reception of a knowledge of the civil law as a general means of legal education (as in Scotland and North America) might bring English law to a more scientific form without depriving it of its national and indigenous character.".

(4) Roger surnamed Vacarius, page 18.

The name of Roger, prefixed to that of Vacarius, is due to the remarkable mistake in the reading of an ancient chronicle by which Selden was led to confound Vacarius with an entirely different person, Roger, Abbot of Bec. This mistake led to another, by which the supposed Roger Vacarius was identified with a noted glossator named Rogerius, a disciple of Bulgarus. Thus, the facts of three distinct lives were attached to the name of Vacarius, and the mistakes thus originating have been copied from Selden (Dissertatio ad Fletam ch. 7, p. 509, etc.) by almost every writer who has spoken of him until very recently. The error was detected by Wenck, a professor at Leipsic, and is fully cleared up in the opening sections of his Magister Vacarius, primus Juris Romani in Anglia professor, etc., etc., Lipsiæ, 1820. Also in Savigny Gesch. d. R. R. im M., Bd. 4, p. 411.

Vacarius is the only name by which we know this first teacher of Roman law in England; and the fact mentioned in the text is about all we know of his life.

He was a Lombard by birth. Whether he had acquired any reputation as a teacher before he came to England is doubtful. The only ground that now remains for supposing so, since Selden's errors are corrected, is that he is frequently cited by Carolus de Tocco in his Gloss to the Libri Feudorum among the Bolognese Jurists. (Savigny, p. 420, n.) He must have been a young man when he came to England, for he taught there at least twenty, perhaps thirty years. That he had great success as a teacher, we know not only from the subsequent history of the Oxford school, but from direct

testimony: "many, as well noble, as poor, flocked to him to receive instruction." For the sake of the poorer scholars especially, he compiled from the digest and code a work in nine books, "sufficient, if thoroughly known, to decide all the cases that are usually discussed in the schools." (Chronicle of Robert de Monte, Savigny, p. 412.) It never has been printed, but four manuscripts are known to exist, and it has received much attention of late. The best account of it is in Savigny, pages 422-430, or in Wenck, ubi supra. A passage from the preface (Wenck, p. 68; Savigny, p. 427) shows that his object was to enable the students to economize not only money but time: "Codicem et pretio levissimo comparandum et brevi tempore perlegendum et tenuioribus destinatum, divina donante liberalitate perfeci," and this shows that Roman law was then studied not merely by the wealthy as part of a complete education, but also by those who struggled to get an education as a means of rising in the world. Beside the glosses of V. himself, it has numerous others in which he and the Bolognese jurists are quoted and criticised, thus proving continued activity in the Oxford school of civil law, at least for some time after V.

The proof that he continued to teach at least till 1171 consists in the addresses of two papal decretals of Alexander III., one of A. D. 1164, Collection I. lib. tit. 7, ch. 2, and one of 1170 or 1171 (Savigny, pp. 421, 422), both probably addressed to him. If the latter is so, it shows that he had become a canon in the archepiscopal chapter. His death is fixed by Selden in 1180, but this results from a confusion with the Abbot of Bec.

(5) The nation seems to have been divided into two parties, page 19.

The position of the civil law in the eyes of Bracton and his contemporaries was a problem not easily solved by English lawyers of the eighteenth century, because

the latter regarded the law as composed entirely of a body of rules imposed by a superior power, and therefore could not see to what superior power the English lawyers of the thirteenth century could assign it, or how they could give it the character of law at all. But with a truer conception of the nature of jus, we need not have any such trouble. The law being regarded as a science of human action, the chief purpose of which is to study those actions in the principles that govern them, and to deduce from them the necessary rules by which they are and must be governed, to analyze them into their elements, and to construct from these elements the institutions which are the generalized statements of all possible legal action, to trace the necessary links of connection between different rules, and to ascertain what rules must necessarily result from the existence of particular institutions, it is easy to see with what respect the contemporaries of Bracton could regard a body of observations and reasonings on their science such as the corpus juris presented. They would not think of asking whence they came, or by what authority they were imposed, no more than the contemporaries of Bacon and Newton did in regard to their science. If the Roman books gave the best example then known to them of the operations they were daily called upon to perform, if they found that difficult questions of conflicting right were satisfactorily determined, the nature of obscure relations between men clearly elucidated by what they found there, then the books furnished their own warrant for their acceptance, the only one that the nature of the case demanded or perhaps even permitted. I do not deny that perhaps other influences were at work, of a kind we might not so easily respect to-day. Very likely there were personal and partisan motives in many minds for exalting the authority of the Roman law, or vague notions of a universal monarchy still surviving the fall of the western empire; though so far

as this was consciously present to men's minds, it was no doubt far more a reason for rejecting than accepting the corpus juris; or willingness to favor the cause of the church (though this also was two-edged, cutting both. ways) or other unscientific reasons, of which hereafter. But so far as they were mistaken in their reasons, probably the most influential mistake was a mere exaggeration of the truth, a belief derived from the realistic philosophy of the times that law and all the moral sciences had an objective reality, and consequently the best account of it they knew must be the true one; that there could not be two true systems of law any more than two true systems of astronomy, and that the Roman law, as incomparably the best then known, must be that true representation of absolute legal science. But this error was only an exaggeration of the truth-it might lead them to adopt certain parts of the Roman system of mere positive origin, but it would only strengthen the claim to adoption of all that we should recognize as natural.

The best proof in the case that their action was not a blind or mistaken one, however, is the discrimination they exercised, their rejection of nearly all of the Roman public law and most of the private that was not adapted to English use, and the free manner in which they handled what they did adopt.

(6) Connection of civil and common law, page 22.

Since the revival of interest in the subject, the relations of the common law to the civil have been sought by a careful study of the corpus juris and the classic Roman law, and a comparison of our own early law with these. I know of no English jurist or scholar who has investigated the law presented by the glossators and their followers: none who has paid any attention to canon law with the exception of Mr. Langdell's little work on Equity Pleading.

1 BLACKST.-5.

No doubt it is much more agreeable to study the classic elegance of Gaius or Papinian, than to delve in the debased Latin of the twelfth and thirteenth centuries for the ill-expressed notions of law which the followers of Irnerius held.

But in which way can we reach the better understanding of the true relation between the two systems? The medieval jurists were very ignorant of history, geography, and belles lettres, or the humanities in general, but they were not mere pedants, copying for law anything they found in an old manuscript. They had very decided and positive notions of both the practice and the theory of law in their own day. It may fairly be questioned whether their jurisprudence, as a whole, was not a more exact and logical system than ours today. From the emperor's power to legislate down to the merest point of procedure, they meant to express the law as they understood it, not the law of ancient Rome or ancient "new Rome," and it was their law that Vacarius brought to Oxford and that Bracton studied there. The school of glossators had unquestionably a great influence upon the subsequent growth of public as well as private law in Europe. They probably did more than any other single set of men to lay the foundation of those doctrines by which civilized nations have been converted into a sort of universal commonwealth. In the first place, the mere fact of the assembling together of so many students from all parts of Europe for the common purpose of studying jurisprudence, and their subsequent return into their own countries, carrying in every direction the same principles and doctrines, as well as the intercourse which they continued to keep up with each other as fellow disciples of Bologna, these things paved the way for a community of feeling that had not been known before since the fall of the western empire. But more than this, the glossators themselves taught a law which