Early Modern Moveable Texts and Minotaurs

Guest blog by Ross Macdonald 

Anyone studying early modern legal texts knows that the text, and its authorship, may be “moveable”; they may appear successively under the nominal authorship of different jurists, so that identifying the true writer may be difficult. One striking example arose in my recent study of collation, the procedural device whereby gifts made by parent to child are taken into account when the child later claims in succession to the parent’s estate.

The nominal author, in this case, was Marcus Antonius de Amatis, a jurist who was an assessor on the Rota of, successively, Genoa, Lucca, and the Marche, dying in 1624. His Decisiones Rotae Provinciae Marchiae appeared in various editions, in particular as part of a composite work issued in Frankfurt am Main in 1602 and (without apparent changes) 1662, Decisionum Libri II nunc primum in Germania…  Vicentii Carocii Tudertini et Marc. Ant. de Amatis.  At the end was appended a Repetitio L. si emancipati C. de collationibus  [= C. 6.20.9]; while no author was explicitly identified, Vinnius in his own book on collation quite understandably cited it under Amatis’s name. Besides its length – 58 dense pages –  the Repetitio fills the reader with gloom by its opening greeting: this topic is like Daedalus’s Labyrinth in Crete: once you enter, getting out is impossible or at least very difficult.

But the Repetitio was not by Amatis at all. The clue is in its concluding pages. These comprise a long eyewitness account of a famine riot in Lyon on 24 April 1539, written – it says – by “pater meus nobilis, et egregius vir Ludouicus de Laurentiis legum doctor” and addressed to François, Cardinal of Clermont and Papal legate in Avignon.  This suggests that the true original author – the “pater” – was Louis Laurenti (Nice, post 1467 – Avignon, post 1504; doctor legum in 1504, and one of a family of Avignonese jurists); biographical details taken from  Le Chesnaye-Desbois, Louis: Dictionnaire de la Noblesse (Paris, 1863-1876).  The son was Hieronymus de Laurentiis (Jerome da Avignon, 1517-1606): Coing, Handbuch II/2 (1976), p. 1181, 1183.

To complicate matters, the Repetitio was also published under the son’s name as an appendix to Decisiones Rotae sacri palatii apostolici Avenionis. … Auctore illust. &  Mag. D. Hieron. a Laurentiis, Avenionensi, Utriusque Iuris comite, & eiusdem Rotae decano  (Lyon, 1600). This version was cited in turn in Fontana’s  Bibliotheca Legalis (1688) and Burkhard Gotthelf Struve’s Bibliotheca iuris selecta  (Jena (6th edn), 1725).

So, back to the Labyrinth with Ariadne….

Ross Macdonald  is a  doctoral candidate at Edinburgh Law School

 

 

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A Newly-discovered Medieval Legal Manuscript

Guest blog by Ross Macdonald 

Readers with an interest in undiscovered antique legal texts will be fascinated by a recent report by scholars from Northwestern University, Illinois into a medieval law text discovered in the binding of a 16th century volume. (A summary article is at  https://www.livescience.com/59925-imaging-reveals-medieval-text.html  and the full article, which appears in (2017) Analytica Chimica Acta,  at  http://www.sciencedirect.com/science/article/pii/S0003267017307201?via=ihub ; henceforth “Analytica”). The finding brings to mind the techniques used at Vindolanda, on tablets from London’s Walbrook, and carbonised scrolls from Herculaneum.  As such it has received press coverage, some of it – in the way of second-hand press coverage – going breathlessly beyond what was actually said (“a sixth century manuscript”). This blog briefly considers the legal significance of the text deciphered.

