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Dr. Thomas Fastolf and the History of Law Reporting

Published online by Cambridge University Press:  16 January 2009

J. H. Baker
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Extract

It is sometimes supposed by English lawyers that one of the principal differences between their law and other European legal systems is that the common law is founded on decided cases, whereas systems influenced by Roman law depend on texts and doctrinal literature. Some Civilians might accept the distinction. But the canonist knows that it is hardly accurate. In the first place, his decretals can be regarded both as case-law and as texts. Moreover, once the pope began to commit his adjudicative authority to a court composed of doctors of law, canon law became increasingly the jurisprudence of a learned tribunal. The supreme papal court was the “Audience,” where cases were heard before the auditors of the papal palace (domini auditores sacri palacii apostolici). The pope had appointed auditors of causes since early times, and their procedure had become regularised during the thirteenth century. By the fourteenth century, when these judges were lawyers of distinction from all over Europe, the Court of Audience had become a collegiate body; and under Pope John XXII (1316–34) it was given a written constitution and a settled home. John settled his curia at Avignon, and built a hall of audience alongside his palace there. In 1331 he promulgated the bull Ratio iuris, which was intended to govern for all time what it described as “the highest court established under divine inspiration, where the quality of justice abounds in excellence and brilliance.”

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The Cambridge Law Journal , Volume 45 , Issue 1 , March 1986 , pp. 84 - 96
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Copyright © Cambridge Law Journal and Contributors 1986

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References

1 For this distinction, and its tendency to mislead, see “English Law and the Renaissance” [1985] C.L.J. 46–61.

2 For the significance of this, see W. Ullmann, “A Decision of the Rota Romana on the Benefit of Clergy in England” (1967) 13 Studio Gratiana 455. There are accounts of the development of the Court of Audience in E. Cerchiari, Capellani Papae et Apostolicae Sedis Auditores (Rome, 1919–22), Vol. I; B. Guillemain, La cour pontificate d’Avignon 1309–1376 (Paris, 1962), pp. 345–356.

3 For variations on this title, see Schneider, op. cit., in n.7, infra, at pp. 31–32; and n.58, infra.

4 Only the foundations now remain, revealed by excavation in the main courtyard of the new palace. For the history of the palace, see Gagnière, S., Le palais des papes d’Avignon (Paris, 1965).Google Scholar

5 Cerchiari, Capellani Papae, Vol. III, pp. 69–77. The quotation is a free translation from the preamble (p. 69): “… in Romana curia, communi quidem patria, ubi est summum tribunal iudicii constitutum divinitus, et ubi lux et forma iustitie preeminent et prelucent….”

6 There is no longer any trace of the Rota itself. Much of the painting (including the Last Judgment) was destroyed in the 1820s while the palace was in use as a barracks. But in 1985 the present writer noticed on the north wall a mid-14th century painted inscription, Locus Domini Bernardi Huconis De …, which may indicate the seat of the auditor Bernardus Hugonis de Cardalliaco (for whom see Cerchiari, Capellani Papae, Vol. II, p. 30, no. 151). Perhaps the auditors had seats against the wall for their interlocutory sessions extra rotam.

7 E. Schneider, “Uber den Ursprung und die Bedeutung des Namens Rota als Bezeichnung für den obersten päpstlichen Gerichtshof” (1933) 41 Römische Quarlalschrift 29–43. Schneider illustrates a seal of c. 1330–50 with the inscription, S[Igillumi] Collecii Auditoru[M] Palacii Apostolici. It shows 13 auditors in copes, mostly with hoods over their heads, sitting on the inside of a stone circle. The seal is flanked by St. Catharine (patroness of the Rota—for obvious reasons) and St. Augustine (reputedly the first auditor). The picture probably shows the Rota in the old palace: as to which, see n. 15, infra. The Rota apparently moved to La Grande Audience in 1352. In that year the master of works was paid 24 fl. pro factura rote audiencie nove in qua sedem auditores sacri palacii, and a joiner was paid £12 for building and joining the rota auditorium and the auditors’ seats: ibid, pp. 36–37.

8 See [1985] C.L.J. at pp. 53–56.

9 Guido Papa, Decisiones Grationopolitane (Grenoble, 1490), preface (“… et duxi in scriptis redigendum prout infra per modum questionum, ritum decisionum rote curie Romane insequendo …”).

10 See [1985] C.L.J. at pp. 55–56.

11 Matthaeusde Afflictis, Decisiones Neapolitane (Naples, 1508). He records in one place (dec. 271) a decision by the council which was “moti potissime per dictam rotalem decisionem.”

