The History of English Law before the Time of Edward I. Frederic William Maitland

canonist would treat as law in other cases the rules that were thus laid down. His science was to a great degree a science of “case law,” and yet not of case law as we now understand it, for the “dicta” rather than the “decisions” of the popes were law; indeed when the decretals were collected, the particular facts of the cases to which they had reference, the species facti, were usually omitted as of no value. The pope enjoyed a power of declaring law to which but wide and vague limits could be set. Each separate church might have its customs, but there was a ius commune, a common law, of the universal church. In the view of the canonist, any special rules of the church of England have hardly a wider scope, hardly a less dependent place, than have the customs of Kent or the by-laws of London in the eye of the English lawyer.¹⁰ During the time with which we are now dealing, the twelfth and thirteenth centuries, no English canonist attempts to write down the law of the English church, for the English church has very little law save the law of the church Catholic and Roman. When in the next century John de Athona wrote a commentary on the constitutions made by certain papal legates in England, he treated them as part and parcel [p.95] of a system which was only English because it was universal, and brought to bear upon them the expositions of the great foreign doctors, Hostiensis, Durandus and the rest. On the other hand, a large portion of this universal system was in one sense specifically English. England seems to have supplied the Roman curia with an amount of litigation far larger than that which the mere size or wealth of our country would have led us to expect. Open the Gregorian collection where we will, we see the pope declaring law for English cases. The title De filiis presbyterorum ordinandis vel non has eighteen chapters; nine of these are addressed to English prelates. The title De iure patronatus has thirty-one chapters and at least fifteen of them are in this sense English. But if an English advocate made his way to Rome, he was like to be told by the pope that his doctrine was the product of English beer, and might carry home with him a rescript which would give the English bishops a sound lesson in the law of prescription.¹¹

Relation of canon to Roman law.The relation between the two great systems was in the twelfth century very close. The canon law had borrowed its form, its language, its spirit, and many a maxim from the civil law. Of course, however, it had to deal with many institutions which had never come within the ken of the classical Roman lawyers, or had been treated by them in a manner which the church could not approve. Thus, for example, the law of marriage and divorce, a topic which the church had made her own, had to be rewritten. Some elements which we may call Germanic had made their way into the ecclesiastical system; in penal causes the proof by compurgation was adopted, and, wherever the testamentary executor may come from, he does not come from the Roman law. Still the canonist’s debt to the civilian was heavy; he had borrowed, for instance, the greater part of his law of procedure, and he was ever ready to eke out Gratian by an appeal to Justinian. In Richard I.’s day the monks of Canterbury went to law with the archbishop; a statement of their case has [p.96] come down to us; probably it was drawn up by some Italian; it contains eighty citations of the Decretum, forty of the Digest, thirty of the Code. The works of the classical Roman jurists were ransacked to prove that the archbishop’s projected college of canons would be an injury to his cathedral monastery.¹² In the thirteenth century the canon law began to think that she could shift for herself and to give herself airs of superiority. The bishops of Rome began to discourage a system which had only too much to say about the grandeur of emperors and hardly a word of popes. If they could have had their way, the civil law would have been but the modest handmaid of the canon law.¹³ But in the days of our King Stephen the imperial mother and her papal daughter were fairly good friends. It was hand in hand that they entered England.

Roman and canon law in England.The history of law in England, and even the history of English law, could not but be influenced by them. Their action, however, hardly becomes visible until the middle of the twelfth century is at hand. If the compiler of the Leges Henrici adopts a sentence which can be ultimately traced to the Theodosian Code through epitomes and interpretations, if the compiler of the Leis Williame seems to have heard a few Roman maxims, all this belongs to the pre-scientific era.¹⁴ If William of Malmesbury, when copying a history of the Roman emperors, introduces into his work a version of the Breviary of Alaric, he is playing the part of the historian, not of the jurist.¹⁵ It is remarkable enough that within a century after Lanfranc’s death, within much less than a century after the death of Irnerius, a well-informed Norman abbot ascribed to them jointly the credit of discovering Justinian’s books at Bologna.¹⁶ The story is untrue, for Lanfranc had left Italy long before Irnerius began to teach; still his name would never have been coupled with that of Irnerius had he known no Roman law. Lanfranc’s pupil Ivo of Chartres, the great canonist, knew much Roman law¹⁷ and becomes [p.97] of importance in English history; it was his legal mind that schemed the concordat between Henry I. and Anselm.¹⁸ More to the point is it that from Burchard of Worms or some other canonist the author of our Leges Henrici had borrowed many a passage while as yet the Decretum Gratiani was unwritten. Yet more to the point, that already in the reign of Rufus, William of St. Calais, Bishop of Durham, when accused of treason in the king’s court, shows that he has the Pseudo-Isidorian doctrines at his fingers’ ends, demands a canonical tribunal, formally pleads an exceptio spolii, appeals to Rome, and even—for so it would seem—brings a book of canon law into court.¹⁹ When Stephen made his ill-advised attack on Roger of Salisbury and the other bishops, once more the exceptio spolii was pleaded, again the demand for a canonical tribunal was urged, and the king himself appealed to the pope.²⁰ The time when Gratian was at work on the Decretum, when the four doctors were flourishing at Bologna, was a time at which the English king had come into violent collision with the prelates of the church, and those prelates were but ill agreed among themselves.

Vacarius.At this time it was that Archbishop Theobald, at the instance perhaps of his clerk Thomas,—Thomas who was himself to be chancellor, archbishop and martyr,—Thomas who had studied law at Bologna and had sat, it may be, at the feet of Gratian²¹—imported from Italy one Vacarius.²² The little that we know of his early life seems to point to Mantua as his home and a short tract on Lombard law has been ascribed to him. It is not unlikely that Theobald [p.98] availed himself of the help of this trained legist in his struggle with Stephen’s brother, Henry Bishop of Winchester, who, to the prejudice of the rights of Canterbury, had obtained the office of papal legate. That Vacarius taught Roman law in England there can be no doubt; a body of students looked up to him as their magister and reverently received his glosses.²³ That he taught in the archbishop’s household, which was full of men who were to become illustrious in church and state, is highly probable. That he also taught at Oxford, where a school was just beginning to form itself, is not so plain, but is asserted by one who ought not to have made a mistake about such a matter.²⁴ That Stephen endeavoured to silence him and to extirpate the books of civil and canon law we are told upon good authority.²⁵ We are told also, and may well believe, that the royal edict was ineffectual. Further, we know that Vacarius wrote a book and have some reason for ascribing this to the year 1149; he wrote it for the use of poor students who could not afford to purchase the Roman texts. That book still exists. It might be described as a condensed version of Justinian’s Code illustrated by large extracts from the Digest.²⁶ It is a thoroughly academic book, as purely academic as would be any lectures on Roman law delivered now-a-days in an English university. In what of it has been printed we can see no practical hints, no allusions to English affairs.²⁷ Besides this, we have from Vacarius a christological pamphlet on the assumption of the manhood, and a little tract on the law of marriage in which he appears as an acute critic of the mischievous doctrine which the canonists and divines were evolving.²⁸ Unless he had a namesake, [p.99] he spent the rest of a long life in England, held some preferment in the northern province, was attached to Becket’s rival, Archbishop Roger of York, and acted as Roger’s compurgator when a charge of complicity in the murder of St. Thomas was to be disproved.²⁹ We do not know that he took any part in the controversy