‘The Institutions of the Law of Scotland’ (1681): as Polemic
Tom. P. S. Edwards
University of Dundee
BIOGRAPHY, AND PERSONAL-POLITLCAL CATALYSTS (1633-1681):
Although the first edition of The Institutions of the Law of Scotland[1] was hurriedly published in Edinburgh in the autumn of 1681,[2] the seeds of its creation were sown piecemeal throughout a lifetime by an irreproducible convergence of circumstance, conflict, and felicity.
Following Grammar School,[3] James Dalrymple’s[4] undergraduate education led him to the University of Glasgow in pursuit of a Laureate of Arts.[5] Crucially, unbeknown to Dalrymple, towards the latter end of his studies Scotland’s first printing press would arrive;[6] accordingly ensuring both the logistics for the uniform publication of his later treatise, and the authenticity of the provenance which it drew upon. Upon graduation,[7] Dalrymple left for Edinburgh with the intent to read law;[8] that same year however, would see Edinburgh become ‘the theatre of the religious and political […] revolution.’[9]
As the hostilities of the War of the Covenant intensified[10] - now Capt. Dalrymple[11] - commanded a sizeable company within the Glencairn Regiment,[12] facilitating the acquisition of his idiosyncratic proficiently in assiduous leadership, and affording him valuable favour with his victorious Presbyterian state.[13] Incidentally, these attributes would come to aid him in his future tenure as Lord President, and subsequently The Institutions sole author.
As the focus of what had now escalated to become the ‘Wars of the Three Kingdoms’[14] gradually receded to London, Dalrymple surrendered his rank and adopted a civilian career;[15] for in March of 1641, Principal Strang[16] (University of Glasgow) solicited Dalrymple for the academic office of Regent – a position Dalrymple duly accepted.[17] Whilst Regent, Dalrymple tutored dialectic and logical philosophy[18] and quickly gained repute within the field.[19] In conjunction, he distinctly encouraged studying ‘the Greek and Latin languages […] in order to study the civil law.’[20] During his tenure, Dalrymple faithfully obeyed the academic convention that ‘Regents be short in their nots [sic].’[21] Indeed, when Dalrymple later came to author The Institutions,[22] this widened philosophical understanding, reading of civil jurisprudence, and uniquely concise and dry style of writing starkly – and favourably - distinguished him from his contemporaries.[23]
During his Regentship, Dalrymple drew favourable regard from The Faculty of Advocates and began to aspire towards matriculating as a Devil himself.[24] Consequently, after a decade as Regent – and reading of the pre-requisite Roman Civilian Law – Dalrymple resigned his office[25] and was successfully admitted as an Devil that same month.[26] Dalrymple’s fledgling career at the bar swiftly deviated however, as the Court of Session “was interrupted from the last of February 1648 to the first of June 1649 by the troubles of the country.”[27] During this recess, the young advocate Dalrymple was ad hoc appointed Secretary to the Commission of Parliament to negotiate with Charles II in The Netherlands.[28] It is submitted that Dalrymple’s brief tenure here laid the foundations for his burgeoning admiration of continental jurisprudence’s ‘liberal and philosophical spirit,’[29] and its subsequent influence on his magnum opus.[30]
During this period, crucially with respect to his Institutions,[31] Dalrymple – led by the then Lord Chancellor–[32] was commissioned in 1649 to, inter alia, taxonomize[33] the pre-existing ‘crude mass of Scottish law.’[34] This commission would ultimately fail where its precursor had in 1564;[35] however, in contest to Mackay’s argument, it is submitted that this failure kindled the notion in Dalrymple to succeed where his predecessors had failed.[36]
Mackay argues that, due to Dalrymple’s prolonged refusal to swear oath to Cromwell’s bar entrant tender,[37] his experience as an Advocate – although purportedly a decade in length – was stunted, and unremarkable.[38] It is submitted, however, that Dalrymple’s brief – albeit atypical – time at the bar not only led directly to his appointment of judicial office in 1657, but when he came to author his now impassioned treatise, he wrote with a tangible grasp of continental jurisprudence, and how the law may be moulded from the bar.
