hear it. The late Lord Campbell, on the occasion of an argument in the House of Lords in which Serjeant Hayes was engaged, took the opportunity of a temporary adjournment of the House to leave the woolsack and come down to the Bar, where he addressed the learned serjeant in these words-"Brother Hayes, it is one of the infelicities attending my elevation to the woolsack that I shall never again hear the song of the Dog and the Cock."" To the records of his circuit, of which he was for some time Attorney-General, Hayes contributed some excellent presentations, as also an almanac for the use of the circuit, replete with fun and satire.

Such was the man who was alike loved and respected wherever he was known, whose virtues and whose acquirements rendered him the admiration of all who had the privilege of his acquaintance, and whose loss will be the more keenly felt from the impossibility of supplying the vacancy which his premature death occasioned.

ART. VII.-A MS. OF VACARIUS.*

By GEORGE WOODYATT HASTINGS, Barrister-at-Law.

WHEN

HEN a solitary plank is washed ashore, it may come to us as the tidings of some distant wreck of a noble vessel. Perhaps it bears on its surface signs and tokens which enable us to recognise the name of the ship and the scene and nature of the loss. A somewhat similar interest attaches to the rare and curious MS. concerning which I have undertaken to say a few words this evening. It comes to us as the relic-unique so far as England is concerned-of a great enterprise and a barbarous catastrophe; the enterprise being the introduction into this realm of a system of civilised juris

*The above was read as a Paper at a meeting of the Worcester Arch æological Society on the 22nd of March last.

prudence, and the catastrophe being the violent destruction, from causes more or less obscure, of the agencies for bringing about so beneficial an improvement.

This piece of wreck, to continue the metaphor for a moment, has been washed to us from a sea of history distant enough to be almost dim in the impressions which it makes upon our minds. In the turbulent reign of Stephen,-if reign it can be called, when two feudal factions were desolating the land with blood and plunder—it happened that the see of Winchester was filled by a brother of the king. This Henry of Winchester was ambitious of promotion to the primacy, and no doubt had reckoned on his brother's aid for the accomplishment of his object. He was bitterly disappointed when Theobald, abbot of Bec in Normandy, was made by the Pope Archbishop of Canterbury, and from that hour a fierce enmity subsisted between the two prelates. In the civil war between Maud and Stephen, Henry of Winchester took the part of the empress queen against his own brother, while Theobald espoused the cause of the king. Henry, anxious to strengthen himself against the archbishop, persuaded the then Pope, Celestin II., to invest him with legatine authority, which placed him, in some respects, above the primate, and enabled him to exert his enmity in the most effectual manner. Theobald, under the advice of the celebrated Thomas à Becket, who had studied law at the University of Bologna, appealed to the Pope, on the ground that as Archbishop of Canterbury he was legatus natus, and no one else could claim the authority. Under the same advice Theobald resolved to make a journey to Rome to press his suit in person. already gone there once to receive the pallium; this was in 1139; he arrived there a second time in 1143, a short time before the death of Celestin II. As the appeal was decided by the succeeding Pope, Eugenius III., in favour of Theobald, in the year 1146, it is clear that the event mentioned in the curious passage which I am about to cite must have taken place not later than in that year. The passage, which relates

He had

most of the facts I have above referred to, is from the old historian, Gervase, or Gervasius, of Canterbury or Dover:

"Theobaldus ad Romanum pontificem pro pallio profectus est. Quo suscepto à Romano pontifice Innocentio Secundo, Theobaldus in Angliam rediit, et à Cantuaritis honorifice susceptus est. Erat autem in diebus istis Apostolica Sedis legatus Henricus, Wintoniensis episcopus, qui erat frater regis. Hic cum de jure legati licet privilegium suum plusquam deceret extenderet in immensum, suumque archiepiscopum et episcopos Angliæ, ut sibi occurrerent, quolibet evocaret, indignatus Theobaldus, et Thomæ clerici Londiniensis industria fretus, egit apud Celestinum papam qui Innocentio successit, ut amoto Henrico Theobaldus in Angliâ legatione fungeretur. Oriuntur hinc inde discordiæ graves, lites et appellationes antea inauditæ. Tum leges et causidici in Angliam primo vocati sunt, quorum primus erat magister Vacarius. Hic in Oxonefordiâ legem docuit, apud Romam magister Gracianus et Alexander qui et Rodlandus in proximo papa futurus, canones compilavit."

