Tome 3 of TUI 1584 is devoted to procedure. It is divided into two parts, both of which bear the subtitle De iudiciis (literally ‘On judgments’, but we would get a better sense for what it is all about if we translated ‘On matters brought before a judge’). These paragraphs will serve introduce both parts, but the data only for part 1 is contained below. The data for part 2 will be found here.

As is well known, one of the achievements of the ius commune of the medieval and early modern periods was the creation of Romano-canonical procedure, a procedural system for both civil and criminal cases that is in large measure still in use on the European Continent today, and to some extent in the Anglo-American legal world as well. The treatises in tome 3 do not cover the entire topic of Romano-canonical procedure. They deal with general topics about that procedure and take the order of proceeding (ordo iudiciarius) up to the joinder of issue (litis contestatio). Tome 4 deals with proof, and tome 5 deals with sentences, and the concept of res iudicata. Tome 11 deals more specifically with criminal procedure. Since tome 3 deals with procedure in general it includes some treatises that deal with the entire course of the ordo, including Tancred’s famous ordo iudiciarius (written c. 1215).

Procedural writers had a tendency to write short works, but there are lot of them. Tome 3, part 1 contains 39 items, more than tome 1 (32). While most of the works are practical, a few seem to have been written by authors with a humanist bent. There are some authors who are obscure indeed, but all of them, with the exception of one Spaniard and one Flemming, seem to be either Italian or French.

Tome 3, part 2 contains 54 items, the largest number in any physical volume so far. The methodological balance is the same as that in part 1. Once more, some authors are obscure indeed. Italians and French seem to dominate (with a decided preference for the former); there is one German, one Spanish, and one Netherlandish author. There seems to be more than the usual amount of misattribution, and the cause of it may be that this part contains two important medieval ‘living texts’: the treatise De exceptionibus and that De primo et secundo decreto. The first deals not with the exception as an alternative name for the basic substantive defense, but rather the procedural exceptions that normally had to be made before the litis contestatio. The second deals with contumacy. The seizure of the goods the contumacious defendant leads the organizer of the treatises to think about execution against the defendant’s goods, a topic that we might think belongs at the end of a general treatment of procedure. This is followed by a number of treatises on possessory remedies. The part concludes with three treatises on the recovery of costs.

The list of titles and authors follows the format outlined in the introduction to these pages. There are no records in HOLLIS that are not found here, though there are some items that are not found in HOLLIS that are here, and there is one item in part 1 that HOLLIS misascribes to part 2.

The heading abbreviations and the bibliographical abbreviations are the same as those used throughout these pages. In addition, Bethmann-Hollweg = Moritz August Bethmann-Hollweg, Der Civilprozeß des gemeinen Rechts in geschichtlicher Entwicklung, 6 vols. (Bonn 1864–1874).

After the list of authors and titles there is another list that gives the formal ‘metadata’ of the tome. The foliation in both physical volumes is regular; we have filled it in without comment where it is not visible. The register of part 1 indicates – and this seems to be accurate – that the signatures are A–Z, Aa–Zz, Aaa–Fff, all quaternions except A and Fff, which are ternions. That of part 2 indicates – and, once more, this seems to be accurate – that the signatures are A–Z, Aa–Zz, Aaa–Ddd, all quaternions except Ddd, which is a ternion. The title pages are on fol. 1r. In both physical volumes, the binder added the pastedowns and the freestanding endpapers.

Preliminary work on this list was done in the summer of 2013 by Dennis Mahoney and in the summer of 2014 by Shuting Lu. The Ames Foundation is grateful to them for their devotion to the task. Errors, which certainly exist and which are my responsibility, can be called to our attention by sending us an email.

Charles Donahue, Jr.
July, 2014

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