Dalrymple’s legal aptitude[39] could not go further overlooked; for on the afternoon of the death of his learned predecessor,[40] Dalrymple was proposed – albeit not unanimously – [41] and subsequently raised to Senator of the College of Justice.[42] Lord Dalrymple hence assumed his place at the Scottish bench amongst various eminent ad hoc English Judges;[43] Mackay argues that Lord Dalrymple’s frequent collaboration with such Judges – at bench and bar – placed him in a uniquely rare position to grasp comparative English law.[44] A familiarity later affirmed in his magnum opus.[45]
Following a notably diligent[46] and arguably virtuous,[47] decade at the bench, Lord Dalrymple fortuitously assumed[48] the office of President of the Court of Session.[49] During his forthcoming tenure, not only did he continue fastidiously documenting the courts’ dictums, but actively assisted the legislature in drafting and amending statutory law.[50] When he shortly thereafter authored his Institutions,[51] Lord President Dalrymple was uniquely positioned to not only draw upon the stare decisis of his presidential oversight, but as ‘a judge who has also been a legislator.’[52] Nevertheless, Dalrymple would not author his most enduring accomplishment during this tenure, but shortly following his politically catalysed retirement to his country home in Galloway.[53] Finding considerably more time on his hands, and in rapidly declining health, Dalrymple began to formulate his magnum opus; the fruition of a lifetime's labour.
The unique array of irreproducible personal experiences throughout Lord Stair’s life, combined with an unprecedented political backdrop, positioned solely Stair to author his magnum opus. When he came to write, he wrote not merely as Lord President, but as a militarily diligent, philosophically educated, travelled, adaptor and interpreter of the law; writing with passion, concision, and an unwavering duty to bolster and preserve the Scots law he so admired.
LEGAL ANALYSIS OF THE NATURE OF STAIRS’ TREATISES VIA CONSIDERATION OF ITS PROVENANCE SOURCES AND TAXONOMY:
Prior to 1681, Scottish municipal law existed as an ‘amalgam of disparate rules of law.’[54] It was Stairs’ pioneering Institutions[55] which would formally taxonomize[56] and hence systematise Scotland’s neglected corpus juris. Whilst there were indeed operational compendiums of the law in the form of ‘Practicks/Practcques’,[57] a sophisticated and comprehensive taxonomy – or ‘jurisprudential map’[58] – was painfully absent.[59] The Institutions[60] reached beyond the existing municipal law and drew from provenance sources. The sources in question, and hence the nature of Stair’s work, will be considered in turn.
The 1681 edition originally divided the Institutions[61] into three volumes; hence Stair treated legal rights creation, conveyance, and enforcement consecutively.[62] However, the second edition further divided the first into personal, and then real rights.[63] Hence, volume one[64] chiefly concerns ‘rights personal.’[65]
Stair begins by treating the law of obligations[66] drawing upon the Roman civil laws’ concept of ‘ex contractu’[67] obligations, and subsequently delineates contract law from the general law of obligations.[68] Stair further paints its functionality: delineating intention, offer and acceptance,[69] and implied/expressed consent.[70] The contingent institutions of restitution,[71] remuneration,[72] and reparation (damages)[73] are also subsequently treated therein; thus delineating delict (and hence, culpa aut dolo negligence) from contractual obligations, and their extinguishment.[74]
Stair then moves to treat ‘conjunctional obligations,’[75] that being the thoroughly Christian law as applies to Matrimonial legal obligations. This, combined with the following title of ‘obligations between parents and children’[76] delineates a quasi-family law. It is respectfully submitted, however, that Stairs’ experience as a covenanter[77] biased him to be nonchalant, and at times hostile,[78] of the preexisting canon law due to its Catholic gravamen – both in matrimonial matters and elsewhere.
As alluded, throughout Stairs’ first volume,[79] he drew upon the Roman civil law (and its “antiquities”)[80] read during his Regentship. Stair, however, was ‘careful to point out that Roman law is of no [direct] authority in Scotland’[81] per se, as instead, he merely adopts its concepts to fill legal lacunas; and its nomenclature to ascribe previously untitled functions within Scots law.[82]
The provenance sources of Stairs’ second volume – which chiefly concerns real rights – considerably differ however, as for when ‘he passes [to treat] Real Property, the feudal instead of the civil law becomes the basis of his treatise.’[83] “The auld (quasi-Norman) laws” were eminent both for their sovereign origin and uncodified local adaptability.[84] They primarily drew from the Libri Feudorum, which established the backbone of their functioning[85] as well as the compiled Regiam Majestatem, which is purportedly Scotland’s oldest legal source.[86]
Feudalism’s fingerprints are found in Stair’s taxonomy of heritable property rights, first via his delineation of feudal ‘tacks,’[87] which today we may recognise as the law of leases.[88] Second, he treats the ‘Scotch thrilarge,’[89] by which he delineates the modern real servitude.[90] Third, he treated the feudal ‘infeftment,’[91] in which he delineates what we now recognise as sasine (ceremonial registration) land law.[92] Moreover, he treated the feudal ‘wadset,’ thus delineating a quasi-standard security.[93] Finally, he treated the law of movable property; crucially, the overarching delineation of the components of ‘ownership’[94] and how it contrasts with that of land[95] and fauna.[96]
The matter of how the above rights may be transferred is considered in volume three, where Stair treats conveyancing law. Accordingly, Stair delineates how personal rights may be transferred “amongst the living”[97] by assignation, and real rights by disposition.[98] In regard to those ‘from the dead to the living,’[99] he invokes inter alia the feudal concepts of ‘tailzie’[100] (succession via heirs’ inheritance),[101] and feuda nova (by way of gift or purchase)[102] – and thus delineates succession from conveying law.
