William of Longchamp's Practica Legum et decretorum
The remaining two chapters in this study consider Anglo-Norman ordines produced during the twenty years after the martyrdom of Thomas Becket in 1170.[1035] In the years following the archbishop’s murder in the cathedral, both crown and papacy yielded their positions, but only slightly.
Henry ii allowed a papal legate, Hugh of Pierleone, into the kingdom and gave up his demand, dating back to the Constitutions of Clarendon, that all criminous clerks be tried in royal court. In turn, Pope Alexander Ill permitted disputes to be heard by feudal courts when they involved ecclesiastical claims and obligations.[1036] Nevertheless, these concessions never led to lasting concord.[1037] Henry remained determined to retain as much control as possible over the elections of bishops. As the conflict between King John and Archbishop Stephen Langton would soon reveal, the papacy was equally committed to defending its supervision of, and increasing intervention in, the Anglo-Norman church.After becoming king in 1189, Richard I quickly abandoned whatever ?benevolence,’ to quote Frank Barlow, his father had shown towards the Church. The new king showed little if any regard either for ecclesiastical procedure or clerical sensitivities as he appointed new men bishops.[1038] One was William of Longchamp, the author of the ordo treated in this chapter, the Practica legum et decretorum.[1039]
It is evident that William, from a Norman family loyal to Henry ii, enjoyed considerable support from the new king.[1040] He was also heartily disliked in
England.7 This did not stop his rise to power, as he eventually became simultaneously bishop of Ely, papal legate, and Richard’s chancellor.8 Effectively regent while the king was away on crusade, William constantly strove to expand his power by placing his own men as sheriffs and constables of castles.9 A formidable array of opponents, from members of the royal family, to his ecclesiastical colleagues, also began to close ranks against him.10 By 1191, his king absent and enemies gathering all around, William’s power was in steep decline.n The archbishops of York and Rouen, other English bishops, and no less than four earls, forced him to flee to France and he was excommunicated as well?2 Over the next few years, William tried to restore his position, but to no avail.
Desperate to retain his bishopric and papal legation, in either late 1196 or early 1197 he departed for Rome, an appeal against Archbishop Hubert Walter in hand. He never reached his destination, and died at Poitiers in early 1197.13William’s Practica legum reflected the growing interest in the Anglo-Norman world for procedural law. It is probably no coincidence that the Practica was composed at about the same time as the common-law treatise attributed to
7 Barlow, The Feudal Kingdom of England, 374.
8 See Crosby, The King’s Bishops, 160, also David Bruce Balfour, William Longchamp: Upward Mobility and Character Assassination in Twelfth-Century England (PhD Diss. University of Connecticut, 1996), Karn, English Episcopal Acta, Ely 1109-1197, lxxxii-lxxxiii, and Z.N. Brooke, The English Church and the Papacy. From the Conquest to the Reign of John (Cambridge: Cambridge University Press, 1931, rp. 1989), 221, comparing William to Cardinal Wolsey. For other negative views on William, see Cheney, From Becket to Langton, 20 n. 3, 28, and 32 n. 4. It is clear that William was not a model pastor. On opposition of the higher clergy to William, Barlow, The Feudal Kingdom, 377-78.
9 Richard R. Heiser, “Castles, Constables, and Politics in the Late Twelfth-Century English Governance,” Albion 32.1 (2000): 19-36.
10 Evidence of William’s unpopularity, as well as a possible hint of his legal knowledge, may be gleaned from Gerald of Wales, Opera ii, 348-49, cited by Balfour, WilliamLongchamp, 97-98. See also Everett U. Crosby, Bishop and Chapter in Twelfth-Century England. A Study of the Mensa Episcopalis (Cambridge: Cambridge University Press, 1994), 39-40 and n. 22, citing the Dialogue of the Exchequer’s not-so-subtle criticism of William’s behavior as a feudal lord.
