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.

Scottish Legal History Group Annual Conference 2015

The 35th Annual Conference and AGM of the Scottish Legal History Group will be held in the Law Room of the Advocates’ Library, Parliament House, Edinburgh, on Saturday 3 October 2015. All welcome.

All those wishing to attend are requested to send a registration form (download here) together with the Conference fee of £10.00 (£5.00 for students) to the Secretary, Dr Adelyn Wilson, at the address indicated.


10.30 Coffee

11.00 First Session

Professor Dauvit Broun and Ms Joanna Tucker (University of Glasgow)
“The earliest central judicial records”

Dr Jenny Wormald (University of Edinburgh)
”’And so it follows … that the Kinges were the authors & makers of the lawes, and not the lawes of the Kings’ [James VI, Trew Lawe of Free Monarchies]. Did he mean it?”

12.30 Sherry. Break for Lunch.

2.15 Second Session

Annual General Meeting … to be followed at 2.30 approximately by:

Mr Stephen Bogle (University of Glasgow)
“David Dalrymple and the South Sea bubble crisis”

3.30 Third Session

Dr Chloe Kennedy (University of Edinburgh)
“Nothing to declare?: Reconsidering the history of the declaratory power”

Mr James Hamilton (WS Society Signet Library)
“The Signet Library, 1815-2015”

5.00 Close

Call for Papers: Law Collecting and Law Collections

Law Collecting and Law Collections
14 and 15 April 2016 (in Edinburgh)

Convenor: Professor John Cairns (University of Edinburgh)

A conference to address the broad topic of the history of law reporting and the collecting of legal decisions, primarily in Scotland but with the development of law reporting situated in its broader British, European and comparative context. The conference is intended to consider subjects such as how the role of precedent developed, in what form were the earliest records of judicial opinions or decisions, how the form of the modern law report emerged, and related issues.

Confirmed keynote speakers include Professor Sir John Baker, Professor John Ford, Professor Thomas Rüfner, and Lord Woolman. The conference will be hosted by the Scottish Council of Law Reporting with the University of Edinburgh.

Proposals for papers (proposals should not be more than 400 words in length) should be submitted to no later than 30 September 2015.

The conference is open to all interested in this subject area. It is expected that the fee, to include meals and refreshments during the conference and a conference dinner (but not overnight accommodation) will be in the order of £150. Please email if you wish to be sent a booking form.

Stephen Bogle to Give Inaugural ‘Law after Dark’ Talk at the Maastricht European Private Law Institute

Taken from the MEPLI Blog:

Stephen Bogle is a lecturer in Private Law at the University of Glasgow and a PhD Researcher at the University of Edinburgh. His research focuses on the emergence of a will theory of contract in Scotland, looking at how theology and natural law philosophy interacted with legal development in Scotland during the seventeenth century. Stephen’s research also touches upon obligations, including, but not limited to contract theory, legal history, and contemporary issues in consumer and commercial law.

Stephen graduated from the University of Edinburgh MA (Hons) (Mental Philosophy) (2005), the University of Strathclyde LL.B (Ordinary) (2007), the Glasgow Graduate School of Law Dip LP (2008), and the University of Edinburgh LLM by Research (Distinction) (2012). Stephen is also a qualified solicitor having trained at Maclay Murray & Spens LLP between 2008 and 2010.

What: Talk by Stephen on ‘Fairness, Just Price & Complex Markets: Lessons from Sir David Dalrymple’s Pamphlet Circa 1720′, followed by an open discussion with those in attendance. Drinks and snacks will be served.

When: 14 May 2015 (6:00pm – 8:00pm) [Please be advised that this is the first day of Ascension, which means that the Faculty of Law will be closed].

Where: Conference Room of the Café Tribunal (Tongersestraat 1, 6211 LL Maastricht).

How: If you are interested in attending this talk, email Mark Kawakami at: Please keep in mind that space will be limited.

Find out more about Stephen here


Annual Morris L. Cohen Student Essay Competition

The Legal History and Rare Books (LH&RB) Section of the American Association of Law Libraries (AALL), in cooperation with Cengage Learning, announces the Seventh Annual Morris L. Cohen Student Essay Competition. The competition is named in honour of Morris L. Cohen, late Professor Emeritus of Law at Yale Law School.

The competition is designed to encourage scholarship and to acquaint students with the AALL and law librarianship, and is open to students currently enrolled in accredited graduate programs in library science, law, history, and related fields. Essays may be on any topic related to legal history, rare law books, or legal archives. The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses to attend the AALL Annual Meeting.