12 Joachimus, Mynsinger, Observationes iudicii imperialis camerae (Cologne, 1563). Although the Reichskammergericht was founded in 1495, the earliest cases in this collection are from the 1520s, and they are based on the record rather than personal observation.Google Scholar

13 Dolezalek, G., “Die handschriftliche Verbreitung von Rechtsprechungssammlungen der Rota” (1972) 58 Z.S.S.Kan. 1–106, at pp. 5, 37Google Scholar; “Ouaestiones motae in Rota: Richterliche Beratungsnotizen aus dem vierzehnten Jahrhundert” in Proceedings of the 5th International Congress of Medieval Canon Law (Kuttner, S. and Pennington, K. ed., Vatican City, 1980), Monumenta Iuris Canonici Series C, Subsidia 6, pp. 99–114.Google Scholar

14 The early editions are thoroughly described in Gesamtkalalog der Wiegendrucke, Vol. VII (Leipzig, 1938), col. 344–355. For the history of these collections, see (in addition to the articles in n. 13, supra): A. Fliniaux, “Les anciennes collections de Decisiones Rotae” (1925)4 R.H.D. (4th Ser.) 61–93, 382–410; H. Gilles, “La vie et les oeuvres de Gilles Bellemère” (1966) 124 Bibliothèque de I’ÊcoIe des Charles 30–136, 382–431; G. Dolezalek and K. W. Nörr, “Die Rechtsprechungssammlungen der mittelalterlichen Rota” in Handbuch der Quellen und Litteratur der neueren Europäischen Privatrechtsgeschichte, Vol. I (H. Coing ed., Frankfurt, 1973), pp. 849–856. For their influence, see also Ermini, G., “Giurisprudenza della Rota Romana come fattore costitivo delle jus commune” in Studi in Onore di Francesco Scaduti (Florence, 1936), Vol. I, pp. 283–298; K. W. Nörr, “Ein Kapitel aus der Geschichte der Rechtsprechung: Die Rota Romana” (1975) 5 lus Commune 192–209.Google Scholar

15 And (in 1336) the first writer to use this name for the court: Schneider, op. cit., (n.7, supra), at p. 30, referring to the first case (“… fuit in Rota propositum quoddam negotium …”).

16 Both are in Germany. Dolezalek, “Quaestiones motae,” p. 102 n.23, cites them as Berlin SPK lat. fol. 864, ff. 35–46v; Kassel fol. jurid. 23, ff. 234–281v.

17 Preface by Joannes Aloisius Tuscanus (a Milanese advocate) to the edition printed by George Lauer (Rome, 1475): “Non certe leve est quod Thome Falstoli natione etrusci et Johannis de Molendino [editor of Bosquet: for whom, see n.55, infra] etiam sacri palacii auditorum nomen et memoriam etati nostra officiosissimus hominum reddidisti: qua in re et illud gratum est quia cognoscimus quibus moribus tune viveretur, quibus institutis: qua via ad decidendas causas iretur.” There are copies of this edition in the British Library and the University of Manchester John Rylands Library. In later editions, such as that in the writer’s possession (Venice, 1585), the preface is omitted.

18 Lorenzo, Giustiniani, Memorie Istoriche degli Scrittori Legali del Regno di Napoli (Naples, 1787–1788), Vol. I, pp. 9–10.Google Scholar

19 Eubel, C., Hierarchia Catholica Medii Aevi, Vol. I (2nd ed., Münster, 1913), p. 336, lists Fastolf as bishop of “Menevia” and notes that he was an auditor, but does not mention his reports. Cerchiari, Capellani Papae, Vol. II, p. 26, no. 127, lists him as an auditor, but does not Anglicise “Fastoli” or “Menevia.” The first clear identification seems to be by Fliniaux, op. cit., (n.14, supra), at pp. 390–391.Google Scholar

20 Emden, A. B., Biographical Register of the University of Oxford to 1500 (1959), Vol. III, Appendix (university uncertain), pp. 2174–2175.Google Scholar

21 E. g., W.Ullmann, Law and Politics in the Middle Ages (1975), p. 184 (“Thomas Fastoli…later bishop of Menevia”). Cf. 13 Studia Gratiana 463 (“Fastoli (or Fastolf)”).

