google Scholar

page 356 note 15 Above, nn. 7, 9; D. 3, 3, 58: “Procurator, cui generaliter libera administratio rerum commissa est, potest exigere, novare, aliud pro alio permutare.” Google Scholar

page 356 note 16 D. 3, 3, 60: “Mandato generali non contineri etiam transactionem decidendi causa interpositam.” Google Scholar

page 356 note 17 See the gloss of Accur. given above, n. 9. Google Scholar

page 356 note 18 D. 3, 3, 63; Accursius, ad v. speciali; cf. Bartolus, to e. l .Google Scholar

page 356 note 19 The thirteenth century legist Vivianus, in his Casus, to D. 3, 3, 58, Procurator cui, says: “Si aliquem constitui procura. [torem] et concessi liberam et generalem administrationem, procur. [ator] omnia poterit facere ut dominus; novare enim poterit, et permutare, et solvere debita creditoribus.” Google Scholar

page 356 note 20 Azo, as given by Accur., Gl. ord., to D 1, 19, 1, ad v. diligenter [gerere commissum est]: “Sed nonne bene potest gerere alienando? quia hic habet liberam administrationem, unde videtur alienare; sed speciale est, ne in Caesaris praeiudicium alienet, alias contra Az.” Google Scholar

page 356 note 21 Above, nn. 11, 12. Google Scholar

page 356 note 22 D. 3, 3, 49, Paulus: “Ignorantis domini conditio deterior per procuratorem fieri non debet;” to which Accursius, Gl. ord., ad v. non debet: “nisi in tribus casibus: quando scilicet est in rem suam; et quando speciale habet mandatum; et quando generale, sed habet liberam administrationem Sed certe nec tunc quando generalem habet administrationem et liberam, potest donare Sed licet deteriorem facere non potest, tamen meliorem sic” Google Scholar

page 356 note 23 Above, n. 6. Google Scholar

page 356 note 24 Below, §3. Google Scholar

page 356 note 25 To Decr. 1, 38, 10, ad v. respondendum: “Sic ergo debet constitui procurator ad agendum datus, ut possit etiam defendere et respondere adversario si eum reconveniat: alias si non defenderet, denegabitur ei actio, et in expensis alteri parti tamquam contumax condemnetur In qua constitutione debet satisdationem exponere; et quod tempore sententiae erit in iudicio, alias omnia dabit quae in condemnatione veniunt, ut ibidem dicitur: et ita plenam habet potestatem. Google Scholar

page 356 note 26 In the Fourth Lateran Council (1215), Innocent III decreed that without a special mandate from the dominus no one could ask for a papal writ for a suit (Decr. 1, 3, c. 28 Nonnulli); this was repeated by Gregory IX (c. 33 Ex parte). To the latter decretal the gloss in the Glos. ord., ad v. sine speciali, states that according to Roman Law the general proctor who also had libera administratio could petition for a rescript; but the author adds, “Curia tamen non servat hoc, quod hic et in concilio dicitur, nec daret litteras propter hoc appellanti.” Google Scholar

page 356 note 27 Glos. ord., to c. 28 Nonnulli, § Cum autem, ad vv. sine speciali mandato: “Sic ergo generalis procurator non sufficit ad impetrandum litteras,” for which, as for transactio, for in integrum restitutio, for dilatio iuramenti, and for acceptilatio, a special mandate is necessary: to Decr. 1, 38, c. 9 Petitio, ad v generales: “Licet fuerint generales procuratores, non tamen poterant transigere, nec possunt alienare nisi fructus aut alia quae de facili corrumpi possunt;” to c. 11 Dilectus, e. t., ad v. generalis [ad omnia eius tractanda negotia]: “Potest ergo quis constituere generalem procuratorem ad omnia, tam ad iudicia quam ad negotia, ut hic dicit; tamen talis procurator transigere non potest, nec alienare” Google Scholar

page 356 note 28 Boniface VIII, VI 1, 19, 4: “Qui ad agendum et defendendum, ac generaliter ad omnia, etiamsi mandatum exigant speciale, constituitur procurator, ex vi generalitatis huiusmodi ad aliquem articulum, in quo speciale mandatum exigitur, admitti non debet. Sed si aliquis vel aliqui de articulis speciale mandatum exigentibus specificati fuissent adiecta clausula generali: tunc ad non expressos etiam admittetur. Procurator quoque absque speciali mandato iuramentum deferre, transigere vel pacisci non potest, nisi ei bonorum vel causae administratio libera sit concessa.” (Friedberg, the editor, wrongly has libere; but libera, which is given in several MSS, is better.) Zenzelinus. ( ca. 1350) sums up the decretal thus: “Procurator generalis non agit exigentia speciale mandatum, nisi cum aliqua illorum specificatione vel libera potestate. Google Scholar

page 356 note 29 Speculum iudiciale (Lyons, 1547), I, iii, t. De procuratore, c. Ut autem, no. 11; below, n. 40.Google Scholar

page 356 note 30 Honorius III (1216–27) had declared that exception to a mandate should not be allowed if the intention of the dominus was to give libera potestas to his general proctors, even though in this instance the dominus failed to state whether his agents were syndici or actores (Decr. 1, 38, c. 9 Petitio). Google Scholar

page 356 note 31 Glos. ord., to Decr 1, 38, c. 9 Petitio, ad v. intentio: “Sic patet quod quando verba generalia sive dubia, ponuntur in mandato, recurrendum est ad intentionem constituentis. Unde si diceretur: ‘ego do Titio potestatem agendi et defendendi in causa vel in causis, quam vel quas habeo cum tali,’ sufficiens est mandatum, non obstante subtilitate legali” Google Scholar

page 356 note 32 See below, §5, on “sufficient instructions” Google Scholar

page 356 note 33 Above, n. 6. Google Scholar

page 356 note 34 Summa aurea, c. CII: the office of the proctor is to do those things “quae verus dominus faceret, si esset praesens (D. 3, 3, 35, 3), nisi prohibeatur a iure, ut transigere et compromittere, nisi ad hoc habeat speciale mandatum. (D. 3, 3, 60 and 63);” c. CVI: the general proctor cannot do certain things without special mandate; but, c. CVII, if the general proctor is given libera et generalis administratio, he can “litigare, componere, et novare”; Wahrmund, , Quellen, II, ii, 97, 101, 102 f. William also gives a form for a general mandate so drawn up that it confers full powers on the proctor, c. CVIII: “Si autem velit [dominus] ei [procuratori] dare potestatem ad transigendum et ad componendum, adiciat clausulam istam: ‘Constituo etiam ipsum procuratorem ad transigendum et ad componendum’ vel ‘concedo ei liberam et generalem administrationem, ita quod omnia expediat, quae praesentialiter essem acturus. Ratum habiturus, quicquid iustitia mediante circa praedicta duxerit agendum; et pro eo iudicatum solvi, si necesse fuerit, promitto’;” Wahrmund, , II, ii, 103 f. Google Scholar

page 356 note 35 Ordo Scientiam (1235–40), ed. Wahrmund, , II, i, 49: the proctor can do only those things required to answer to the charges as given in the papal rescript which assigns the case to judges.Google Scholar

page 356 note 36 Wahrmund, , I, ii, 53 f. Wahrmund, has this: “Dans eidem procuratori talem potestatem et mandatum speciale, etc.” But in formularies talis is used in place of names of actual persons, not for legal terms; and here there is no “such power that,” but simply “power of” doing something. Wahrmund, has probably mistaken an abbreviation in the MSS. for totalem; cf. Saxon Summa, cited below, n. 38, and Baldus, above, n. 12. Google Scholar

page 356 note 37 This form of a general mandate is worth giving in detail: “Universis praesentes litteras inspecturis officialis Belvacensis salutem Notum facimus universis, quod talis [i.e., the principal] in nostra praesentia constitutus Odonem clericum, latorem praesentium, ad omnes causas motas et movendas contra quoscumque tam clericos quam laicos, coram quibuscumque iudicibus, tam delegatis quam ordinariis, suum procuratorem et constituit generalem. Dans ei speciale mandatum litigandi, defendendi, transigendi, componendi et conveniendi debitores suos et iniuriatores, et recipiendi debita, quae sibi debentur, et iurandi in animam suam tam super principali, quam super expensis, et expensas easdem recipiendi, quotienscumque sibi fuerint adiudicatae, et constituendi alium procuratorem loco sui, et faciendi omnia, quacumque faceret vel facere possit, si praesens esset in causa. Eidem, tamquam procuratori legitimo plenariam concessit coram nobis potestatem, ratum et firmiter habiturus, quidquid per O. vel eius procuratores fuerit actum et etiam procuratum, et in curiis et extra;' Wahrmund, , I, iii, 25. * Wahrmund, wrongly inserts et, which should be deleted. Google Scholar

page 356 note 38 Rockinger, L., Briefsteller und Formelbücher des eilften bis vierzehnten Jahrhunderts (Quellen zur bayerischen und deutschen Geschichte , IX; Munich, 1863), pp. 278 f. Google Scholar

page 356 note 39 Summa totius artis notariae (Venice, 1574), I, 214v–215v .Google Scholar

page 356 note 40 Spec. iud. I, iii, t. De procuratore, c. Ut autem, no. 11: “§ Quod autem dixi ‘liberam potestatem,’ multum prodest: quia aliter non habet ita plenam, ff. de procu., procurator cui, et l. seq. et l. mandato, j. ver. notabiliter.” Here Durant connects the libera administratio in the Digest with the plena potestas in the Code .Google Scholar

page 356 note 41 Spec. iud., I, iii, t. De procuratore, c. Ut autem, no. 21 (fol. 86v c. 1).Google Scholar

page 356 note 42 Spec. iud., I, fol. 86 c. 1, nos. 11 and 16.Google Scholar

page 356 note 43 Rockinger, Briefsteller u. Formelbücher, p. 607: a mandate by which the prior and chapter of Christ Church, Canterbury, appoint a proctor and nuncius with plena et libera potestas of petitioning in the Roman Curia for Litterae simplices and legendae. Google Scholar

page 356 note 44 For example, a mandate of 1252 issued by St. Albans, for proctors, with plena et libera potestas, for business in the Roman Curia; Matthew Paris, Chronica Majora (ed. Luard, H. R.; R. S.; London, 1876–82), VI, Additamenta , pp. 219 ff. Google Scholar

page 356 note 45 Bracton, III, 142 (ed. Twyss, R. S., III, 408–10).Google Scholar

page 356 note 46 But in the Church, as decided by a papal legate in England, 1237, a proctor must not be appointed for one day only; William of Drogheda, in Wahrmund, , Quellen, II, ii, 168; Matthew Paris, Chron. Maj., III, 436.Google Scholar

page 356 note 47 Summa minorum, c. L., De procuratorio: “aliquando datur procurator ad unum diem vel ad unam rem et talis procurator dicitur [esse] specialis. Aliquando datur procurator in omnibus causis vel in una causa generaliter et tunc dicitur procurator generalis;” Wahrmund, , I, ii, 52. The canonists follow the legists on this, e.g., Glos. ord. of Accursius to D. 3, 3, 49, ad v. non debet (“Ignorantis domini conditio deterior per procuratorem fieri non debet”): “nisi in tribus casibus: quando scilicet est in rem suam; et quando speciale habet mandatum; et quando generale, sed habet liberam administrationem”—and in no event can a proctor donare if by so doing he damages his principal.Google Scholar

page 356 note 48 Unless a new case or suit was brought against the principal after he had appointed and empowered his proctors for other matters; below, §5. Google Scholar

page 356 note 49 On instructions and reference back, see below, §5. Google Scholar

page 364 note 1 See above, §1. The Digest furnished these opinions: 1, 19 De officio procuratoris Caesaris, 1; 3, 3 De procuratoribus 58 (Paulus: “Procurator, cui generaliter libera administratio rerum commissa est, potest exigere, novare, aliud pro alio permutare”); 15, 1, 7 §1; 17, 1, 60 §4; Code, 2, 12, 10. Azo, as cited in the Glossa ordinaria by Accursius, says that the procurator of Caesar has libera administratio, to D. 1, 19 1 §1, ad v. diligenter [gerere commissum est]: “Sed nonne bene potest gerere alienando? quia hic habet liberam administrationem, unde videtur alienare; sed speciale est, ne in Caesaris praeiudicium alienet, alia[s] contra Az.” Azo, again, Lectura to C. 2, 12, 10, ad vv. convenire eum more iudic. Google Scholar

page 364 note 2 D. 1, 16, De officio proconsulis et legati, ll. 1, 7 §2, and 13; 1, 21, De officio eius, cui mandata est iurisdictio; 2, 1, De iurisdictione. The twelfth-century idea of the royal procurator seems to have been taken both from the Roman procurator Caesaris and the jurisdictio and imperium given to a proconsul or a legate, or to any magistrate on whom a jurisdictio and mixtum imperium were conferred by king or emperor or pope, who had merum imperium. The papal legate, who is becoming important at this time, partakes of the nature both of a procurator of Caesar and of an ambassador; below, n. 5.Google Scholar

page 364 note 3 Krey, A. C., “William of Tyre,” Speculum, XVI (1941), 151, n. 3.Google Scholar

page 364 note 4 Recueil des Historiens des Croisades, p. 1027, sub an. 1176. Philip refused the office, which was then conferred on Raymond of Antioch. Sub an. 1104 (p. 450) William relates how Bohemond, prince of Antioch, entrusted Tancred with cura et administratio generalis, cum plena jurisdictione; it is possible, though doubtful, that William has a document before him for this statement; more likely he was putting back to 1104 a terminology that became fashionable somewhat later. Another example offered by William of Tyre is the appointment, in 1183 (p. 1116), of Guy of Lusignan as procurator regni with generalis et libera administratio .Google Scholar

