Travel of ideas in the nineteenth century: from Scotland to Chile

by María Ithurria (PhD student, University of Edinburgh) and Claudio Soltmann (Historian, Pontificia Universidad Católica de Chile)

Introductory remarks

Let us go back to the nineteenth century. There is no doubt that Andrés Bello (1781 – 1865) was a prominent intellectual figure for Latin America. His work had a massive impact on the rise of post-independence nation-building. Bello was born in Venezuela but spent his entire adult life between London and Santiago de Chile: the London years (1810-1829) provided him with the most vibrant intellectual environment of those times, and Chile was the perfect place to develop the knowledge acquired there. Bello is widely recognised due to his work as the drafter of the Chilean Civil Code, which was borrowed by many other Latin-American countries. On the other hand, he is well-known as the founder of the Universidad de Chile. Is worth saying that this university played a crucial role in the construction of Chile as an independent country.

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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



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  and the full article, which appears in (2017) Analytica Chimica Acta,  at ; 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;view=1up;seq=171 , the second at – 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’  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









Edinburgh Postgraduate Legal History Conference

Guest blog by Peter Candy

Alongside the legal history session chaired by Ross Macdonald at this year’s Edinburgh Postgraduate Law Conference (for which see here), I also had the pleasure of chairing a second session dedicated to the same discipline. The theme of the conference – ‘Law and its Boundaries’ – was reflected across the four papers which were presented.

Graeme Cunningham (Glasgow), in his paper entitled ‘Law, Rhetoric and Science: Historical Narratives in Roman Law’, demonstrated that in the development of the law surrounding bonorum possessio the praetor was heavily influenced by equitable considerations. By showing the praetor’s susceptibility to rhetorical arguments, Graeme successfully showed the value of a contextual analysis when investigating the development of Roman legal thought.

Jumping forward 1700 years, Franziska Arnold-Dwyer (Queen Mary University of London) delivered a fascinating paper entitled ‘Fraudulent Captains, Gambling Aristocrats and a Transgender Diplomat: A History of the Doctrine of Insurable Interest’. Following Graeme’s lead, Franziska also demonstrated that the doctrine cannot be fully understood without an appreciation of the social and economic context from which it arose. Of particular interest to your blogger was the exploitation of policies requiring no insurable interest on the part of the insured, which were exploited by fraudsters who overvalued cargoes, only to arrange for them to be captured or sunk on the high seas. The practice will remind the classically minded of an episode in Livy (25.3.8-14), in which the Roman state assumed the risk of shipwreck for transports sailing with supplies to Spain during the Second Punic War. Groups of tax-farmers, never missing an opportunity to make a quick buck, repeatedly defrauded the treasury by overvaluing their cargoes and then reporting them lost at sea.

Two final papers were delivered by Ciarán Crowley and Aengus Fallon (University College Dublin). Ciarán, in ‘Censorship of Literature in Ireland lives on, though only just: Thoughts following the Censorship of Publications Bill 2013’, explored the historical origins and continuing impact of the Committee of Evil Literature. The presenter identified the missed opportunity presented by the passage of the 2013 bill, which might have led to the unification of the still-extant Censorship Board of Ireland with the Film Classification Board. Continuing on the theme of Irish legal history, Aengus Fallon discussed the influences on the drafting of key legislation in the Irish Free State between 1922-24. Again, as is evident from all the papers, context triumphed: the exigencies of the rapid creation of a functioning constitutional machinery, coupled with a scarcity of resources (Arthur Matheson, the sole parliamentary drafter at the time, was indefatigable in his task), led to a replication of the Westminster model and a spate of legislative plagiarism.

A debt of gratitude is owed to the session sponsors, the Centre for Legal History, as well as to the Centre’s director, Dr Paul du Plessis, who acted as discussant. Thanks should also be extended to the conference committee for convening the event, and finally to the presenters themselves, for providing such thought-provoking insights into their research.

Peter Candy is a doctoral candidate at Edinburgh Law School.

Edinburgh Postgraduate Legal History Conference

Guest blog by Ross Macdonald

Your blogger had the pleasure this week of chairing one of the Legal History sessions at this year’s Edinburgh University Postgraduate Law conference. If there was a common theme linking the two papers, it was “people on the margins”. Keith Ruiter (Aberdeen University) in “Outlawry in Medieval Scandinavia” noted the liminal (both physical and social) status of outlaws pending their possible reintegration into society, the early terminology dehumanising them as “wolves” or the like. Eric Loefflad (Kent) – “A Swiss Jurist on the American Frontier” – stressed the use made in the early US Republic of Emer de Vattel whose treatise partly rested political rights on settled agriculture, thus depriving indigenous people of secure legal status.

Dr Stephen Neff (Edinburgh), the discussant, welcomed Loefflad’s contribution to the growing recent re-evaluation of Vattel as an original thinker straddling the period between earlier natural law scholars (such as Vitoria) and later positivism in a world of nation-states.  But it remains arguable at what level he was actually influential – mainly perhaps at the level of shaping Jefferson’s vision of the Republic. American expansion would happen irrespective; Vattel’s views were just convenient. The subsequent discussion drew analogies to the medieval Crusades (in particular in Spain and the Baltic) where Christian expansion was driven forward without the need for a consistent intellectual justification.

As for Ruiter’s analysis – considering contemporary terminology, derived from early medieval poetry and sagas and later legal texts, to discover how the concept of outlawry may have changed and become more precisely focused on its effect on legal status – there was much for a Scots or comparative legal historian to find familiar and challenging.  While Ruiter drew attention to regional variation within Scandinavia (too often, as he noted, not differentiated) some features appeared in the wider Scotto-Scandinavian area or beyond.  Such as the “thing” or moot hill (Ruiter stressed the role of popular assemblies in enforcing early medieval justice), and places of sanctuary.  There were tantalising points of terminology – “biltogh” (only found in Sweden, meaning obscure, but Ruiter suggested “protection”) brings to mind Dutch “borgtocht” (guarantee) and perhaps the Scots “bield”.   All in all it was perhaps fitting that this paper was given just as Aberdeen University publishes its fine memorial volume to Professor Angelo Forte (“Continuity, Change and Pragmatism in the Law”, ed. ARC Simpson et al): this was a session that he would have enjoyed greatly.

Ross Macdonald is a doctoral candidate at Edinburgh Law School.

Edinburgh Roman Law Group, 11 March 2016

Guest Post by Peter Candy

The Edinburgh Roman Law Group was pleased to welcome Professor Caroline Humfress on Friday 11 March 2016 to present her research concerning ‘Natural Laws and the “Hypothetical Case” in Roman Juristic Texts’.

Set against the backdrop of the recent publication of R. H. Helmholz’s Natural Law in Court, Professor Humfress argued that natural law was one component of the conceptual armoury that the Roman jurists drew upon when calculating legal opinions. This was demonstrated in relation to the jurists’ fondness for the hypothetical case method. Professor Humfress argued that it is in these cases that we find juristic natural law reasoning at work.

Following the paper an eager audience engaged in a lively discussion of the paper. Questions ranged from those concerning the place of natural law within jurists’ conceptual framework, its relationship with the law of slavery, and the impact of Christianity in late antiquity. After drinks the group capped off an excellent evening with a meal at Ciao Roma: the next meeting is very much looked forward to.

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.