22 Pantin, W. A., The English Church in the Fourteenth Century (1958), p. 21; expanded in The English Church and the Papacy in the Middle Ages (C. H. Lawrence ed., 1965), p. 176. There are brief notices of Fastolf in J. R. L. Highfield, “The English Hierarchy in the Reign of Edward III” (1956) 6Trans. Royal Hist. Soc. (5th Ser.) 115, at pp. 128,130; W. Greenaway, “The Papacy and the Diocese of St David’s 1305–1417” (1960) 161 Church Quarterly Review 436, at p. 443; L. E. Boyle, Survey of Vatican Archives (1972), p. 91; J. R. Wright, The Church and the English Crown 1305–1334 (1980), p. 106.Google Scholar

23 Calendar of Papal Letters, Vol. II, p. 547; Vol. III, pp. 53, 76, 183, 194, 462; Calendar of Papal Petitions, Vol. I, p. 132; J. Le Neve, Fasti Ecclesiae Anglicanae 1300–1541, Vol. I, p. 43; Vol. IV, p. 26; Vol. VIII, pp. 4, 13; Vol. XI, pp. 12. 53; Vol. XII. p. 21.

24 Calendar of Papal Letters, Vol. II, p. 251; Le Neve, Fasti, Vol. VI, pp. 64, 75; Vol. X, p. 14.

25 The only mention is in 1336; Calendar of Papal Letters, Vol. II, p. 535; H. J. Lawlor, Fasti of St Patrick’s, Dublin (1930), p. 193.

26 Since 1342 he had also held a canonry of Wells, and since 1344 a prebend in Lincoln cathedral.

28 His will is dated 19 June and was proved on 1 July: Lambeth Palace. 175 Islep, fo. 233.

28 For Bateman, see E. C. Clark, “Bishop Bateman” (1896) Proc. Cambridge Antiquarian Soc. 297–336; J. Venn, Biographical History of Gonville and Caius College. Vol. IV (1901), pp. 5–8, 327–331; A. H. Thompson, “William Bateman, bishop of Norwich 1344–55” (1935) 25 Norfolk Archaeology 102–137; Emden, A. B., Biographical Register of the University of Cambridge to 1500 (1963), p. 44Google Scholar; Brooke, C. N. L., A History of Gonville and Caius College (1985), pp. 5–6, 13–18. Details of the other Cambridge lawyers mentioned below are from Emden unless otherwise stated.Google Scholar

29 F. Peck, Desiderata Curiosa (1779), Vol. II, p. 240 (by Prior Laurence of Norwich): “De cujus plenitudine exhauriens, sic in brevi, tarn conversationis puritate quam scientia precellenti, summo pontifici et toti curie Romane in tanto favore complacuit quod in auditorem sacri Palacii est sublimatus, per singulos gradus vicissim laudabiliter condescendo. In tanta vero justicie, equitate et sentencie soliditate in gradibus illis inflexibilis prepollebat, ut, ipsius summi pontificis ac totius curie assertione. utriusque iuris peritorum flos precipuus diceretur.”

30 Crawley, C., Trinity Hall (1977), pp. 16–18. They included Walter of Aldeby (1350), who was on Bateman’s staff at Avignon in 1355 and died at the Roman curia in the 1370s. Also of Cambridge, though he cannot be linked with a particular college, was the Norfolk canonistic theologian John of Baconthorpe (d. 1348), who lectured in the 1330s and achieved a wide reputation: W. Ullmann, “John Baconthorpe as a Canonist” in Church and Government in the Middle Ages (C. N. L. Brooke et al., ed., 1976), pp. 223–246.Google Scholar

31 Brooke, History of Caius College, pp. 21, 26.

32 He is mentioned in Horborch’s preface as one of the auditors in 1376, and is reported in dec. 95, 114, 119, 274 and 454. For other references, including one in Bellemère, see Ullmann, 13 Studia Gratiana 466 n.39.

33 Calendar of Papal Petitions, Vol. I, p. 277 (1355); n.72, infra. His name is spelt “Freton,” but seems to derive from Fritton in Norfolk. He bequeathed his law library to Chichester cathedral, of which he was dean.

34 His name is variously spelt “Boktesham,” “Bodekesham” and the like, but the intrusive “k” is also found in the Cambridgeshire place-name: Hailstone, E., History of the Parish of Bottisham (1873), p. 1Google Scholar; Ekwall, E.. Concise Oxford Dictionary of English Place-names (4th ed., 1960), p. 54. His connection with Gonville Hall was recorded in a window formerly in the old chapel: Brooke, History of Caius College, pp. 23–24. For his proctorship (1363–64) see Grace Book Γ (W. G. Searleed., 1908), p. xii. In Brit. Lib., Add. Ch. 19851, is a seal with a portrait of “Botkesham” as an auditor (1380).Google Scholar

35 Infra, p. 93. See also Highfield, op. cit. (n.22, supra), p. 129. Simon’s brother Thomas (d. 1396) was an auditor in the 1380s, and is mentioned in Horborch (dec. 452).