But on the other hand, even England offers an early use of the term procurator regni: in 1123–26 Roger of Salisbury, justiciar under Henry I, during the absence of the king styled himself procurator regni Angliae ; Jolliffe, J. E. A., Constitutional History of England (Adams and Charles Black, London, 1937), pp. 196 f. Google Scholar

page 364 note 5 In 1195 Pope Coelestine III granted to two legates plena potestas , “ut evellant et destruant plantent et edificent;” Jaffé-Loewenfeld, Regesta pontificum Romanorum (Leipzig, 1885–88), no. 17274; cf. Friedlaender, Ina, Die päpstlichen Legaten in Deutschland und Italien am Ende des XII Jahrhunderts (Historische Studien, Heft 177; Berlin, 1928), pp. 110 f. In the same year Emperor Henry VI asked the pope to send three cardinals to his presence, plenariam eis dantes potestatem, who might thereby act as judges in ecclesiastical suits in place of the pope (vicem vestram); M. G. H., Legum Sectio IV, I, 514, no. 364.Google Scholar

page 364 note 6 Registres de Grégoire IX (ed. Auvray, L.; Paris, 1896 ff.), no. 229; cited by Ruess, K., Die rechtliche Stellung der päpstlichen Legaten bis Bonifaz VIII (Paderborn, 1912), p. 70.Google Scholar

page 364 note 7 Annales de Burton , p. 410, in Annales Monastici, ed. Luard, H. R. (R. S.; London, 1864), I.Google Scholar

page 364 note 8 D. 2, 14, 1 §§1–4; Accursius, Glos. ord., ad v conventionis (in §3): “nomen conventio generale est ad omne pactum, nam omne pactum est conventio, et conventio est genus: et ad omnia pacta pertinet verbum conventionis; nam et in unum conveniunt, qui contrahunt, sicut scholares in scholis.” Conventiones are “in suo nomine contractus”, including special contracts, e.g., emptio and venditio .Google Scholar

page 364 note 9 D. 2, 14, 2, “vel per nuntium;” or by procurator, D. 2, 14, 11; 10 §2; 12; 13.Google Scholar

page 364 note 10 D. 2, 14; 5: Ulpian, “publica conventio est, quae fit per pacem, quotiens inter se duces belli quaedam pasciscuntur;” Casus in Glos. ord., ad l. 5 Conventionum: “[Some pacta] sunt publica, ut induciae et foedera, amicitiae, et treugae inter aliquos duos.” Google Scholar

page 364 note 11 Passagerii, Rolandinus, Summa totius artis notariae, c. VI, De compromissis , p. 157: “Item not a quod paces seu concordiae et remissiones aliquando fieri solent per procuratores,” who are appointed “specialiter ad hoc,” and should be named in the instrumentum pacis (ca. 1260).Google Scholar

page 364 note 12 Perhaps as early as 1162 in France, when Louis VII gave pleins pouvoirs to Thibaut of Champagne to negotiate with Frederick I; Luchaire, A., in Lavisse, III, i, 41.Google Scholar

page 364 note 13 Conquête de Constantinople, ed. Faral, Edmond, I (Paris, 1938), 14 ff.; ed. Bouquet, M., Recueil des historiens des Gaules et de la France, XVIII, 434 f. Google Scholar

page 364 note 14 The treaty itself refers to the six messages as nuntii, who took oath for themselves and their domini (the barons and counts) that the treaty would be observed; Bouquet, XVIII, 436.Google Scholar

page 364 note 15 M. G. H., Legum Sectio IV, II, 17 f., no. 14.Google Scholar

page 364 note 16 Matthew Paris, Chron. Maj., IV, 331: “specialem et plenam concedimus potestatem jurandi in anima pro parte nostra, stare mandatis domini Papae et ecclesiae super omnibus articulis, injuriis, dampnis et offensis, ratum habentes et firmum, quicquid super hoc praedicti fideles nostri duxerint faciendum.” Also in Huillard-Bréholles, J. L. A., Historia Diplomatica Friderici II (Paris, 1852–61), VI, 172.Google Scholar

page 364 note 17 White, A. B. and Notestein, W, Source Problems in English History (New York and London, 1915), p. 89.Google Scholar

page 364 note 18 Rymer, T., Foedera, I, i, 76: King John to the King and Queen of Castille, “mandamus quatinus ea, quae praedicti tres vel duo [of the nuntii or fideles] illorum dicent ex parte nostra, indubitanter credatis” (an. 1199); to Augustus, Philip (p. 87, an. 1202), “fidem habeatis;” similarly (p. 101, an. 1208) to the Irish chiefs; and p. 114, an. 1213. Google Scholar

page 364 note 19 Ibid., I, i, 114; an. 1213, ambassadors to a Poitevin noble; p. 124: an. 1214, eight ambassadors to the King of France: “Sciatis quod id, quod facient de firmis treugis capiendis inter Regem Franciae & nos, ratum et gratum habebimus.“—On ratihabitio see D. 46, 8; cf. Buckland, Roman Law 2, p. 712.Google Scholar

page 364 note 20 Rymer, , Foedera, I, i, 128: an. 1215, the royal procuratores are appointed “ad petenda dampna Et ad restitutionem faciendam; et ad pacificandum, componendum, transigendum Ratum etiam et gratum habebimus quicquid, etc.” Google Scholar

page 364 note 21 Ibid., I, i, 139; the ratum habituri et gratum clause, where the royal proctors were the plaintiffs, and the judicatum solvi clause where they were the defendants, were added. Here the proctors are not only ambassadors, but also representatives for litigation.Google Scholar

page 364 note 22 Ibid., I, i, 195.Google Scholar

page 364 note 23 Ibid., I, i, 198: “Rex omnibus, etc., salutem. Sciatis quod in omnibus, quae ad treugam pertinent, plenam potestatem dedimus” to five magnates, “ad loquendum et tractandum de treugis cum Ludovico Rege Franciae; ita quod treugas, quas ipsi cum dicto Rege ceperint, gratas et ratas sumus habituri.” Google Scholar

page 364 note 24 Ibid., I, 1; 244 f., 247, 253, 256, 264, 295, 299, etc. See also Matthew Paris, Chron. Maj., VI, Additamenta, p. 284, no. 140 (an. 1254). On English ambassadors and their credentials in the fourteenth century, see Lucas, H. S., “The Machinery of Diplomatic Intercourse,” in Morris, English Government, I, 309.Google Scholar

page 364 note 25 See below on instructions, §5. Google Scholar

page 364 note 26 Unless, by another mandate dispatched in time and revealed to the opposing party and judges and accepted by them, the dominus recalled his agent before the final decision was given. Google Scholar

page 364 note 27 de Lagarde, G., “L'idée de représentation dans les oeuvres de Guillaume d'Ockham,” in Histoire des assemblées d'états (Bulletin of the International Committee of Historical Sciences , IX, iv, no. 37; Paris, 1937), p. 435; but it is still possible to agree on the whole with Lagarde that in these assemblies, on the continent, not the collective person of the nation but the little cellular powers defended their interests against the royal authority. But in England the common petition (also in Aragon) indicates a unity of purpose.Google Scholar

page 368 note 1 Post, G., “Early Representation in Spain and Italy,” Speculum, XVIII (1943), 226–28.Google Scholar

page 368 note 2 Theiner, A., Codex Diplomaticus Dominii Temporalis Sanctae Sedis (3 vols.; Rome, 1861–2), I, nos. XLII and XLIII.Google Scholar

page 368 note 3 Post, , Speculum, XVIII, 229–31. Innocent III summoned proctors of chapters to the Fourth Lateran Council, 1215.Google Scholar

page 368 note 4 Denifle, H., “Die Constitutionen des Predigerordens vom Jahre 1228,” Archiv für Literatur-und Kirchengeschichte des Mittelalters, I (1885), 193; Galbraith, G. R., The Constitution of the Dominican Order, 1216–1360 (Manchester, 1925) pp. 37, 39. Google Scholar

page 368 note 5 Elsewhere I shall discuss the judicial character of these chapters and of councils; cf. Little, A. G., “The Mendicant Orders,” in C. M. H., VI, 740; Galbraith, , l.c .Google Scholar

page 368 note 6 This statement is based on a study to be published in the future. Google Scholar

page 368 note 7 See the examples from 1268 on, given by Edwards, Oxford Essays, pp. 142 ff.; Sayles, G. O., “Representation of Cities and Boroughs in 1268,” E. H R., XL (1925), 580 f.; Clarke, , Medieval Representation and Consent, pp. 200, 312–14, 374; Stubbs, , S. C., pp. 403, 406 f., 458, 476 f., 480 ff.; Parliamentary Writs, I, 21, 23, 25 f. CrossRefGoogle Scholar

page 368 note 8 Clarke, , op. cit., p. 308, says that nuncii of the dioceses had full powers for an assembly in England, 1254; cf. Stubbs, , S. C., pp. 406 f., for an example in 1265.Google Scholar

page 368 note 9 Cortes de los antiguos Reinos de Aragon y de Valencia, etc. (Madrid, 1896 ff.), I, i, 194 ff.; plena potestas is not specified, but its equivalent is given—the delegates of Barcelona shall do all those things which their constituents could do if they were present. This is the earliest surviving mandate that I have found for representation in Spain. But poderes were no doubt given to representatives in Castile and in Aragon in the thirteenth century. In 1301 the king of Aragon asked the cities to send delegates with plena et libera potestas (Cortes, I, 1, 183); or with pleno posse (an. 1311; ibid., p. 207).Google Scholar

page 368 note 10 See, for examples, Picot, G., Documents relatifs aux états généraux et assemblées réunis sous Philippe le Bel (Paris, 1901), pp. 2, 27, 164, 170, 497; above all, see the important article by Taylor, C. H., “An Assembly of French Towns in March, 1318,” Speculum, XIII (1938), 296, 299 f.; and McIlwain, , C. M. H., VII, 686 ff. Google Scholar

page 370 note 1 The substance of this paragraph and of the following pages is a summary of a separate study on the Roman principle of judicial consent in relation to private rights, that is, on the maxim, “ut quod omnes similiter tangit, ab omnibus comprobetur” (C. 5, 59, 5 §2); this study will be published separately. Google Scholar

page 370 note 2 But they could also bring petitions at the same time, or. pursue appeals from lower courts. Google Scholar