11 He did, however, serve as one of Richard’s representatives in a treaty signed with Phillip II of France in July 1193, on which see Jenny Benham, Peacemaking in the Middle Ages.
Principles and Practice (Manchester and New York: Manchester University Press, 2011), 126. As Benham notes, William affixed his seal along with those of the two other royal representatives. He did not, however, have the royal seal.12 He was not alone in this regard. For a list of excommunicated Anglo-Norman bishops, beginning with Odo of Bayeaux in the eleventh century, Crosby, The King’s Bishops, 26.
13 Karn, English Episcopal Acta, lxxxviii-lxxxix.
Glanvill.[1041] [1042] [1043] [1044] As one scholar has noted, there was a tendency in England towards ?a more rule-based mentality' and, alongside those responsible for the ecclesiastical court, royal justices were growing increasingly aware of civilian and canonical procedure?5 Readers encountering civilian terms such as mutuum (loan) and crimen falsi (forging, counterfeiting) in Glanvill?6 would have found William's treatise a valuable supplement?7 After all, the complicated and conflicting claims by crown and church alone would have demanded that litigants, advocates, and judges have some familiarity with both secular and sacred law.[1045] [1046] Readers could have noticed similarities in how witnesses were used in ecclesiastical and royal courts?[1047] William’s treatment of both civil and canon law should have made the Practica an attractive text to possess. It resembles, to some extent, Glanvill’s treatise, a ?book of instructions’ intended to guide litigants, advocates, and judges.[1048] [1049] [1050] [1051] [1052] [1053] Given the importance of the archdeacon in the English ecclesiastical court, one also would think he would have been a particularly eager reader.21 However, this seems not to have been the case. The Practica legum survives in a single, twelfth-century manuscript, Paris, bn 3454 (fol. While it is generally agreed that William must have written the Practica before becoming bishop of Ely in 1189,[1054] where he had received his legal training remains uncertain. At least one scholar has argued he studied at Bologna.2[1055] Perhaps he even taught, as has been suggested, though there is no decisive evidence?[1056] Certainly, he was somewhat conversant with Bolognese jurisprudence?[1057] A reference to commentaries in cap. 40 may indicate some familiarity with early glosses to Gratian.[1058] Equally, his emphasis on the strict formulation of actions may reflect the thought of Johannes Bassianus [1059] [1060] [1061] For example, like Bassianus, William focused on the composition of the libellus, the bill of accusation.32 As the Practica legum demonstrates, William was familiar with, and particularly interested in, the proper composition of documents. Like his fellow bishops, this was probably the product of some training in the ars dictaminis and experience gained as he rose through the ranks of the ecclesiastical hierarchy no doubt sharpened this skill.33 His focus on documentation is one of the strengths of the Practica legum, and a distinctive feature compared to the other ordines treated in this study. The Practica legum may be briefly summarized[1062] William begins by praising the law and those who practice it, noting as well that government and society are necessarily divided between laity and clergy. William occasionally highlights differences between older law and contemporary practice[1067] Among the authors treated in this study, he seems to have been especially concerned with what one scholar has called the challenge ?to reconcile the Roman legal reason with the feudal society.’[1068] William notes the substitution in canon law of an original papal rescript for the civil-law editio.4[1069] Elsewhere, he calls our attention to a recent decretal of Lucius iii declaring a judge suspected in some way, for example due to his blood relation with an advocate, could be recused. While in the classical civil law recusal of a judge only came after the final judgment (as a sort of appeal), canon law now took a different view. William notes how it could take place during the process. Thus recusal became distinct from appeal[1070] It is useful to contrast the Practica legum with Hariulf's account of his visit to the curia some three decades earlier. William largely devoted the remainder of the treatise to exceptions. In this respect, it particularly resembles Glanvill[1073] [1074] While much reflects what we have encountered already in the De edendo46 and, indeed, William's commentary is far less extensive, there are still points to highlight. For example, William notes the special case where some archbishops are exempted from their primate's