First, though, the document and the technology applied to it (with apologies for any mis-statements arising from my effort to summarise). This involves a printed (1537) copy of Hesiod’s  Works and Days  which Northwestern’s Library acquired in 1870. It has now been found that the volume incorporated an earlier manuscript legal text (which turns out to be from Justinian’s Institutes): not, as in some cases, as strips of padding in the spine, but re-using two parchment pages to cover the endboards. In the process the pages were treated to remove most of the existing writing, but some survived partly because the ink had “burnt” into the material; and the pages had been trimmed heavily at the sides and corners to fit the boards. The research team set out to identify the text if possible, by imaging it in different spectra. Their achievement, which is remarkable, has been to make most of of the writing – apart from some of the smallest script – readable. (It should be said that many passages only make sense once their legal source is identified and compared with other editions; information which was not available to the research team.  I found the editions from Venice (1618) and Lyon (1627) – the first available online at   https://babel.hathitrust.org/cgi/pt?id=ucm.5324323553;view=1up;seq=171 , the second at  https://droitromain.univ-grenoble-alpes.fr/ – particularly useful in that respect: both retain the Vulgate text but print it in extended form – the “Analytica” like many medieval versions contracts words very heavily – and both add extra commentary to the standard medieval Gloss.)

So, the point of the project was partly to test the potential of the team’s methods for future use, and in that they have been brilliantly successful.

The legal significance of the texts is, therefore, very much secondary. How were the passages to be identified?  They consist of central texts surrounded by marginal glosses – one margin having been cropped away from each page – and various interlineations by later users.  Fortunately a (relatively) easily-readable passage in the gloss on one page discussed Adam’s marriage status (or lack of it under canon law), and the text could be identified as Book 1.10.4-5  De Nuptiis of the Institutes. This led the team to postulate that the manuscript had been compiled specifically for educating canon lawyers; that it represented a relatively early stage in textual development – the glosses being fragmentary; and, going further, that it may have been discarded when changes in canon law made the old text obsolete.

While possible, that is not the most obvious explanation. There are two crucial points. First, the other page covers Institutes 1.12.4-5  Quibus Modis Ius Potestatis Solvitur (ie loss of paternal authority, particularly by military service or capture). This has nothing to do with canon law; indeed this page has more notes by users than the other; and the two pages are not contiguous. So the manuscript need not have been prepared in a specifically canonist teaching context. Secondly, the gloss (so far as I can make out) is not fragmentary, except insofar as all legal glosses were  – though by looking only at “Analytica” one admittedly can hardly tell, words being so highly abbreviated and lacking most of the helpful markers (indexing by letter, line breaks,etc) seen in many editions. At any rate, comparison with print editions suggests that all the expected gloss words are present (though, as I note later, not all necessarily in the right order). In short, the manuscript looks like a standard edition of the Institutes with the usual Glossa Ordinaria.

So it seems likely that the source manuscript was a standard “pecia” style copy of part or all of Book 1, perhaps commissioned by a student (not being a palaeographer, I make no comment on the likely date). With the era of print editions (often including more extensive critical textual apparatus) there would be ample reason to dispose of a worn old manuscript.

One might add that the gloss layout seems technically rather inexpert: the gloss does not match up with the adjacent Institutes text (some appears to relate to text which would have been on a previous page); there is not the “bespoke” page-by-page adjustment of text layout which is common at least in printed editions; and there is a significant error in the copying, which I now turn to.

The page on Institutes 1.12.4 contains a long interlineation near the foot, in the gap between the central text and the marginal gloss. (While the image embedded in the authors’ livescience.com  blog is just readable – enough at least to identify the text – the version embedded in the “Analytica” article itself has slightly poorer resolution.) It is, compared with the very small and now-illegible other notes on that page, fairly firmly written. The passage puzzled me, but it turns out – when “Analytica” is compared with printed editions – to be a misplaced marginal gloss: one which should have belonged in the (now-lost) left-hand margin but had been missed out by the copyist and added in at some later date. That sort of error is common in legal manuscripts: thanks to the abbreviations, and the frequent repetition of important words, it was easy for a copyist to jump a couple of lines by mistake. The “Analytica” gloss actually differs slightly from that in printed editions: they read  “bestiis.  Deducendis forte, vel etiam cum comederet cum eis, vel alia bestialia faceret”; “Analytica” seems to have “comederent… facerent” but again that sort of variation was common, as the “n” was often skipped in abbreviation and the associated “macron” (ē) might be mistakenly omitted or, conversely, extended in full form thus altering the tense.