page 370 note 3 Serfs were not recognized as having such rights as had to be represented—except in so far as their masters represented them; as Cam, Helen M. has said, the shire represented by knights was the community of all men under peers and above serfs, “L'assiette et la perception des indemnités des représentants des comtés dans l'Angleterre médiévale,” Revue historique de droit français et étranger, 4e sér., XVIII (1939), 219ff. Google Scholar

page 370 note 4 Chrimes, S. B., English Constitutional Ideas in the Fifteenth Century (Cambridge: at the University Press, 1936), pp. 43, and 14–16, 38–43. What Chrimes says applies to the thirteenth as much as to the fifteenth century; see the following notes. In general, on the prerogative, see de Lagarde, G., La naissance de l'esprit laïque au déclin du Moyen Age (2 vols., Saint-Paul-Trois-Châteaux [Drome]: Éditions Béatrice, 1934), I, 140–161 ff.; Morris, W A., in Morris, English Government, I, 4–12. Google Scholar

page 370 note 5 I do not mean that he was absolute in jurisdiction; as McIlwain, C. H. says, in this sphere the king was limited by the law; Constitutionalism Ancient and Modern (Ithaca: Cornell University Press, 1940), pp. 79 ff. But Edward I's judges gave the king's right superiority over the private rights of the Lords Marchers, for their quarrels and lawlessness endangered the public safety and utility: “Dominus Rex, pro communi utilitate, per prerogativam suam in multis casibus est supra leges et consuetudines in regno suo usitatas;” Rotuli Parliamentorum, I (London, 1767), 71; Jolliffe, J. E. A., Constitutional History of Medieval England (London, 1937), p. 305. On Bracton's theory of royal jurisdiction and administration, see McIlwain, , pp. 72 ff. Google Scholar

page 370 note 6 See Barraclough, G., “Law and Legislation in Medieval England,” Law Quarterly Review, LVI (1940), 79 —with emphasis on Hengham's famous words, “Ne glosez point le statut: nous [the royal justices] le savons mieuz de vous, quar nous le feimes.” Also, in general, Morris, English Government, I, 4–12.Google Scholar

page 370 note 7 Professor Carl Stephenson attaches no importance to the “case of necessity”—in relation to the right of the king to meet a national danger for the common good; “Les ‘aides’ des villes françaises,” Le Moyen Age, 2e sér., XXIV (1922), 308 ff., 315 f., 322–328. Against Stephenson I am compelled to support French scholars like Coville, A., Les états de Normandie (Paris, 1894), pp. 6, 32 ff., 38 f., 49–54, and Langlois, Ch. V, in Lavisse, III, ii, 250 f. Unfortunately they too miss the connections between consent (Quod omnes tangit), necessity, utility, and the royal prerogative. McIlwain, , C. M. H., VII, 685 f., 691, is in fundamental agreement with Coville and Langlois, but stresses the obligation of responding to the royal summons. But the right to be summoned was also important—at least in the sense indicated in the following paragraph. Google Scholar

page 370 note 8 Ulpian, , D. 1, 4, 2; cf. also D. 1, 3, 8; 1, 3, 40; 10, 16, 10; and Inst. 1, 1, 4. But the same theory of public utility, or the common good, is to be found in Aristotle and Cicero, and in medieval writers from St. Augustine, to Aquinas, Thomas, Dante, Marsiglio, and Ockham, . The Roman jurisconsults added the case of “evident utility” or necessity and emergency to justify new imperial laws that might be contrary to custom and the prevailing law; cf. D. 1, 3, 32 and 37 Google Scholar

page 370 note 9 This persuasion was usually in the form of the speech delivered by the king or his delegate before the assembly In a sense the royal government had to prove its case in the assembly. Although as early as the first half of the thirteenth century the English magnates and prelates were able to refuse a subsidy to Henry III because they successfully argued that there was insufficient evidence for Henry's claim that Louis IX was about to break a truce and thus create a “case of necessity”, generally the king had little difficulty in proving that the enemy was the aggressor, ready to attack the kingdom. The advantage was normally on the side of the royal authority, which already could control the news and shape it for ears ready to believe that the foreigner was wicked. Thus both Edward I and Philip IV in 1294–95 justified the “case of necessity” by shouting aggression at each other—and both got their subsidies. The Church had long since accepted it as legal for a king to demand subsidies of the clergy, provided that the pope was first consulted, for the defense of the kingdom in a just war (Decr. 3, 49, 7). Boniface VIII discovered that the pope had no real power of consent when two national monarchies, both Christian, were determined to tax the clergy for their wars, just or unjust. Google Scholar

page 370 note 10 It is possible that the Statute of York, 1322, embodies both the idea of the “case of necessity” which touches the estate of the king and of the realm, and the corresponding principle of Quod omnes tangit in the consent of the community of the realm to measures taken by the king to meet the emergency and defend the rights of the crown as well as of the community. The famous clause: Google Scholar

“Mes les choses qui seront a establir, pour lestat de notre Seigneur le Roi, et de ses Heirs, et pour lestat du Roialme et du Poeple, soient tretes, accordees, establies, en parlementz, par notre Seigneur le Roi et par lassent des Prelatz, Countes, et Barouns, et la communalte du roialme; auxint come ad este acustume cea en arere” (Statutes of the Realm [London, 1810], I, 189) is no innovation; it confirms custom, as stated; and it means that when either a danger such as war, internal or external, or a new situation arises which is common to all, and touches all, then all must consent to the measures taken, whether such measures be a new subsidy or a new law (statute). Therefore the king must summon the whole community to give counsel and consent; and a part of the community was the representatives of boroughs and shires, or the commons. This did not mean that the commons enjoyed a sovereign right of consent: they simply had, as before, the right to hear the case of the government, and to negotiate on the amount of the subsidy—but they could not legally refuse the subsidy if the king proved that it was a “case of necessity” and that the public safety and good were endangered. The advantage was usually on the side of the prerogative. As for a new law, the commons had, it seems, the right to bring such information about local conditions as would help the king and his council to formulate the statute; but the commons had no power to consent to legislation in the modern sense—they could only present petitions asking for a law or complaining against a law that might injure local custom and liberties. However, it may well be that it was not yet considered that law-making touched the commons; consequently only the king, council and magnates may have been involved. But certainly a “national emergency” which called for a national tax did touch the whole community and thus the commons within the community; and in taxation, therefore, their consent was legally necessary. But, to repeat, their consent to a subsidy was still not sovereign; the king's right was superior to individual rights in an evident “case of necessity.” Google Scholar

But these remarks are tentative; I hope to develop them in the near future, and to apply the principles outlined above to the interpretations of the Statute by Lapsley, G., Haskins, G. L., Strayer, J. R., and Morris, W A. Google Scholar

page 370 note 11 It was not merely the expense that discouraged willingness to attend the assembly; it was also the desire to delay consent to what the king would surely demand. Of course, communities might insist on the right of sending representatives in order to press their own private interests, in the form of petitions and appeals. Just as the king needed to summon representatives not only to obtain the consent formally required, but also to get a report (“the record”) on conditions in the country Google Scholar

page 370 note 12 It has long been held that Parliament was largely judicial and conciliar in character and in procedure—by Maitland, and McIlwain, , and most recently by Morris, , “Introduction,” English Government, I, 4 ff., 11 f., 13 ff.; Plucknett, T. F T., “Parliament,” ibid., pp. 82–9, 112 ff. Morris and Plucknett emphasize the conciliar nature of Parliament, but also maintain the importance of the king's imperium in his presidency over the assembly Richardson, H. G. and Sayles, G. O., “The Origins of Parliament,” Transactions of the Royal Historical Society, XI, (1929), 137–83, perhaps over-stress the judicial nature of Parliament; it was also conciliar, and even, in the broad sense, administrative. Google Scholar

page 370 note 13 But just as in the United States eminent domain involves the taking of private property, while taxation (also for the public good) does not, so in the thirteenth century the power of taxing did not mean taking real property Google Scholar

page 370 note 14 The formulas used in the mandates along with plena potestas reinforce this conclusion; generally, the powers are given to the representatives to consent to what is ordained by the king and his council. In 1294 the knights are to have the power, obligandi comitatum et faciendi quod per consilium domini regis ordinaretur ; Edwards, , Plena Potestas,” Oxford Essays to H E. Salter , p. 145, quoting Bartholomew Cotton. In 1282 Edward I's writ of summons had specified that the representatives of counties and towns should have power ad audiendum et faciendum ea quae sibi ex parte nostra faciemus ostendi (Stubbs, S. C., p. 458); in 1290, knights from the shire shall have full powers ad consulendum et consentiendum hiis quae comites, barones et proceres praedicti tunc duxerint concordanda, and the same in 1294 (S. C., pp. 472 f., 476 f.; the knights are to hear and do quod eis tunc ibidem plenius injungemus, p. 477). For the famous Parliament of 1295 Edward emphasized full powers as essential in order to prevent delays—i.e., no limited mandates are to be given representatives by communities; when the king orders that the representatives have plena et sufficiens potestas to do quod tunc de communi consilio ordinabitur, there can be little doubt that “common counsel” involves no real participation of the commons in the government, or in the king's Council (cf. Plucknett, op. cit., p. 101, for the like conclusion for the years 1327–36). As Plucknett says (op. cit., pp. 101 f.), “Probably all that was required of them [i.e., the representatives] was authority to do and to consent to whatever might be ordained; the magnates were summoned to treat and give counsel; the commons, however, were not called to give advice, nor to treat and reach decisions.” But in the sense of giving information and defending local interests, and of negotiating, the commons did give advice and they did “treat”—tractare often means defense, by assertion of legal rights in court. See also Jolliffe, , Eng. Const. Hist., p. 351.Google Scholar

Finally, the use of the Romano-Canonical equivalent of plena potestas should be noted. powers to do quae vos ipsi (i.e., the constituents) facere possetis si praesentes ibidem essetis (an. 1265; Stubbs, , S. C. , p. 406 f.).Google Scholar

page 370 note 15 One fourteenth century commentator declares that the king can impose an aid “pro communi terrae utilitate etiam non vocatis subditis”; but no doubt the king in practice could obtain no subsidy without summoning representatives of the town and the nobles; as Lucas de Penna says, “quod honestum et necessarium esset eos, quos hoc negotium tangit, ad rei examinationem evocari, ut ex consensu omnium fiat, et sic videmus etiam in Regibus de consuetudine fieri;” Siete Partidas, II, i, 8, ad v. Venga. See Merriman, , Spanish Empire, I, 225, on a servicio above the customary amount.Google Scholar

page 370 note 16 Merriman, , op.cit., I, 221–3. If the king had the right to interpret the poderes, they were not, as Merriman maintains, “one of the most important safeguards of Castilian parliamentary liberty” (p. 223). A thorough study of the question is needed for Spain.Google Scholar

page 370 note 17 See the interesting form-letters published by Usón y Sesé, M., “Un formulario latino de la cancilleria real aragonesa (siglo XIV)”, Anuario de Historia del Derecho Español, VI (1929), 402f.; c. CIV, Super subsidio postulando ratione guerre; c.CV—because of an invasion, which concerns the honor and glory of the royal crown and of all faithful subjects, the king asks a city to support “causam nostram, que vos principaliter velut caput nostre celsitudinis tangere noscitur nobis in tante necessitatis articulo quod nos et vos deceat faciatis subsidium” Google Scholar

page 370 note 18 For Castile, Merriman, op.cit., I, 225. For Aragon, Merriman, I, 460f., 483; McIlwain, , C. M H., VII, 699, 703. It is possible that McIlwain, (p. 699) misinterprets the situation of 1322, when only the proctors of the third estates granted a subsidy to the king. He concludes that they alone participated in this grant; I would conclude that the representatives were unable to refuse. The nobles probably were more important than the representatives of cities in limiting the royal power. Google Scholar

page 370 note 19 Cortes de Aragon, I, i, 183.Google Scholar

page 370 note 20 Cortes de Aragon, I, i, 195 f. Google Scholar

page 370 note 21 Cortes de Aragon, I, i, 576ff. Barcelona issued a mandate conferring full powers on its representatives for acting with others on the contents of the royal summons; the city ratified whatever should be done by all the representatives (syndics) or by the maior pars of them. Lerida (pp, 578ff.): two proctors (for the negocia of the king) to be present in the Curia, “ad tractandum et ordinandum” with the prelates, chapters, magnates, knights and other city representatives, “et ad concedendum firmandum laudandum approbandum consenciendum et ratificandum” all that the members of the assembly shall approve and ratify; “ad contradicendum requirendum et protestandum in animas dictorum constituencium nomine universitatis predicte quelibet juramenta necessaria vel opportuna fieri ad predicta”; and to do whatever seems expedient to the said syndics and proctors, even if a special mandate is required. Gerona (p. 581): its proctors have power to consent to the “tractatibus et ordinacionibus” in the Cortes, and even “ad dissenciendum si eisdem videbitur faciendum, et ad protestandum dicte curie seu in dicta curia” if expedient; and to present capitula and supplicaciones (petitions). The villa of Cervaria (p. 586), after giving its syndics the normal powers for Cortes, also gave them “meram liberam ac generalem administrationem cum plenissima facultate” and to each syndic these powers in solidum. The universitas of Villafranca (p. 588): powers to give consilium and juvamen to the king, to treat and consent, also “ad excusandum et defendendum, reverencia Regia semper salva, dictam universitatem ab eisdem que in dicta littera [the king's summons] continentur,” and “ad petendum requirendum et supplicandum” (plena et libera potestas, and libera et generalis administracio). Puigcerda (p. 590): powers for doing all things “eciam si talia sint que de sui natura mandatum exhigant speciale ac maiora graviora et duriora que in presenti sindicatus instrumento contineantur vel sint nominatim expressata.” Google Scholar

