22 The Moveable Text of Mackenzie: Bibliographical Problems for the Scottish Concept of Institutional Writing

JOHN W CAIRNS (EDINBURGH)[572]

INTRODUCTION

Alan Watson has shown that there can be found in England the genre of legal literature, known as institutional writings, that, in a seminal article, Klaus Luig had already described for the lands of the ius commune.¹ At much the same time as Watson published his piece, I completed an article on Blackstone’s Commentaries in which I demonstrated that it should be classed as an institu­tional work.² It therefore seemed appropriate in this chapter honouring my Doktorvater, and now good friend, to return to this topic that once interested us both very strongly, and which still produces a certain amount of secondary literature.³

Shortly after leaving the immediate supervision of Alan Watson, I wrote my first major article on the issue of the relationship between the concept of insti­tutional writing as a particular class of legal writing, and the concept, current in Scotland, of an institutional writing as a formal source of law.

In this chapter I shall return to and develop this theme, bringing forward another reason to doubt the viability of the idea of an institutional writing or, indeed, that of an institutional writer, as a work, or author, of particular authority. I shall do this through an examination of the textual tradition of the Institutions of the Law of Scotland by Sir George Mackenzie first published in 1684.

Mackenzie’s Institutions has been of immense importance in Scottish legal history. It is therefore important to locate the work within Mackenzie’s general oeuvre and intellectual concerns. As his role in the establishment of the Advocates’ Library demonstrates, he was deeply concerned with legal educa­tion, and, as Dean of the Faculty of Advocates, he was associated with policies to improve it.^[575] The Institutions was intended to fill a gap by providing the neo­phyte with an introduction to Scots law. In fact, the work served as the main textbook for teaching Scots law in the universities until the 1750s. Thus, the compulsory examination in Scots law introduced in 1750 for all entrants to the Faculty of Advocates was founded on the titles of the Institutions.^[576] This was why John Erskine followed the structure of the Institutions in his Principles of 1754.^[577]

Mackenzie also used the work to propound the political theory that was more extensively set out in his Jus Regium also published in 1684.9 To give one exam­ple, his support for royal supremacy led him to emphasise the role of statutes, which he argued were made by the king, as the primary source of Scots law.¹⁰ In line with this, the Institutions cites Scottish statutory material as authority. These citations appear in the margin and are keyed to the text using various symbols. They must have been intended to allow cross reference to Mackenzie’s Observations on the Acts of Parliament of 1686,¹¹ his most important work after his treatise on criminal law.¹² In a sense, the Institutions can only be fully understood along with the Observations. Both works stand together at the heart of Mackenzie’s intellectual and political enterprise.

THE EDITIONS

A full technical description of the editions of the Institutions may be found in FS Ferguson’s excellent bibliography.¹³ Mackenzie prepared the first edition of 1684 and the second of 1688.¹⁴ The next edition was published in London in 1694.¹⁵ It contains both minor revisions of spelling to make the work accessible to an English audience, and “An Explanation of the most difficult Scots Words”.

⁹ G Mackenzie, Jus Regium : Or, The Just and Solid Foundations of Monarchy in General; and more especially Of the Monarchy of Scotland: Maintain'd against Buchanan, Naphtali, Dolman, Milton, &c (London, 1684).

¹⁰ See J W Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union”, in J Robertson (ed), A Union for Empire: Political Thought and the British Union of 1707 (Cambridge, 1995) 243, at 257—8; idem, “The Civil Law Tradition in Scottish Legal Thought”, in DL Carey Miller and R Zimmermann (eds), A Celebration of the European Legal Tradition (Berlin, 1997) 191, at 207—11.

¹¹ G Mackenzie, Observations on the Acts of Parliament... Wherein 1. It is Observ'd, if they be in Desuetude, Abrogated, Limited, or Enlarged. 2. The Decisions relating to these Acts are men­tion'd. 3. Some new Doubts not yet decided, are hinted at. 4. Parallel Citations from the Civil, Canon, Feudal and Municipal Laws, and the Laws of other Nations are adduc'd for clearing these Statutes (Edinburgh, 1686).