jurisdiction[1075] When referring to the possibility of an exception by reason of location, he observes that when a contract was made at the fairs of Lagny in Champagne, one had to respond to the judge there[1076] [1077] [1078] [1079] Particularly interesting is his discussion of quasi mnleficium.49 (unintentional injury), for example when one is sued de pauperie because his domesticated animal had caused damage^0 William's treatment of quasi maleficium as a type of vicarious liability is unique among the ordines considered in this study.51 In treating exceptions, William comments in passing on the ecclesiastical hierarchy. Even if the Practica legum was composed prior to his accession to Ely, as seems probable, William was undoubtedly very aware of the conflicting claims of archiepiscopal sees such as York and Canterbury.[1080] [1081] [1082] [1083] Given the turbulent nature of the English church in the late twelfth century, a privilege granting an exemption from responding to a summons from one of them would have been prized indeed. The recent conflict between Becket and Henry also would have made William’s audience especially sensitive to the privilegium fori, which he treats in chapter 20. We are fortunate to have William’s episcopal acta. While these cover only 1189-1191,53 they attest to his activities as legate and papal judge-delegate. Unfortunately, they leave no trace in the Practica Legum. In this respect, they reflect, as discussed above in chapter three, the general lack of explicit mention of Romanist procedure in acta from the period^4 An exception is a possible allusion to prescription in letter from 1190-1191, in which Ernisius, prior of Marton informs the bishop about elections at Kirkham Priory. He references an appeal to the papacy ?more than forty years ago’ to ensure their rights.55 William does not comment further. While William’s acta do not shed light on the Practica Legum, there is other evidence of the treatise’s connection with contemporary legal thought and practice. In a letter of 1163-1164, Bishop Gilbert Foliot of London wrote to Thomas on behalf of a clerk, Hubert, who had raised an exception against another priest, Baldwin, not to pay 20 shillings. Gilbert agreed with Hubert and asked the archbishop for a trial to be set. As part of this request, Gilbert noted that whoever lost the proceedings would not only lose what he had demanded but also be compelled to pay trial costs. Two decades later, we find in chapter 11 of the Practica Legum that a tenth part of the suit would be paid by the loser to cover expenses. (We already have seen such concern for payment of expenses in the De edendo.) Additional research might uncover other places where the Practica legum spoke to contemporary procedural issues. As noted already, William was aware of the papal ius novum. For example, in chapter 16, he states that it was the judge’s duty to inquire about the facts of a charge. Both contemporary decretists and papal decretals considered this as well.[1084] Citing selected decretals,[1085] William devotes much attention to the papal rescript.5[1086] He treats both the inspection of the document to determine its authenticity and what to do when multiple letters arrived concerning the same case. Litigation attracted by the papal curia, another subject treated at some length in the treatise, and the requirements of royal service demanded a thorough knowledge of legal instruments. While his episcopal colleagues were undoubtedly familiar with their composition and use, William was probably more expert than many.5[1087] [1088] From time to time, the Practica legum treats an aspect of procedure or takes a position not found in the other ordines considered in this volume. For example, William's reference to the ?simplicity of the canons' (canonum simplicitas) may be unique. Perhaps this was some sort of ironic reference to the civilians' contempt for the canon law.6° William demonstrates his knowledge of the classical law by comparing the praetor and magister militum, the latter, thejudge for military cases[1089] More pertinent to his audience, he also treats a twenty-day period for recusal[1090] Equally, his commentary on rescripts, for example, whether they were granted to someone present or absent, would have been of value to his contemporaries^[1091] The same holds true for his reflection on how rescripts related to exceptions [1092] [1093] Given the frequent disputes over jurisdiction,65 readers also would have found William's comments on its limitations worthy of note.