36 Emden assigns him to Oxford because he represented that university in a dispute before Bishop Bateman at London in 1345: but that engagement could have resulted from a connection with Bateman rather than with Oxford.

37 Calendar of Papal Petitions, Vol. I, p. 9. Cf. ibid., p. 36: Thomas of Paxton, of Lincoln diocese, student in civil law (1344). A Benet of Paston was a papal auditor in 1326: Emden, BRUO, Vol. II, p. 1483. He looks like another of Bateman’s followers. Paston is in Norfolk.

38 Calendar of Papal Letters, Vol. II, p. 547; Emden, BRUO, Vol. III, p. 2174. A Thomas Fastolf was a benefactor to the Blackfriars, Yarmouth, in 1296, and other relatives were buried there: C. J. Palmer, The Perlustration of Great Yarmouth, Vol. II (1874), p. 427.

39 Emden, BRUC, p. 221; C. Donahue and J. P. Gordus, “A Case from Archbishop Stratford’s Audience Book” (1972) 2 Bull. Medieval Canon Law (New Ser.) 45, at p. 50. The relationship between Laurence and Thomas is established by Calendar of Papal Petitions, Vol. I, p. 242.

40 The evidence for this relationship is not quite conclusive. A Nicholas and Laurence Fastolf, without further description, are mentioned as brothers in 1319, when they complained of a trespass at Great Wilbraham, Cambridgeshire: Calendar of Patent Rolls 1317–21, p. 463. (Were they at Cambridge together?) When the serjeant went to Ireland in 1324 and 1328, he appointed Mr. Laurence Fastolf as one of his attorneys: Calendar of Close Rolls 1323–27, p. 227; Calendar of Patent Rolls 1327–30, p. 321. A Nicholas Fastolf, son of Thomas, is mentioned in 1330: Calendar of Close Rolls 1330–33, p. 151.

41 Baker, J. H., The Order of Serjeants at Law (1984), pp. 154, 511.Google Scholar

42 “Iste decisiones que sequuntur fuerunt extracte a quodam libro quern dominus Thomas Falstoli compilavit super stilo causarum in palacio apostolico vertentium dum ibidem erat auditor.”

43 This volume was presented to the Bodleian Library by Sir Walter Cope in 1602. Before him it had belonged to one “Thyrleby,” probably Thomas Thirlby LL.D. (Cantab.), bishop of Ely (d. 1570), sometime fellow of Trinity Hall.

44 The English Church and the Papacy, p. 176 (“many seem to be discussions of hypothetical cases by the judges”).

45 See C. Lefebvre, “La procédure de la Rote” (1958) 5 L’Annie Canonique 143, at pp. 148 et seq.; Dolezalek, “Quaestiones motae,” p. 99.

46 Cerchiari, Capellani Papae, Vol. II, p. 26, no. 125.

47 Possibly Bateman, though there may have been other auditors with this Christian name.

48 Cerchiari, Capellani Papae, Vol. II, p. 25. In Fastolf, dub. xxxix, appears also a “Petrus Senen.”

49 Not in Cerchiari. Mentioned in dub. xxxii, xlvi.

50 Cerchiari, Capellani Papae, Vol. II, p. 25, no. 114. He was from the diocese of Castres in France: 34 Quellen und Forschungen aus italienischen Archiven 156–157.

51 Cerchiari, Capellani Papae, Vol. II, p. 26, no. 136.

52 “Quaestiones motae,” pp. 102–103.

53 Cambridge Antiquarian Society Communications, Vol. II, p. 76.

54 “Quaestiones motae,” pp. 104–105.

55 G. Dolezalek, “Bernardus de Bosqueto, seine Quaestiones motae in Rota (1360–1365) und ihr Anteil in den Decisiones Antiquae” (1976) 62 Z.S.S. Kan. 106–172, esp. at pp. 116–117,168–170. Cardinal du Bosquet came from Quercy and was educated at Toulouse. His reports were first printed (as “Bisigneto”) at the same time as Fastolfs. It is interesting to note that Fastolf and Sudbury are among the six auditors whom Bosquet mentions by name: Dolezalek, op. cit., pp. 125 n.76 (“monstratum fuit michi unum consilium domini Thome Fastolf quondam auditoris palacii”), 131. The reference to Fastolf is not in the printed text.