¹² G Mackenzie, The Laws and Customes of Scotland, In Matters Criminal. Wherein is to be seen how the Civil Law, and the Laws and Customs of other Nations do agree with, and supply ours (Edinburgh, 1678).

¹³ See F S Ferguson, “A Bibliography of the Works of Sir George Mackenzie Lord Advocate Founder of the Advocates’ Library”, (1935—1938) 1 Edinburgh Bibliographical Society Transactions 1, at 3'"M.

¹⁴ The copies I consulted for this chapter are all located in the National Library of Scotland, and the pressmarks are as follows: Ry.III.g.35 (1684); LC.464 (1688); LC.465 (1688); Ferg.33 (1688).

¹⁵ See J W Cairns “Andrew Bell, Jonas Luntley and the London edition of Mackenzie’s Institutions”, (1996) 21 The Bibliotheck 7. Copy consulted: National Library of Scotland, LC.505.

¹⁶ Copy consulted: National Library of Scotland, NF.1183.c.3. by William Forbes (the future Professor of Civil Law in Glasgow) drawing on some notes of Lord Whitelaw.^[578] The “fifth” edition of 1719 is a reissue of that of 1706 with a cancel title page and ten additional leaves containing an alpha­betical index.^[579] The editions of 1723 and 1730 contain extensive footnotes and introduce numbering of the paragraphs. The edition of 1723 was by John Spotswood who had used the Institutions as the textbook for his private class on Scots law.^[580] That of 1730 was by Alexander Bayne, the first Professor of Scots Law in the University of Edinburgh, who had been Spotswood’s pupil. He like­wise used the Institutions as his textbook.^[581] He largely adopted Spotswood’s notes and text, though with some revisions. The final edition of 1758 reverts to the plain text without notes though retaining the numbering of the para- graphs.^[582] An edition of the text is also found in the second volume of Mackenzie’s Opera omnia, published in 1722.^[583] The editions of 1706, 1723, 1730 and 1758 as well as that in the Opera omnia all contain editorial rewriting either for improved expression or for the correction of a mistake by Mackenzie. Such editorial rewriting is never acknowledged in the editions of 1758 or 1706, but sometimes is in those of 1723 and 1730. A few examples will demonstrate this.

In the title “Of the Constitution of Heritable Rights, by Charters and Seasins”, the edition of 1688 states as follows: “The charter is in effect the dis­position of the Few made by the Superiour to the Vassal, and when it is first granted Charter, it is called an Original charter or Right” (pp.

From some of the examples given, it will already be obvious that later editions would sometimes build on earlier ones. The text developed in an organic fash­ion. Thus, in the edition of 1688 Mackenzie wrote of alluvio in the title “Of the Division of Rights, and the several ways by which a Right may be acquired” that “ground that grows to our ground becomes insensibly ours” (p.

“No inferior Judge can judge in the causes of such as are Cusin-germans to him, or of a nearer Degree, either of Affinity or Consanguinity; But there is so much trust reposed in the Lords of Session, that by a special Statute, they can only be declined in cases relating to their Fathers, Brothers, Sons, Nephews, or Uncles; which by a late Statute is likewise extended to the Degrees of Affinity, and to the Lords of Privy Council, and Exchequer, and the Commissioners of Justitiary, and to all other Judges within the Kingdom”.

The “special statute” is the Declinature Act 1594 and the “late statute” the Declinature Act 1681.^[584] The endnote in 1706 reads (p. 229):

“By a special statute (Ja: 6. Parl: 14. Act 212.) can only be Declined in Cases relating to their Fathers, Brothers, Sons, Nephews or Uncles, which by a late statute (Ch: 2. Parl: 3. Act 13.) is likewise extended to the Degrees of Affinity. The Act 212 allows the Lords of Session, to be declined only in Cases relating to their Fathers, Brothers or Sons; for the Extension to Uncles and Nephews, was only made by the said Act 13”. The edition of 1723 (p. 16) tidies up Mackenzie’s messy paragraph (and is fol­lowed in this by that of 1730 (p. 16)):

“No inferior Judge [1730: Judges] can judge in the Causes of such as are Cousin-ger- mans to him, or of a nearer Degree, either of Affinity or Consanguinity: But the Lords of Session, Lords of Privy Council, Lords of Exchequer, and the Lords Commissioners of Justiciary, can be declined in no Causes, other than these belonging to their* Father or Mother, Brother or Sister, Son or Daughter, Nephew or Neice [(sic); 1730: nice], Uncle or Aunt, whether they stand in the line of J Affinity, or of Consanguinity”.

