Front Page Titles (by Subject) MAGISTRI VACARII SUMMA DE MATRIMONIO 1 - The Collected Papers of Frederic William Maitland, vol. 3
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MAGISTRI VACARII SUMMA DE MATRIMONIO 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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MAGISTRI VACARII SUMMA DE MATRIMONIO1
Of late years a good deal has been written about Vacarius. Very recently Dr Liebermann2 , to whom the students of English legal history already owed a heavy debt of gratitude, has summed up what is known of the life of this Italian legist and has added to the sum by calling attention to two works of his which are lying in manuscript at Cambridge. The one of these is theological, the other is devoted to the law of marriage. This latter will be printed in a later number of this Review. I have not that knowledge of the canon law which would enable me to edit this treatise scientifically; but I believe that I can give a fairly correct copy of it, and that it will be of some interest to a few Englishmen and to a few foreigners.
Of Vacarius himself I will say but very little, since I have nothing to add to what has been written by Dr Liebermann and others in accessible places3 . Only let us remember, first, that in all probability he came to England as early as 1148, and was living here as late as 1198; secondly, that in the meanwhile he had dwelt under the patronage of Archbishop Theobald of Canterbury and afterwards of Archbishop Roger of York; thirdly, that we have some reason for supposing that his great book, the Summa of Justinian’s Code, was finished in 1149; and fourthly, that we have fairly good evidence of his having taught Roman law in Oxford at some time in his long career.
The manuscript in question is preserved in the University Library at Cambridge (Ii. 3.9), and its contents are described at some length in the printed catalogue (vol. III. pp. 412-415). For the more part they consist of various works of St Augustin. Better judges of handwriting than I am have said that this volume was compiled near, but rather before than after, the year 1200. At the beginning there is a table of contents which seems to be coeval with the body of the book. The portion of this which is most interesting to us runs as follows:—Augustinus de agone christiano. Item eiusdem sermo Mulierem fortem1 . Item de trinitate. Summa Magistri Vacarii de [apparently matrimonio has been erased and then a later hand has added assumpto homine. Item eodem [sic] de matrimonio]. Expositio S. Augustini contra paganos. The pages are divided into two columns. A little way down in the second column on a certain page we find the rubric Magistri Vagarii tractatus de assumpto homine incipit. The treatise that is thus introduced fills rather more than twenty columns. Then without interval comes the rubric Hic incipit quedam summa de matrimonio Magistri Vacarii, and on this at once follows our treatise, in the first words of which the writer speaks of himself as the author of an opusculum de assumpto homine. Our treatise fills rather less than twenty-six columns, and in the column in which it ceases another brief tract begins with the words Omnium expetendarum prima est sapientia. The writing is good, and I do not think that the scribe can be charged with many mistakes.
The disquisition de assumpto homine is heralded by a prefatory letter; this will be printed below by way of appendix. The author is concerned with “the assumption of man” by Christ. He is making an attack upon what he regards as a fashionable but erroneous philosophy. As I understand him, he seeks to prove that Christ assumed not only the reasonable soul and human flesh, but also the “substance” of man. The course of his argument I dare not attempt to describe. He is angry with certain adversaries who (so he says) fill the high places in the schools; but he does not name them. The only writers whom he expressly mentions are ancients, such as Augustin, Jerome, Claudian and Boethius. I should suppose that he is attacking that doctrine of the Incarnation which is known as Nihilianism, and that his vigorous words are aimed either at the great Peter Lombard himself or at some disciples of his who outran their master along a dangerous road1 . They found another enemy in a countryman of ours, one John of Cornwall1 , and their doctrine was condemned by Alexander III. In this case Vacarius seems to have been fighting on what by its success was to prove itself to be the orthodox side. It was otherwise when he wrote on marriage. Here he championed a losing cause, for this same Alexander dealt its death-blow2 .
The tract on marriage may speak for itself. I must not presume to comment upon it at any length, nor endeavour precisely to fix its place in the important controversy to which it belongs. In the main it will be intelligible to any one who will read a few modern books and keep a copy of the Decretum Gratiani open before him3 . But two or three explanatory remarks I will venture to make.