56 Hereford Cathedral MS. O. IV. 15, ff. 96v (“et sic fuit sententiatum per dominum Ademarum auditorem in causa magistri Johannis de Rames’ …” concerning a church in the diocese of N[orwich]), 129r (“fuit consultum contra sententiam Olivarii et absolutionem factam in causa domine Margarete M. [? Brotherton] et Johanni de Segrave [? Lord Segrave, d. 1353]), 134r (“in casu Norwycen’ super vicaria de Mildenhale”), 137v (“in causa Lincoln’ contra Philippum Weston, dominus Stephanus de Marsenato sentential…”), 139r (“in casu matrimoniali coram domino Embrudunensi cardinali inter Vicecomitem Brucie et Dominam A. de Harecourt”). The writer is grateful to Miss P. E. Morgan, the cathedral librarian, for allowing him to see a microfilm of the manuscript.

57 ibid, ff. 95r (“in causa appellationis coram me mota …”), 101v (“per dominum meum Norwicensem”), 123r (“et dicunt aliqui quod dominus meus Norwycensis sic repulit ilium obiectum …”), 140r (“audivi quod dominus meus Norwycensis dum fuit in curia tenuit hanc partem”). See also Dolezalek, “Quaestiones motae,” p. 104.

58 The manuscript also includes at least two items of particular interest to Sudbury. On fo. 44r (in the Bosquet portion, though not in other Bosquet texts) is an opinion subscribed by “ego Simon de Sudbur’ legum doctor et sacrii palacii apostolici causarum auditor” and three other auditors: see Dolezalek, G., “Ein Rechtsgutachten aus dem vierzehnten Jahrhundert, erstattet durch vier Rotarichter” (1976) 19Studia Gratiana 163–173. The Mildenhall case (on fo. 134) arose from a long-standing feud between Bateman as bishop of Norwich and the abbey of Bury St. Edmund’s, which in 1346 had necessitated Sudbury’s flight from the country: Thompson, “William Bateman” (n.28, supra), pp. 118–121.Google Scholar

59 “Quaestiones motae,” p. 104. He relies chiefly on a list of auditors on fo. 89r, which includes Bertrandus de Sancto Genesio, who left the Rota in July 1334. But the material preceding that page is apparently not in chronological order, and is difficult to date, because speakers are rarely identified by name. On fo. 74v is a case arising from Benedict XII’s constitutions for the English monks, which must date from after 1336: Wilkins, D., Concilia Magnae Britanniae et Hiberniae (1737), Vol. II, pp. 588–613.Google Scholar

60 See the useful summary and references in Dolezalek, “Quaestiones motae,” pp. 106–109.

61 New College MS. 214. Dr. Andrew also gave two volumes of conclusiones rotales to All Souls’: Emden, BRUO, Vol. I, p. 35. He was auditor of the Canterbury Court of Audience in the 1430s.

62 All Souls’ College MS. 64. Dr. Goldwell had been a practising advocate before he became bishop of Norwich in 1472.

63 Oxford Historical Society, Collectanea, Vol. III, p. 239. John Wells, D.Cn.L. (Oxon.), bequeathed a volume of decisiones rotae in 1417: 16 Somerset Record Soc. 87.

64 James, M. R., A Descriptive Catalogue of the Manuscripts in the Library of Si Catharine’s College, Cambridge (1925), p. 7.Google Scholar

65 Aberdeen University Lib. MS. 202. See Ker, N. R., Medieval Manuscripts in British Libraries, Vol. II (1977), pp. 16–17.Google Scholar

66 6 National Library of Wales Journal 358, no. 63. Dr. Trefnant was an auditor in the later 1380s.

67 Ullmann so took it: 13 Sludia Gratiana 467 n.45.

68 The English Church and the Papacy (Lawrence ed.), p. 176.

69 “John Baconthorpe as a Canonist” (n.30, supra), at p. 223. But he singled out John of “Athona” as an exception.

71 Names from the Calendar of Papal Letters and Calendar of Papal Petitions. Further details are from Cerchiari and Emden. The dates are those of their earliest and latest mention as auditors in these sources. In many cases their auditorship probably ended on consecration as a bishop (“cons, bp”).

71 H. Hoberg, “Der Rotarichter … 1347–1494” (1954) 34 Quellen und Forschungen aus ilalienischen Archiven und Bibliotheken 159, at p. 163 (“Symon de Sudbiria”).

72 ibid, p. 165(“Rotgerus de Freton”).