Viscount Stair
D. M. Walker*

In the Gilbert Scott Building of this University of Glasgow, at the foot of the
grand staircase leading up to the University Court Room and the Senate Room,
and outside what used to be the Law Classroom, there is a carved stone tablet on
the wall commemorating Viscount Stair. On the Fifth Centenary gates one of the
names recalling the third century of the University's history is Stair. When in 1985
the School of Law was about to move into the accommodation newly converted for
it, the School unanimously resolved that the premises be named the Stair
Building. Why do we, and why should Glasgow University, and particularly its
lawyers and the lawyers of Scotland, remember and honour Stair? Before trying
directly to answer that question, I must try to sketch the background 1 and Stair's
career.2

James Dalrymple was born in Ayrshire in 1619, son of the laird of Stair and his
wife, who were strong Presbyterians. He came up to the University of Glasgow
from Mauchline Grammar School in 1633 and went through the Arts
curriculum. He graduated Master of Arts in 1637and was listed first in his year.3
At this time Charles I was attempting to anglicise the Presbyterian Church of
Scotland and to impose a service book on it. This gave rise to protests, to the
famous riot in St. Giles Cathedral in Edinburgh, at which one Jenny Geddes is
said to have hurled her stool at the officiating clergyman, and to the signing by
large numbers of people of the National Covenant in 1638.Young Stair probably
signed the Covenant. The General Assembly of the Kirk which met in Glasgow in
1638 condemned Charles's ecclesiastical policy, the book of canons, the service
book and other elements of the king's policy. A covenanting army was raised and
marched to the Border but Charles, by the Pacification of Berwick, agreed to the
Scottish demands. In this force young Stair commanded a company in the Earl of
Glencaim's regiment of foot. The Scottish army then occupied Newcastle and

* Professor Emeritus, University of Glasgow.
1. See Pryde, Scozland from 1603 ro the Present Day, Ch. I; Donaldson, Scolland: James V -James VII,
Part III; Davies, The Early Stuarts, 1603-1660; G. N. Qark, The Later Stuarts, 1660-1714.
2. See Mackay, Memoir of Sir James Dalrymple, First Viscount Stair; Walker, The ScoltishJun"scs, Ch. 8,
and references therein.
3. Munimenta Almae Universitatis Glasguensis, III, 22.

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THE DENNING LAW JOURNAL

insisted on remaining on English soil until a settlement was reached. A treaty was
agreed at Ripon in August 1641. But in March 1641, young Stair, aged 22, had
been invited by some of his former teachers to become a candidate for a vacant post
of regent or teacher in the University of Glasgow and, still in uniform, competed
for the post and was appointed. Under the system of regenting, a regent took an
intake of students through the whole curriculum and did not confine himself to
teaching a specific subject. But Stair's teaching seems to have been mainly
philosophy, particularly logic, and there survives a volume of dissertations on
philosophical subjects which students had, as a requirement for graduation, to
prepare and defend publicly before the regents as their examiners, and which is
dedicated to Stair.4 While Stair was engaged in regenting, he also studied Latin
and Greek literature, classical history and antiquities, and the civil law of Rome.
He also married. In 1647he resigned, went to Edinburgh and in 1648was called to
the Scottish bar. 5

It is noteworthy that Stair had no formal legal education. Though it had been
taught earlier in each of them, law was not then taught in any of the four Scottish
universities, and only if he had gone to France or the Netherlands could Stair have
had the benefit of academic legal education. He learned entirely, accordingly, by
private study. There were available various editions of the texts of the civil law of
Rome and various books thereon, all published on the Continent, but we do not
know which he may have read. The materials on Scots law were very scanty. There
were in existence the collection of Scottish legislation from 1424to 1566known as
the Black Acts, Skene's Lawes and Actes of 1597, covering the same period and
continued to 1597, Skene's edition of Regiam Maiestatem and the Auld Lawes of
1609 and little more. There were no printed reports of decisions. There were
several collections of notes of decisions and legal points circulating in manuscript,
notably those now known as Balfour's Practicks,6 Haddington's Practicks,7 and
Hope'sPracticks.8 There were no textbooks on Scots law at all. Sir Thomas Craig's
Jus Feudale was a text on the feudal law of Western Europe with reference to its
application in Scotland, but was not a comprehensive work; it dealt only with the
land law; though written about 1600 it was not printed until 1655, though
probably known in manuscript earlier. There were accordingly in existence some
collections of materials on Scots law but no book, and it is hard to say that there
was a system of law. Certainly it was unsystematised and there were gaps and areas
of uncertainty. The need for a comprehensive text on Scots law, systematically
arranged, may have been apparent to Stair even in 1648.

