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THE SOURCES AND METHOD OF THE INSTITUTIONS OF THE LAW OF SCOTLAND BY SIR JAMES DALRYMPLE , 1ST VISCOUNT STAIR , WITH SPECIFIC REFERENCE TO THE LAW OF OBLIGATIONS ADELYN L. M. WILSON Submitted for the degree of Ph.D. The University of Edinburgh 2011 ABSTRACT This thesis examines the sources and method used by Sir James Dalrymple, 1st Viscount Stair, when writing and revising his seminal work, the Institutions of the Law of Scotland (1681). In doing so, it focuses particularly on Stair’s titles on the law of obligations. The thesis shows how Stair used learned authority and continental legal treatises. It demonstrates that Stair relied particularly upon Hugo Grotius’ De jure belli ac pacis (1625), Petrus Gudelinus’ De jure novissimo (1620), and Arnoldus Vinnius’ Commentarius academicus et forensis (1642), and, to a lesser extent, Vinnius’ Jurisprudentia contracta (1624-1631) and Arnoldus Corvinus’ Digesta per aphorismos (1642). It establishes when, in the process of writing and later revising the Institutions , Stair first used and when he returned to these continental legal treatises. It explains Stair’s pattern of borrowing from these treatises, and shows how his method and pattern of borrowing changed as he revised the Institutions . It establishes Stair’s purpose in consulting each of these works and how he was influenced by them. Overall, the thesis explains Stair’s method of writing and his use of sources and authorities, places his work in the context of continental jurisprudence, and thus significantly enhances current understanding of Stair’s Institutions . - 2 - I hereby declare that this thesis was written by me, is my own work, and has not been submitted in whole or in part for any other degree or professional qualification. ……………………………………………………….. ……………………… - 3 - ACKNOWLEDGEMENTS I would like to offer my thanks to Professor Kenneth Reid, Dr. Andrew Steven and the Edinburgh Legal Education Trust for their generous support in the second and third years of this project; Mrs. Fiona Tocher and Mr. Alan Dickson for their assistance and encouragement; Professor Niamh Nic Shuibhne and Mr. James Chalmers for their organisation of the Edinburgh Law School Ph.D. training programme; Professor Margaret Ross and the staff of the University of Aberdeen Law School for their support and understanding while I finished my thesis after starting my lectureship; Dr. Peggy Ducoulombier and Dr. Irène Couzigou for checking the French and German respectively; and the staff at the following libraries: the National Library of Scotland, the National Archives of Scotland, the Advocates’ Library, the Edinburgh University Libraries, the Aberdeen University Libraries, Glasgow University Special Collections, and the Bodleian Library. My sincerest thanks go to Professor John Cairns and Dr. Paul du Plessis, my supervisors, for all the support, patience, guidance and encouragement that they gave me throughout my undergraduate studies and during this research project. - 4 - CONTENTS Abbreviations 6 Introduction 8 Chapter 1 Stair and his Institutions 13 Chapter 2 Methodology 51 Chapter 3 Stair’s pattern of citation 66 Chapter 4 Stair and Grotius 131 Chapter 5 Stair and Gudelinus 172 Chapter 6 Stair and Vinnius 214 Chapter 7 Stair and Corvinus 241 Chapter 8 Conclusion 251 Bibliography 270 - 5 - ABBREVIATIONS Adv.MS(S). manuscript(s) in the Advocates Library A.P.S. Acts of the Parliament of Scotland B.B.K.L. Biographisch-Bibliographisches Kirchen Lexicon C. Codex of Justinian D. Digest of Justinian D.E.J. Decisions of the English Judges, during the Usurpation from the year 1655, to his Majesty’s Restoration, and the sitting down of the Session in June 1661 (Edinburgh, 1762) E. (in case names) Earl of Edin.L.R. Edinburgh Law Review Gai. Institutes of Gaius Hope, Maj. Lord Clyde (ed): Hope’s Major Practicks 1608-1633 (Stair Society series volumes 3-4, Edinburgh, 1937-1938) I.C.L.Q. International Comparative Law Quarterly Inst. Institutes of Justinian J.L.H. Journal of Legal History Jud.Rev. Judicial Review Jur.Rev. Juridical Review L. (in case names) Laird of L.Q.R. Law Quarterly Review M. W.M. Morison: Decisions of the Court of Session, from its first institution to the present time, digested under proper heads, in the form of a dictionary [Morison’s Dictionary of Decisions ] (Edinburgh, 1801- 1807) M.Supp. M.P. Brown: Supplement to the Dictionary of the Decisions of the Court of