In the middle of the twelfth century the Church throughout the Western world was successfully claiming for her courts an exclusive right to pronounce on the validity of marriages. But in truth she was not as yet equipped with any doctrine of wedlock sufficiently definite to serve as a legal theory. A few brief texts in the Bible; a few passages in the works of the Fathers, some of which were but too mystical, while others were but too hortative; a few canons and decretals that were not very consistent with each other—these were the unsatisfactory materials out of which law was to be made. And the law was to be cosmopolitan. The very nature of the claim to treat marriage as a spiritual matter, a divinely ordained institution, prevented the Church’s lawgivers and lawyers from laying a decisive stress upon any rites or usages that were merely national. A cosmopolitan law of marriage cannot make any ceremony or formality essential. It must compose its marriage out of those elements which we can conceive as common to the marriages of all people in all ages, such as the agreement to marry, the beginning of cohabitation, and the sexual union. Difficulties which in any case would have been great were complicated by the supposed necessity of proving that marriage is in some sort—but who shall say what sort?—a sacramentum, and of giving the name of marriage to such union as the Christian legend would allow St Joseph to contract with the Blessed Virgin.
Gratian (circ. 1139-42) made a determined endeavour to obtain a consistent theory out of the materials that he collected1 . He holds that the sponsalia, the agreement to marry hereafter, constitute an “initiate marriage,” which however only becomes a “consummate marriage” at the moment of physical intercourse. Were we to translate his doctrine into modern terms, we should say that really there is no marriage until such intercourse has taken place, though from this principle he would not draw all the inferences that would be drawn from it by modern law. About the same time Peter Lombard1 was developing a new distinction, the famous distinction between sponsalia de futuro and sponsalia de praesenti. Espousals by words of present time, which are contracted if man and woman express their agreement to be from henceforth husband and wife, constitute a perfect marriage, though the copula carnalis is necessary to introduce into the union the sacrament of Christ and His Church. On the other hand, espousals by words of future time are no marriage; they are but an agreement that there shall be a marriage hereafter.
Thenceforth there were two main theories before the world. Gratian’s was spoken of as the Italian or Bolognese theory; Peter’s became the theory of the Gallican Church. Warm debates ensued. In particular, about the year 1156, the Italian canonist Rufinus came forward as a vehement champion of Gratian’s cause.2 . But time was on Peter’s side. His doctrine had the advantage of being compatible with the existence of a perfect marriage between St Mary and her reputed husband. Pope Alexander III, while he was but Magister Rolandus, had written on this subject, and, though he accepted Gratian’s principles, expressed some doubt about the deductions that were drawn from them.1 . As pope he went over to Peter’s side, and in the course of his long pontificate settled the law of the Church by a series of decisions that were promulgated in decretal letters. Peter’s doctrine that consent per verba de praesenti constitutes a marriage became the law of the Church; but at the same time some traces of the opposite theory were retained, for by “consummation” a marriage gained an additional degree of indissolubility and perhaps of sacramentality.
Now Vacarius has a theory which differs from all of these. The true act of marriage, the act which marks the moment at which the marriage takes place, is the mutual delivery (traditio) of man and woman each to each. Of course as a condition there must exist a pact of the appropriate kind. The man delivers himself as husband, the woman delivers herself as wife. But it is not a mere expressed consent that makes the marriage; there must be a delivery, a “tradition.” Again, as a condition there must be the natural power of effecting a carnal union; but the carnalis copula is unessential; it does not make the marriage; the marriage is made by the “tradition.” In a startling passage and by way of reductio ad absurdum Vacarius brings the Bishop of Hippo to the side of the nuptial couch to upbraid the bridegroom for embracing a woman to whom he is not yet “perfectly” married. “Inciuiliter loqueris Augustine,” is the man’s reply, “for she is my wife, having become so by tradition, and the first embrace is as legitimate as the last.” That harmful text about man and woman becoming “one flesh” is cleverly encountered by another text. From the moment of the marriage, that is, from the moment of the tradition, the man has no power over his own body, or, in other words, his body is already his wife’s and her body is his. Therefore this is the moment at which they become “one flesh.” At this moment the law makes them “one flesh” by giving to each power over the other’s body; the sexual union is mere matter of fact. We must distinguish between the perfection of a legal act and the fulfilment of obligations which that act creates. We must not blur this distinction by talk about “consummation.” A marriage is a marriage, and it cannot become more of a marriage than it already is.
Vacarius is prepared to carry this thought into the mystical sphere of sacramentality. The marriage effected by “tradition” already contains the sacrament of Christ and the Church. At the moment of delivery the man and woman are made “one flesh” by a vinculum iuris. Further, he protests against a popular use of the word ratum, which would make it imply indissolubility1 . This use is, for one thing, unclassical; no single sentence in the Corpus Iuris Civilis sanctions it. A marriage effected by tradition is a matrimonium ratum, and this it would be even if the law permitted a divorce a vinculo. We are bidden remember that even after the time of Christ, even after the time of Justinian, divorce was possible; St Joseph and St Mary married under a law that allowed divorce. Logical to the last, Vacarius will even declare that the marriages of infidels are rata, and contain the sacrament of Christ and the Church.
