successor. In its achievements it suffers little in comparison with the eighteenth-century 
Privy Council. Some of the greatest judges of that age —Holt, 
Hardwicke, Willes, Northington, and Mansfield—participated in appellate 
hearings there, but the Privy Council's contributions to the whole body of law 
were of the slightest. 180 
There remains to be considered one further problem—the matter of imperial 
enactment. Because this was once a burning issue in our own history, it has 
been largely discussed, and mainly in the terms in which it confronted the 
American colonists. The question had somewhat different dimensions in the 
Middle Ages and assumes its proper proportions only if one starts with the 
premise that initially the law-speaking function is a whole thing. To state this 
more precisely, so long as custom is the chief constituent of the law men live 
by, official pronouncement on the law is declaratory of something continuously 
in esse, even if just discovered. In consequence, whether such pronouncements 
are by way of judgment or are merely expository, whether they state something 
of indisputable antiquity or propound something novel, it is all one. 
The distinctions which come to be drawn in terms of the provenience of rules 
are by force of changes in the agencies of pronouncement. In feudal practice 
a single agency discharges the law-speaking function in all its aspects, and 
whatever the prerogatives of courtkeepers in the various echelons of the 
structure, 161 the participation and consensus of those who owe suit in curia is 
in theory indispensable. 162 This principle, had it been rigorously applied in 
the several dominions of the English King, would have resulted that at the top 
level only Irish chief tenants would have been competent on Irish matters, or 
Gascons on Gascon matters. This did not happen, partly because of changes 
in the composition and character of the dominion councils and partly because 
the capacities of the suzerain were altered through the promotion of the kingly 
office. 
The reasons of practicality and convenience which had made the great 
officeholder as indispensable in the English Curia Regis as the tenant in capite 
also had their effect upon the constitution of the local councils in Ireland 
160 Infra, pp. 464, 661. 
161 Early manifestations of a courtkeeper's legislative 
power are discussed in 1 Goebel, Felony 
and Misdemeanor, 229 et seq. 
162 The elements which combine to make consensus 
necessary are various. The contractual relation 
of lord and man, contemplates among 
other things the protection of the man's legal 
rights. These are asserted before the association 
of vassals similarly bound (viz., the curia). Any 
pronouncement which involves either the details 
of the contract or the underlying law upon 
which this rests needs the agreement of those 
similarly under contract and living by the same 
law. The term judicium parium embraces this 
as well as the more widely discussed status aspect. 
On the development of this, see Mitteis, 
Lehnrecht und Staatsgewalt, 82 et seq., 292. Cf. 
as to England, Stenton, First Century of English 
Feudalism 1066-1166, 35 et seq. Clarke, 
Medieval Representation and Consent (1936), 
247, confines the discussion of consensus too 
closely to the tax power.