As for the other brief notes in smaller script, only a few letters can be made out. They seem to include additional citations – with the occasional “FF” sign which denotes passages from the Digest – but I could not be sure.

At least two other unusual variants in the text are worth noting. First, in Institutes 1.12.4, at (in the Birks/Macleod translation) “to release a son from the bonds of his authority”,  Krueger has “relaxare”. The more common late 15th century and 16th century reading was “liberare”.  But Cujas (as the Lyon 1627 edition notes) pointed out that “omnes veteres codices” had “relaxare”. This, too, is the “Analytica” reading, which may perhaps suggest a relatively early manuscript date.

The other relates to Institutes 1.10.4, in Krueger “Duorum autem… liberi… iungi possunt” (ie can marry). The common 15th/16th century version was similar, “coniungi”. But there was another possible reading, discussed at length by Cujas (again excerpted in the Lyon 1627 edition): “non possunt”; this went back to a commentary by (or attributed to) the Theophilus who participated in Justinian’s work of compilation. And we see “non” interlineated in the “Analytica” manuscript. Since it was re-used as binding in 1537, we seem to see here a Humanist influence predating Cujas.

So, arguably, a relatively “ordinary” legal text. But its very ordinariness can make it in its way as valuable as egregious nuggets. Any addition to the corpus of medieval legal manuscripts is useful, and the potential of the Northwestern University team’s method is immensely welcome for future research.

Ross Macdonald  is a doctoral candidate at Edinburgh Law School

 

 

 

 

 

 

 

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Granville Sharp & Slavery — New Book

All British historians of slavery in the eighteenth century are familiar with the campaigning work of Granville Sharp. A civil servant, Sharp devoted much time, energy, and money to opposing slavery and promoting its abolition. he was one of the architects of the plan to settle free slaves and the poor blacks found in London in Sierra Leone. He was one of the founders of the Society for the Abolition of the Slave Trade.

Sharp was involved in promoting cases to free individuals held as slaves in England, as well as intervening in other litigation. Most famous is the story of Jonathan Strong and the case of Somerset v Steuart. Sharp is a well-known figure. Andrew Lyall has recently published with hart Publishing Granville Sharp’s Cases on Slavery (2017). This contains a general contextual narrative; but what is important is the printing of transcripts of cases in which Sharp was involved. This has put a great deal of very useful primary material into much wider circulation. If, like this blogger, you teach a course on slavery, this provides invaluable material accessible to undergraduates.

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Family law(s) under the Roman Empire

See our workshop announcement and call for PhDs to contribute to this workshop: Workshop CfA PhD Family Laws

 

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Alexander Mylne’s First Courtroom

Alexander Mylne, Abbot of Cambuskenneth (ca.1470-1548), is best known as the first President of the Court of Session, being appointed as President of the College of Justice, newly founded in 1532. Mylne was a learned churchman, who wrote a history of the Bishops of Dunkeld, described by Aeneas Mackay as “well written”, and certainly lively when it came to his discussion of his contemporaries.

Mylne, who was an Angus man, had many strong links with the Diocese of Dunkeld. After graduating B.A. from St Andrews in 1494, he acted as clerk and archivist to the Official (Ecclesiastical Judge) of Dunkeld for three years. By 1500 he was a notary public. Over a number of years he began to acquire offices in the diocese: Dean of the Christianity of Angus and Parson of Lundieff (now Kinloch) (1505); Canon of Dunkeld (by 1506); Prebend of Moneydie (Dunkeld Diocese), and of Philorth (in Diocese of Aberdeen) (1512); and finally Official of Dunkeld in 1513 (all these details are taken from the ODNB article by J. A. Gould). He was definitely a talented man on the rise.

