An obscure 450th anniversary for Glasgow: recrimination, reconciliation, and the gestation of children in the womb

Four hundred and fifty years ago this month, on 6 August 1563, a Scottish Protestant radical called John Willock sat in judgement as Superintendent of Glasgow and ‘the West’, and pronounced a sentence of the newly introduced Protestant divorce on the ground of adultery in favor of John Maxwell of Calderwood against his spouse Elizabeth Hamilton.

Willock himself was one of the leading reformers of the Scottish Reformation, who had marched with the forces of the earl of Glencairn to the defence of the Protestant congregation of St John’s town (or Perth) at the outbreak of the Wars of the Congregation in May 1559. In those first heady days of the ‘uproar for religion’ he had ministered to the forces of the Protestant Lords of the Congregation with John Knox and John Erskine of Dun. Knox and Willock went on to be the first ministers of St Giles’ at Edinburgh. All three men would have gone on to be Superintendents of the early Church of Scotland, but whilst Willock accepted the commission for Glasgow, and Erksine accepted the commission for Angus and the Mearns, Knox declined the same for Edinburgh and the Lothians, which office went instead to John Spottiswoode, father of John, Archbishop of St Andrews, and grandfather of Sir Robert, author of Spottiswoode’s Practicks.

In the sunny environs of medieval Glasgow 450 years since, it may be speculated that John Willock sat in judgment in the old consistory place of the north tower of Glasgow Cathedral, where the old Officials had sat during the Catholic ascendancy, and which cathedral was now Willock’s parish kirk.

This sentence of divorce pronounced by Willock would have been lost to posterity along with the no-longer extant registers of the kirk of Glasgow, had it not subsequently been reduced by two of the first Commissaries of Edinburgh, Edward Henryson and Clement Little, or Litill, sitting in judgment in the Tolbooth of Edinburgh on 16 March 1564/5.

The grounds of the sentence of divorce pronounced by Superintendent Willock, and the grounds upon which it was subsequently reduced by the Commissaries of Edinburgh are of considerable interest. The initial action brought by John Maxwell of Calderwood before the Superintendent was grounded upon Elizabeth Hamilton’s alleged adultery. In her defence, Hamilton had argued relevantly that her husband, the pursuer, was also guilty of adultery, and that since the like faults were held to cancel each other out (i.e. Digest 23.3.39), the action for divorce might not be brought. To this Maxwell replied that although he had committed adultery, he had nevertheless been reconciled to Hamilton thereafter, but prior to her own adultery. The principle of reconciliation is to be found in both Roman and Canon Law (i.e. Codex 9.9.11; Decretum Gratiani C.31, q.1, c. 5 to 7). This reply to the defender’s exception was found relevant by the Superintendent, and in the even proven, Maxwell being divorced from his wife, and being granted license to remarry with immediate effect.

This license to remarry was exercised at once by Maxwell, who took Elizabeth Lindsay to wife. Lindsay, however, gave birth within six months of her marriage to Maxwell, to a child acknowledged by the couple to be theirs. This therefore raised the distinct possibility the child had been conceived at a time when Maxwell was still married to Hamilton, and more importantly at a point after the reconciliation which had so helped Maxwell’s cause. Hamilton decided to test this possibility at law, and raised a precept of reduction against the Superintendent’s sentence before the newly appointed Commissaries of Edinburgh.

The action for reduction before the Commissaries raised two nice points: the first was whether or not the Commissaries could actually reduce a sentence pronounced by the Church of Scotland; the second concerned the gestation of children in the womb. On this first head, Maxwell’s procurator, Henry Kinross, argued that the Commissaries were not judges competent in the matter, and that appeal lay rather from the Superintendent to the General Assembly of the Church of Scotland. Against this Hamilton’s procurator argued that the Commissaries were competent, because the case was not being brought because the Superintendent of Glasgow had been at fault in pronouncing his sentence of divorce, but because new evidence had come to light, which ought to be discussed before the Commissaries: this latter argument evidently prevailed.

As to the gestation of children in the womb, it was argued “be commone calculatioun the said barne to haue bene thre quarteris of ane zeir in the moderis wombe eftir the conceptioun thairof, as barnis that ar borne to the commone iust maturitie vsis tobe borne, with perfite nailis vpoun tais and fingzearis, as the said barne had the tyme of the birth thairof. It necessarlie followis that the said barne wes consauit in adulterie, thre monethis of thairby, at the leist diueris monethis, preceding the dait of the said pretendit sentence of diuorce and eftir the proponing of the said reconciliatioun”. This was found relevant by the Commissaires, admitted to probation and proven. Willock’s sentence of divorce was therefore reduced, Maxwell’s second marriage declared null, and Maxwell ordained to adhere to his first wife, Elizabeth Hamilton.