This attempt to make all turn upon the mutual traditio does not indeed stand quite alone. A similar attempt seems to be made for a moment by the author of the book that is known as the Summa Coloniensis.1 . He is thought to have been a German, to have done his work about the year 1170 in the province of Köln, and to have been an adherent of the anti-pope Calixtus. At this point we shall do well to remember that our Henry II carried on a flirtation with the Calixtines, that Reinald von Dassel, Archbishop of Köln, who was the soul of the schism, visited our shores, and that Roger of Pont l’Evêque, Archbishop of York, was both the patron of Vacarius and the rival and enemy of Becket.2 Some intercourse between Vacarius and the German canonist is not out of the question.
We may well think that the doctrine of Vacarius had much to commend it. On the one hand, it cannot have stood very remote from Germanic custom, while on the other, it was not out of harmony with the usage described in the Digest, for though some would teach us nowadays that the Roman marriage became in theory a merely consensual and formless transaction, still undoubtedly great stress was laid on the deductio in domum as being the usual and almost necessary evidence of a marriage. Also it was much in the vein of our own ancient lawyers that some change of “seisin,” some traditio vel quasi (as Vacarius calls it), should be regarded as the act of marriage. However, unfortunately for the Church and unfortunately for the world, the Church’s law of marriage took a different turn. The voice of Vacarius is Vox clamantis in deserto. To this may be due the fact, if fact it be, that his voice is transmitted to us by an unique manuscript.
At another point he opposes the triumphant doctrine of the canonists. A young girl who is in the power of parents or guardians cannot be married without their consent. If that be not given there will be no marriage, but at best a contubernium. He accuses his adversaries—and here he has both Gratian and Peter Lombard against him—of frittering away the clear words of Pope Evaristus1 (100?-109?). Those words we now know to be the words of the Pseudo-Isidore2 Neither Vacarius nor his foes knew that, and in his eyes they are guilty of eluding a plain decree of a pope who was learned in utroque iure. Here again he had morality, decency, ancient law, and the remote future for allies; but the current of sacramentalism was too strong to be stemmed.
That he had Gratian’s work before him seems quite plain, though he never names Gratian nor the Decretum. Also we may infer that the Decretum was still new and had not yet established itself as the one classical text-book of the canon law, for though he quotes many of the “authorities” that are contained in it, and also quotes some of the dicta Gratiani, he never mentions any “distinction,” “cause,” or “question,” as assuredly he would have done had he been writing near the end of the twelfth century. Whether he had before him the “Paleae,” that is, the passages inserted in the Decretum by Gratian’s pupil Paucapalea1 , seems more doubtful. He quotes two passages that are thus introduced; but from this it does not follow that they stood in his copy of the Decretum. To one of these two he repeatedly2 alludes, but whereas in the manuscripts which are the base of the modern editions of Gratian’s book this text is ascribed to Augustin3 , Vacarius attributes it to Pope Hormisda (A.D. 514-523). It is a passage which appears also, and under Augustin’s name, in the Compilatio Prima4 and in the Decretals of Gregory IX.5
With the theory of marriage stated by Peter Lombard our author was familiar; but I cannot say that he takes any words from the Parisian schoolman, nor do I see any proof that he had read the Summa of Paucapalea, the Summa of Roland, or the Summa of Stephen of Tournay. On the other hand, it is pretty plain that he borrowed phrases from and directed much of his argument against Rufinus. This, if Dr von Schulte is right, would allow us to assign his treatise to any year after 11561 .
If we place out of account the two “Paleae” which have been already mentioned, I believe that he cites but two other “authorities” which he could not have obtained from the Decretum. (I) The first of these2 is a forged letter of Alexander, pope and martyr, that is, of Alexander I (109?-119?). This appears in the Summa of Rufinus3 , also in the Summa of Johannes Faventinus4 also in the Collectio Lipsiensis5 . It is a forged decretal, but it is not one of the Pseudo-Isidorian brood. No more seems to be certainly known of it than that it became current in the twelfth century. Not impossibly it was concocted in the course of the controversy about marriage in order to support the Bolognese against the Parisian theory. (2)The second of these two authorities6 is a canon of the Council of Verberie, held in the year 753. This in its original form1 , and in the form in which Vacarius knew it, distinctly contemplates the possibility of a true divorce in our sense of the term: that is to say, in a certain case a man whose wife will not follow him into a foreign country is allowed to marry another. Part of this canon appears in the Decretum, but the part which permits a divorce has been carefully excised2 . Vacarius quotes, or rather paraphrases, the original form of the text, but only in order that he may show that strange things have occasionally been permitted. Possibly he found the whole canon in the pages of one of Gratian’s predecessors, Regino of Prüm,3 , for example, or Burchard of Worms4 .