He must have been very familiar with legal practice before the ecclesiastical court, given his work as clerk and archivist and then as Official. He was very evidently a lawyer trained in the ius civile and ius canonicum. In 1516, as Bishop’s Official and Canon of Dunkeld (according to his ex libris inscription), he acquired an Infortiatum: the middle part of the medieval Digest of the Emperor Justinian – see my earlier Blog Entry: http://wp.me/p6XGl6-9M. This copy is now the property of the Faculty of Advocates (pressmark A.90.2); it is an edition printed in Lyons in 1514.

Your blogger recently visited Dunkeld, which, being born in Strathearn, he once knew well. The medieval cathedral is beautifully situated by the Tay. Its choir is roofed and serves as the parish church of the Church of Scotland. The nave is ruined, but is currently undergoing major repair works. The north-west bell tower, attached to the nave, survives. Inside in the ground floor room has been revealed some late medieval wall paintings: a judgment of Solomon, and Christ with the woman taken in adultery. They are in two of the arched tympanums formed by the vaulting at the ceiling. No doubt there were two further paintings. the scheme is one suitable for a court room: judicial wisdom and mercy leading to a failure to condemn. And indeed the room in the north-west tower once housed the consistory court of the Diocese. The tower was built, according to the Perth and Kinross volume of the Buildings of Scotland, between 1470 and 1500. Thus, it was here that Mylne may have acted as Clerk to the Official and where certainly he later acted as Official himself, though the paintings may be from after his time as judge.

It is also worth noting that the site of the house at what is now 6b Cathedral Street was apparently that of the house for Mylne’s parish of Lundieff. Perhaps it is not too fanciful to imagine him bustling about the Cathedral precinct between his manse and the Tower, busy on his legal duties. He was also active in building, and from 1510 Master of Works to build a bridge over the Tay at Dunkeld, a project that was not to be completed. But this is interesting in a man who may have been the son of the master mason to James III and James IV, who later became master mason to the young James V, and who oversaw considerable building at Cambuskenneth. Mylne is a name evocative in Scottish building history.

From Mylne’s history in which there are descriptions of some of his contemporaries, one can see that in the early sixteenth century there was a very significant reservoir of legal talent in the clergy attached to Dunkeld Cathedral, operating as lawyers and judges not only in Dunkeld but also in the diocese of St Andrews as commissaries and advocates (Rentale Dunkeldense). One gets the impression of industry and activity.

In 1970, John Durkan showed that the consistory court of Glasgow was similarly in its Cathedral’s north-west tower before the Reformation. One can readily imagine there a similar activity and regret its demolition.

But with Dunkeld we can see an actual room used as a consistorial court in Scotland before the Reformation and indeed one which is linked to an important individual in the history of Scots law. Scotland lacks visual representations of court scenes in this era; study of remaining court rooms such as this can start to allow us to have some sense of late-medieval courts and their operation in Scotland. Its location in a high tower attached to a great Cathedral allows us to have a sense of the authority the Church courts claimed. Not only were the lawyers learned, but the surroundings were impressive. With the murals and other paintings, litigants and sinners in Dunkeld were bound to feel some awe in the presence of the Official and his retinue. The power of the jurisdiction of the church with its learned law was made evident in stone and paint.

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Wolfgang Ernst, LL.D. honoris causa, Edinburgh, July 2017

On 6th July 2017, the University of Edinburgh awarded the degree of LL.D. honoris causa to Professor Wolfgang Ernst, Regius Professor of Civil Law in the University of Oxford. The Laureation address was given by Professor John W. Cairns, Professor of Civil Law in the University of Edinburgh. Professor Cairns’s address is given below:

Laureation Address – Wolfgang Ernst

Mr Vice-Chancellor, in the name of and by the authority of the Senatus Academicus, I have the honour to present for the Honorary Degree of Doctor of Laws

Professor Wolfgang Hermann Wernher Ernst

Those of us who were privileged in June 2014 to hear Professor Ernst’s MacCormick Lectures in Edinburgh will remember their elegance and erudition, as well as the lecturer’s gentle humour. In a period in which we seem to be voting at least once a year, it is worth noting that Professor Ernst brilliantly expounded in these lectures the history and nature of voting, ranging with ease over the ancient, mediaeval and early-modern worlds. In what was the year of the Scottish Referendum, he did not shy away from an analysis of the nature and fairness of the question posed.