Session [Supplement to Morison’s Dictionary of Decisions ] (Edinburgh, 1826) McGill L.J. McGill Law Journal MS(S) manuscript(s) N.A.S. National Archives of Scotland Nov. Novels of Justinian O.D.N.B. Oxford Dictionary of National Biography (Oxford, 2004) pr. Prooemium R.I.D.A. Revue internationale des droits de l'antiquité R.P.C. Records of the Privy Council R.P.S. Records of the Parliament of Scotland (www.rps.ac.uk) S. Stair’s Institutions of the Law of Scotland, deduced from its originals, and collated with the Civil, Canon, and Feudal-Laws; and with the customs of neighbouring nations (Edinburgh, 1681) S.Dec. Stair’s The Decisions of the Lords of Council and Session in the most - 6 - important cases debate before them, with the Acts of Sederunt…from June 1661. to July 1681 (Edinburgh, 1683-1687) SC Senatus consultum/consulta S.H.R. Scottish Historical Review T.v.R. Tijdschrift voor Rechtsgeschiedenis - 7 - INTRODUCTION “Every body of men has its own special idol, and of Scots lawyers it is safe to say that Stair’s position is impregnable.” – A.C. Black 1 Black here aptly summarized the importance of Stair’s Institutions of the Law of Scotland, deduced from its originals, and collated with the Civil, Canon, and Feudal- Laws; and with the customs of neighbouring nations (Edinburgh, 1681).2 This treatise is an example of institutional writing, a genre of early-modern legal works which set out national private law. 3 Institutional writing is a feature of every Western-European legal system where Roman law has been received. Scots law was never codified and thus puts peculiar emphasis on such treatises. Since the nineteenth century,4 certain Scottish institutional works have been regarded as sources of law. 5 Stair is considered the most important of these Scottish institutional writers. His Institutions remains a source of law and has thus had a profound impact on the development of certain areas of Scots private law.6 Since 1981 (the tercentenary of the first printing of the Institutions ), there has been an increased interest in Stair’s intellectual influences and use of authority.7 One 1 “The Institutional Writers, 1600-1829” in An Introductory Survey of the Sources and Literature of Scots Law, by various authors, with an introduction by the Rt. Hon. Lord Macmillan (Stair Society series volume 1, Edinburgh, 1936) 59, 63. 2 The Institutions will be cited “S.first edition\second edition”. All quotations are drawn from the first printed edition unless otherwise indicated. 3 On institutional writing in Europe, K. Luig: “The institutes of national law in the seventeenth and eighteenth centuries” [1972] Jur.Rev. 193-226 generally. 4 J.W.G. Blackie: “Stair’s later reputation as a jurist” in D.M. Walker (ed): Stair Tercentenary Studies (Stair Society series volume 33, 1981) 207, 219-227. 5 J.W. Cairns: “Institutional writings in Scotland reconsidered” (1984) 4 J.L.H. 76, 90. 6 The Scots law of promise was shaped by Stair’s rejection of opinions expressed by Hugo Grotius [on whom, below, ch.4]: W.W. McBryde: “Promises in Scots law” (1993) 42(1) I.C.L.Q. 48-66, 54-56. Stair’s acceptance of Grotius’ rejection of Franciscus Connanus [on whom, below, 3.2.2.2] in relation to consideration in contract “sealed the fate of consideration in Scots law”: G. Lubbe “Formation of contract” in K. Reid & R. Zimmermann (eds): A History of Private Law in Scotland volume 2 (Oxford, 2000) 1, 15. 7 e.g. D.M. Walker (ed): Stair Tercentenary Studies (Stair Society series volume 33, Edinburgh, 1981) generally; W.M. Gordon: “Stair’s use of Roman law” in A. Harding (ed): Law-Making and Law-Makers in British History: papers presented to the Edinburgh Legal History Conference, 1977 (Royal Historical Society Studies in History series volume 22, London, 1980) 120 generally. - 8 - area of interest has been the continental treatises on which Stair relied.8 Gordon’s study of Stair’s choice and use of such sources allowed a new level of critical insight; he showed that Stair, like most jurists of the period,9 did not always acknowledge his sources and could not be assumed to have read everything he cited .10 Yet Gordon’s was not a comprehensive study, and, because there have been few subsequent articles which have built on Gordon’s findings, knowledge of Stair’s choice and use of sources remains limited. This thesis will build on Gordon’s pioneering research and examine Stair’s use of continental legal literature in his titles on obligations.