[1094] One wonders as well if this passage also came back to haunt William after his troubles began in the early 1190s. Finally, anticipating to some extent our next chapter, where the Ordo Bambergensis will consider presumption in some depth, the Practicalegum treats suspicion[1095] William’s use of sources also differs somewhat from those exploited by the other ordines treated in this study. Unlike Bulgarus and the De edendo, he occasionally cited the Bible. Only the Ordo Bambergensis will refer to sacred scripture as frequently as the Practica legum. Such concern to connect legal procedure to the Old and New Testaments, while obviously not unprecedented, was becoming less common by the late twelfth century[1096] [1097] [1098] [1099] As these citations come from early on in the treatise, perhaps they reflect a rhetorical strategy, a type of pastoral exhortation to the reader. They do not suggest, however, as one scholar has argued in a study of William’s contemporary, Bernard of Pavia, any reading of the sacred text as a type of medieval ?comparative law.'*’9 Compared to the De edendo, the Practica legum is a concise and accessible work. Most of the arcane aspects of the civil law we found in the De edendo and Bulgarus, for example citations of long-vanished imperial offices like the Spectablis, are absent. William has his reader in mind throughout his treatise. If we hear echoes of the classroom in the reference to Titius, Maevius, and a dispute over land, there is a practical orientation to the text. The liturgical calendar he references would have been the principal way his ecclesiastical reader marked time. No less relevant would be the illustrations he used for his points of procedure. His readers could have attended, or at least known about, the fairs at Lagny. Ecclesiastics and noblemen bought, and litigated over, horses. Despite his many enemies, William had his circle of influence. Gerald of Wales numbered among those enjoyed his patronage?0 The royal justice and cleric, Richard Barre, dedicated an exegetical work to him?1 Nevertheless, if the bishop composed the treatise in the hopes of attracting patrons, as has been suggested, he failed.[1100] [1101] [1102] [1103] [1104] [1105] [1106] Older scholars argued that it may have been the source for the forms of action in the early common law and, perhaps, even Bracton's understanding of dilatory and peremptory exceptions?3 There seems no convincing evidence for this. Yet, William's failure to reach an audience does not diminish the Practica legum’s contribution to ecclesiastical procedure. Product of the 1180s, it demonstrates the increasing combination of Roman and canonistic procedural law in the ius commune. For all his faults as both bishop and royal administrator—and these may well have been legion— William of Longchamp thus deserves to be remembered as one of the pioneers of the ordines. Here begin the Guidelines of the laws and decretals composed by Master William de Longchamp?4 1. The science of the law is truly a most sacred thing?5 From it proceed both the simplicity of the dove and the guile of the serpent76 so that you may neither defraud your brother in judgment77 nor yourself be tripped up by the plots of others. Indeed, St. Jerome bears witness that it is equally probable that one will deceive or be deceived in judgment?8 2. Therefore, with high and considered counsel, the Lord desired that certain men be preceptors of this science, lest if some vague faculty of making law be granted to someone out of the confusion of the constituents there arise (equal) confusion of matters or, even worse, a self-appointed judge,[1107] who easily ignores fault to the detriment of his subordinates,[1108] and does not equitably render what is due his superior or equal[1109] 3. Just as there are two kinds of men, clerical and lay, distinguished by reason of their profession and way of life, thus by a twofold reason the pious Father provided the human race with both the lay and priestly realms,8[1110] so that neither the ecclesiastical kingdom usurps the rule of the earthly nor the latter, attempting sacrilege, assails the laws of ecclesiastical governance. 4. If, in fact, by the severity of the sword wielded by the emperor,8[1111] God wished the excesses of laymen to be corrected, then He also desired that the clerical life be moderated by the diligence of the fisherman (the pope). The authority of commanding rests in the hands of these men: for the remainder, the need to obey[1112] 5. But, since they are only men,8[1113] they cannot by themselves carry such a burden on their own shoulders and thus they called others into a share of the concern, but not the fullness of power[1114] [1115] To these, indeed, they gave the faculty of discussing the affairs of subordinates, with these matters first having been aired according to the legal order. 6. However, in all legal enforcements one must maintain judicial order and solemnity. 