Excluding a brief treatment of the law of evidence, the fourth volume chiefly concerns matters relating to the jurisdiction of the Session Court(s),[103] its civil procedure, and its agents.[104]
CONTEMPORARY ACADEMIA’S VIEW, AND CRITIQUE, OF THE INSTITUTIONS JURISPRUDENCAL SIGNIFICANCE:
The Institutions sober dedication to Charles II confessed that Stair saw himself unworthy to refashion the law,[105] the irony being that Stair not only reinvented Scots Law, but forged it anew as a certain canvas to be painted upon by the future practitioner. Although the above remains relatively uncontroversial, academia’s view regarding the jurisprudencal significance of the Institutions[106] is not unassailable.
Scholars have impugned Stair’s significance, suggesting that he treats contemporarily irrelevant law,[107] inadequately treats some,[108] and commits unduly to others.[109] As to the first ground, it is submitted that Stair’s treatment fell where appropriate within the prism of the times.[110] Similarly, as to the second ground, due to the relative lack of industrialisation in 17th century Scotland, there was no perceivable necessity to extensively treat commerce and cooperate trade. As to the third, Stairs ‘exorbitant’ treatment of heritable property was again era-appropriate, as land was the most valuable asset one could own, particularly within the proto-libertarian doctrine of the Kirk.[111]
A more general critique is the proposition that Stair’s magnum opus unduly structured itself around Justinian’s civil Institutes and Craig’s feudal Jus Feudale and was thus neither as pioneering nor unique as presupposed.[112] Whilst true that older historical treatise were referenceable, Stair’s structure is both unrecognisably developed from the aforementioned, and duly taxonomized a great deal of concepts ultra vires both treatises, particularly in regards to Scots Law.
A final critique is the argument that Stairs’ magnum opus gains its’ primary law repute entirely from its coupling with subsequent works.[113] Whilst true that subsequent authors treated topics ultra vires Stair’s work – a stark example being Hume's Commentaries on the Law of Scotland respecting Crimes (1800) - without the generalist bedrock of Stair, their authorship would be rendered either impossible, or lacking in jurisprudencal substance.
CONCLUDING REMARKS:
It is submitted that, James Dalrymple, 1st Viscount of Stair may be regarded as the Shakespeare and principal architect of modern Scots law; whilst although Scotland may remain unrecognisable since his life and work, the salience of his magnum opus prevails as an immutable bedrock beneath an ever-transient jurisprudence; subtly invoked daily by the modern Scots law practitioner, three centenaries beyond his time.
[1] Sir James Dalrymple, 1st Viscount of Stair, The Institutions of the Law of Scotland deduced from its originals, and collated with the civil, and feudal-laws, and with the Customs of Neighbouring Nations. In Four Books (Andrew Anderson 1681).
[2] Although the royal licencing permitting the printing of the Institutions was delivered 11th April 1681, it was not published until later that year narrowly prior to Stairs’ political withdrawal to Holland. See: Aeneas Mackay, Memoir of Sir James Dalrymple, First Viscount Stair, President of the Court of Session in Scotland and Author of the "Institutions of the Law of Scotland" A Study in the History of Scotland and Scotch Law During the Seventeenth Century (Edmonston and Douglas 1873) 150 - 151.
[3] In the Mauchline township. ibid xvii.
[4] Lord Stair’s chronologically appropriate suffixes are applied throughout this section.
[5] Mackay (n 3) xvii. c.1633.
[6] ibid, 9. The Chepman and Mylar Press.
[7] ibid. c.1638.
[8] ibid, 10.
[9] ibid, 9. The National Covenant’s three parts, were first signed on the 28th February within the grounds of Greyfriars Krik, Edinburgh.
[10] See Mark Kishlansky, A Monarchy Transformed: Britian 1603-1714 (Penguin Press 1997) 138-39.
[11] Mackay (n 3) 13.
[12] ibid.
[13] ibid 10.
[14] Kishlansky (n 10) 134-58.
[15] Mackay (n 3) 14.
[16] ibid.
[17] ibid. Id Est a Tutor/Professorship title distinct and lesser than Chair.
[18] ibid 16.
[19] ibid: “the precursor…of Scottish philosophy.”
[20] ibid 17.
[21] ibid 19.