In favour of an early date for the book we have not only the informal manner in which the authorities that lie in the Decretum are cited, and the assumption that the grand marriage question is still open, but also the fact that no notice is taken of the epoch-making decretals of Alexander III.5 This is the more significant because one of the most decisive of those decretals was sent to England6 . The popes, it is true, had hardly as yet made good their right to legislate on a large scale, and the canonists were still ready to say upon occasion that a pope had gone wrong. We may fairly suppose, however, that had Vacarius known these Alexandrine decretals, he would have felt bound either to hold his peace or to controvert them. Magister Rolandus, when he had taken possession of the chair of St Peter, was not a man who could be quietly ignored. Unfortunately his pontificate (1159- 1181) was long, and few of his decretals have been dated. Nevertheless if 1156 or thereabouts is the earliest date to which we can attribute this Summa, the latest date is, I should suppose, not much later.
That its author was the Vacarius of whom all of us have heard, and not another person of the same name, seems clear. We know Vacarius as a legist, and this is just such a tract as would be written by a legist who for the nonce was making an incursion into the canonist’s territory. Having before his eyes the precision of his own beautiful Digest, he seems to feel a sort of pity and even contempt for the boneless scraps of exhortation and mysticism that are collected in the Decretum. He complains that the law of the Church is always shifting and wabbling1 . He complains of the canonist’s method. What is the use of an attempt to make a concordance of discordant canons when the canons are discordant2 His theory of marriage, too, is a legist’s theory. It may not be just that which modern scholars will discover in Justinian’s books, but it brings marriage into line with the conveyance of property. Other legal transactions, such as donation and partnership, are constantly before his mind, and in his eyes a word from Pomponius is enough to sweep away a lot of foolish talk about matrimonia which are and matrimonia which are not rata1 . We should hardly be going too far were we to say that this is a civilian’s protest against the mess that is being made of the law of marriage by canonists and divines. We might like, perhaps, to go further and to contrast an Oxonian with the Bolognese and with the Parisian theory of marriage, and thus to unite in one story the three great universities of the twelfth century. But we have no warrant for this. Vacarius’s pamphlet (for it is no more) is no school-book comparable with the Decretum and the Sentences, and, for anything that we know, may represent the opinion of one solitary and protesting legist. That its author was both daring and acute is plain.
Another guess is inviting. If we attribute this tract to the years which closely follow 1156, we give it to a time when England and Rome, Normandy and Gascony were witnesses to the dogged litigiousness of that immortal plaintiff, Richard of Anesty2 . Beginning his long suit in 1158, he triumphed in 1163. He had the professional aid of another Italian lawyer, whose name has elsewhere1 been coupled with that of Vacarius, namely, of Master Ambrose2 Is it impossible that if Magister Ambrosius was of counsel for the plaintiff, Magister Vacarius was retained for the defence? Or again, if in 1159 Vacarius still remained an inmate of Archbishop Theobald’s household, we can hardly doubt that he was consulted about a case which raised nice questions of matrimonial law and tasked the wisdom of the archiepiscopal court to its uttermost. One of these questions was whether a divorce pronounced in Stephen’s reign by the legate Henry of Blois was valid. In Henry I’s day one William had, so some asserted, married Albreda, while others maintained that this was no marriage and that at a later date he had married Adelicia. In Anesty’s suit Archbishop Theobald’s secretary, John of Salisbury (to whom Vacarius was “Vacarius noster” and from whom we learn of Stephen’s attempt to silence the voice of Roman law), reported to Alexander III the story of these would-be marriages and the subsequent divorce. He said that the former marriage was upheld and the nullity of the second declared by Henry of Blois, who was acting in pursuance of a mandate from Innocent II (1130-1143). This mandate apparently supposed that some sort of formal “tradition” of Albreda by her father had taken place, but that William had never removed her from her father’s house, and it was admitted that there had been no ecclesiastical ceremony and no sexual intercourse. Nevertheless, Innocent decreed that if there had been a consent to be thenceforth husband and wife, there had been a marriage, and that the subsequent union with Adelicia, though solemnly celebrated in church and blessed with offspring, was adulterous. In short, Innocent seems to have acted upon the theory of marriage which is now generally coupled with the name of Peter Lombard1 . Now this was just such a case as would have set Vacarius a-writing his pamphlet. There might be a pact by “words of present time,” but was there a marriage if Albreda was left under her father’s roof2 ? Often what looks like a speculation of abstract jurisprudence has been the outcome of a concrete lawsuit, and is none the worse for having its origin in real facts. This is only a guess; but the temptation to connect together two men so famous in our legal history as the first teacher of Roman law and the heroic English litigant was not to be withstood.3 .