Last Wills ‘By Own Mouth’ and ‘By Own Hand’ in Late 16th Century Scottish Archives

A guest post from Ilya A. Kotlyar, a PhD student at Edinburgh Law School. Ilya is researching the ‘Influence of Jus Commune on the Scottish judicial practice of succession to movables in 1560-1660’

On 18 October 1585 (old style), Hector Dowglas (sic) made up his last will, testament and inventory, all given up by his ‘own mouth’ before numerous witnesses and Adam Dickson – the notary public. As was the usual practice of the time, the notary actually wrote down the final testamentary deed only after the defunct’s death, which followed on 30 October of the same year. All those details were mentioned in the deed, containing a Latin notarial subscription, reading: ‘Adam Dickson, notary public, specially invited for everything abovementioned… under my sign and signature’ (CC8/10/3/14).

Just a half-year later, on 21 April 1586, another testator, William Clarksone, also made his last will (CC8/10/3/13). Unlike the previous one, it was ‘gevin up by himself’; however, the text is followed by subscription of testator: ‘William Clarksone, with my hand at the pen led by the notar undirwrittin at my command, becaus I can not wryt’. Then follows the Latin subscription of the notary, confirming all the aforesaid. The handwriting of the deed suggests it was entirely written with notary’s hand.

What is the crucial difference between these two documents?

The will of Hector Dowglas was made in the old fashion, which was exclusive in the preceding decades. It was essentially a nuncupative (oral) will, made before notary and witnesses. The deed, written by notary afterwards, was just an evidence of such nuncupative will. In this, Hector Dowglas’s will is not unlike the notarial wills of Civil law, which the usual way of testing on the Continent.

William Clarksone’s will, however, was made as a written document as a matter of substance. It was made by the way of ‘leading the pen’, where a notary subscribed the will by moving the hand of the testator with the pen in it. ‘Leading the pen’ was a sign that a deed was the product of the testator from the beginning to the end and that a notary was just performing a scribe’s function. The witnesses to such a document were not, in theory, required to know its contents, but only to see the subscription at the testator’s command.
The origins of the ‘leading the pen’ custom are unclear. It was required by 1555 Act (RPS, A1555/6/3) in respect of reversions; it was obviously well established in 1570s. However, it was a latecomer in case of last wills: William Clarksone’s will was one of the first wills made in this way.

In the general context of execution of deeds, ‘leading the pen’ custom subsequently became a standard option for illiterate and disabled in Scotland, to the point that documents similar to Hector Dowglas’s will were deemed invalid. The most explicit case on this issue was Anstruther v. Thomson (1611, M.12499), where two notaries evidenced the confessions of the parties in writing. The Lords of Session refused to recognize this document as probative, pointing out that while two notaries might put their subscription on the party’s behalf, but they couldn’t ‘make a contract’ for him.

However, it seems that in respect of the last wills the practice proved the most conservative and ‘nuncupative’, Hector Dowglas type of wills were still in use long into the 17th century. Thus, in Dundas v. His Father’s Executors (1639, M.2195=M.12501) a ‘certificate’ written by the parish priest, although not subscribed by the testator or in his name, was sustained as a ground for a legacy. In this way, Scots last wills retained some similarity to their Civilian counterparts.

Posted in Guest Posts, Legal History | Leave a comment


For those interested in the history of classical ideas and how Roman antiquity may be used to comment on contemporary concerns, Jo-Marie Claassen’s (Stellenbosch) newly published English translation of N.P. van Wyk Louw’s Germanicus will provide ample food for thought. This work, based on Tacitus’ Annales 1 – 3, recounts the story of the death of Augustus and the dynastic wrangling after his death. Written during the height of Apartheid, this work has become a key text for the study of the complex literary heritage of one of the greatest South African literary figures while at the same time providing a fascinating commentary on literary critique and censorship during this period in South African history. Details here: Germanicus Publicity 2-1

Posted in Legal History | Leave a comment

Blackstone Exhibition

This blog noted the important Blackstone Exhibition at Yale earlier his year. See Your blogger is delighted to report that it will soon be able to be viewed in London, at the Middle Temple Library from September to November, after which it will be on display at the Sir John Salmond Law Library at the University of Adelaide from December 2015 to January 2016, reflecting all the recent important work by Wilf Prest. Given that Sir William Blackstone (1723-1780) was a member of Middle Temple (admitted 20 November 1741, called to the Bar 28 November 1746 and made a Bencher on 1 May 1761), this is particularly significant.

The exhibition will feature over 40 items from Yale’s Law Library collection, depicting the origins of the Commentaries, its publishing success and its impact on the common law system and more broadly on English and American society. The items include a volume annotated by one of Blackstone’s students, a legal treatise with Blackstone’s marginalia, the first English editions of the Commentaries, early Irish and American pirated editions, abridgments, teaching aids, student manuscripts, critiques, translations (into French, German, Italian, and Chinese), and a 1963 liquor advertisement.