The symbols indicate citations to the two Declinature Acts. In an attempt to clarify the matter further, Bayne also added a footnote in the edition of 1730, keyed in by an asterisk (p. 16):

“11. No Inferior Judge can give Judgment in the Causes of such as are related to him by Affinity or Consanguinity in a nearer Degree than that of Cousin German: But so much Trust was reposed in the Lords of Session, that they could only be declined in the Causes of their Father, Brother and Son; which by a late Statute is extended to the like Degrees of Affinity, and to the Relation of Uncle and Nephew in Consanguinity. Which Reasons of Declinature, are thereby also extended to the Lords of Privy Council and Exchequer, Commissioners of Justiciary, and to all other Judges within the Kingdom.”

The edition of 1758 then adopted a version of Bayne’s rewording in the text, combining it with Mackenzie’s words (p. 12):

“No inferior judge can judge in the causes of such as are cousin-germans to him, or of a nearer degree either of affinity or consanguinity; but there is so much trust reposed in the lords of session, that, by a special statute, they can only be declined in cases relating to their fathers, brothers, or sons, which, by a late statute, is likewise extended to the degrees of affinity, and the cases of uncles and nephews, by consanguinity; and to the lords of privy council and exchequer, and the commissioners of justiciary, and to all other judges within the kingdom.”

As well as this type of development of the text, where subsequent editions take over improvements and innovations in earlier editions, editions to some extent engage in a debate with one another. The notes on the text of the Institutions in the editions of 1723 and 1730 often challenge and criticise those in that of 1706 (and 1719). Thus on the remark “Tho the [Privy] Council cannot make laws, yet they may Revive them” the edition of 1706 (p. 228) remarks “De hoc dubitatur”. The editions of 1723 and 1730 comment in a note (p. 6 note d):

“The Author of the Notes subjoin’d to some former Editions of this Book, doubts, if the King’s Privy Council had the Power given to them by our Author, i.e. to revive Statutes running into Desuetude. In Vindication of that Position, it is to be noticed, That the so doing is a Branch of the gubernative Power of the Sovereign, which he did exerce, with Advice of his Council, and whatever they thought proper for the Welfare of the Subject, was by them enacted in virtue of their Commission, and was issued out or published in Name of the Sovereign”.

The editions of 1723 and 1730 contain other remarks disputing the opinions expressed in the notes of 1706, such as the following found in the title “Of Jurisdiction, and Judges in General”: “The Remark, which the Author of the Notes makes upon this Section, is out of the Way” (p. 10 note a); “The Author of the Notes goes further in his Remark, than our Author intended in the Section it self” (p. 12 note b); “Our Author’s Expression must be taken in its proper Meaning... so that the Censure on this § is not to the Purpose” (p. 13 note d).

Later editorial revision of a text is scarcely an unexpected phenomenon. It has been noted for Stair’s Institutions.^[585] Mackenzie himself, in his oration on the opening of the Advocates’ Library, argued that first editions should generally be acquired as that would ensure that the Library had the proper words of the authors.^[586] We may not always wish to follow Mackenzie in privileging the views of the original author; but what can be said is that there are many different texts of Mackenzie’s Institutions, each important for different purposes.