7. If anyone, therefore, should believe another legally obligated to him, let him first go to a competent judge and compose a brief called a conventionalist in which the name of thejudge appears first, then the plaintiff, followed by the defendant. Then let the form of the suit be designated,[1116] the charge brought,[1117] [1118] and, finally, the date of the brief's composition set down.9° 8. Let a proper name designate the form of the suit, for instance if it is a serf being sued, with designation of form, figure, or weight, as in the case of a goblet, or in a fixed quantity, as money, for example by saying 10 or 100, or measure, as in grain, wine, and similar things, for instance, three measures or two, or whenever[1119] by another expression, for when a horse is being claimed, he ought to designate color and size, whether it is big, small, or medium-sized, a destrier, palfrey, or a nag, and by another certain sign, for instance if it has a mark on its head or something else. I speak thus when a particular horse is being claimed; if a horse were promised in general, without any definition^[1120] this is done without any certification. When, however, a fixed parcel of land is being claimed, one must name the boundaries of the field, for example: who has the property on the east side of Mevius' property, on the west, the property of Ticius, on the north, the land of Pamphilius, and on the south, a public road.9[1121] 9. §The action must be designated not only generally but specifically^[1122] If it be only in general, let the reason be assigned from which the obligation arose[1123] Since the fixed quantity is general to all obligation from which someone can sue specifically^[1124] he ought to express another suit, if another applies from that contract, for instance from sale or deposit[1125] [1126] If no other suit applies to that contract, then the reason must be designated from which it arose, for instance the fixed condition from a loan.98 10. With this done, and surety provided, let the plaintiff produce surety in the execution of the trial, namely that he shall join issue within two months or restore twofold all damage to the defendant resulting from this suit that does not exceed the sum of 36 aurea." The aureus, however, is computed legally for the solidus.[1127] [1128] [1129] [1130] [1131] [1132] [1133] [1134] 11. He shall provide also another surety if he should lose his case: namely to restore to the accused a tenth part covered in the bill for expenses. If the defendant should vow that he spent more, the judge shall award in excess of the aforesaid quantity.™ 12. With this done, let him present the bill of accusation to the judge.™ Then, through the executor,™ let the bill be offered to the accused, who shall have surety furnished upon demand and, then, according to the amount of the suit, let gifts be given the executor.™ Let the accused then enjoy a twenty-day grace period to consider whether to yield or contest.™ 13. Thus, any joinder of issue held against this concession is void.™ 14. If, however, the prior solemnities should be in any way defective, the bill of accusation must be completely composed again, with new delays granted in entirety, even if only one day remains from the twenty days of grace. 15. During this time of deliberation, let him likewise reflect on whether he wishes to go to trial before that judge or to recuse him, as it were, as suspect or[1135] if he desires another to be assigned,[1136] [1137] [1138] [1139] [1140] [1141] [1142] [1143] unless that judge be the one, with the other recused, he had already requested in another trial.ω9 16. Some of these things, though not all, are observed in canon law. Neither the presentation of the bill is observed nor the giving of surety.110 Yet the rest ought to be, namely the designation of action by the aforementioned signs, without setting forth the charge. Indeed, the simplicity of the canons does not desire this,m but it suffices merely to ask for the judge.n2 Today, in place of the notification of the defendant,n3 according to custom, which appears consonant with the law,n4 among judges-delegate let the original of the rescript be presented to the defendant under the seal of the judges.115 By the ordinary judges, however, let the complaint of the plaintiff be declared to the defendant either in his own letter or through a messenger under oath.