It was tempting to headline the blog entry “Blackstone comes home”; but he is a lawyer for all the world, as at home in New Haven as in Adelaide or London.


Posted in Blackstone, Legal History | Leave a comment

Peter Chiene Lecturer, Jean-Louis Halpérin, to be awarded Sarton Medal

This Blog is delighted to report that the University of Ghent have decided to award the Sarton Medal in Law, 2015, to Jean-Louis Halpérin, due to give the Peter Chiene Lecture in Edinburgh on 9 October. The award will take place in Ghent on 29 October. Previous recipients include Emmanuele Conte, Robert Feenstra, Anne Lefebvre-Teillard, Randall Lesaffer, Jos Monballyu, and Serge Dauchy.

Posted in Halpérin, Legal History, Peter Chiene | Leave a comment

Peter Chiene Lecture in Legal History

On 9th October, 2015, the Chiene lecture in Legal History will be given by Professor Jean-Louis Halpérin (École normale supérieure, Paris) at 5.30 p.m. in the Anatomy Lecture Theatre, Old Medical School, Teviot Place. His topic will be: “The Invention of Legal Orders: Historical Comparisons between Roman, Chinese and Jewish Laws”. It is open to the public.

_HALPERIN%20Jean-Louis[1]Click here for poster Peter Chiene Lecture 2015

Posted in Halpérin, Legal History, Peter Chiene | Leave a comment

Edinburgh Roman Law Group: 2015-16

The meetings will be as follows:

Paul Mitchell, November 6, 2015: “On the Legal Effects of Sponsalia”

March 11, 2016: Professor Caroline Humfress, University of St Andrews, “Natural Laws and the ‘Hypothetical Case’ in Roman Juristic Texts”

Both meetings will take place at 5.30 in the Neil McCormick Room

Posted in Legal History | Leave a comment

James Thomson

As an eighteenth-century scholar, your blogger notes that today, 27 August, is the anniversary of the death of James Thomson (1700-48), noted Scottish poet and alumnus of the University of Edinburgh, where he had trained to become a minister of the Kirk. A rather handsome portrait of him, by John Medina after John Patoun, currently hangs in the University’s Elder Room (see Thomson’s best known work is The Seasons, for which he was justly famous. Copies abounded in eighteenth-century libraries. His most familiar work nowadays is the song “Rule Britannia”, written for the mask “Alfred”, in which Thomson had collaborated with his fellow-Scot, David Mallet (or Malloch).

Posted in Legal History | Leave a comment

Tony Thomas Seminar (London Roman Law Group)

20th November 2015: Halcyon Weber (Cambridge University and UCL): “The approach of the Eastern Roman emperor Justinian to the ius antiquum”.

26th February 2016: Dario Mantovani (University of Pavia): title to be confirmed.

The place and precise times of these papers will be announced later.

Posted in Legal History | Leave a comment

Fellowship at the Max Planck Institute for European Legal History

Research Fellowship in the field of European Administrative History

“JEV-Fellowship for European Administrative History”

At the end of 2012 Prof. Dr. Erk Volkmar Heyen, Professor of Public Law and European Administrative History at the Ernst-Moritz-Arndt University of Greifswald until his retirement and the editor of the “Jahrbuch für europäische Verwaltungsgeschichte/Yearbook of European Administrative History” (JEV) published from 1989 to 2008, donated a research fellowship in the field of European Administrative History (“The JEV-Fellowship for European Administrative History”). The fellowship falls within the framework of the German University Foundation (Bonn, Germany).

The scholarship is intended to benefit the next generation of scientific researchers, particularly doctoral and post-doctoral students, and specifically for the final phase of their research project for a duration of no longer than 12 months. The scholarship is based on the usual rates for doctoral fellowships of the German Research Foundation (DFG). Should a fellowship be awarded for research abroad, the local conditions will be the determining factor. Marital status will not be deemed a consideration, and neither will travel- nor other costs be reimbursed.

The Board of the German University Foundation decides on and awards the fellowship based on a proposal by a jury. This jury is based at the Max Planck Institute for European Legal History (MPI) in Frankfurt, where the founder worked in the 1980s. Currently the permanent members of the jury are: the Managing Director of the Max Planck Institute, Prof. Dr. Thomas Duve, Prof. Dr. Stefan Brakensiek, Professor of Early Modern History at the Institute for History of the University of Duisburg-Essen, and Priv.-Doz. Dr. Peter Collin, Research Fellow at the Max Planck Institute. The German University Foundation provides for the payment of the fellowships and informs the recipients about the terms and conditions and the legal requirements to be complied with by the recipients in their personal capacities. Early stage researchers from Germany and abroad are invited to apply.