The peerage lawyer and genealogist John Riddell commented upon this case in his Inquiry into the Law and Practices of Scottish Peerages of 1842, where he considered Henryson’s and Little’s judgement in relation to Stair. Thus Riddell: “Stair inculcated long afterwards, that though the time of conception ‘hath an ordinary course of nine months,’ yet a child has been affiliated upon a father, ‘by reason of the marriage, tho it proceeded the birth of the child only by the space of 8, 7, or the beginning of 6 months, especially if, by the judgement of phisicians, the immaturity of the child concurred; yea, this presumption will attribute the child to a father, tho the child be born 9, 10, or 11 months after the father’s death’ “.

The decreet of the Commissaries of Edinburgh by which the Superintendent of Glasgow’s sentence of divorce was reduced may be found in Thomas Green, The Consistorial Decisions of the Commissaries of Edinburgh, 1564 to 1576/7 (Edinburgh: The Stair Society, 2014), Item 12, which volume is due to be published during the summer of 2014.

Spottiswoode’s Practicks

Your blogger is lucky enough to own John Spottiswoode’s (or Spotswood’s) own copy of his edition of his grandfather’s Practicks of the Laws of Scotland. There was a sale of Spotswood’s library after his death (some 1292 items were auctioned), but obviously some books were kept by the family. A later inventory of the Library at Spottiswoode House survives, and it is possible to identify this copy in it; at the top of the title page the volume is inscribed: “Ex Bibl. Spotswood”. Spottiswoode House was demolished in 1939 and its contents dispersed. Presumably the books that remained were dispersed then. Further research might illuminate this. Certainly family papers were acquired by the National Library of Scotland in three tranches.

In his introduction to his grandfather’s Practicks, Spotswood suggests that his grandfather may have been collecting material for a “Pandect” of the Scots law: presumably he meant a work comparable to Stair’s Institutions. While this may perhaps have a loose foundation in family oral history, there is no reason to accept this. It may be an ex post facto rationalisation of the nature of the work. The version printed is organized alphabetically; a number of manuscripts of the Practicks survive, some of which might loosely be described as “systematic”, rather than alphabetical.

The Practicks give us insight into legal practice in the time of Spotswood’s grandfather; but the printed version is interesting as a reflection of the grandson’s interests and concerns. His own copy is annotated relatively extensively; whether this was work towards another edition or for Spotswood’s own interest is as yet unclear, given that some material is personal material about his grandfather, while some is juridical in nature.


Understanding the Scottish Practicks

‘Understanding the Scottish Practicks’

University of Aberdeen, 3-4 May 2013

A Workshop

This Blogger was fortunate to attend this workshop last weekend. My own research is about eighteenth century Scottish lawyers’ libraries and I was keen to find out more about one of the types of legal literature found in them.