[1144] [1145] [1146] [1147] [1148] [1149] [1150] [1151] [1152] 17. The canons do not admit the recusal of the judge but, in its place, an appeal occurs.n7 Indeed, since in the canons each party was permitted to appeal, it was not necessary that another remedy be applied. Since, however, according to the civil laws onlyn8 when the sentence is given it is permissible to appeal, it was necessary to find a remedy for recusal.n9 Today, with the new law introduced by Pope Lucius iii,i20 if a case has been committed to the judgment of someone either related to the one who obtained the letter or acts as advocate in the same affair, or suspect in any case/21 he rightly can be recused, even though the case was delegated with no possibility of appeal.122 18. I understand this as so if a just cause of suspicion were alleged and proved, just as if it were appealed by that man in the same case∕23 or if he were infamous, the property would return to him; (other instances might be) if he were an enemy, or that something else might happen on account of which the laws and canons prohibit him from duty of judging.124 Indeed, it does not suffice, I believe, merely to say that the appointed judge is suspect, unless the reason for suspicion is argued and proven. Otherwise, a letter obtained from the pope could be forged.[1153] [1154] [1155] [1156] [1157] [1158] [1159] [1160] [1161] 19. Therefore, before that judge whom he recuses he ought to plead and prove the reason for suspicion just as in other^6 exceptions of the courti27 and it will be up to that judge to rule whether it is his jurisdiction or not.128 20. One called by the external judge ought either to come in order to respond or to plead the privilege of court which, perhaps, could be understood not so broadly.129 21. He ought to come to respond or plead, if summoned to judgment by a judge who has some jurisdiction over him,130 unless exempted by some privilege,131 for example when he is the praetor in the city who hears cases in private law, or the magister militum who examines military cases.m If, therefore, a soldier is called by the praetor,133 he ought to come and plead his privilege since only by military privilege is he exempted from the praetor’s jurisdiction which, if removed, he then would be judged just like the rest. If a cleric be called by the archbishop, since in another case he could be prosecuted by his suffragan bishop,[1162] [1163] [1164] [1165] [1166] [1167] [1168] [1169] [1170] he ought to come and plead that he ought to be prosecuted under his own bishop until it may be appealed from him or when the case was committed to another by the Lord Popeji3≡ or, called by the ordinary judge, he ought to come and argue that the case was committed to another by the Lord Pope, who has the privilege of examining all cases up to the declaring of appeal and delegation. 22. If, however, a man is summoned by one who either has no jurisdiction or, if he does, nevertheless does not have it over him in particular,i36 ori37 it is not removed by privilege, and cannot have it in another case, for instance through appeal, then he is not compelled to come unless summoned by a judge delegated by one who does have jurisdiction over him or could have it in the aforementioned way. 23. When thus he comes to judgment, let the defendant take care not to delay dilatory exceptions until after the joinder of issued8 24. Some exceptions are perpetual, others are dilatory.^9 25. Dilatory exceptions are those that delay with respect to time, not those that void the process. Dilatory exceptions ought to be raised on behalf of the defendant at the start of the joinder of issue.M0 For, after this, they would be offered in vain. These are appropriate whenever they concern the person of the judge, the plaintiff, from one who wishes to go to court on behalf of another,i4i from the accused, concerning time, place, or from the case being brought or by reason of rescript.^2 26. Exception by reason of the plaintiff is appropriate,[1171] [1172] [1173] [1174] [1175] [1176] [1177] [1178] [1179] [1180] [1181] [1182] when, for example, a minor wishes to sue without the authority of a tutor or a curator,144 or if he is insane, mentally deficient, a spendthrift (to whom by law the administration of goods is denied), or has made a contract never to make a future claim,M5 or brought suit against the defendant under another judge concerning the same action and it is not yet decided, since one cannot be sued before different judges or, finally, if the plaintiff himself wishes to be judge.w6 27. There is also an exception concerning the person suing on behalf of another^7 as a proctor for a soldier, m8 or one in religious life for a private person or for a monastery other than his own,w9 or that the proctor is infamous,150 or does not provide sufficient surety,151 does not have the mandate, is a serf,152 or a woman,^ where one may not sue in his own cause.154 28. Exceptions concernng the person of the defendant include when the question of juvenile status is moved.