During the years Stair had been teaching in Glasgow, the English Civil War had
been fought and by 1648the forces of the parliament had triumphed and Charles I

4. Theses Logicae, Metaphysicae, Physicae, Mathematicae et Ethicae, G.V. Library, Sp. CoIl. 62.3.
5. SRO, CS 115 f. 182v.
6. Printed 1754 and reprinted by the Stair Society in 1962-63.
7. Still unpublished.
8. Edited by Lord President Clyde and published by the Stair Society in 1937-38.

144



VISCOUNT STAIR

was a prisoner. In January 1649, Charles I was tried by his English subjects and
executed. In February, Charles II was proclaimed King of Scots and the Scottish
Estates appointed commissioners to proceed to The Hague to negotiate with him;
young Stair went as secretary to the commissioners. Immediately before he left he
was named one of a large commission appointed by Parliament to undertake the
revision of the law with powers to consider the customs and practices both of the
civil and criminal courts "in order that the commissioners might frame a formal
model or frame of a book of just and equitable laws to be established and
authorised by his Majestie and the Estates of Parliament, and might abrogate any
bygone Acts of Parliament which had fallen into desuetude or become superfluous
or unprofitable."9 The analogy with Justinian's appointment of commissioners to
frame the Digest and the Institutions is clear. Again this may have suggested to
young Stair the need for a book, if not of just and equitable laws, at least of the
accepted customs and rules. But there is no record of this commission ever having
met, still less reported; life was too hectic in and after 1649 for law reform. But the
appointment to the delegation to negotiate with Charles II and to the commission
to reform the laws both suggest that young Stair was regarded as an able young
man, a rising man, and one well thought of.

In 1650 another commission, again with Stair as secretary, was sent to negotiate
with Charles II at Breda. In connection with both commissions, young Stair is
likely to have met Charles II, who was only a little younger than him. Whether on
these trips to the Netherlands Stair sought out any of the great Dutch jurists then
teaching, such as Paul Voet, Vinnius, to or Antonius Matthaeus, or got hold of any
of their books, is unknown but is possible.

In May 1650, Stair was appointed by Parliament with others to meet Charles II
when he landed at Garmouth at the mouth of the Spey and signed the Solemn
League and Covenant, but he was not with the Scottish army defeated by
Cromwell at Dunbar in September 1650 or at Worcester in 1651. Thereafter
Charles II escaped back to the Netherlands and Scotland was an occupied
country; the Scottish parliament was abolished and from 1652 the Court of
Session was replaced by a body of Commissioners for the Administration of
Justice, half of whom were English. Stair seems to have established amicable
relations with the occupying power and when in 1657 one ofthe Commissioners
died, General Monck, commander in chief in Scotland, nominated Stair as a good
lawyer and one fit to be a judge. J t He took his seat on the bench on 1st July, 1657,
aged 38 and of nine years' standing at the Bar. He had come pretty far very quickly.

9.1649, APS VI (2), c.271. There had been earlier commissions in 1425 (APS II, 10, c.l0), 1469 (APS,
11,97, c.20), 1473 (APS II, 105, c.14), 1566(APS 1,29 and 111,40) (which resulted in the publication of
the Black Acts), 1574 (APS, I, 30 and 111,89) (which resulted in the compilation ofBalfour'sPracricks),
1578 (APS, III, 105, d8), 1592 (APS III, 564, c.45) and 1628 (APS, I, 34-35) renewed in 1633 (APS,
V, 46). There were also later ones, in 1681 (APS, VIII, 356, c.74) and 1695 (APS IX, 455, c.57).
10. Vinnius' In IV Libros Insrirurionum Commenrarius, a book long famous in law schools and repeatedly
re-issued, was publis~ed in 1642.
11. APS VI (2) 764, 907, 908.