‘Understanding the Scottish Practicks’ opened with a series of questions from Professor John Ford: how do the Scottish practicks form a genre, what did the category mean to early modern lawyers, and how do practicks relate to other forms of legal literature? These points informed the discussion of the practicks at this informative and enjoyable workshop in Aberdeen last weekend. Ford gave a brief history and description of the practicks to set the scene and offered Wittgenstein’s theory of family resemblance as a model for understanding them. Scottish practicks of the sixteenth and seventeenth centuries are obviously related to each other but sometimes it is not easy to tell how or why. Practicks share an obvious similarity in that they include case reporting but they can also include other aspects of legal practice. Other speakers at the workshop looked at some of the most important practicks in detail.
The creation of the various practicks was influenced by socio-political aspects in early modern Scotland. Dr Julian Goodare explained how the challenges in governing the tumultuous sixteenth century in Scotland – a time of Reformation, war, increasing population, inflation, and the colonisation of the New World – caused governments to have more problems and more people involved in the government activities. Questions about who had power and the development of the state meant that lawyers sought certainty about what the law was. They turned to collections of old laws such as the Regiam Majestatem and combined these with new Acts of Parliament. In this turbulent time, lawyers may have created practicks as a reflection of their desire for something like a new version of the Regiam Majestatem.
What did the Scottish practicks contain? Professor Gero Dolezalek described the sixteenth century practicks of Sinclair (1540-49) and Colville (1573-92) as case reporting, deliberations of judges, and cases pending in court. Many cases are not in the court registers since there was no final decree for them. This makes it difficult to match the details in the practicks with those in case books. Both Sinclair and Colville’s practicks show that the Scottish courts worked as ius commune courts: it was taken for granted that continental ius commune sources would apply when there was no Scottish custom available. Both Sinclair and Colville cited Roman and canon law and the standard commentaries on them in preference to native Scots law.
Dr Andrew Simpson identified a change in the structure of practicks in the 1560s which was related to the proposal and work of printing the laws of Scotland. The purposes of the practicks of Chalmers and Balfour were to promote medieval texts, re-organise learning, and codify Scots law. By the 1560s, judges and lawyers wanted texts which were easier to use. Alphabetical organisation of the material made it more accessible for practitioners. The newly arranged cases were also useful for students and this new type of structure for the practicks made them good textbooks to educate lawyers in the unique body of Scots law and it is notable that space was left on their printed pages for annotations.
Jamie Ross explored the use of canon law in the practicks of Balfour and Spottiswoode. Balfour’s practicks were widely circulated and had a similar structure to Regiam Majestatem. Although they wanted to remove canon law, Reformation-era jurists found there was still good law to draw on from that source. Although later in date than Balfour’s, Spottiswoode’s practicks also include references to canon law. Spottiswoode may have been influenced by English civilians since he studied law at Oxford. Both Balfour and Spottiswoode turned to canon law for principles not specific points of law. Canon law still had uses in Scotland well after the Reformation.
The second day of the workshop opened with Professor John Finlay’s investigation into how the practicks were perceived and used in the eighteenth century.  From the late seventeenth century, Session Papers show that lawyers tended to cite whatever sources they thought would carry the most weight with the judge. Roman law, case law, and English law were most popular. Printed ‘Decisions’ – the descendants of practicks – were preferred to manuscript sources. By the mid-eighteenth century, almost all of the practicks were available in print. They were still used despite concerns about lack of accuracy. As Hew Dalrymple put it in 1725, it was better to have a bad rule than no rule to follow. The practicks could be used as sources for rules whatever their quality.
Professor John Cairns considered Spottiswoode’s practicks with special reference to the printed edition produced by the jurist’s grandson in 1706. This version included annotations by its editor and implied that the senior Spottiswoode’s work should be seen as rivalling that of Stair. As do other practicks, Spottiswoode’s drew on a wide range of sources. What is striking about the citations in Spottiswoode is the use of Scottish sources including Craig, Skene, Balfour, and Regiam Majestatem.  Spottiswoode also referred to the ius commune literature of French legal humanists including Faber and Cujas. Since the references are from printed sources, it is unclear which Spottiswoode is doing the citing and more work is needed to track down the citations and work out how they were being used.
Practicks cannot be seen in isolation. Professor Sara Brooks has identified parallels with the form used by Haddington used in his practicks with contemporary Scottish kirk records. Haddington’s practicks are among the least accessible. They cover 2300 cases from 1592 to 1626 and were probably used as an aide memoir by their creator.  There is little reference to authority: these are records of final determinations. The cases are arranged as they happened and there is no indexing to guide the reader. In this Haddington’s practicks resemble the minute books of the Scottish kirk which record unique incidents and local concerns.  As with court decisions, they show concern with regulation and the top-down power of institutions.
The authors of practicks are not always known.  Dr Adelyn Wilson discussed three practicks of the Interregnum and speculated about their use and influence. Collection A might have been created by an ‘early career’ advocate who kept the information for his personal use and learning. Collection B also seems to have been made for educational purposes perhaps by an expectant to the Bar. Both rely on native sources in their citations.  The 282 entries in Collection B relate to cases between 1657 and 1658. The collection is notable because it was used by Stair. A third collection was been lost but was also used by Stair. The Interregnum collections are especially interesting since they were not kept by judges but they were still cited in later works.
Each day of the workshop ended with a round-table discussion of the day’s papers and ideas. It is certain that all who attended now have a much better idea of what we mean when we talk about Scottish practicks. There is much more work to be done with these fascinating texts of legal history and how they relate to each other.

It is hoped that Adelyn Wilson and Andrew Simpson will publish a full report of the workshop along with details about ongoing projects relating to the practicks.


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Understanding the Scottish Practicks, 3rd-4th May 2013

Readers of the blog might be interested in a workshop on the practicks being held at the University of Aberdeen on 3rd-4th May 2013, under the auspices of the University of Aberdeen's Civil Law Centre and Research Institute of Irish and Scottish Studies. Speakers will include Prof. John Cairns, Prof. Julian Goodare, Prof. John Finlay, Prof. Gero Dolezalek, Dr Sara Brooks, Dr John Ford, Dr Andrew Simpson, and Dr Adelyn Wilson. All those with an interest in Scottish legal history are warmly invited to attend. For more information or to register for the conference, please email Adelyn Wilson ( There is no charge for attendance and a contribution towards accomodation costs might be available.width=346