[1183] [1184] [1185] [1186] [1187] [1188] [1189] The trial ought to be delayed until the age of puberty. Again, there is an exception if the defendant appeals or is not under the jurisdiction of the judge before whom he is being sued; other examples are when he is of servile condition and thus cannot be accused, or is exempted by special privilege as certain archbishops are from the jurisdiction of their primate.i56 29. Again, concerning the person of the defendant, he is excepted when absent on public business, since perhaps he is performing a legation; for, after his departure, he cannot be sued concerning earlier contracts.157 However, he still is able to be sued concerning those he contracted while a legate.^8 30. Yet, one must note that if anyone by reason of a special or general privilege is able to claim an exception against the court, and then still sues before another judge not his ordinary but, instead, delegated,159 the accused, if he does not wish, shall not receive his claims, unless the plaintiff also responds to the petition?60 This happens if the defendant demanded this at the beginning of the joinder of issue. For, afterwards, it ought not to be heard,i6i unless the prior judgment has been given which, truly, was introduced with great equity. Indeed, it has happened when someone had sued before a judge that the defendant was also suing the one who had accused him before another judge about some case and was obtaining a date to be set which had already been fixed in the other case. Thus, it happened that the execution of one suit impeded the other. Therefore it was secured by a more beneficial counsel that if the accused were contesting this from the start, he could offer reciprocal actions against the plaintiff before the same judge, especially when he could not recuse that judge whose judgment follows in the procedure.[1190] [1191] [1192] [1193] [1194] [1195] [1196] [1197] 31. An exception by reason of time,163 for example, two months, is obtained for the sake of the harvest or gathering the vintage. It is also obtained on account of religious services/*’4 extraordinary holy days,165 or because of Lent.i66 In these seasons, it is not permitted to try cases or make oaths unless to restore peace or because an action would end during this time, namely since usucapioi*7 or prescription would have to be completed within this period. 32. Exception by reason of place is obtained when, for example, the location appointed is such that one cannot appear there without great distress, for instance because he has enemies along the way. You should understand this accordingly, that he either has enemies in the same place or also has to cross through land held by them. However, if he could come safely, with only a slight detour, he does not have this excuse. Otherwise, if he could come only through a great detour, he shall have the exception by reason of location. It must not be granted him, however, who should not have to detour across vast tracts of land. 33. Exception by reason of the object of the trial ought to be claimed before that judge in whose territory it is located^8 when the suit concerns sale of property, whether real or moveable.i69 It is otherwise in personal actions. However, even before that judge under whom the property he is claiming is placed he is able to sue, since the judge can punish him by reason of that property, whether real or moveable.[1198] [1199] [1200] [1201] [1202] [1203] [1204] [1205] [1206] [1207] It is otherwise in personal actions, since there the plaintiff follows the court of the defendant.™ 34. It is understood that it is another’s court by reason of contract,™ or by reason of admitted or unintentional offense.™ 35. If you made a contract at the fairs of Lagny, you shall be compelled to respond before the judge of that place.™ 36. If you killed another’s servant, you shall be sued there by the action of the Lex Aquila,™ which namely arises from the offense. If your beast should cause any damage there, you shall be sued under the action de pauperie™ which arises from supposed offense. 37. Although anyone can be sued there, I do not deny that, after returning home, he could be sued before his own judge. This was instituted in favor of the plaintiffs, not the defendants. Thus it ought not to be reversed to the injury of the plaintiffs which, indeed, would happen if they could not be sued before their own judges. 38. By reason of a commission previously made to other judges, a second judge can void the judgment by the delegated judge. For example, if anyone had obtained a papal letter against another about some case,i77 and he subsequently obtained another letter directed to other judges about the same business,™ the first man is not compelled to respond to the second letter, unless it expressly mentioned the previous letter.