CHAPTER VIII. SUMMARY OF PART I. We have now reached the limits of the first period in our inquiry, and have endeavoured to ascertain whether, in the first place, the Roman occupation of Britain left any traces of its influence on the Anglo-Saxon polity, and secondly, whether, from the landing of the Teutonic invaders down to the advent of the Justinianean learning, the Roman Law, as then taught or known on the continent, influenced the growth of English Law and institutions. In both these inquiries our results have been mainly negative. The early English Law is distinctly Teutonic: Roman influences can only be suggested in the vague applications of principles so comprehensive as to be shadowy, or in minor points where careful manipulation of the evidence exhibits curious coincidences. Mr Seebohm's theory of the origin of manors in mingled South German and Roman sources comes nearest to satisfactory evidence, and even that we have seen to remain in the category of hypotheses which may be true but are as yet unproven. The introduction of written instruments as evidence of the transfer of property, and the adoption of wills, are certainly due to ecclesiastical and probably to Roman influences; and the presence of the bishops in the shiremoots may have affected Teutonic procedure, but the traces of such an influence are very slight. The Land-law apart from the manorial system is Teutonic; the Family Law is unmixed in its origin; the divisions of the country and the organization of the towns cannot be claimed with success as Roman, while civil and criminal procedure is utterly unlike that of the tribunals of Rome. The Conquest, while at first it makes no great changes, has led to the interweaving of Norman and Frankish institutions with the English polity, but, except in as far as Feudalism is connected with the Roman beneficia, the influence of the Roman law is not put forth, or is powerless. From the era of Teutonic development we now turn to a period in which the law and its administrators are affected by an influence too fascinating in its intellectual charm to exert no sway over thoughtful minds, too powerful to leave no mark on English Law. In the train of the Archbishop of Canterbury, an Italian named Vacarius, learned in the Justinianean Law which the newly-born Law School of Bologna was teaching with a young convert's zeal, had landed on English shores; and from his lips Oxford and England heard the laws of Rome. PART II. ROMAN INFLUENCES IN ENGLISH LAW AFTER THE COMING OF VACARIUS. CHAPTER I. THE INTRODUCTION OF THE ROMAN LAW. JUSTINIANEAN Law was almost unknown in the Western Empire until the teaching of the Law School at Bologna in the twelfth century brought it into prominence'. The tale, adopted by Blackstone, of the finding of a single copy of the Pandects at the siege of Amalfi in 1135, may be dismissed after Savigny's destructive criticism, which shows it to have originated long after the siege and probably in the desire of the Pisans to uphold the superiority of their text, the Litera Pisana, over the Litera Bononiensis of the rival school, Bologna. This latter was commenced by the lectures of Pepo, but first brought into fame by the teaching of Irnerius and his successors. It illustrated the writings of Justinian by short notes, called glosses, and hence its teachers obtained the name of Glossatores. By their teaching the Roman Law rapidly spread among those Western nations who had only previously known it by the versions of the Theodosian code contained in the Alarician Breviary and Edict of Theodoric. Both in Italy and France the new study was received with great favour and the Emperor Lotharius 1 Kaufmann's Mackeldey, p. 66. Savigny's Geschichte des Romischen 1815-1831. 2 Bulgarus d. 1166. Martinus d. 1165. Rogerius d. 1192. Azo d. 1220. Accursius d. 1260. 3 Selden ad Fletam, c. 5 § 4. Mackeldey, Kauf. pp. 48, 49. enacted that causes should be decided according to the one Roman corpus of the Civil Law1. Under these circumstances Theobald, Archbishop of Canterbury, in 1143 brought to England in his retinue Vacarius, a Lombard skilled in the new learning. Selden, aided by a missing full-stop, has succeeded in most ingeniously confusing the identity and history of Vacarius, but the tangle has been at length unravelled by the learned monograph of Wenck. The Norman Chronicle contains the statement: "Obiit Bechardus, VI Abbas Becci, cui successit Rogerius, Magister Vacarius, gente Longobardus, cum leges Romanas anno 1149 in Anglia discipulos doceret et multi tam divites quam pauperes ad eum causa discendi confluerent. Suggestione pauperum de Codice et Digesto exceptos ix libros composuit, qui sufficiunt ad omnes legum lites quae in scolis frequentari solent decidendas, si quis eos perfecte noverit." The full-stop being omitted between Rogerius and Magister, Selden has first identified Rogerius, 7th Abbot of Bec, who was afterwards offered the see of Canterbury, with Vacarius, and has then further identified his composite with Rogerius Beneventanus, an Italian civilian and author of several legal works. He made this composite being leave England in 1149 for his abbey, and consequently a teacher of Roman Law in England before 1149. This confusion Wenck has succeeded in clearing up by showing that the name of the seventh abbot was Roger de Bailleul, proving his French origin; that he was therefore not the same as the Italian Civilian, and that the impossible combination "Rogerius Magister Vacarius," indicates clearly a dropped full-stop after "Rogerius." Vacarius undoubtedly lectured at Oxford in the Roman Law, and that University has ever since been connected with that study. Its Bachelor of Civil Law takes what are practically honours in its Law School, its Doctor of Civil Law possesses the 1 Selden, c. 6 § 2. 2 Magister Vacarius, primus Juris Romani in Anglia Professor. Wenck, Leipsic, 1820. Duck, De usu et authoritate Juris Civilis Romanorum, London, 1679. Irving, pp. 84-89. Spence, 1. 108. Selden ad Fletam, c. 7 §3. Wenck puts the date of Vacarius' coming between the years 1143-1146. Wenck, p. 21. The article on "Vacarius" in the Penny Encyclopaedia gives the results of Wenck and Savigny. most honourable degree the University can confer. Its doctors may be open to the censure of the anonymous pasquinade: In Institutis Comparo vos brutis ; In Digestis nihil potestis; In Codice satis modice; In Novellis, Similes Asellis; Et vos creamini Doctores! O tempora! O mores!1" but the memory of the ancient studies has survived in the name. The work of Vacarius, in nine books, consisted in a series of comments on the compilations of Justinian. His lectures appear to have been directed to those parts of the Roman Law which bore upon or illustrated the Law of England. For it was a principle of the Vacarian school that those parts only of the Roman Jurisprudence should be adopted which were in harmony with the development of the English Law. The former statutes of the Chair of Civil Law at Oxford contain the regulation : quam libet partem Corporis Juris Civilis exponat, eosque praecipue titulos, qui ad usum et praxim in hoc regno conducunt." But the study of Roman Law in England did not find favour with the Crown. John of Salisbury reports the action of Stephen32: "Tempore Regis Stephani a regno jussae sunt leges Romanas, quas in Britanniam, domus venerabilis patris Theobaldi...asciverat. Ne quis etiam libros retineret edicto regis prohibitum est, et Vacario nostro indictum silentium: sed, Deo favente eo magis virtus legis invaluit, quo eam amplius nitebatur impietas infirmare." Some attribute this prohibition to personal enmity against the Archbishop, the patron of the new learning; others to the fact that Vacarius taught also Canon Law, which conflicted with the laws of the realm. This latter theory seems improbable; for the first authoritative collection of Canon Law, the Decretorum Collectanea of Gratian, was only published in 1151, and Wenck is of opinion that Vacarius did no more than borrow from the Canon Law some few illustrations for his Civil Law lectures. Moreover the study of the Civil Law shortly afterwards fell into 1 Cited in Warren, Law Studies, II. 2 Selden ad Fletam, c. 7 § 3. |