In accordance with the thematic and methodological spectrum covered by the JEV, the scholarship is open to all historical disciplines, provided the research project addresses an aspect of European administrative history from the period of the sixteenth to the twentieth century. The importance of the research topic should impact beyond the national level. Comparative research questions are particularly welcome. First time applications for a scholarship commencing in January 2016 can be submitted until 30 September 2015; this deadline also applies to the succeeding years unless otherwise specified. Applications in English or German should be sent in electronic form to: Priv.-Doz. Dr. Peter Collin,

The application, which must also include an indication of the duration for which the fellowship should run, is to be accompanied by the following documents: a curriculum vitae in tabular form with detailed information on the nature and the chronology of university studies together with the respective examination results achieved (copies of results to be enclosed) and, where applicable, a list of scientific publications written or hitherto contributed to; a detailed description of the research project including a detailed outline of the contents of the intended publication, a detailed report on the current development of the project and the status of publication, including the reasons for any (possible) delay in its completion; extensive excerpts from the current document; information on the current financing of the research project as well as on past or pending applications for funding of the project; a precise timetable for the completion of the writing of the publication. Furthermore care is to be taken that at least one expert opinion from a university lecturer on both the individual researcher and the research project as such be submitted directly to the jury.

The MPI provides fellowship recipients with work opportunities in its library. Fellows are given the opportunity to present their research projects to the public at the Institute and to discuss the projects with the latter. With the expiration of the fellowship the recipient is to submit a report on the status of the publication/book. The MPI provides for the publication of the funded book in one of its publication series, provided the Institute’s required quality standards are met. The book is to make reference to the support provided by the “JEV-Fellowship for European Administrative History” in the imprint or in the preface. Donations to financially support and, if possible, extend the level of support of the fellowship are most welcome. These can be paid into the following account of the German University Foundation: Bank für Sozialwirtschaft, account number: 1140200 (BLZ: 37020500; BIC: BFSWDE33XXX; IBAN: DE47370205000001140200), Password: “Spende Erk-Volkmar-Heyen-Stiftungsfonds”. The German University Foundation will issue the required receipt confirming the donation, if the postal address is provided. Should a permanent increase of fund assets be preferred, the password to be used is „Zustiftung Erk-Volkmar-Heyen-Stiftungsfonds“.

Posted in Legal History | Leave a comment

Law and Classics

Our colleagues in History, Classics and Archaeology have notified us of an interesting collaboration between them and various Japanese scholars on the topic of ‘Law and Classics’. Details below:

Edinburgh Law and Classics Conference 25 August
Department of Classics, School of History, Classics, and Archaeology,
William Robertson Wing G16, Teviot Place, Edinburgh

10.45-11am: convene

11am-12 noon: session 1, Chair Professor D. L. Cairns
1. Miku Nakagawa (PhD student, Tokyo University)
An Unpublished Fragment from Oxyrhynchus
2. Hiroshi Notsu (Professor of Classics, Shinshu University)
Traductions japonaises d’Homère

12 noon-1pm: session 2, Chair Dr M. Canevaro
3. Yasunori Kasai (Professor of Law and Classics, Tokyo University)
Hybris and Defamation in Greek and Roman Law (and Japanese Law)
4. Yumi Uchikawa (PhD student, Tokyo University)
‘I shall kill by vote’: Trial as a means of killing in classical Athens

1pm-2pm: lunch

2pm-3pm: session 3, Chair, Dr D. O’Rourke
5. Taro Tomoi (PhD student, Tokyo University)
Mentula in Catullus: an example of Catullan invective
6. Shintaro Chiba (PhD student, Tokyo University)
Propertius 3.6 and the Greek Anthology

3pm-3.30pm: session 4, Chair Professor L. J. Llewellyn-Jones
7. Yuki Kontani (PhD student, Tokyo University)
Castration in Roman Law

3.30pm-4pm: tea and coffee

4pm-5.30pm: session 5, Chair tba
8. Tomoyo Yoshimura (Professor of Roman Law, Hiroshima International University)
alumnus and fideicommissum in Roman Law
9. Emi Matsumoto (Professor of Comparative Law, Aoyama Gakuin University)
The idea of the law-giver in J.J. Rousseau’s contrat social and the difficulty in Japanese translation
10. Masami Okaue (Professor of Criminal Law, Tsukuba University)
Sentencing and theories of punishment in Japan

5.30pm-7.00pm: reception, Jim McMillan Room, School of History, Classics, and Archaeology (sponsored by the Young Academy of the Royal Society of Edinburgh)

8pm dinner (for those who have reserved in advance), Bread St Brasserie, Point Hotel, Bread St.

Posted in Legal History, Roman Law | Leave a comment