The closing allusion to a compilation of the Canon Law has nothing to do with the present subject.

This passage sufficiently establishes the fact that Vacarius was brought to England about the time of the litigation, probably before the close of the litigation, between Theobald and Henry. It is not expressly stated that he was brought by Theobald, but, looking to the circumstances of the case, it would be difficult to doubt it. On the one hand, it is almost incredible that a foreigner could, at that period of our history, have come to our country without invitation and without the shelter of a patron, and have succeeded in establishing himself as a teacher at one of our universities. On the other hand, nothing could be more natural than that Theobald should be anxious to fortify himself, in his struggles with Henry of Winchester, with the opinion of a learned civilian, and his visit to Italy would give him the opportunity of selecting such an adviser from the school of Bologna, then in the zenith of its European reputation. And as a passage,

1

which I will now quote, from the well-known anonymous "Norman Chronicle" gives a date for his teaching at Oxford which tallies with this view, no reasonable person, I think, will challenge the conclusion that Vacarius came to England in the train of Archbishop Theobald. Under the head of the year 1148, the "Norman Chronicle," which Selden believed to be chiefly an abridgment of a larger work by Robert de Monti, has the following sentences :—

"Obiit Bechardus 6 Abbas Becci, cui successit Rogerius. Magister Vacarius gente Longobardus vir honestus et jurisperitus, cum leges Romanas anno ab incarnatione Domini 1149 in Anglia discipulos doceret, et multi tam divites quam pauperes ad eum causa discendi confluerent, suggestione pauperum de codice et digesta exceptos 9 libros composuit, qui sufficiunt ad omnes legum lites quæ in scolis frequentari solent decidendas, si quis eas perfecte noverit."

This not only corroborates the words of Gervasius, but gives us another link in the chain of this curious history. It shows us that Vacarius was teaching law at Oxford, out of the Pandects of Justinian, in the years 1148 and 1149, and suggests that he must have been there at an earlier date, as he had had time to collect a school so numerous that he thought it worth while to compile an epitome of the whole Roman law for the use of his pupils.

This passage is the most distinct of any which we have on record concerning Vacarius, and yet it is the one from which the errors respecting him have arisen. Selden and Duck, the two English writers on Roman law who have investigated the history of Vacarius, both stumbled over it in a way which led them into a maze of error, and they so complicated the subject with contradictions, that it was at one time doubted, I believe, whether Vacarius had any actual existence, and was other than a sort of mythical embodiment of the advent of Roman law to this country. To the German jurists we

owe the elucidation of the matter; through their exertions the identity of four different copies of the work of Vacarius, at Bruges, Prague, Konigsberg, and Berlin, was satisfactorily established; Savigny, in his "History of Roman Law in the Middle Ages," has an elaborate notice of the man, exposing the mistakes of Selden, and the late Professor Wenck of Berlin, the owner of one of the four MSS. I have mentioned, which he bought by accident as an old copy of the Code, published a full account thereof in a small volume, which was purchased a short time since, at my suggestion, for the Worcester Chapter Library, and which now lies on the table.

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The whole mistake of Selden arose in the first place from a wrong punctuation. In transcribing the above sentence from the "Norman Chronicle" I have followed the example of Savigny and Wenck, and have placed a full stop after the word Rogerius." Read in this way the first sentence has nothing to do with those that follow; a distinct person, and distinct events, are referred to. But Selden put no stop at all after "Rogerius," and read the whole passage down to "confluerent," at which he put a full stop, as a single sentence. He, therefore, considered that Rogerius and Vacarius were identical, and that this doubly-named individual occupied the abbacy of Bec, in Normandy; but not content with this, he proceeded to identify him with Rogerius Beneventanus, a distinguished civilian, and the author of a work on the code. Selden collected, with his usual exhaustive labour and erudition, every particle of information relating to the history of these three men, and joined them all together into one biography. According to this account Rogerius Beneventanus, after publishing his Summa Codicis, and teaching at Bologna, came to England, and founded a school of law at Oxford, where he acquired the name of Vacarius from "vacando," just as Accursius from "accurrendo;" that he was then, on account of his learning and reputation, elected by the monks of Bec to be their abbot, and that he died in the year 1180 after having refused the Archbishopric of

VOL. XXIX.-NO. LVII.

K