[22] Institutions (n 1).
[23] Mackay (n 3) 24.
[24] ibid.
[25] ibid 25. C.February 1645.
[26] ibid.
[27] Books of Sederunt, cited in Mackay (n 3) 34-35.
[28] Mackay (n 3) 35. The Hauge, and Breda that following year.
[29] ibid 55.
[30] Later quoting Dutch jurists Grotius (Institutions (n 1) i, 2, 17) and Gudelinus (Institutions (n 1) i, 4, 12). Cited in ibid.
[31] Institutions (n 1).
[32] Mackay (n 3) 43. John Campbell.
[33] ibid 43-43.
[34] ibid 46.
[35] ibid 44.
[36] For critique see ibid 46.
[37] An apology (first published 1690) 4. Cited in Mackay (n 3) 35.
[38] Mackay (n 3) 35.
[39] See ibid 68.
[40] ibid. Lord Balcomie.
[41] 29/06/1657, see ibid 63.
[42] 01/07/1657, ibid 64.
[43] ibid, 59, 66.
[44] ibid 66.
[45] 55 English-jurisprudence references are made in Institutions. See Hutton G, Walker D, Stein P, and others, Stair Tercentenary Studies (Vol 33 Stair Society 1981) 141.
[46] See Mackay (n 3) 93.
[47] See ibid 103, 122.
[48] See ibid. Via the untimely death of his learned predecessor, and the abdication of his direct successor.
[49] ibid 91. On 22/12/1670.
[50] ibid 147.
[51] Institutions (n 1).
[52] Mackay (n 3) 171.
[53] ibid 150-51.
[54] Michael Meston, William Sellar, Lord Cooper, The Scottish legal tradition (rev edn, Stair Society & Saltire Society 1991) 9.
[55] Institutions (n 1).
[56] Emily Sherwin, ‘Legal Taxonomy’ (2009) 15 Legal Theory 25.
[57] Mackay (n 3) 26. ‘Practicks/Practcques’ were named after their respective compiler(s).
[58] Sherwin (n 55).
[59] ibid 28.
[60] Institutions (n 1).
[61] ibid.
[62] Mackay (n 3) 154.
[63] ibid. This edition would be the last Stair himself would oversee. Later editions added commentary and ‘corrections’, but the works crux remains steadfast.
[64] Sir James Dalrymple, 1st Viscount of Stair, Institutions (4th edn, Thomas Clark 1826) 1-174.
[65] ibid 18.
[66] Institutions (n 63) 18-22.
[67] ibid 18.
[68] Themistoklis Mersinis, ‘Stair, Institutions, 1.10.5: A Linguistic Note’ (1997) 1 ELR 368, 368-70.
[69] ibid 21. Including ceremonial delivery.
[70] ibid. Id est consensus ad idem/pollicitatio.
[71] ibid i, 7, 69.
[72] ibid i, 8, 75.
[73] ibid i, 9, 79.
[74] ibid i, 18, 274.
[75] ibid i, 4, 22.
[76] ibid i, 5, 43-48.
[77] Evidenced during his covenanter military service.
[78] See Tercentenary Studies (n 45) 133.
[79] And extensively elsewhere.
[80] Mackay (n 3) 17. Id est: the civil Jus Commune, see Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Juta & Co 1990) ix.
[81] ibid 159.
[82] ibid. Id est: “Confusion” and “Mutuum.”
[83] Mackay (n 3) 160.
[84] Meston (n 53) 33.
[85] ibid.
[86] ibid 39.
[87] Institutions (n 63) 357.
[88] Mackay (n 3) 164.
[89] ibid 163.
[90] Institutions (n 63) 335.
[91] ibid 218-285.
[92] ibid 217. The Land Registration etc (Scotland) Act 2012 s.54(1)(a)-(d) abolished/reformed the Sasines Register.
[93] Mackay (n 3) 160-64.
[94] Institutions (n 64) 191.
[95] ibid.
[96] ibid 186.
[97] Mackay (n 3) 164.
[98] ibid 164-65. See Institutions (n 63) 505.
[99] ibid 165.
[100] Mackay (n 3) 165.
[101] Institutions (n 63) 573.
[102] ibid 497-499. See also Mackay (n 3) 165.
[103] Mackay (n 3) 169. And its French foundations.
[104] Institutions (n 63) 731.
[105] Tercentenary Studies (n 45) 141.
[106] Institutions (n 1).
[107] Tercentenary Studies (n 45) 127.
[108] Mackay (n 3) 158.
[109] Tercentenary Studies (n 45) 136.
[110] ibid 165, 233.
[111] ibid 136.
[112] ibid 202.
[113] ibid 200-05. Citeable in all senior courts as primary authority.