It was a brave topic for a German scholar of Roman law and legal history; but Professor Ernst is no ordinary German professor. Though he followed the traditional, rigorous, German cursus honorum of state examinations, doctorate, and Habilitation, he also engaged with what the French call les pays anglo-saxons, studying for the degree of LL.M. at Yale. After call to the Chair of Roman and Civil Law in Tübingen in 1990, he returned to his alma mater of Bonn in 2000, before moving to the University of Zurich in 2004.

But Professor Ernst continued his engagement with the world outside German-speaking academia, as Arthur Goodhart Professor of Legal Science in Cambridge, and as a Visiting Professor in Jerusalem.

His wide-ranging scholarship in Roman law and in legal history has led to his development of path-breaking work on the legal history of money: research that has been as elegant and erudite as his continuing work on voting, which is part of his legal historical research on choice and decision-making. But in this innovative and cross-disciplinary research scholarly rigour has not been sacrificed for fashion.

It was undoubtedly this variety of intellectual engagement that specially suited Professor Ernst for the Regius Chair of Civil Law in Oxford, perhaps the most significant chair in Roman law in the Anglophone world. His awareness of the strange attitudes of les pays anglo-saxons, and of the nature of their laws, which possess a significant cultural component beyond mere rules, made him an especially suitable choice.

Many distinguished individuals have held the chair in Oxford; Professor Ernst is at least their equal and brings his own unique distinction to the chair. He is, as they used to say, an ornament to the University. Since he is an unassuming man, I hope I do not embarrass him; but as he is also a kindly man, I am sure he will forgive me.

I therefore have the honour, Mr Vice Chancellor, to invite you to confer on Professor Wolfgang Hermann Wernher Ernst, the degree of Doctor of Laws, honoris causa

After the Vice-Chancellor had conferred the degree on Professor Ernst, the new graduate responded.

Professor Ernst’s Response

As a contrarian, I am greatly tempted to first of all disprove the flattering laudatio you have just heard, point by point, but I won’t do this here,or today.

It is not necessary for me to express thanks, for on my face, the pen of happiness must have written an ode of gratitude. (This was a quotation)

It is doubly pleasant but perhaps also a paradox to be honoured for activities which in themselves have been, and continue to be, a joy to pursue.

Where does this joy come from? A colleague recently said “This makes academic work worthwile – when you actually discover something that people don’t know. That’s what we are meant to be doing!” If the lust of knowing what is not yet known is to flourish, we need a culture of doubt and controversiality. Of the mistakes I have made, there is one I have come to regret recently:

I have taken for granted living and working in an open society, an environment which liberally allows and invites debate, with a regard for thought-through arguments, however provocative.

If it now turns out that we need to more vigilantly protect and cultivate such an open society this is what we should do,what we must do. More than ever we should try to project the virtues of scholarship into society at large: openness to reality – advancing and testing ideas in a transparent, methodological manner – overcoming biases – giving attention to detail – remaining conscious of the ever-preliminary nature of our findings.

In all these characteristics, our work is a repudiation of both, authoritarianism, but also of the attitude that you can float everything as ‘true’, if only this ‘truth’ suits your agenda.

We in turn, like Pontius Pilate, another lawyer, presumably, cannot offer “truth”:

The opposite of propaganda is not truth, the opposite of propaganda is debate.

By maintaining a civilized debate, we thus make a contribution transcending the microscopic subject matters which are our immediate concerns.

Thank you & all the best!