It is also important to note that, just as the text of Mackenzie’s Institutions needs to be read with his Observations on the Acts for a full understanding of the law with which it deals, a body of related texts accumulated similarly to help in the exegesis of subsequent editions of the Institutions. If the most obvious work here is Bayne’s Notes, based on his lectures to the Scots law class in Edinburgh,^[587] Spotswood’s Form of Process and Stile of Writs should be viewed in a similar light.^[588]

THE SECOND EDITION

Most scholars consider that the edition of most value of a learned work is the last one prepared by the author because it contains his final and most considered opinions. On such a view, the preferred text of Mackenzie’s Institutions is that of the second edition (though always remembering that other editions may be valuable for other purposes).^[589] But such an approach is here problematic, as the second edition exists in at least three variants: it is possible that there are more. For convenience I shall label these variants: 1688a, 1688b, and 1688c.^[590]9 The dif­ferences between 1688a and 1688b are essentially in the setting of the pages, while the differences between 1688b and 1688c are substantive with alteration of the text. Some examples will demonstrate this.

A clear example of resetting of the type without alteration of the wording occurs in the title “Of the Supream Judges and Courts of Scotland”. There we find the sentence: “Of old it consisted of seven Ecclesiasticks, and seven Laicks, and the President was a Church-man” (p. 24). There are line breaks after “Laicks” and “Church-”. In 1688b “Laicks” is printed as “Laieks” and the next line ends “Church=”. In 1688c “Laieks” has been corrected to “Laicks”, but the double hyphen remains. In the same title 1688a has “and makes Statutes for uplifting those particular Taxations” (p. 21), while 1688b and 1688c have altered this to “make Statutes”. Finally on resetting, we may note that correc­tion of very minor errors in typesetting during the course of printing was com- mon.^[591] Thus, we find “possossors” in 1688a corrected to “possessors” in 1688b and 1688c (p. 147), or “Accountted” (p. 158) corrected to “Accounted” in 1688b and 1688c, or “Assegneys” in 1688a corrected to “Assigneys” in 1688b and 1688c (p. 166). On the same and the next page the marginal heading has been corrected from “Tit. 5” to “Tit. 8”. It is also possible to find a sidenote where, without changing the meaning, the abbreviations have been expended in 1688b and 1688c from 1688a (p. 154).

An example of resetting where there is also a substantive addition to the text occurs at the end of the title “Of Jurisdiction, and Judges in General”. It reads as follows in 1688a (p. 16): “The Members of the Colledge of Justice, have this Priviledge, that they cannot be pursued before any inferior Judge; and if they be, the Lords will Advocate the cause to themselves”. In 1688b, the last two lines of this title have been reset. Moreover, the rubric of the next title has been changed from “Of the Supream Judges, and Courts in SCOTLAND” to “Of the Supream Judges, and Courts of SCOTLAND”. 1688c follows the resetting of the end of the title in 1688b, but inserts a new sentence in the space at the end: “No cause within 200. marks is to be Advocate to the Lords, from the Judge competent”. The text without the additional sentence is that of the first edition (pp. 16-17).

In the first edition is found the following passage (p. 4): “And by the common Law in our Acts of Parliament is meant the Civil Law”. 1688a and 1688b follow

this wording (p. 4). In 1688c however, the words “of the Romans” have been added at the end of the sentence in a space left in the setting of the page.

The first edition of 1684 describes canon law thus (p. 4): “The Popes of Rome, in Imitation of the Civil Law, made a body of Law, of their own; which, because it was compiled by Church men, it was called, The Cannon Law”. 1688a and 1688b follow this wording (p. 4); but in 1688c, the words “which, because it was compiled by Church men” have been replaced by the following: “which, because Ecclesiastick Laws are called Canons”. The first edition continues: “And though it has here no positive Authoritie, as being compiled by private Persons, at the desire of the Popes, especially since the Reformation; yet our Ecclesiastick Rights, were settled thereby before the Reformation” (p. 4). These words are followed in 1688a and 1688b, but in 1688c the passage now reads: “And though it has here no positive Authoritie, especially since the Reformation; as being compiled by private Persons, at the desire of the Popes, yet our Ecclesiastick Rights, were settled thereby before the Reformation” (p. 4).