For the Cortes of Barcelona (1358) mandates detailed powers more abundantly still, and some show more clearly a strong influence of the judicial procedure, as if the proctors appear to join their colleagues in defending their rights in the king's court. The town of Regalis (pp. 611 ff.), by the authority of the lieutenant of the royal baiulus, gave its proctors (12 of them) powers to appear “coram Rege seu eius procuratore” or any royal deputies for any matters and discussions “tam in subveniendo et concedendo similia que per alias universitates tocius Cathalonie Regi fuerint concessa, quam eciam in tractando utilitatem publicam ad reformacionem boni status” of the kingdom; for rendering fealty to the king; for renouncing the privilege of its own forum and of its immunity, for submitting the universitas and its members and their bona to courts whether of judges ordinary or delegate, and for appearing in such courts; for declaring and promising to pay anything contracted; for receiving warnings, requisitions, and sentences of execution and condemnation from any judge against the town, for renouncing all dispensations and privileges, and full powers for all lawsuits (excepting, replying, etc.).Google Scholar

Another town (locus, pp. 616 ff.) gives powers to wage any kind of suit with any other corporations or persons in the royal Curia, before the king or his procurator, or in any lower courts; to present complaints against royal officers; to present appeals, petitions, etc.; to renounce the right to ask for royal dispensation from the payment of the “violariorum seu censualium mortuorum” requested by the king; to grant to the king all that is granted by other towns and cities, as requested by the king, and “[ad] assecurandum illas peccunie quantitates que ad nos et ad dictam universitatem tangeant pertineant et expectent seu ad nostram partem perveniant, si casus erit quod per ipsum dominum Regem aut aliquem loco sui petantur demandentur seu exigantur illi vel illis, cui vel quibus per ipsum dominum Regem vel eius venerabiles Consiliarios ordinabuntur vel mandabuntur Et ad obligandum nos et bona nostra et dicte universitatis et singularium” for any sums of money that “proferentur, dentur seu promittentur” to the king for any cause or reason; “Et ad interessendum eciam in curiis generalibus domini Regis et parlamentis et consiliis generalibus vel specialibus quibuscunque et ubicunque teneantur seu per Regem mandentur, et ibi per vos et per dictam universitatem concedendum atorgandum promitendum consenciendum et assenciendum omnia et singula et similia que per alios sindicos nuncios et procuratores civitatum villarum et locorum regalium Cathalonie concedantur promitantur et consenciantur de quibuscunque negociis ibi tractetur seu ordinetur, et firmandum et laudandum ea omnia et singula que in comodum veniant ad Regem et ad totum Regnum suum, et prout per ipsum dominum Regem mandetur ordinetur seu alias voluntati sue videbitur expedire.” Further, powers are given to do and ordain everything pertaining to the aforesaid “ubique in judicio et extra judicium” that true proctors can do. If any unmentioned points come up, the proctors have the power for these things understood.Google Scholar

These points should be emphasized. The royal civitas seems to have greater weight in the Cortes than the villa or locus, which appoints its proctors under the authority of royal officials for Cortes and for all royal courts, while coöperating in the common consent of all the representatives to the king's decisions. The right of consent is asserted, but it is still judicial, not political, consent to what the king and his Council decide after giving all interested parties a hearing and a chance to defend their interests. Finally, it will be noted that the mandates all express full powers in varying fashion, but in such fashion generally that there is no reference back or referendum. If the proctors of Gerona can dissent, it is by petition in the court that they do so.Google Scholar

page 370 note 22 On the actual powers of the representatives when the king's authority was weak, see Merriman, , Spanish Empire, I, 432–50, 460–62. The king's prerogative was not so much involved in struggles between king and Cortes as the question of forcing the king to rule according to law and in observance of individual rights. Thus I do not believe that representation even in fourteenth century Aragon was a democratic institution reflecting the will of the people; it reflected the law of the land.Google Scholar

page 370 note 23 Beaumanoir, , Coutumes de Beauvaisis (ed. Salmon, A.; Paris, 1899–1900), c. IV, §§4 and 13, had already accepted the Roman plena potestas for court procedure in a region of customary law; he gives an example of a mandate with pleniere poeste for action before any judges or officers, and emphasizes that (§13) one should answer only to a proctor who has a “sufficient mandate” (i.e., full powers), for then if one wins one is sure that the dominus of the proctor must be responsible.Google Scholar

For further discussion on “sufficient instructions,” see below, §5.Google Scholar

page 370 note 24 Picot, Documents, nos. I and XI (pp. 1, 27); Taylor, C. H., “Some New Texts on the Assembly of 1302”, Speculum, XI (1936), 3842; McIlwain, , C. M. H., VII, 686. CrossRefGoogle Scholar

page 370 note 25 Picot, , p. 164.Google Scholar

page 370 note 26 Picot, , p. 170: Saint Marcel appoints seven proctors to appear before two royal deputies, or before any royal curiales, “ad omnes causas seu demandas” of the royal Curia “contra dictam universitatem seu contra aliquem de dicta universitate”; the proctors are given full powers and special mandate “agendi, deffendendi, excipiendi, proponendi, libellum seu libellos petendi seu porrigendi, litem seu lites contestandi, etc.” This mandate is not for a States General, but for responding to the demands of royal agents in a local assembly.Google Scholar

page 370 note 27 Picot, p. 497; other examples given by McIlwain, , C. M. H VII, 688f., and by Langlois, , in Lavisse, , III, ii, 262. Google Scholar

page 370 note 28 Jusselin, M., “Lettres de Philippe le Bel relatives à la convocation de l'assemblée de 1302,” Bibliothèque de l'École des chartes, LXVII (1906), 471; cf. Langlois, , in Lavisse, , III, ii, 262–4, also 160f., 261. Google Scholar

page 370 note 29 See the important work by Strayer, J R., Consent to Taxation under Philip the Fair (in Strayer, and Taylor, , Studies in Early French Taxation; Cambridge, Harvard University Press, 1939). Strayer admirably demonstrates the machinery by which the royal government obtained taxes, and shows how the French people failed to “secure control of taxation and some voice in legislation” (p. 91) because of localism and the paradoxical weakness (p. 94) of the king; but he does not look at the other side of the question: the power of the royal government and the use of the machinery of representation not only to get information (p. 21) but also to obtain the consent necessary if local rights and custom were to be respected according to the principle Quod omnes tangit. The early use of representation was not merely for information and publicity; it was in addition an attempt to conform to the thirteenth century idea of getting consent in a general assembly in order to prevent later, legally justifiable, resistance to the tax. If resistance did develop in spite of the general consent given in States General, this was, when not contrary to the law, in conformity with the legal practice of dilatory procedure, of continuing litigation by appealing and making excuses to the last ditch. Courts could decide, but strongly traditional localism could delay and obstruction override the decision without denying the theoretical jurisdiction of the courts. Not even the royal absolutism of Louis XIV produced universal obedience to the will of the government. See below, §5, nn. 64ff., and text. On delays caused by contumacy, or defaulting, see Picot, , Documents, no. 137 Google Scholar

page 370 note 30 Post, , Speculum, XVIII, 228.Google Scholar

page 370 note 31 McIlwain, , C. M. H., VII, 705f. The Kingdom of Sicily needs further study But under Frederick II representation meant centralization under the real authority of the king; similarly in the time of Charles of Anjou. Space is lacking for any adequate treatment at this time. But see McIlwain, , C. M. H., VII, 704. Google Scholar

page 370 note 32 The subject of the church council as a high court will be treated elsewhere. Google Scholar

page 370 note 33 In 1226 the Chapter of St. Osmund's, Salisbury, instructed its proctors to resist, in a national council held by the Archbishop of Canterbury, a royal demand for a subsidy; Register of S. Osmund (ed. Rich Jones, W. H.; R.S.), II, 64f.; Weske, Dorothy Bruce, Convocation of the Clergy (London, 1937), pp. 42ff., 201–3; Lunt, W E., “The Consent of the Lower Clergy to Taxation during the Reign of Henry III,” Essays in Honor of George Lincoln Burr (New York, 1931), pp. 121 f.; Lunt, Financial Relations of the Papacy with England to 1327 (Mediaeval Academy of America, Cambridge, 1939), pp. 187 f. In 1283 the clergy of the province of Canterbury asked Archbishop Peckham to grant a delay for considering a new royal request because their potestas, quae limitata fuerit, did not extend to this; Peckham, Register (ed. Martin, C. T.; R.S.; London, 1882–5), II, 536. On limited powers see below, §5. Google Scholar

page 370 note 34 Mansi, , Concilia, XXII, 1213–17; Paris, Matthew, Chron. Maj., III, 105ff.; Powicke, F M., Stephen Langton (Oxford, 1928), pp. 158f.; Lunt, , Financial Relations, pp. 178–86, for the refusal of the English clergy.Google Scholar

page 370 note 35 Petit-Dutaillis, Ch., Étude sur la vie et le règne de Louis VIII (Paris, 1894), pp. 288–94; Berger, E., Histoire de Blanche de Castille (Paris, 1895), pp. 96–8; Auvray, L., ed., Les registres de Grégoire IX (Paris, 1896–1907), nos. 134 and 155. Why consent could be refused to a demand for prebends and not for taxes needs further study; but it may be that there was already some distinction between taking property and taking taxes; besides, taking prebends for the necessities of the Curia was not demonstrably for the common utility of Christendom. Google Scholar

page 370 note 36 Below, §5. Google Scholar

page 370 note 37 No one could deny that representatives of the clergy had no power of limiting the plenitudo potestatis of the pope in a General Council. But it is interesting to show this by a mandate issued by the Benedictine prior and convent of Norwich for their proctors for the Council of Vienne, 1311; their proctors (4) are given “generalis potestas et mandatum speciale in dicto concilio interessendi, tractandi, ac plenum et expressum consenssum prebendi, una cum ceteris in dicto concilio legitime comparentibus, super omnibus et singulis dicto concilio deductis et per Dei graciam deducendis., necnon ad omnia alia que in eodem concilio statuentur, fient, ordinabuntur, et que secundum tenorem mandati apostolici fuerint opportuna, faciendi, consenciendi, expediendi, eciam si mandatum exigant speciale, pro eisdem vero rem ratam haberi et iudicatum solvi sub ypotheca rerum nostrarum promittimus et exponimus cauciones;” Pantin, W A., ed., Documents Illustrating the Activities of the General and Provincial Chapters of the English Black Monks, 1215–1540 (Camden Third Series; 3 vols; London, 1931–37), I, 171. This general mandate shows clearly the judicial character of the General Council.Google Scholar

