The Origin of the Regula iuris ‘Quod omnes tangit’ in the Anglo-Norman School of Canon Law during the Twelfth Century

Abstract

The Origin of the Regula iuris ‘Quod omnes tangit’ in the Anglo-Norman School of Canon Law during the Twelfth Century Peter Landau Introduction Among the 88 Regulae iuris of Canon Law at the end of the Liber Sextus, promulgated by Pope Boniface VIII in 1298, and created in a papal commission led by the Bolognese legist Dinus Mugellanus, we find as rule 29: ‘Quod omnes tangit, debet ab omnibus approbari’ (=Q.o.t.). Probably this regula became the most important rule of canon law in the medieval world and in modern times influencing secular law in many countries of Europe and America. I want to mention only two examples of its application on the American continent. ‘Quod omnes tangit’ in America When Bartholomé de Las Casas dealt with the question of legitimizing the Spanish rule over American Indians in his book De Thesauris in Peru around 1545, he considered submission of the Indians to Spanish rule by force would be a servitude contrary as well to natural law as to human reason. According to Las Casas ‘a free people or community accepting a burden had to give their free consent; all whom the matter touched should be called.’ Las Casas combined the legal maxim ‘Quod omnes tangit’ with the idea of a natural right of liberty shared by the Indians.1 In 1708 the Synod of Saybrook, Connecticut, declared consociation in the churches to be founded in a precept of [End Page 19] fraternal union being supported by the universally acknowledged principle of ‘quod omnes tangit’.2 In 1758 the Consociation of New Haven refused to accept the ordination of a liberal minister in Wallingford, Connecticut. This decision was justified by the principle of ‘quod omnes tangit’. The maxim was also employed in the conflict about the legitimacy of taxation in the American colonies by the British Parliament in 1775. These sources have been investigated by Bruce Brasington in a fundamental paper on ‘Quod omnes tangit in Anglo-American Thought to the Ratification of the Constitution’ a few years ago. Brasington is concluding his study: 3 Q.o.t provides yet another link to the past read by defenders of the status quo and their opponents in both the seventeenth and eighteenth centuries. Embedded in the Common Law and Protestant theology, this romano-canonical maxim served both as shield of state power and weapon in the hand of radicals. It reminds the modern student of English and American constitutionalism that the Constitution, both Ancient and American, has roots in canon and civil law of the Middle Ages. Previous research on ‘Quod omnes tangit’ The sentence ‘Quod omnes tangit’ was formulated for the first time in Roman private law for the special case of terminating the joint tutorship of several tutors - all tutors had to give their assent for the end of their responsibility. It can be found in the title ‘De auctoritate praestanda’ of Justinian’s Code as a formulated law dating from September 1st 531 (Cod. 5.59.5): ‘necesse est omnes suam auctoritatem praestare, ut, quod omnes similiter tangit, ab omnibus comprobetur’. This sentence never became a general legal maxim in Roman law of antiquity but was discovered by canonists after Gratian during the second half of the twelfth [End Page 20] century. In the thirteenth century the maxim found its way into papal legislation since Pope Innocent III as well as into English common law, first in Bracton’s treatise on the Laws of England;4 it was quoted by King Edward I of England, the so-called English Justinian, in a famous writ to the archbishop of Canterbury in 1295 ordering him to summon representatives of the clergy. The king substantiated the necessity of the summons with the common danger for the realm of England, thereby transforming ‘Quod omnes tangit’ from a mere legal maxim into a great and constitutional principle according to the evaluation given by William Stubbs.5 Three years later in 1298 Q.o.t. found its way into the Regulae iuris of Pope Boniface VIII at the end of the Liber Sextus. Much research had been done during the last century on the question how and when the sentence in...