A final example may be given where the text of 1688a and 1688b follows that of 1684, while that of 1688c develops it. In 1684 (p. 21) the following is found: “We have another meeting of the three Estates, called the Convention of Estates, which is now called upon twenty days”. This wording is followed in 1688a and 1688b (p. 21). In 1688c the words “indicted on” are substituted for “called upon”. Finally, in 1688a and 1688b the text notes the process of choosing the Lords of the Articles by the Estates, remarking “And then the Commissioner adds to them The whole Officers of State” (p. 21). In 1688c, this is altered to “The Officers of State being still supernumerarie”.

From the above, it should be clear that 1688a and 1688b are earlier versions of the second edition and that 1688c, which generally improves upon them, is a later version. It is easy to realise how these changes come about if we consider the technology of printing in the era of the hand press. By definition, moveable type is moveable. Pages set up in formes could easily be altered during the print run for a variety of reasons: a forme could have met with an accident and the type had become jumbled into “pie”; minor type-setting errors could require correction; loose type could have been pulled out during the process of inking and require replacement; later authorial corrections could be incorporated. The changes between 1688b and 1688c noted supra conform to the last. It must always be remembered that paper was an expensive commodity. The printing of sheets was a major investment. Printers would not destroy earlier printed sheets simply because an author had changed his mind or errors had been discovered on proof reading.

A number of important consequences flow from this. First, when we hold any copy of the second edition of the Institutions in our hands, we can never be cer­tain if that copy is the final recension as overseen and desired by the author. Secondly, just as the second edition was based on the first, all subsequent edi­tions are based on one of the variant recensions of the second edition. This means that even without editorial revision, subsequent editions will differ textually from one another (for convenience I am here ignoring whether copies will vary within an edition). In fact, the editions of 1694, 1722, 1723, and 1730 are primarily based on the text of 1688a and 1688b, while the editions of 1706 and 1758 follow that of 1688c. It is worth pointing out, however, that the edi­tion of 1706 can be identified as occasionally preferring the text of 1688a and 1688b. This suggests that there is perhaps another variant of the edition of 1688 that was used in preparing the 1706 text, or that the edition of 1694 was also consulted in producing the text, or both. (The first of these possibilities is the more probable since what it adopts from 1688a and 1688b is in one instance less preferable). It is worth pointing out that the only edition that seems to have a carefully prepared text is that of 1758. In preparing this edition there seems to have been a careful collation of the texts, a correction of errors in the text, and a checking and correction of the citations (which otherwise contain many errors). Thirdly, different editions may be of great interest for different pur­poses, but no edition can be picked at random as containing the words and final views of Mackenzie, should this be what the reader wants. Lastly, should the reader want the last opinion of Mackenzie, it will be necessary to collate all the copies of the second edition to try to establish what it was. This is necessary because my identification of 1688c as the last text is misleading in two respects. First, there may be a later state of the text in another unexamined copy. Secondly, it is perfectly possible, given the mechanics and procedures of print­ing and subsequent binding, that the copy that I used for 1688c has, in parts, sheets on at least one side of which there is an earlier impression than that found in, say, the copies I have here identified as 1688a and 1688b. And in one instance, we indeed find that the texts here designated 1688a and 1688c have the reading “extraordinarum” while 1688b has “extraordinarium” (p. 225). The unit we have to consider in searching for variants is neither the individual copy nor even the sheet, but the forme. It should be remembered that the likely print run for the second edition was about 500 copies: the scope for surviving variant copies is clearly large.^[592]

These types of issues in the texts of early modern books have not attracted much attention from legal historians. I first encountered such problems when, in the 1980s, I embarked on an attempt to produce an edition of Mackenzie’s Institutions, before giving up in perplexity because of the difficulty of the task. Before I gave up, however, I had encountered on the shelves of the South Reading Room of the National Library of Scotland Philip Gaskell’s New Introduction to Bibliography.^[593] I read it avidly, as it explained what had been puzzling me: I felt sufficiently indebted to the author to write thanking him for the book that had provided me with a lifeline as I threatened to drown in a sea of textual variants. Of course, the problems I encountered with the text of the Institutions are very familiar to bibliographers. Ronald McKerrow, for exam­ple, in a book first published in 1927, but based on notes dating from 1913, dis­cussed correction while at the press. He commented that “we may say that in any early book the probability of finding such variants is very great and cannot be neglected by any careful editor”.³³ McKerrow devotes ten pages to the issue of variations in different copies of the same edition.³⁴