If a papal legate held a council, he too had the real authority, and representatives of the clergy were sent with full powers to consent to his decisions. This is illustrated by a mandate given by the monastery of Bec to its proctors for a legatine council at Paris in 1284; the proctors are given power “ad audienda, referenda et recipienda mandata sedis apostolice atque vestra;” plena potestas is not given, but its equivalent is, i.e., the clause ratum etiam habituri et gratum quicquid, etc.; in MS. Cotton Dom. A. XI (British Museum), fol. 131. Another illustration comes from the legatine Council of London 1237: proctors shall bring mandates, “ut quicquid in concilio statueret legatus, ratum utrobique haberetur;” Matthew Paris, Chron. Maj., III, 415.Google Scholar

Even the diffinitores presiding over a provincial chapter of the Dominican Order and the abbates presidentes of a General Chapter of the Benedictine Order act as judges in high court; consequently the powers of consent given to representatives of convents are judicial, not sovereign. Thus in 1287 the prior and convent of Bec send to the “presidents” of a General Chapter of Abbots of the province of Rouen two proctors “ad proponendum et ostendendum coram vobis” the rationes demanded by the “presidents”; the proctors are also appointed to “hear, report back, or prosecute the negocium, and to appeal”; they are given potestas plenaria and mandatum speciale (MS. Cott. Dom. A. XI, fol. 121). For other examples relating to General Chapters of the Black Monks in England, see Pantin, , Documents, III, 264–75; still other examples, I, 128, 141 f., 144; III, 276.Google Scholar

As for provincial councils of archbishops and bishops, the proctors are given powers to appear before the archbishop and to consent to the acts of the Council: Council of Béziers, 1280—proctors of the chapter of Elne, “ad audiendum tractatus super negotiis universalem statum totius Narbonensis provinciae tangentibus, et ad faciendum super praedictis, prout memorato concilio expedire visum fuerit, et Dominus ministrabit; ratum et firmum perpetuo habituri, quicquid super praemissis per eumdem procuratorem fuerit procuratum;” Mansi, , Concilia, XXIV, 364 f. Google Scholar

Likewise, for the convocation of the English Clergy when the King held a Parliament. If the communitas cleri seems to have the power of consent in 1283 (the archbishop of Canterbury summoned proctors, “sufficienter instructi,” of chapters and of dioceses to bring “plenam et expressam potestatem tractandi et consentiendi quae ibidem cleri communitas providebit;” Stubbs, , S.C., p. 459; Peckham, , Register, II, 509; Clarke, , Medieval Representation, pp. 312 f.), this consent is controlled by the prelates who are the essential Convocation or Council. In 1295 Edward I ordered the clergy of the province to send proctors with plena potestas “ad tractandum, ordinandum et faciendum nobiscum, et cum caeteris praelatis, proceribus et aliis incolis regni nostri, qualiter hujusmodi periculis et excogitatis malitiis obviandum;” Wilkins, , Concilia, II, 215; Stubbs, , S.C., p. 480. If the king stressed the Roman principle of consent, Quod omnes tangit, etc., in his writ to his two Archbishops in 1295, this judicial and conciliar consent was clearly connected with plena potestas by the archbishop of Canterbury in 1296; the proctors of chapters and of the diocesan clergy shall attend the assembly, “ad tractandum, ordinandum nobiscum, et tractatibus et ordinationibusque in praemissis faciendis, ac omnibus tractationes et ordinationes hujusmodi contingentibus, nomine dominorum consentiend[um] plenam et sufficientem potestatem habentes Cum commune sit periculum, et per consequens communibus, absque cujusque fori privilegio, remediis congruis devitandum, et quod omnes tangit, merito debet ab omnibus approbari;” Wilkins, , Concilia, II, 219 f. Note the emphasis of the privilegium fori in connection with consent!—due process of law in court seems to be the main point.Google Scholar

page 370 note 38 Evidence will be brought to bear in my full study of the “case of necessity” and public utility. Google Scholar

page 383 note 1 So the argument of Clarke, Maude V, Medieval Representation and Consent, p. 291; her contention is not based on any study of the legal meaning of the mandate, plena potestas, and agency.Google Scholar

page 383 note 2 However near the correct interpretation his may be, it is not intended as a study of the legal background. Consequently it seems necessary to review his conclusions in the light of legal theory. See Taylor's article, “An Assembly of French Towns in March, 1318,” Speculum, XIII (1938), 295303; also his Assemblies of Towns and War Subsidy, in Strayer, J. R. and Taylor, , Studies in Early French Taxation, pp. 128 ff. Google Scholar

page 383 note 3 “An Assembly of French Towns,” Speculum, XIII, 299, 302; Jusselin, M., “Lettres de Philippe le Bel,” Bibl. de l'École des chartes, LXVII, 407 f., for the summons; also Langlois, in Lavisse, III, ii, 160 n. 2, 280.Google Scholar

page 383 note 4 Speculum, XIII, 299, n. 2. Cf. Viollet, P, Histoire des institutions politiques et administratives de la France (Paris, 1903), III, 98 f: a limited mandate was back of the practice of the deputies' refusing to consent to new burdens demanded by the king, because, as they alleged, they must refer back to their constituents (p. 198, n. 3: “pro eo quod asserebant se a suis communitatibus seu universitatibus nullam super hoc potestatem habere, nisi tantummodo audiendi et dictis suis communitatibus seu universitatibus referendi;” p. 199: in 1303 the Chapter of Nîmes gave these powers, “comparendum, tractandum et refferendum dicto capitulo,” and this mandate was judged insufficient—Picot, Documents, p. 242, no. CLXVIII). Hence, says Viollet, the king almost always insisted that the representatives have full powers and not a limited mandate.Google Scholar

Sometimes, however, the referendum stated in the mandate does not mean “reference back” in the above sense; it may mean simply the power given the proctor to “bring back” the decision of the assembly without any implication of a refusal to accept; in 1300 the proctor sent by a monastery to a royal convocation was given power ad audiendum et referendum what was ordained by the king, but also ad obtemperandum the royal commands, si necesse fuerit; quantum justum fuerit ; Langlois, C. V, “Formulaires,” Notices et extraits, XXXIV, 21 f. The power to “obey” is an unusual expression, but the expressions si necesse fuerit, quantum justum fuerit show that obedience to the royal will was not questioned except in the medieval sense of obedience only if the king's will were based on justice and law (other examples are referred to by McIlwain, , C. M. H., VII, 688). Sometimes the proctors of ecclesiastical communities in provincial councils went with instructions in the mandate to consent and to bring, or refer or report, back the decisions and statutes made by the higher prelates; see above, §4, n. 37 So also in the case of proctors of a group of villages in France, 1308, who were appointed ad audiendum et reportandum mandata seu statuta (Picot, Documents, p. 673, no. 998); cf. no. 996: the proctors of Autun are appointed ad audiendum ordinationem of the King. Google Scholar

For a similar use of obtemperare, see the request of the Chapter of St. Osmund, Salisbury, in 1226, that proctors appear before the Archbishop of Canterbury, “ut de uniformi eorum provisione et consilio, tam certa et tam uniformis procedat responsio, ut domini P P., si viderint expedire, obtemperetur mandato et ad honorem totius ecclesiae Anglicanae et ad cleri protectionem;” this was a papal mandate to the clergy to pay an aid to the king; Reg. S. Osmund, II, 61 f. Again there is question only of defense of legal rights before submission to the papal authority.Google Scholar

page 383 note 5 Here Taylor cites Picot, Documents, pp. 148149 and passim, and says that this was a common phrasing to sum up full powers. Actually, possit facere omnia que ipse dominus possit was an equivalent of plena potestas; both did not have to be stated; so Bartolus and Baldus, to C. 2, 12, 10, on plena potestas—see above, §1, nn. 11, 12.Google Scholar

page 383 note 6 Speculum, XIII, 299 f. Google Scholar

page 383 note 7 Speculum, XIII, 300 ff. Google Scholar

page 383 note 8 Maitland, , Selected Essays (Cambridge: at the University Press, 1936), pp. 5 f. Google Scholar

page 383 note 9 Dominican Order and Convocation (Oxford, 1913) p. 73.Google Scholar

page 383 note 10 Speculum, XIII, 299 f., 300n. Google Scholar

page 383 note 11 Lucas, H. S. also distinguishes between the mandate or credentials and the instructions given to English ambassadors in 1327–1336; “The Machinery of Diplomatic Intercourse,” in Morris, , English Government, p. 309. As Lucas says, the letter of credence rarely stated the details of the subject of negotiations; the agent was fully “instructed” by the king either viva voce or in a separate instrument.Google Scholar

page 383 note 12 Innocent III issued decretals on the subject: Decr. 1, 5, 5 Postulationem, vv “per procuratores idoneos ad omnia sufficienter instructos“; and Decr. 2, 14, 6 Cum dilecti: a certain defendant had been cited by the pope to appear in the Curia “per se vel per procuratorem sufficientem sufficienter instructum, ne postmodum per dilationes vel occasiones quaslibet subterfugere videretur examen.” It appears frequently in thirteenth century treatises on procedure. In 1226 the Archbishop of Canterbury, granting the request of the Chapter of Salisbury, permitted the bishops to ask cathedral chapters to send each an “ydoneum procuratorem sufficienter instructum super negotio” of the aid asked by the king; Reg. S. Osmund, II, 62 f. Google Scholar

page 383 note 13 All the treatises on judicial procedure discuss the libellus or petitio submitted to the judges by the plaintiff, the court summons to the accused, and the delays granted to the latter for preparing his defense. See the collection of treatises edited by Wahrmund, , Quellen ; and Beaumanoir, , Coutumes de Beauvaisis, cc. ii–iv, vi, vii. v Bethmann-Hollweg, M. A., Der Civilprozess des gemeinen Rechts (6 vols; Bonn, 1864–74), VI, 2753, gives only a very general discussion that is not helpful here.Google Scholar

page 383 note 14 On this kind of information, see the Curialis (1251–70) in Wahrmund, , Quellen, I, iii, 10f.; and other treatises listed below, nn. 18, 19.Google Scholar

page 383 note 15 Decr. 2, 8, 2.Google Scholar

page 383 note 16 Curialis, c. VI (Wahrmund, , I, iii, 17): “Sicut videtur quaedam decretalis, reus inducias habere non debet, nisi in libello citatorio aliquid fuerit incertum, quia ex eo potest deliberare et instrui, super quo convenitur, ut Extra, de dilationibus, praeterea [Decr 2, 8, 2].” But to this the defendant can reply, “quod etsi sciebat, super quo debeat conveniri, tamen nesciebat, qua actione, super qua causa, et ideo non potuit deliberare.” The success of such caviling depended on the will of the judge.Google Scholar

page 383 note 17 Glos. ord., to e. c., ad v. plene [potuit instrui]: “et si tunc per litteras vel libellum plene instrui potuit, non debet alias inducias deliberatorias habere” The gloss explains that the actor or plaintiff is not given delays because he is naturally fully instructed or informed at the start.Google Scholar

page 383 note 18 See Anglicus, Richardus, Summa de ordine iudiciario (ed. Wahrmund, , II, iii), c. XXV Google Scholar

page 383 note 19 Innocent IV, Apparatus, to Decr. 1, 38, 11 Dilectus, ad v. consulet: “Ar. quod si qui citatus est, non expresso super quo, et citatus constituit procuratorem, procurator debet habere inducias ut consulat dominum.” Google Scholar