™ 39. However, what if this is contained in the second letter: ?with the letter not objecting, if those things obtained in it appeared with tacit truth’ or thus: ?with no letter objecting to truth and justice, if what appeared (was) obtained from the apostolic see?’ In both cases, one can say that by no means will it be annulled by the first letter unless proved that it suppressed the truth.[1208] [1209] [1210] [1211] [1212] [1213] [1214] [1215] [1216] [1217] 40. But if it simply reads ?with no letter objecting,' certain ones say that it is voided by the first letter,181 especially by that law which states: ?Ticius is my heir, all the rest are disinherited; all those by name® are to be understood as disinherited,'^3 and by many other examples easy to find by going through the concordances.^4 41. First, therefore, when anyone is sued by the authority of a rescript,^5 he should carefully consider the seal to see whether its letters and images agree and if its borders are equals6 Then he should consider the style of the letter and whether it follows the Roman form. Then he should consider, if it is a letter patent, whether there is any erasure, since this is not prejudicial in a letter closed7 If in the letter patent there is an erasure,188 one must consider whether it occurs in a suspicious place or not, since in the former this is prejudicial and creates the suspicion of falsehood. Again, one must consider whether the rescript was granted to someone present or absent.^9 Indeed, the form is different. To those absent it is thus granted: ?from the complaint of that one it has come to us' or thus: ?it was related to us that that one, etc.' and it can be evaluated from the tenor of the rescript (that he is permitted to use)... Addition[1218] [1219] [1220] [1221] [1222] [1223] [1224] [1225] ... and is permitted to use; from the tenor of the rescript one is able to judge that the one to whom the rescript was granted did not request in person. However, to those present it is given in this form: ?Coming to Us, the bearer of these showed Us by his complaint.,'00 etc. Therefore, if a rescript of this kind be permitted to anyone absent for these reasons, it is able to be challenged, namely through the customary form of the Roman Church of issuing a rescript..012 Written and signed testimonies favor this.193 It happens many times that someone cannot sue another's case at the Roman curia since he is not its particular messenger,014 nor is he provided with letters from the one whose case he is advancing, letters which customarily are the protection of legates. Therefore, people pretend that the business is theirs and thus it is granted them through the deception of lying, as it were, to the judged5 However, that rescript extorted through lying, which ought not be valid, is able to be tested through signed agreements. However, this is able to be observed by another reason because he seems not to have been present, though he petitioned him through a proctor that he would appear with signed originals.^6 Nevertheless, the actual reason for this does not matter/17 nor must it be investigated through whom the letters were obtained. These examples suffice to support this assertion. If anyone, therefore, wishes to argue carefully in his own defense, let him not propose all his arguments at once but, instead, produce one, two, or several at a time and then strive to recommend these to the judge. However, should it declared against him, then let him turn to other remedies. However, it must be known that if anyone already provided with greater ecclesiastical dignities should obtain a (papal) letter concerning a lesser benefice, and the name of the greater benefice has been suppressed, the letter has no force. The same is true if the son of a priest obtained a letter concerning his father's church.[1226] [1227] In both cases, I understand this to be so if he wished anew to obtain churches of this sort or benefices or even if the letter extended the judgment of ownership. However, it would be otherwise in the recovery of possession,^ lest it appear to disagree with the signed originals. Since some exceptions are called peremptory, and others perpetual,[1228] the latter able to be appointed prior to the joinder of issue, let us see about them. Those are called peremptory since they end the case and do not merely delay; others are perpetual since they are able to be applied by both parties up to the sentence,201 not because they always continue, just as a perpetual suit202 does not last forever, but extends up to forty years.203 However, these happen sometimes when the plaintiff lives a long time∕04 or his heir is silent. Sometimes they also come from a pact or a judicial decision, the crime of the plaintiff, or his heir.