As far as I am aware, the only legal scholar who has paid much attention to the importance of bibliography for the legal historian is Douglas Osler in a series of important articles and reviews that I have found both valuable, illumi­nating, and convincing.³⁵ The realisation of just how moveable text may be, not only between editions, but also within an edition, is of immense importance for any legal historian working with printed texts. It is important to establish which editions the legal historian needs for which purpose. Furthermore, to know any scholar’s developed views, it is insufficient to consult only his Opera omnia. Certainly, consultations of Mackenzie’s complete Works would not give access to the final views he expressed in the Institutions. As Osler has stressed, while manuscript works tend to involve one text from which individual copies dero­gate to some extent, with the advent of printing comes the moving text which is constantly changing through authorial or editorial revision.³⁶

INSTITUTIONAL WRITINGS

The issues raised by the moveable text of Mackenzie create further problems for the Scottish concept of an institutional writing as a formal source of Scots law, coming next in authority after legislation and precedent, perhaps with a weight equal to that of a decision of the Inner House.³⁷

According to David Walker, Mackenzie’s Institutions is sometimes regarded as having “the privileged status” of an institutional writing.³⁸ Campbell Paton certainly considered it to be one.³⁹ Whether it is its position as a writing of

³³ R B McKerrow, An Introduction to Bibliography for Literary Students (Oxford, 1927; 13th impression, 1977) 209.

³⁴ Ibid. 204-13.

³⁵ DJ Osler, “Turning the Title-Page”, (1987) 6 Rechtshistorisches Journal 173; idem, “Towards a Legal-Historical Bibliography: A Census of 16th Century Legal Imprints”, (1988) 15 Ius Commune 231; idem, “Dies diem nocet”, (1991) 18 Ius Commune 207; idem, “Developments in the Text of Alciatus' Dispunctiones”, (1992) 19 Ius Commune 219.

³⁶ Osler, “Towards a Legal-Historical Bibliography”, supra n.35, 231.

³⁷ See, e.g., T B Smith, A Short Commentary on the Law of Scotland (Edinburgh, 1962) 32-3; idem, “Sources of Law (Formal): Legal Literature”, in The Laws of Scotland: Stair Memorial Encyclopaedia (Edinburgh, 1987), vol. 22, 212-19.

³⁸ D M Walker, The Scottish Legal System: An Introduction to the Study of Scots Law (6th edn, Edinburgh, 1992) 453.

³⁹ G C H Paton, “Comparison between the Institutions and other Institutional Writings”, in D M Walker (ed), Stair Tercentenary Studies (Edinburgh, Stair Society, 1981) vol. 33,201, at 203-4. Mackenzie or its text alone that is to decide whether or not it has this status, the obvious questions must be: Which edition? Which copy?

Mackenzie’s Institutions is a minor work in the Scottish category of “Institutional Writings”. That to which most attention is paid is The Institutions of the Law of Scotland by James Dalrymple, Viscount Stair, first published in Edinburgh in 1681. A considerably revised second edition was printed in 1693. We know that later editors revised the text of Stair’s Institutions: it too became a moving text. We know that it moved between the first and second editions, though this has never been systematically and carefully studied. We know that the printed texts have an unclear relationship with two different sets of manuscripts (which may constitute two separate stems). Since there has never been a collation of the first edition with the second, nor of copies of the second with each other, nor of the printed texts with the manuscripts, we cannot be certain that we have a definitive text of Stair’s Institutions (if we regard as definitive a recension containing Stair’s final views). This has been clearly demonstrated by Alan Rodger in his study of the ius quaesitum tertio.^[594]