On this whole question of delays see also Richardus Anglicus (ca. 1196) Summa, cc. XXII, XXIV, XXV; Tancred (ca. 1214–16), Ordo Judiciarīus, P 2, t. 17 (ed. Bergmann, F., pp. 180–4); William of Drogheda, Summa aurea (ca. 1239), c. CCCLVIII (Wahrmund, , Quellen, II, ii, 292–5); the Curialis (1251–70), c. XXV (Wahrmund, , I, iii, 11–13). Cf. Bartolus to D. 3, 3, 2: “Sed procurator possit petere dilationem ut certificetur a domino quid respondeat,” if proper instructions are not given to the dominus in order that he may instruct his proctor. If the dominus is instructed and summoned specialiter, he must send “procuratorem instructum quid respondeat, et ideo non debet sibi dari dilatio; imo si non vult respondere, punietur dominus, ut contumax Innoc. in c. dilectus.” Google Scholar

page 383 note 20 See the decretals of Innocent III, cited above, n. 12. Pope Gregory IX issued a decretal (1227–34) in which he explained that a litigant should be represented “per procuratorem idoneum et sufficienter instructum ad litem contestandam et ad alia omnia negotia peragenda quae necessaria decisioni negotii videbuntur” (Decr. 2, 14, 10 Venerabilis); Glos. ord., ad v. sufficienter instructum: “Sufficiens dicitur qui ad agendum et defendendum et respondendum constitutus est legitime;” and in support of this the author of the gloss refers to three decretals on proctors and their mandates (Decr. 1, 38, cc. 1 Alia quidem, 10 Accedens, and 13 Mandato). From these decretals and their glosses we learn that the proctor legitime constitutus is one who is provided with a mandate given with the consent of the interested parties; see the following notes. Also Bartolus, Com., to D. 3, 3, 1, no. 1: “Ille qui mittit ad iudicem procuratorem cum mandato non sufficienti, non est amplius citandus, tanquam vere contumax. Videtur enim declarasse se nolle venire” But Bartolus also indicates that the procurator instructus is instructed by his constituent on how to reply (to D. 3, 3, Non solum, no. 2: the proctor may obtain a delay, “ut certificetur a domino quid respondeat Aut fuit citatus [dominus] specialiter, et tunc debuit mittere procuratorem instructum quid respondeat, et ideo non debet sibi dari dilatio”).Google Scholar

page 383 note 21 Glos. ord. to Decr . 1, 38, 1 Alia quidem, ad v legaliter. Of course, where a business concerned only the chapter, the consent of the prelate was not needed; and vice versa .Google Scholar

page 383 note 22 Gloss to c. 1 Alia quidem, ad v mandato. Authenticity was assured further by the attestation of notaries or by the seal attached to the mandate. This gloss was taken from Tancred, to Comp. I, 1, De procur., c. 1 Alia quidem; ad v. mandato legaliter: “In hoc mandato tria contineri debent, scilicet, nomen eius qui procuratorem constituit, causa ad quam constituitur, et quod ratum habebit, quod cum eo actum fuerit t.” Vincentius Hispanus adds: “Sed pone quod de mandato dubitetur, quia sigillum incognitum est: de eo fides fieri debet Vinc.” (Bamberg, MS. Can. 20, fol. 17v c. 1). All this relates to the corporate proctor.Google Scholar

page 383 note 23 Glos. ord., to c. 10 Accedens, ad v. respondendum: “Sic ergo debet constitui procurator ad agendum datus, ut possit etiam defendere et respondere adversario si eum reconveniat: alias si non defenderet, denegabitur ei actio, et in expensis alteri parti tanquam contumax condemnetur. In qua constitutione debet satisdationem exponere, per quam ipse [dominus] fideiussor sui procuratoris existat, iudicatum solvi sub hypotheca rerum suarum; et quod tempore sententiae erit in iudicio, alias omnia dabit quae in condemnatione veniunt, ut ibidem dicitur: et ita plenam habet potestatem. Google Scholar

page 383 note 24 Glos. ord., ad v. mandato procuratoris .Google Scholar

page 383 note 25 See Jolowicz, H. F, Historical Introduction to the Study of Roman Law (Cambridge: at the University Press, 1932), p. 289. The defendant should, outside court, give security (satisdatio) and make himself the surety (fideiussor) of his proctor for all the clauses of the satisdatio which was the iudicatum solvi; Inst. 4, 11, de satisd., 4: “extra iudicium satisdationem exponere, per quam ipse sui fideiussor existit pro omnibus iudicatum solvi satisdationis clausulis.” See on this question Collinet, P, La procédure parlibelle (Études historiques sur le droit de Justinien, IV; Paris, 1932), p. 140. The proctor himself furnishes the satisdatio or iudicatum solvi to the court, and for all the clauses of the satisdatio (to remain at the court, to conduct the suit to the end, to pay the condemnation); Collinet, pp. 190 f., and in general pp. 188 ff. Actually, the clause iudicatum solvi frequently appears in defendants' proctorial mandates of the thirteenth century and later; but it is not necessary to study this question in detail for the present purpose. Google Scholar

page 383 note 26 Aegid. de Fusc., Ordo iudiciarius, c. XV (Wahrmund, , Quellen, III, i, 28 ff.).Google Scholar

page 383 note 27 C. XV (Wahrmund, , III, i, 28).Google Scholar

page 383 note 28 C. XV (Wahrmund, , III, i, 29).Google Scholar

page 383 note 29 Idem, c. XX, p. 34: “Contra formam [procurationis] multa possunt opponi; si constituatur [procurator] generaliter nec habeat mandatum ad agendum et defendendum, non valet Nec est sufficiens procurator, scilicet rei, constitutus ad agendum, si non contineatur: ad defendendum” Google Scholar

page 383 note 30 For example, the proctor could accept or refuse the judges delegated by papal rescript for the suit, make exceptions or pleas, offer replies (replicationes) to exceptions, etc. Google Scholar

page 383 note 31 Innocent IV, Appar., to Decr. 1, 38, 11 Dilectus, ad v a iudicibus: “Nam si ad causam, que commissa est procuratori, ut eam defendat, citetur procurator, has non debet dare iudex inducias, quia presumitur quod dominus instruxerit eum.” But Innocent IV would grant delays to the defendant's general proctor in the event that a new charge, unknown to the constituent, should arise; also to a proctor for one suit if the constituent was not instructed properly by the court on the nature of the accusation. Google Scholar

page 383 note 32 Bartolus, to D. 3, 3, 1, no. 1: “Ille qui mittit ad iudicem procuratorem cum mandato non sufficienti, non est amplius citandus, tanquam vere contumax. Videtur enim declarasse se nolle venire” Google Scholar

page 383 note 33 Aegidius de Fuscarariis, Ordo Iudiciarius, ed. Wahrmund, , Quellen, III, i, 34: “Contra formam [procurationis or mandati] multa possunt opponi; si constituatur generaliter nec habeat mandatum ad agendum et defendendum, non valet Nec est sufficiens procurator, scilicet rei, constitutus ad agendum, si non contineatur: ‘ad defendendum’ ut (Decr. 1, 38, cc. 10 and 12, Accedens and Constitutus).” Google Scholar

page 383 note 34 Honorius III (1216–27) declared that if the intention of the principal was to give his proctors libera potestas, even though the proper terminology was lacking, then the mandate should be held valid by the judges (Decr. 1, 38, 9 Petitio). On this see the Glos. ord. ad v. intentio: “Sic patet quod quando verba generalia sive dubia ponuntur in mandato, recurrendum est ad intentionem constituentis Unde si diceretur: ‘ego do Titio potestatem agendi et defendendi in causa vel in causis, quam vel quas habeo cum tali’, sufficiens est mandatum, non obstante subtilitate legali” Google Scholar

page 383 note 35 Glos. ord., to Decr. 1, 5, 5 Postulationem (Innocent III), ad v. [per procuratores] idoneos [ad omnia sufficienter instructos]: “Quia sciant et possint reddere rationem, 17 Dist. multis (Dist. 17, c. 5), et infra, de procura. c. 1 (Decr. 1, 38, 1 Alia quidem).” (This gl. derives from Laurentius Hispanus, to Comp. III, 1, 4, 5, ad e. v.—Bamberg, MS. Can. 19, fol. 123 c. 2). To c. Alia quidem, in which Gregory I ordered a bishop to send an “instructam personam cum mandato legaliter facto, gestisque ex more indicto, ut quicquid cum ea actum fuerit iure subsistat,” Innocent IV, Appar., ad v. gestisque, says: besides gesta in the sense of deeds, are “gesta quedam facta in scriptis redacta vel pocius ipse scripture in quibus gesta referuntur, et iste scripture apud se. [dem] ap. [ostolicam] dicuntur registra; et ista gesta si sunt bene custodita et inveniantur in archivis auctenticarum personarum, puta earum qui habent potestatem auctenticas scripturas faciendi, fidem faciunt hic” Google Scholar

page 383 note 36 Bartolus, above, n, 20. Google Scholar

page 383 note 37 D. 3, 3, 49: “Ignorantis domini conditio deterior per procuratorem fieri non debet.” Google Scholar

page 383 note 38 Decr. 2, 14, 10 Venerabilis .Google Scholar

page 383 note 39 Decr. 2, 8, 4 Exposuit .Google Scholar

page 383 note 40 Decr. 2, 8, 4. The wording is at first glance contradictory, for the archbishop, according to the pope, reserved for himself all exceptions, otherwise giving the proctor the power to do all that the archbishop himself would do (“qui [procurator], salvis exceptionibus sibi compententibus in respondendo et defendendo ac aliis, omnia faceret, quae in propria erat persona facturus”). But the proctor did present exceptiones against the Archbishop of Bourges, and asked for a delay in order that his principal, the Archbishop of Bordeaux, might have more time to consult with the clergy of his province and to prepare for the suit.Google Scholar

page 383 note 41 Decr., 2, 8, 4. The archbishop had thus instructed his proctor to advance the rapidly prevailing Roman principle of consent: when a case touched the legal interests of others besides the principal party, as in a corporate community, the head of the community (the archbishop in this instance is the head of the province which is by legal fiction a corporation) was the representative of all the interested members, but he should obtain their consent to his action in refusing or accepting the challenge to a suit, to his appointment of proctors, and to the instructions given the proctors (the interested parties must all be responsible and accept the decision of the court). As Innocent IV says, Apparatus, to c. 4 Exposuit, ad v. tenui, the Archbishop of Bordeaux was not held to reply in person at the Curia to the Archbishop of Bourges without getting a delay, because he was in the Curia on other business; because in such an ardua causa he ought not to be compelled to act by proctor (thus the proctor left at the Curia when the archbishop returned home was given full powers, but with the instruction to make good, if possible, the exceptio that would release him from standing trial for the archbishop and would give the archbishop time to prepare to answer in person); and because if the archbishop did not have the ius revocandi domum, “tamen debet procurator habere inducias ad consulendum dominum Item quia causa totam provinciam tangebat, non poterat plene deliberare an cederet vel concederet, nisi consilio habito cum eis, ff. eden. 1. 1 [D. 2, 13, 1]; non tamen dico quod necesse sit, eos vocare, ff. de li. cau. si pariter [D. 40, 12, 9].” And Glos. ord., ad v. cum suffraganeis: “Cum quibus, et etiam cum capitulis cathedralium ecclesiarum debet deliberare, cum eorum intersit”; “Additio. Unde appellantur induciae ad tractandum super iure primatiae, et quia quod omnes tangit, ab omnibus debet comprobari, vel reprobari;” and further, delays are granted “propter causam supervenientem” Google Scholar