Some photos (which also include our two PhD graduates, Asya Ostroukh & Ilya Kotlyar):

 

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Conference: Directions in Legal History and Roman Law

On 6 July 2017, the University of Edinburgh awarded the degree of LL.D. honoris causa to Wolfgang Ernst, Regius Professor of Civil Law in the University of Oxford. At the same ceremony two Ph.D. students in legal history graduated with their doctorate: Asya Ostroukh, whose thesis is entitled “Reception of the French Civil Code in Francophone Switzerland, Louisiana, and Quebec: A Socio-Legal Study”, and Ilya Kotlyar, who thesis is entitled “The Influence of the European Jus Commune on the Scots law of succession to moveables: 1560-1700”. These three happy events encouraged the Centre for Legal History, with the support of the School of Law, to organise a small conference entitled “Directions in Legal History and Roman Law”, involving the new graduates and some current PhD students, to showcase the diversity of the research in the Centre.

Asya Ostroukh, now Senior Lecturer in Law, University of the West Indies, gave a paper entitled “Exclusion and Inclusion of the French Law on Neighboring Plots of Land in the Civil Codes of Quebec, Louisiana and Francophone Switzerland: Some Reflections on the Relation between Law and Society”. She explored the way in which none of the codes she discussed copied the detail of the French law and discussed the reasons why this was so.

The second paper, “The Northern Circuit of the Justiciary Court and the Regality of Grant, 1708-1750”, was delivered by Charles Fletcher, a current, full-time, Ph.D. student just finishing his first year. His thesis focuses on the regality court; but he explored how its work was affected by the development of the Justiciary jurisdiction, after the institution of regular circuit courts in 1708. The paper highlighted the continuing significance of the regality court, while also showing why certain prosecutions were taken to the Justiciary court.

Ilya Kotlyar, currently Postdoctoral Researcher, University of Tilburg, the Netherlands, spoke on “The Historical Scots Law of Succession in a Civilian Perspective”. Along with some general remarks, and discussion of the impact of politics on the Commissary Court, the paper discussed testamentary practices and the use of various devices to avoid the effects of Scots common law, as in many ways Scots sought methods to achieve freedom in disposing of their moveable and heritable property.

This was followed by a paper entitled “The Economics of Property Rights in the Ship in Roman Law”, delivered by Peter Candy, a Ph.D. student about to enter his third year of study. He explored how New Institutional Economics can be deployed in a subtle and nuanced way to understand issues in Roman law, in particular how Roman law provided incentivise to possessors to behave as owners.

The final paper was given by Professor Wolfgang Ernst and was entitled: “Insulam exurere – reading Coll. 12,7,1-3 closely”. Professor Ernst provided a close discussion of the text of Ulpian as found in both the Collatio and the Digest, suggesting that there were changes in the Digest version that reflected neither the textual history but rather an editing decision of the compilers. He also explained what he thought was the original context of part of the text, as a responsum of Labeo.

The conference aimed to give plenty of time for speakers and discussion, and indeed there was much debate over the papers. Notable amongst those attending were Professor Jean-Jacques Aubert of the Université de Neuchâtel and Professor Emeritus Laurens Winkel of Rotterdam. It was a successful exercise in discussion of their research by scholars from junior to senior, which benefited all.

 

 

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Monastery and Book of Deer

Scottish legal historians who have an interest in the Middle Ages are all familiar with the importance of the Book of Deer. The Book of Deer is an illuminated manuscript of the Gospels (though not in their entirety, now held in Cambridge University Library. It had once belonged to the great collector, Bishop Moore, who acquired some of manuscripts, notably the Moore Bede, through the Scots scholar and dealer, Alexander Cunningham. There is no reason to associate Cunningham’s activities with Moore’s acquisition of the Book of Deer. Indeed the good Bishop probably acquired it from his friend Thomas Gale.

The Book of Deer is a tenth century manuscript written by a single scribe in an Irish hand. What makes it of interest to legal historians is the legal material inserted into it when the MS was at Deer. Some of this is in Gaelic, making the Gaelic notitiae the earliest surviving medieval Scots Gaelic, as well as a Latin brieve of David I.

In 2009 Katherine Forsyth edited a new collection, Studies on the Book of Deer, published by the Four Courts Press of Dublin. This contains new editions and translations of the legal material. It is an important work.

