1950 Wis. L. Rev. 66 (1950)
A Roman Legal Theory of Consent, Quod Omnes Tangit, in Medieval Representation

handle is hein.journals/wlr1950 and id is 80 raw text is: A ROMAN LEGAL THEORY OF CONSENT, QUOD OMNES
TANGIT, IN MEDIEVAL REPRESENTATIONt
GAINES POST*
Of all the elements in Roman law that played a role in the rise
of representation, the most important, I think, was the principle
of consent stated by Justinian, C. 5, 59, 5: ut quod omnes similiter
tangit, ab omnibus comprobetur- what touches all (equally or
similarly), shall be approved by all. A familiar maxim in the thir-
teenth century, quod omnes tangit, was freely quoted both literally
and in paraphrase by legists and canonists, and in the Liber Sextus
issued by Boniface VIII it became a regula iuris. It was asserted by
cathedral chapters and by Pope Honorius III in 1225-27 as a justifi-
cation for the representation of the chapters in provincial councils.
Matthew Paris stated it about 1240 as the basis of the right of arch-
deacons to be consulted before the higher prelates of England could
grant a subsidy to the king. Edward I quoted it when ordering the
Archbishop of Canterbury to summon representatives of the clergy
to the famous Parliament of 1295. Quod omes tangit was clearly the
basis of Philip IV's summons for the Estates General of 1302, when
the quarrel with Boniface VIII was called a serious business touching
(contingentia) both king and kingdom.
The maxim has, in fact, been interpreted in as many ways as there
are experts on representation in the Middle Ages. As the early
decretalists said, quoting Terence and Horace, Nam quot capita,
tot sententiel To the famous William Stubbs, quod omnes tangit
seemed to be a constitutional principle in 1295 which made the
consent of representatives a limitation of the royal prerogative.
To P. S. Leicht it expressed a theory of democratic consent, and
quite recently an Italian scholar, Marongiu, has arrived at the same
conclusion. To Maude V. Clarke and C. H. McIlwain it appeared as
a new political principle, stating a real right to consent to extraor-
dinary taxes, and was based on property rights-and George
Haskins connects it with the sanctity of property rights. To Georges
de Lagarde it meant; in accordance with the Roman limitation of its
use to private law, that all individual vested interests and privileged
t This paper was given in a series of lectures on The Two Laws and Repre-
sentation at the Medieval Institute at Notre Dame in February, 1949.
* B.A. (1924) University of Texas; M.A. (1925) Harvard University; Ph.D.
(1931) Harvard University; Author of articles on medieval utiiversities, canon
law and the two laws and representation; Instructor of History, Harvard Uni-
versity (1929-1935); History Department, University of Wisconsin, since 1935;
Professor of History since 1941.

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