This plea for a delay to consult with all interested parties whose rights were at stake (the claim of primacy in this case was held to touch the bishops and cathedral chapters of the province of Bordeaux) was probably on the same legal basis as that of bishops who on occasion refused to consent to a papal subsidy until they consulted with the clergy of their dioceses—for which purpose preparatory diocesan synods were held. (I shall treat this subject elsewhere, under Quod omnes tangit.) That the consent of the clergy of the province was in nature of judicial process is shown by the outcome of this suit. The pope asked for the consent of the clergy of Bordeaux to his sentence that decided the case, but he ordered any chapter refusing consent to show cause in the papal court—consent was compulsory, except in so far as aided by a legal right that the pope might recognize; see Decr. 1, 33, 17 Humilis .Google Scholar

page 383 note 42 See Bracton, , IV, 330 ff. (ed. Twyss, , VI, 378 ff.), on the exceptio dilatoria quia ius commune, etc.Google Scholar

page 383 note 43 Glos. ord., to Decr 1, 38, 11 Dilectus, ad v generalis: “Potest ergo quis constituere generalem procuratorem ad omnia tam ad judicia quam ad negotia; tamen talis procurator transigere non potest, nec alienare,” i.e., without getting a special mandate to transact or alienate. But see above, §1, nn. 7–20, 28–34, 40, on plena potestas and administratio; the legists and canonists hold that a general and libera administratio or plena potestas, permits transactio and alienatio if the constituent is not injured thereby; but libera must be given specifically, and then no special mandates in addition to the general are required.Google Scholar

page 383 note 44 Hostiensis, , Summa, II, t. De dilationibus, no. 4: even the plaintiff can be given induciae “si inopinatum quid emergat de quo non potuit divinare, puta contra rescriptum suum exceptio opponitur, in quo replicatione opus est.” Google Scholar

page 383 note 45 Glos. ord., to c. 11 Dilectus, ad v. cedere; the quality of the negotium and of the parties helps the judge to decide whether to grant a delay Hostiensis, Summa, I, t. de procur., no. 11: “§Sed et generalis ad negocia generaliter agere et experiri potest; et si dominus ita remotus sit, quod intra. xx. dies, qui dantur ad deliberandum, consuli non possit, maior dilatio danda est, que si negatur, iuste appellabitur” Guillaume Durant, Speculum iudiciale, II, i, De dilationibus (fols. 55v–59v), no. 18 (fol. 56v, c. 2): dilationes deliberatoriae are given “ad deliberandum reis, utrum velint cedere vel contendere”; the terminus is 25 days, sometimes more, “secundum locorum distantiam, extra. de procura. dilectus;” sometimes these delays are denied. Andreae, Johannes, Novella, to c. 11 Dilectus, ad v. dominus principalis in the gloss ad v. cedere (Glos. ord.): such a delay was granted because the principal had not incurred blame by not “instructing” his proctor, which the principal could not do before the suit was brought against him; as Innocent IV said, if the proctor is “instructed”—i.e., given a proper mandate—for this suit, no delays are given to him (“quod speciali procuratori ad causam istam constituto non darentur induciae, de quibus his dicitur, presumitur enim instructus”). But here Joh. Andreae cites Hostiensis, who says that whenever anything arises “super quo procurator per se respondere non potest, nec potest aliquid domino imputari, habebit inducias ad dominum consulendum, ut se sic instruat et respondeat” (i.e., he must obtain a new mandate and instructions); e.g., if a prelate is cited to court and is asked what was done in a chapter-meeting which he did not attend, he should obtain a delay to consult the chapter. But Innocent IV had held both opinions, which are in no real contradiction of each other; Appar., to c. 11 Dilectus, ad vv. a iudicibus and consultet; Hostiensis and Joh. Andreae follow Innocent IV on these points: “Ar. quod si citatus est, non expresso super quo, et citatus constituit procuratorem, procurator debet habere inducias ut consultat dominum.” Google Scholar

page 383 note 46 Guill. Durant, Spec. , II, i, De dilat., no. 22: dilationes preparatoriae; also Hostiensis, Summa, II, e. t .Google Scholar

page 383 note 47 Guill. Durant, Spec. , II, De exceptionibus et replicationibus, §iii, no. 1 (p. 64): The exceptio dilatoria must be put forward and proved ante litis contestationem. The time allowed for such exceptions was set by the judge, Decr. 2, 25, 4.Google Scholar

page 383 note 48 VI, 1, 19, 4. See above, §1, n. 28.Google Scholar

page 383 note 49 It might be declared that the proctor of the opponent was not qualified, or that his powers were inadequate. This was particularly important, since if the plaintiff won his suit and the defendant later claimed that his proctor acted fraudulently or was not given full powers and therefore appealed the sentence, then the plaintiff must continue the battle in others courts. The reverse applied when the defendant could prove that the proctor of the plaintiff had insufficient powers to accept the outcome of decisions of exceptiones or of the whole case in favor of the defendant. Google Scholar

page 383 note 50 Cf. Pollock, and Maitland, , 2 II, 611–19; Bracton, III, 142 (ed. Twyss, , III, 408–10), on the attorney. Google Scholar

page 383 note 51 Coutumes de Beauvaisis (ed. Salmon, A.; 2 vols.; Paris, 1899–1900), ch. IV, §§4, 12, 13, 17–20, 24 (in lay courts a “sufficient mandate” without the clauses of cautio or surety required by ecclesiastical courts is adequate), 26 (I, pp. 75 ff.); on summons and excuses and delays, chs. II and III.Google Scholar

page 383 note 52 De legibus et consuetudinibus Angliae, II, 317 ff. (ed. Twyss, , II, 206 ff.), on the general and brief statement in the writ of the matter at issue and the claim of the plaintiff as information to the defendant; III, 77 ff. and IV, 245 ff. (Twyss, , III, 206 ff. and VI, 150 ff.), on exceptions; IV, 52 ff., 64 ff. and 71 ff. (Twyss, , V, 92 ff., 130 ff. and 146 ff.), on default, summonses, and excuses or essoins. The attorney, who by definition has full powers, can transact and make all the above special pleas; III, 142 (Twyss, , III 408–10). Google Scholar

page 383 note 53 For England, see Pollock, and Maitland, 2, II, 611–19.Google Scholar

page 383 note 54 See Haskins, George L., “Franciscus Accursius; a New Document,” Speculum, XIII (1938), 76; and Richardson, H. G., “The Oxford Law School under John,” Law Quarterly Review, LVII (1941), 319–38. CrossRefGoogle Scholar

page 383 note 55 Sayles, G. O., ed., Select Cases in the Court of King's Bench (3 vols.; Selden Society, LVIII–LX; London, 1936–39), I, 89 f.the court refused to grant a dilatory exception: “nec poterit excusari dicendo quod nescivit si hoc esset ius vel non, cum pars debet venire ad iudicium ita instructus quod non possit inposterum allegare ignorantiam iuris.” Google Scholar

Ignorance of the summons was treated analogously: if the citation was made publicly, then the cited could not allege that he was ignorant and therefore must not suffer injury from an adverse sentence.Google Scholar

page 383 note 56 Bracton is well acquainted with quod omnes tangit; IV, 330 ff. (ed. Twyss, , VI, 378 ff.). But the Roman principle stated what had long been a principle in feudal law but was beneficial chiefly to the magnates; it was now being extended to cover the rights of the lesser laity and clergy, and to communities of these.Google Scholar

page 383 note 57 Details on the assembly as a court in this respect will be given in a separate study. Google Scholar

page 383 note 58 The theory of royal or of papal authority included the right of the monarch to interpret what constituted necessity and public utility. The pope's interpretation met little difficulty in the Church—if the pope decided that a war must be supported for the defense of the Church or the faith, naturally for the common good of Christendom, the clergy summoned to general or provincial councils could not refuse a subsidy, though they could negotiate on the amount. Yet the clergy sometimes tried to argue that no such necessity existed except as a papal subterfuge. Of several examples, this will illustrate clerical opposition: in 1264, after a papal legate demanded a tenth from the French clergy, some of the clergy of Rheims maintained that while all things belonged to the prince quantum ad deffentionem et tuitionem, the papal war against Manfred (for which the subsidy was demanded) was not a just war for the defense of the faith, and besides Manfred was the rightful king of “Apulia.” But this and other complaints made in the council and afterwards, were obviously not heeded by legate or pope; see the Summa de omni facultate, perhaps by Drogo, in P Varin, Archives législatives de la ville de Reims, 1re partie (Documents inédits; Paris, 1840), pp. 448–55, 449, 452 f. Similarly, the English clergy had protested against contributing for earlier papal quarrels with Frederick II; Lunt, , Financial Relations, pp. 197 ff., 206–19.Google Scholar

In the fourteenth century, in France and in England, the magnates and representatives repeatedly tried to limit the right of the government to determine the “case of necessity” and what constituted public utility—in England with more success (though not complete) than in France. I am treating the subject with detail in a separate study on Quod omnes tangit and the “case of necessity” Google Scholar

page 383 note 59 For details see Taylor, , Speculum, XIII, 298302. But sometimes the local assemblies were held after the general one, for the purpose of receiving the report of the royal will expressed in the general assembly and to facilitate obedience.Google Scholar

page 383 note 60 By the middle of the thirteenth century a papal request for a subsidy often was transmitted by legates who ordered archbishops to summon their suffragans to a provincial (or even national) council; while the bishops, claiming that they could not consent for the clergy of their dioceses, in turn held diocesan synods to inform the lower clergy and obtain their consent by way of diocesan representatives chosen to go to the legatine council. The English shires, or rather the courts, were obviously convenient for the same purpose when the king needed consent to a subsidy. Thus king, legate, or archbishop could be sure of observing the rules of Quod omnes tangit: through such preparatory assemblies all communities or corporations and individuals “touched” by the demand or any other “national” business were officially, publicly, legally informed (magnates and specially privileged towns were summoned individually) and given time for assenting to the representation; and therefore no community or individual could later successfully claim that there was no proper summons and therefore that the decision of the kind in the assembly was not binding. Google Scholar

page 383 note 61 In 1264 Drogo, , Summa, complained that the legate's mandate (writ of summons) was too harsh and general, for it commanded the cathedral chapters to send proctors “qui haberent potestatem consentiendi in sua voluntate facienda precise, nulla mentione facta de sua voluntate facienda, nec aliqua certitudine super hoc expresso;” and this enslaved the churches; Varin, Arch. législat. de Reims, 1re p., p. 455. In this case the complaint came after the legate held the council, and no doubt the legate succeeded in overriding such pleas and compelling the delegates to consent to his will as the summons indicated they should have full powers to do.Google Scholar

page 383 note 62 An illustration comes from England. In 1283 the proctors of the lower clergy of the Province of Canterbury asked the archbishop for a delay to consider a new royal petition for a subsidy, a petition that was separate from an earlier one for which the clergy had been summoned to convocation. They asserted that their potestas was limitata and did not extend to the second royal request; Peckham, , Registrum, II 536: On the last day of a Council held in London (Lambeth), says the archbishop, “per procuratores cleri provinciae nostrae, post datam eorum responsionem in scriptis super petitione domini regis facta Northampton, de decima triennali, nobis et confratribus nostris extitit supplicatum, ut novas eis concederemus inducias ad tractandum et deliberandum super secunda petitione domini regis de concedendo sibi a clero pro utilitate publica aliquo subsidio liberali; praesertim, cum super ipsa petitione, quae nova fuit, prius non tractaverant, nec se ad hoc eorum potestas, quae limitata fuerat, extendebat.” In this case the mandate was limited, but limited legally with respect to a second business on which neither constituents nor proctors had been informed by proper citation. But the mandate and powers of the proctors were not limited with respect to the first royal petition for a subsidy. Consequently Archbishop Peckham granted the requested delay “ad tractandum et deliberandum super secunda petitione.” Google Scholar

page 383 note 63 See the preceding note. It seems that this is an illustration of the use of a mandate giving full powers for one case; a new mandate was needed for a new case when the proctors had not been given a general mandate with plena potestas for all cases that might arise. Google Scholar

page 383 note 64 Picot, , Documents, no. 4 (the clergy of the province of Tours declared, 1302, that they would aid the king “ad defensionem jurium, statusque et honoris suorum et regni, salvis juribus et libertatibus ecclesiarum nostrarum, statibus nostris animarumque salute”); no. 50 (a prior gives full powers to his proctors to consent to the king's will “quantum cum Deo et salva consciencia et honore Sedis Apostolice possumus et debemus et permittunt canonice sanctiones,” and “salvis semper offensione divina et reverencia Romane Ecclesie universalisque Ecclesie unitate omnique conjuratione et conspiratione cessantibus”); no. 185 (the proctor of the chapter of Carcassonne adheres to the appeal to a general council, saving the honor, authority and reverence of the Apostolic See and the unity of the Church, “et in quantum secundum Deum possum et debeo, et volunt et paciuntur canonice sanxiones et sanctorum patrum statuta”—no doubt his mandate had contained, as instructions, these limiting clauses).Google Scholar

