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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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