The winner will receive a $500.00 prize from Cengage Learning and up to $1,000 for expenses associated with attendance at the AALL Annual Meeting. The runner-up will have the opportunity to publish the second-place essay in LH&RB’s online scholarly journal ‘Unbound: An Annual Review of Legal History and Rare Books’.

The entry form and instructions are available at the LH&RB website:
Entries must be submitted by 11:59 p.m., 16 March 2015 (EST).

The Universal Short Title Catalogue Database

Professor Andrew Pettegree directs the AHRC-funded project based at St Andrews that makes the Universal Short Title Catalogue (USTC) happen. Researchers on the project have been traveling across Europe to examine books and record them since the 1990s. Originally a project focusing on French printed books, the USTC also came to encompass the Iberian Peninsula and the Low Countries. This book-in-hand cataloguing is combined in the USTC with the national bibliographical projects of the UK, Germany, and Italy. The result is absolutely stunning.

The USTC Database aims to capture all books printed in Europe from the dawn of printing to the end of the sixteenth century. There are plans to extend into the seventeenth century, too.

Explore the USTC

This is good news for legal historians. The USTC will be extremely useful in tracking the publication of law books across boundaries, the development of the ius commune and of humanism, and the development of national legal systems. The collective nature of the USTC makes it much easier to see patterns and trends in context than is possible using national catalogues or even WorldCat.

The USTC Database is also a pleasure to use. the pages are laid out logically and links to related resources are clear. Books in other databases are linked to directly and this makes the USTC the first port of call for preliminary searching.

Users can search for books by almost any way imaginable. Author, title, keyword, translator, editor, short title, printer, place of publication, and year are all options. You can also search by language, format, classification (‘Jurisprudence’ brings up 22,636 choices), and digital copy availability. A search for ‘Justinianus I’ returns 1035 entries ranging in date from 1468 to 1600 and 152 of these are accessible digitally.*

Each entry has an appropriate image for the book being described. For example, at the entry for USTC 509496: Buchanan, George, Rerum Scoticarum historia auctore Georgio Buchanano Scoto (Edinburgh, apud Alexander Arbuthnet, 1582), we find a portrait of Buchanan. Details like this occur throughout the pages – this is obviously a project where attention to detail is paramount.

The only downside, if it can be called that, is that the USTC Database means work for your blogger. When I transcribed the library of Charles Areskine of Alva as part of my PhD submitted in December 2011, I included modern catalogue records for the books listed there along with references to their identification codes in national bibliographical databases. Now that the USTC is here, this catalogue must be regarded as incomplete until the USTC codes can be added to it.

*Figures at date of post.

ORCID logo

Richard and Diane Cummins Legal History Research Grant 2015

The Richard and Diane Cummins Legal History Research Grant 2015

GW Law is pleased to invite applications for the Richard & Diane Cummins Legal History Research Grant for 2015.

The Cummins Grant provides a stipend of $10,000 to support short-term historical research using Special Collections at GW’s Jacob Burns Law Library, which is noted for its continental historical legal collections, especially its French Collection. Special Collections also is distinguished by its holdings in Roman and canon law, church-state relations, international law, and its many incunabula. The grant is awarded to one doctoral, LLM, or SJD candidate; postdoctoral researcher; faculty member; or independent scholar. Candidates may come from a variety of disciplines including, but not limited to, law, history, religion, philosophy, or bibliography.

The deadline for submission of applications is 15 October 2014.

For information about the Cummins Grant, please visit:

For information about Special Collections at the Jacob Burns Law Library, please visit:

Stair Society Annual Lecture 2014

The Stair Society’s 2014 Annual Lecture and Annual General Meeting will be held in the Faculty of Advocates’ MacKenzie Building in Edinburgh on Saturday 15 November 2014.

The Speaker will be Professor Alain Wijffels and his title will be ‘England and the German Hanse: The Long Endgame (1474-1604)’.

Professor Wijffels, Dr. jur. (Amsterdam), PhD (Cantab.), DLitt (Cantab.), graduated in philosophy, law, criminology, canon law, Roman law and medieval history. After several years of academic research, mainly in Italy, Germany and England, he is now working and teaching at universities in Belgium (Leuven/Kortrijk/Louvain-la-Neuve), France (Lille-2/CNRS) and Holland (Leiden). He teaches legal history, comparative law and legal English. He has published some two hundred studies, mostly contributions to legal history. His main area of interest is comparative legal history, particularly in the area of public governance and the courts’ practice in several Western European legal systems, with an emphasis on the structure and workings of complex jurisdictions.

The meeting and address will be followed by lunch for members and their guests.

Membership of the Society is open to all with an interest in the history of Scots law. Find out about Stair Society Membership and its benefits here: Membership of the Stair Society.