page 383 note 65 Drogo, , Summa, Varin, Arch. législat. de Reims, p. 448. But, as the complaint states, these proctors consented to a tenth, thereby exceeding the limits of their powers—this they could not do, says the author. The legate, it is obvious, was the interpreter of the mandates, and he compelled the proctors to consent. Complaints against his interpretation could be carried by appeal to Rome, but hardly with success.Google Scholar

page 383 note 66 Langlois, Ch.-V, in Lavisse, III, ii, 160 f. —this in 1303, when the king obtained consent locally, not in a general assembly. But the legal theory was the same, whether applied locally or generally, or generally and locally in succession.Google Scholar

page 383 note 67 It was chiefly in the Church, from 1179 on, that the right to tax the clergy beyond the customary aids was based on necessity and public utility. See Decr. 3, 49, cc. 4 and 7, and Le Bras, G., L'immunité réelle (Paris, 1920), pp. 2130, 49–148.Google Scholar

page 383 note 68 Drogo, , Summa (Varin, Arch. legislat. de Reims, 1re partie, p. 448): when in 1264 the proctors of chapters consented to the tenth demanded by the papal legate, they had no right to bind the individual members of their chapters, the author claims; for if the tenth were paid the chapters must pay it “de suis bonis communibus;” the individual members should not pay, “quia nec requisite super hoc fuerunt, nec promiserunt. Unde dicit lex, quod illud quos omnes tangit, debet ab omnibus comprobari.” Moreover, as in D. 3, 4, 7, what is owed to the universitas is not owed to the individual members; “etenim bona universitatis non sunt singulorum, sed ipsius universitatis vel collegii.” One recognizes in this argument the corporate theory of the thirteenth century; see Gierke, O., Das deutsche Genossenschaftsrecht (4 vols., Berlin, 1868–1914), III, 263; and Gillet, P, La personnalité juridique en droit ecclésiastique (Malines, 1927, pp. 129, n. 2, 137 f. We cannot pause to examine the theory in detail; nor the theory of the majority which binds the minority. Suffice to say that in the court or council the judges could interpret the consent given by proctors as binding the corporation both collectively and individually. But the subtle distinctions made by the lawyers were a source of legal resistance. Google Scholar

As Drogo says, pp. 448 f., even if the defense of the state or of Christendom was involved, nevertheless a subsidy should be reasonable—and this was based on the law; whence many complaints of the English clergy in the same period.Google Scholar

page 383 note 69 Beaumanoir, c. II, §65: “Cil qui sont semont pour aidier leur seigneurs contre leur anemis ou pour aidier leur seigneurs a leur mesons defendre, ne doivent pas contremander ne querre nul delai.” This in connection with summonses. The principle applied to corporate communities, which aided in the defense of the kingdom by paying subsidies more then by fighting, even if we should not treat them as a part of the feudal system. Google Scholar

page 383 note 70 See the decretal of Innocent III, an. 1200, in Decr 2, 14, 6 Cum dilecti: the pope cited peremptorie a litigant to appear at the Curia “per se vel per procuratorem sufficientem sufficienter instructum, ne postmodum per dilationes vel occasiones quaslibet subterfugere videretur examen.” Google Scholar

page 383 note 71 As Beaumanoir had said, c. IV, §143: “Nule procuracions ne vaut riens se cil qui fet le procureeur ne s'oblige a tenir ferme et estable ce qui sera fet ou dit par son procureeur” He follows the legists and canonists in this equivalent expression for plena potestas. In Picot, Documents, we find several examples of mandates of delegates refused by the royal judges or commissioners because of their insufficiency; nos. 148–152, 156, 158. These mandates were insufficient because full powers were not given; instead, power only to hear the commissioners and refer back, or to present excuses and ask for delays (no. 166). Sometimes, however, the excuses were heard and the delays granted; nos. 153 (permitted because of need to consult with other interested parties—quod omnes tangit) and 216 (same reason). Google Scholar

page 383 note 72 Jusselin, , Bibl. de l'École des chartes, LXVII (1906), 470. In Catalonia a royal statute of 1358 forbade the use of a procuratorium with potestas limitata in any court; Cortes de Aragon, I, ii, 656.Google Scholar

page 383 note 73 In France there were as many local variances in procedure and in forms of mandates, even in the pays de droit écrit, as there were in experiences in community spirit, enterprise and customs. In England the procedure, like the individual participation in village, hundred and county courts, and responsibilities in the community, was strikingly unified as a result of the historical development of the monarchy in relation to the communities. Prof. F. M. Powicke has rightly emphasized the importance of the social position and experience in local government of the knights of the shire. It was the peculiar class of knights (i.e., peculiar to England) which facilitated the royal application of the Roman principles and procedure of representing corporate legal interests, but which at the same time was an indispensable reinforcement of the power of the magnates to limit that other Roman principle of monarchy, absolutism. Thus England, Spain and France started from the thirteenth century with a fairly common background of Roman procedure and judicial consent shaping the control of extreme feudal particularism and individualism. But where in England the king could go only so far towards absolutism, in Spain and France the feudal nobility in the long run were unable to stop the growth of absolutism because they were not strengthened sufficiently by a great body of knights. The cities proved to be an inadequate substitute for a country gentry—perhaps because the cities were too closely allied, normally, with the king—or were controlled by the royal agents. Google Scholar

page 383 note 74 Repeatedly, however, Edward I in his writ of summons commanded that the full powers given the knights and burgesses should not have any defect that would result in unfinished business: “Et ita quod pro defectu potestatis hujusmodi idem negocium infectum non remaneat;” Parliamentary Writs, I, 26, no. 3; similarly, 29 f., no. 4; 48, no. 38; 84, no. 5.Google Scholar

On the back of the writs returned to Parliament is usually noted the statement that the knights and burgesses were chosen “ad factum quod breve exigit,” or were given full powers “secundum tenorem brevis” (Parl. Writs, I, 21 ff.). In one instance it is stated that the representatives were given plena potestas “ad faciendum coram domino Rege et ejus consilio quod hoc breve requirit;” ibid, p. 39, no. 19. Unfortunately the actual mandates, brought with the returned writs, do not survive.Google Scholar

page 383 note 75 In 1226 Pope Honorius III, approving the “necessities” of Henry III of England, ordered the prelates of England to grant a subsidy, to be raised in each diocese, to the king. When the Archbishop of Canterbury urged the bishops to make the clergy of their dioceses give at least a twelfth or a fourteenth, the Canons of the Chapter of Salisbury, appealing to the principle of Quod omnes tangit, met in order to discuss whether they should agree to aid the king, whether they should give the twelfth or the fourteenth, and how the churches of England could be protected from the establishment of a precedent. The chapter then asked that the bishops persuade the archbishop to summon proctors of the clergy in an assembly where a uniform response of all the clergy could be given and thus the papal mandate be obeyed without injury to the English Church and clergy The archbishop granted the request, and through the Bishop of Salisbury summoned the chapter to send proctors who were to be sufficienter instructi. If the archbishop meant full powers by “sufficient instructions”, the chapter gave other instructions, in addition to the technical powers, to its elected proctors in the form of a list of opinions drawn up in writing. The chief of these instructions were that the proctors of the chapter, along with the proctors of other chapters, should agree to a subsidy if it were deemed fitting to do so; if possible they should argue for a twentieth (instead of a fourteenth or sixteenth) as a subsidy, and in no case should they consent to more than a sixth; they should try to obtain certain methods for the assessment and collection of the subsidy; they should ask (of the council of bishops) what was to be done if some canons individually refused consent to what the majority of the chapter decided (the problem of individual consent within a corporation); and they should ask for a “non-prejudice” guarantee from the king. Google Scholar

It is noteworthy that the chapter did not instruct its delegates to refuse consent if the subsidy was necessary—obviously the archbishop and bishops were the essential council in the assembly, and by the papal mandate they must inevitably decide the case of necessity in favor of the king. The proctors were merely told how to negotiate, to try to reduce the amount demanded, to obtain measures in the collection that would not injure the clergy in the future. Finally, that the proctors merely had a legal hearing before the prelates is shown by the fact that the assembly granted a sixteenth, not the smaller twentieth desired by the Chapter of Salisbury They obeyed the papal mandate, but could negotiate and have a voice in the amount granted. After all, papal decrees had stated that reasonable subsidies should be granted in cases of necessity (Decr. 3, 39, 6; 3, 49, cc. 4 and 7).Google Scholar

On all this see Rich Jones, W. H., ed., The Register of S. Osmund (2 vols.; R. S.; London, 1883–84), II, 5767; Lunt, , Financial Relations, pp. 187f.; idem, in Burr Essays, pp. 121 f.; Weske, , Convocation of the Clergy, pp. 42 ff., 201–3. Lunt sees the papal plenitudo potestatis as the compulsion which the clergy could not resist. But the pope was simply applying the Lateran decrees to royal governments as well as to cities: it was the duty of the clergy to help the state in a “case of necessity” Google Scholar

page 383 note 76 See the preceding note. Google Scholar

page 383 note 77 Lapsley, , in Maitland Selected Essays, pp. 5 f. Google Scholar

page 383 note 78 Edward I found it difficult to obtain a subsidy in 1297–98 for his campaigns in Gascony and Flanders; the magnates argued that Scotland was the real danger, that they were not legally obliged to go to Gascony without the king, who planned to be in Flanders; Stubbs, S. C., pp. 482–89. But in this case the commons seem to have granted the subsidies demanded, leaving it to the magnates to resist the king's will and obtain a confirmation of charters. Yet the right of consent is confirmed to the commons, just as feudal rights are confirmed to the magnates, S. C., pp. 492–4. See Edwards, J. G., Confirmatio Cartarum and Baronial Grievances in 1297, Part I,” E. H. R., LVIII (1943), 147–71.CrossRefGoogle Scholar

page 383 note 79 Chrimes, , English Constitutional Ideas, p. 80, n. 2, argues, against Edwards' thesis (above, Introduction, n. 2), that plena potestas was local in its range, that consequently an area that failed to send representatives with plena potestas would not be bound by the consent of the representatives of other communities, and thus that plena potestas leaves unexplained the fact “that parliament came to be regarded as binding on all the king's subjects, whether they had legal representatives therein or not” But Chrimes neglects several important legal theories connected with plena potestas: (1) the will of the majority in a corporation determined the policy of defending corporate interests in court; (2) the proctor given plena potestas to carry out this policy and represent the corporation in court acted for the majority of the members; (3) the court's decision bound the whole corporation, even the minority of individuals who refused to consent to the representation; (4) similarly the plena potestas of knights of the shire and the decision in Parliament bound the whole community of the shire (i.e., except the magnates and towns in the shire, who consented for themselves); (5) when the representatives of the communities summoned to Parliament met in one body as the community of the communities, their full powers included the judgment involved in agreeing on a policy of negotiating with the government and defending the interests of the community as a whole in the king's court and council; (6) whether these representatives, the commons, agreed unanimously o by majority (cf. Chrimes, , pp. 135 f.; Chrimes hesitates to accept the majority-principle in the commons before the fifteenth century, but I think he misunderstands the documents), their judgment bound the dissenters and the absent, and the king's government must accept the judgment of the majority as representing the attitude of the community; (7) but the final decision of the king, while it might be influenced by the legal force of the arguments presented by the commons as a whole, was not dictated by the commons; (8) the royal decision, however, did bind the whole body of representatives, whatever the claims or defense they had agreed upon; (8) further, the decision bound all representatives individually (even those who as a minority had not agreed on yielding to the king's demands), and through the representatives and their full powers of attorney, bound all the communities in the community of the realm; (10) finally, the decision was binding on the communities which failed to send representatives, if the whole community of the realm had been summoned properly, for such communities were in default. In brief, what bound all the king's subjects was both plena potestas and the king's prerogative for the common utility of all; plena potestas was the legal means of connecting the central government with the community of the realm, of giving all rights representation and a legal hearing, and of binding all the community to any decision made for the common good. Cf. Edwards, , “Taxation and Consent 1338,” E. H R., LVII, 473–82, where some of my conclusions are implied but not reached. Google Scholar

page 383 note 80 See above, §2; McIlwain, , C. M. H., VIII, 689.Google Scholar

page 383 note 81 Cf. McIlwain, , C. M. H., VII, 700.Google Scholar