Rodger has shown that the courts can have misplaced confidence in a text treated uncritically: both he and Geoffrey MacCormack, in a discussion of pol­licitatio, have put considerable emphasis on the presence or absence of a comma.^[595] The emphasis they place on this may be correct, but it should be recalled that the extent to which one can rely on punctuation in early modern books as representing the author’s intention is strictly limited. It was the prac­tice of the compositor to adjust punctuation as he set the lines of type, just he would frequently alter spelling, not only to modernize it, but also to fit words into lines to perfect the margins.^[596] MacCormack also notes that Stair claims in the second edition to have carefully revised the text because of printing errors in the first, and therefore suggests that we can rely on what is printed there.^[597] The extent to which we can do so is unclear. Mackenzie likewise claims in his sec­ond edition to have had to revise the first because it was printed from a “blotted copie in write”.^[598] It is in fact a traditional, almost proverbial, apologia for a new edition or for poor quality of printing.^[599] Moreover, we cannot tell how closely Stair would have followed the printing and how carefully he would have cor­rected proofs. It should always be recalled that the quality of print work in sev­enteenth-century Scotland was very poor. The very content of Mackenzie’s “Advertisement” to the second edition reveals how little we should trust claims to careful revision and checking at this period. Proof correction by the printers in any case emphasized “substantives”—the words of the copy—rather than such “accidentals” as spelling, capitalization, and punctuation.^[600]

We must conclude, therefore, that we cannot be certain of obtaining from the surviving copies of the second edition of Stair’s Institutions a simple and accu­rate knowledge of the author’s final wishes for his text: achieving such certainty will require further work to establish the text. It is, of course, possible that we in fact do have a good text of Stair’s Institutions in this sense, or that the only variations are trivial; but it is important to realise that we do not know this.

Furthermore, if we cannot be certain as to the final text of Stair’s Institutions, we need also to consider the related issue of the exact value to be given to any opinions expressed in the text. If what is valuable is the view of Stair himself, it is also necessary to reflect on the extent to which he simply adopted views he read elsewhere. He clearly drew heavily on the writings of Thomas Craig, Hugo Grotius and others.^[601] Can we assume he did so on the basis of careful critical consideration? In one instance, he can be shown to have adopted the opinion of Craig in a careless fashion, mistranslating the earlier author’s words.^[602] This is not to denigrate Stair; rather, we must be aware of the extent to which the text of his Institutions can only be understood alongside related texts: those of the Corpus iuris civilis and its commentators of the ius commune. As Rodger and MacCormack have shown, to treat the text of the Institutions in isolation is to misrepresent it.^[603] Turning to another “institutional writer”, we must likewise be aware of the complex relationship between the text of Erskine’s Institute and that of his Principles. The text of the Principles through its various editions also interacts with the text of Mackenzie’s Institutions in its various editions, and the lectures for students given thereon.^[604]

CONCLUSION

These bibliographical considerations add further weight to the argument I have put forward elsewhere that the concept of “institutional writing” (understood as a formal source of Scots law) is untenable.^[605] They also show, of course, that legal historians, as well as practising lawyers, must be much more sophisticated in their use of early printed texts than they sometimes have been in the past. Variations in the text may often be juridically insignificant, but there can be no certainty of this. This may make scholarly work more difficult in some respects; but it also opens up new, interesting, and exciting areas of investigation. Douglas Osler has pointed out in a study of Alciatus that “we can observe [the jurist] at his desk, pen in hand, indicating for us the questions discussed in the Dispunctiones which remained of particular concern to him years after the ini­tial composition of the work”.^[606] We can likewise see Mackenzie, “pen in hand” revising the first edition to produce the second, raising queries on the law with his brother advocates in Parliament House, and turning up at the printing house to revise the second edition as its sheets were being printed.^[607] We can investigate what he changed, and deduce why. We gain a clearer knowledge of his interests and concerns. Furthermore, we can see what concerned subsequent printers and editors as they revised, as the text accumulated an apparatus of notes and glos­saries, and as related works were produced to accompany it.

Alan Watson first demonstrated his multi-faceted talents in the field of Roman law. This chapter in his honour indicates that the skills routinely exer­cised in the study of the ius civile (careful collation of texts and awareness of their development) are relevant for that of early modern law. We neglect them at our peril.