Japanese Law: History, Reception and Adaptation

Conference: Centre for Legal History/Asian Studies

20 June 2014
Lee and Elder Rooms, Old College, 9 am – 5 pm

Attendance is free, but spaces are limited, please email Hiromi Sasamoto-Collins to secure a place.

Japanese law is said to have undergone drastic change through the adaptation of Western law in the second half of the nineteenth century. Many scholars now believe that this ‘westernised’ Japanese law significantly influenced the legal systems of other Asian countries, including Korea, China, and Thailand. This one-day seminar will assess the nature of this transformation of Japanese law that took place amid intense globalisation of the nineteenth century. Among the questions to be considered are the aspects of Japanese law that changed as the result of the reception; the processes of this adaptation and its main consequences, domestic and international.

The seminar will bring together four specialists in Japanese law and legal history to address these questions. Hiroshi Oda, Sir Ernest Satow Professor of Japanese Law at University College London and the author of Japanese Law (now a standard textbook), will provide a general overview of Japanese law, its history and evolution, emphasising its comparative and commercial aspects. Marie Seong-Hak Kim, in her recent book Law and Custom in Korea, claims that the idea of custom as a source of law barely existed in East Asia prior to the nineteenth century and it was the Japanese jurists who absorbed the idea from Western jurisprudence and disseminated it throughout East Asia as colonial agents. Kim will elaborate on this claim. Hiromi Sasamoto-Collins, who has examined the difficult birth of modern constitutionalism in Japan in her book, Power and Dissent in Imperial Japan, will focus on Japan’s first western-style Criminal Code of 1880, and assess exactly how the Japanese codifiers adopted legal principles that appeared to be so radically dissimilar to traditional Japanese legal thought. Matthias Zachmann, the author of China and Japan in the Late Meiji Period and an expert on East Asian relations and international law, will discuss how the Japanese understood and misunderstood the notion of international law in the late nineteenth and early twentieth centuries, and what were the consequences of such (mis)conceptions.

In short, the seminar will investigate the question of reception and adaptation in three major areas, international law, and the civil and criminal codes, in the Japanese context. Such perspectives remain essential for the understanding of contemporary Japanese law, as the Japanese legal system remains more or less grounded in the legal reforms of the Meiji period (1868–1912) despite significant later modifications. Such reforms, in turn, then went on to influence the legal systems of other countries in Asia.

Accordingly the theme of Japanese adaptation has large implications for studies of legal and cultural transmission and transmutation. The nineteenth century saw the large-scale dissemination of Western ideas and institutional arrangements across the globe. Legal transplantation was part of this global convergence. And yet extra-legal cultural factors specific to each region or country also intervened in this process. Thus, if some principles and practices survive cultural barriers and take root in a different cultural setting, why and how does this happen? The question may help us to better understand the phenomena of legal convergence and differentiation that continue to this day. The seminar will focus on the Japanese experience, but we hope it will open up debate on the general phenomenon of legal transmission.

Foreigners Steamship

Gaikokujin sen no uchi: jōkisen [Foreigners’ ship: steamship]
Library of Congress Prints and Photographs Division

Accounting Techiniques and Accounting Practices in Roman Law, 30 May 2014

The Edinburgh Centre for Legal History and the Edinburgh Roman Law Group will host a workshop on ‘Accounting Techniques and Accounting Practices in Roman Law’, on 30 May 2014, from 9 am to 6 pm in Old College, Edinburgh Law School.

The extent to which economic considerations played a role in the development of Roman law has become an important question within the broader theme of ‘law and society’ research in relation to the Roman world. While exciting work has been done on the extent to which modern economic theories may be used to explain Roman law (eg. Kehoe) and on the extent to which trade was facilitated by Roman money-lending practices (eg. Andreau, Gröschler), the notion of a ‘Roman commercial law’ (eg. Melillo, Lo Cascio, Erdkamp, Cerami, Di Porto et al.) that was supported by certain accounting techniques and practices remains unstudied. The aim of this workshop is to explore these techniques and practices with a view to establishing whether these may enhance modern understanding of ‘Roman commercial law’. This will be done by focusing both on ‘dogmatic’ legal texts contained in Roman legal sources as well as on examples of legal practice preserved in negotia. The focus will be on the ‘long classical period’ – 1st century BCE – end of third century CE.

Participants will include Professor Dr Eva Jakab, Professor Dr Thomas Rufner, Professor Egbert Koops, Dr Serafina Cuomo, Dr Gerard Minaud, and Dr Paul J. du Plessis.

Attendance is free, but spaces are limited. Please email Paul J. du Plessis to secure a place.

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