Rare Books of Scottish Provenance: Los Angeles County Law Library Sale

On 5 March 2014, Bonham’s in London auctioned some rare books, the property of the Los Angeles Law Library. A number of these had a Scottish association or provenance that illuminates aspects of Scottish Legal History.

The first worth noting, no. 111 in the Catalogue, is a copy of Barnabé Brisson, De verborum quae ad jus pertinent significatione libri XIX apparently once owned by Sir Robert Spottiswoode, and with marginal notes in his hand. Spottiswoode is remembered by Scots lawyers for his own Practicks, published in a printed version by his grandson in 1706; your blogger is lucky enough to own the grandson’s own copy: http://www.elhblog.law.ed.ac.uk/2013/05/22/spottiswoodes-practicks/ The Brissonius is an important humanistic work, perhaps reflecting Spottiswoode’s education in France, but certainly indicating the interest of Scots lawyers of his generation.

Next one may notice no. 147, a very early edition of Grotius’ De jure belli ac pacis libri III, that of Amsterdam 1631. There is no need to emphasise the importance of Grotius’ work. But we know that Scots lawyers when studying in the Netherlands, which they often did between around 1680-1740, often took a Collegium Grotianum, that is a class on the law of nature and nations based on Grotius’s book. The volume has an ex libris inscription of 1702 on its title page, marking its purchase in Leiden by William Mure in 1702. He obviously purchased it when a student at the University there, before admission to the Faculty of Advocates in 1707.  It long remained in the library of the Mure of Caldwell family, who produced many lawyers in the eighteenth century. On Grotius, see also http://www.elhblog.law.ed.ac.uk/2012/10/01/anton-schultingh-1659-1734/

Finally one may note Acts of Assembly. Passed in the Island of Jamaica; from 1770, to 1783, Inclusive (Kingston 1786). It has a Grant family book plate, and an inscription “J. Grant’s May 6 1789”. Further work would be required, but it is tempting to identify this “J. Grant” as the Scotsman John Grant, Chief Justice of Jamaica (1783-1790), but one would need to be able to make a comparison to be sure. But if so, it connects with Scottish colonialism and slave-owning: see http://www.elhblog.law.ed.ac.uk/2010/11/17/scottish-chief-justice-of-jamaica-18th-century-and-his-court-reports/

There are other tempting connections: one book has a provenance: Craigie Hall Library, presumably Craigie Hall on the outskirts of Edinburgh. It is a copy of M. Salamoni, Responsa prudentum, paradoxa, Basel 1530 – a plausible work for a Scottish library. There are other suggestively Scottish names.

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.