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Stair and the Inleydinge of Grotius

Document Cited authorities 1 Cited in Related
Vincent
Date01 May 2010
Pages259-268
DOI10.3366/elr.2010.0006
Published date01 May 2010
INTRODUCTION

The tercentenary of the first publication of the Institutions of the Law of Scotland by James Dalrymple, Viscount of Stair, fell in 1981. Since that time there has been renewed interest in the Institutions, both as a continuing source of law and also as representative of its period in Scottish legal history. Central to both approaches is the question of which works Stair relied upon in the formulation and writing of his treatise. Recent scholarship has identified or confirmed a number of ius commune sources. In particular, in an important paper William Gordon has explored Stair's use of, among others, Grotius' De jure belli ac pacis (1625), Vinnius' commentary on the Institutes of Justinian (1642), and Gudelinus' De jure novissimo (1620).1

W M Gordon, Roman Law, Scots Law and Legal History: Selected Essays (2007) 255–266.

Subsequently, Thomas Richter has also drawn attention to Vinnius as a possible source.2

T Richter, “Did Stair know Pufendorf?” (2003) 7 EdinLR 367 at 374–375. See also the same author's “Molina, Grotius, Stair and the jus quaesitum tertio” 2001 JR 219 on Stair's use of Grotius.

 Of course, other works of the ius commune may also have been used by Stair. John Ford has dated the writing of the first edition of the Institutions to 1659,3

J D Ford, Law and Opinion in Scotland during the Seventeenth Century (2007) 68–73.

 and, if this is correct, any work circulating in Scotland before that date could reasonably have been consulted by Stair. This includes Grotius' other great legal work, his Inleydinge tot de Hollandsche Rechtsgeleertheyt (1631). Like the Institutions itself, this was a treatise on national law – in this case on the law of the Dutch province of Holland – rather than on natural or civil law; and like Stair's work it was written in the vernacular, in this case Dutch

Modern scholars tend to dismiss the Inleydinge as a source for the Institutions on the ground that it cannot be established that Stair could read and understand the Dutch language.4

The last scholar to argue for the opposing view was T B Smith, Studies Critical and Comparative (1962) 50.

Yet, an absence of evidence does not rule out the possibility that Stair both knew the language and consulted the work. Indeed, Stair would have had the opportunity to learn Dutch in his later life when in exile in the Netherlands, which occurred after the publication of the first edition of the Institutions in 1681 but before the publication of the second in 1693. Further, even if Stair had no knowledge of Dutch, this would not necessarily have prevented him from consulting the treatise. Therefore, to establish or reject the Inleydinge as a source for the Institutions, a direct textual comparison is still needed. Hitherto this has scarcely been attempted. Robert Feenstra has said only that he finds no evidence of a link between the works.5

R Feenstra and C J D Waal, Seventeenth-Century Leyden Law Professors and their Influence on the Development of the Civil Law: A Study of Bronchorst, Vinnius and Voet (1975) 84 n 414.

 Professor Gordon's view is that, while Stair did not consult the Inleydinge as such, there was indirect influence through Vinnius' commentary.6

Gordon, Roman Law, Scots Law and Legal History (n 1) 256–257.

 It is the purpose of this article to compare the two works in relation to their discussions of obligations to determine whether the texts themselves reveal something of Stair's reliance on the Inleydinge STAIR AND THE <italic>INLEYDINGE</italic> Institutions of national law

Both the Institutions and the Inleydinge were products of a growing sense of legal nationalism.7

For a pan-European consideration of this trend, see K Luig, “The institutions of national law in the seventeenth and eighteenth centuries” 1972 JR 193.

By the seventeenth century jurists were beginning to write in the vernacular rather than in the traditional academic language of Latin, and the nature of the legal treatise was changing from commenting on the ius commune to explaining and detailing national law and custom. This new generation of works came to be known as “institutional” on the basis of their common structural arrangement, which was based on the Institutes of Justinian. Together these jurists built the foundation for the rejuvenation of the legal systems of Europe. This increasingly national focus was not, of course, without consequence. The use of the vernacular normally excluded an international audience. As a result, treatises by even the most celebrated of jurists were largely ignored by their contemporaries in other countries, who often had neither the ability to read nor the knowledge to comment upon these works of local or national law. The great pan-European intellectual community was, to a large extent, being replaced with smaller national academic circles

A comparison of the reception abroad of the Institutions of the Law of Scotland of Stair and the Jus feudale (1655) of Craig illustrates this trend. Craig's Jus feudale was written in Latin and attracted international esteem. Indeed, an edition was published in Leipzig in 1716. By contrast, although copies of Stair's Institutions were sold in the Netherlands,8

Ford, Law and Opinion in Scotland (n 3) 1.

there was less international interest overall. This is unlikely to have been solely because of its subject matter, for treatises on national or local law could still enjoy international success when written in Latin, as for example with Boerius' Consuetudines (1598) on French customary law. Rather, it was the combination of language and localisation that diminished the ius commune movement.9

For more information on the development of law in the 17th century, see e.g. O F Robinson, T D Fergus and W M Gordon, European Legal History: Sources and Institutions, 3rd edn (2000) 213–227.

Against this background it may be natural to suppose that Stair was ignorant of, or at least uninterested in, Grotius' treatise on the local laws of the province of Holland. Yet, Scotland had close political and theological ties to the Netherlands. During the seventeenth century, Scottish students routinely chose to undertake their university education in the Dutch provinces, and many of those who entered the field of law had done so:10

See e.g. P Neve, “Disputations of Scots students attending universities in the Northern Netherlands”, in W M Gordon and T D Fergus (eds), Legal History in the Making (1991) 95; J W Cairns, “Importing our lawyers from Holland: Netherlands' influences on Scots law and lawyers in the eighteenth century”, in G G Simpson (ed), Scotland and the Low Countries, 1124–1994 (Mackie Monograph 3, 1996) 136; J W Cairns, “Legal education in Utrecht in the late 1740s: the education of Sir David Dalrymple, Lord Hailes” (2002) 8 Fundamina 30.

as Sir Walter Scott famously wrote, “we import our lawyers from Holland”.11

Heart of Midlothian ch 4.

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