What has inspired your blogger to revisit this is the note in today’s BBC Scotland website that a search is on again for the old monastery, the one referred to in the Book of Deer. Its site has never been located, though the ruins of the later Cistercian monastery are known and, indeed, charming, though it is many years since your blogger, one side of whose family comes from Buchan, has visited them.

But in the collections in the Book of Deer, Gaelic, Pictish, and Norman Scotland all come together. It is of tremendous importance.

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Professor Norma Dawson: Legal Historian, C.B.E.

 (photo QUB)

The Blog is delighted to note that the distinguished legal historian, Professor Norma Dawson, of Queen’s University Belfast, has been honoured by Her Majesty with appointment as C.B.E. in the recent Queen’s Birthday Honours list. Professor Dawson’s services to legal education have been varied and many, but here it is worth recording her work as a legal historian.

Professor Dawson is also a distinguished property lawyer with a strong specialism in trade marks. This has also been reflected in her work as a legal historian, with interesting work on trade marks in the eighteenth century, as well as on matters such as treasure trove. As well as her own research, she is a past president of the Irish Legal History Society and been a major force in that Society’s programme and publications. She has facilitated and guided the work of others, as well as carrying out her own research.

Here in Scotland she is remembered for her Address to the AGM of the Stair Society on 17 November, 2012. Her topic was entitled “Letters from Inverarary – the Eighth Duke of Argyll’s correspondence with the Marquis of Dufferin and Ava, with particular reference to Gladstone’s Land Acts”. It was a tour de force. It can now be read in the Stair Society’s seventh volume of miscellany.

If your blogger may be permitted a personal note, he started his career as a lecturer at the Queen’s University. Professor Dawson, then herself a young lecturer, was notably welcoming and helpful, and always willing to guide and advise. It is important to note that Professor Dawson, as well as brilliant as a scholar is also wise, an attribute, which, alas, not all scholars possess. It is this wisdom and experience which no doubt explains the calls on her service in the Presbyterian Church in Ireland, the Advisory Council of the Institute of Advanced Legal Studies, and as an Honorary bencher of the Inn of Court of Northern Ireland.

 

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Alan Watson seminar in legal history – 26 May

Details of our last event for the academic year below: A paper by a visitor to the centre, Wouter Druwé.

In the early modern period, the Low Countries performed a key role in trade and commerce on the European continent. In their golden ages, Antwerp in the sixteenth and Amsterdam in the seventeenth century attracted merchants from all over Europe and even beyond. The massive development of commerce and finance within this transregional reality raised new normative questions on how to deal with novel financial techniques. Most often, the answers were multifold. Different layers of normativity were at stake: apart from learned legal treatises and commentaries, also moral theological literature, princely or local ordinances, and customary law had to be taken into account. The Netherlandish published volumes of consilia and decisiones – together coined as ‘learned legal practice’ – form two types of legal sources which offer an excellent insight into the combined application of these different normative layers. In consilia, learned lawyers gave their opinion on specific disputes, either before or in the course of legal proceedings. Volumes of decisiones contain reports of decisions by the superior courts of the Low Countries.

After an introduction into the sources and a short overview of the overall Ph.D. project, this paper will deal with the Netherlandish learned legal practice regarding the sale of annuities (emptio-venditio redituum), a common technique to circumvent the prohibition against usury. Someone in need of credit sold an annuity to a buyer-financier who in return paid a purchase price. As of the mid-sixteenth century learned authors accepted that the seller could unilaterally redeem the annuity, even though discussion remained as to the possibility of contractual clauses which temporarily limited that right. As this possibility was only guaranteed in case of pecuniarily constituted annuities, debates also concerned the burden of proof of an annuity’s emptitious nature. Furthermore, this contribution deals with the possibility by a public debtor to mitigate its own annual liabilities through the enactment of legislation. Finally, it is shown that the buyer-creditor was generally denied a right to claim restitution of the capital.

Wouter Druwé (FWO / KU Leuven)

26 May – Legal History Poster

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