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THE DENNING LAWJOURNAL

In 1660 Charles II was restored and Stair went to London to pay his respects to
the king, and doubtless reminded him that they had met before. He was knighted
and when the Court of Session was restored in 1661 he was again made a judge.12
In 1664 he was advanced to be a baronet. In 1670 he was a member of a
commission which negotiated with English commissioners on a possible closer
union between the two countries, but negotiations broke down, we are told, on the
insistence of the Scots that Scots law be preserved and not abolished in the interest
of unity. 13 In 1669-72 he was also a member of a large commission charged to
consider the regulation of the three supreme courts in Scotland, Session,
Justiciary and Exchequer, and this commission in 1672 recommended various
changes, many of which were adopted and regulated these courts for a very long
time. In 1671 Stair was promoted Lord President of the Court of Session. He was
not Lord Justice General (head of the criminal court), which office was then and
until 1830 held by a lay lord, and all his career he had little contact with the
criminal law, for which indeed he had a distaste. He also sat in parliament for
Wigtownshire and is credited with having sponsored various reforms, notably the
Subscription of Deeds Act 1681.14 He probably also had a hand in other important
legislation of that year, such as the Judicial Sale Act 1681, and the Bills of
Exchange Act 1681.

But later in 1681Parliament passed the Test Act1S which imposed on all persons
in offices and places of public trust the duty to swear publicly and to subscribe an
oath, ostensibly designed to secure the protection of the Protestant religion but
truly designed to secure the submission of all in important positions to the royal
supremacy, and to obtain a repudiation of the National Covenant and the Solemn
League and Covenant. As a young man Stair had probably signed the National
Covenant and he had been a party to getting Charles II to subscribe the Solemn
League and Covenant. He declined to subscribe the Test, was replaced as Lord
President, and retired to his home in Galloway. In 1682 he thought it prudent to
leave Scotland and he established himself at Leiden in the Netherlands where he
and several of his sons matriculated at the University; he became a mature student,
aged 62. In his absence attempts were made to have him extradited and prosecuted
for treason, and in 1685 he was actually indicted for high treason. 16

While in the Netherlands, he associated with the refugees who grouped round
William of Orange, the hope of those who wished a Protestant succession to the
Crowns, who was nephew of both Charles II and James VII and II and also son in
law of James. He became a confidant and adviser of William and when in 1688
William invaded England and James fled, Stair came with William in the royal
flagship. He acted as intermediary between William and the Scottish Convention

12. APS VII, 124.
13. E. U. Laing. MSS. 11. 521.
14. APS, VIII, 242, c.5.
15. APS VIII, 243, c.6.
16. APS VIII, App. 32. See also VIII, 490, c.52.

146



VISCOUNT STAIR

which ultimately in April, 1689, offered the crown of Scotland to William and
Mary. In March 1689, the Lord President of the Court of Session, Sir George
Lockhart, was conveniently assassinated by a disgruntled litigant and in October
Stair was reappointed to his old office and to the Scottish Privy Council. He held
office until his death in 1695. In 1690 he was created Viscount Stair, Lord
Glenluce and Stranraer.17 In that year too attacks by political enemies drove him
to write and publish his Apology defending his conduct.

He left a large family, several of whom attained distinction. IS His eldest son,
John, was Lord Justice Clerk, 1688-90, Lord Advocate 1687 -88 and 1690-91 and
Secretary of State 1691-95, and as such shared responsibility and obloquy for the
Massacre of Glencoe. In 1703 he became the first earl of Stair. The third son, Hew,
succeeded his father as Lord President (1698-1737). The fifth son, David, became
Lord Advocate, 1709-11 and 1714-20. More remote descendants included many
distinguished in the law, including several judges, and in the army, and the family
is still a leading one in the southwest of Scotland.

Such was, in outline, his varied career, which included much distinguished
public service. But it is not for his public service alone that he is remembered, but
rather for his writings, and to these we must now turn.

At the end of 1681, while in retirement in Galloway, after the Test Act and his
consequent resignation, he published at Edinburgh a book, The Institutions of the
Law of Scotland, deduced from its originals and collated with the civil, canon and
feudal laws and with the customs of neighbouring nations. It comprises a Dedication
to Charles II, and two parts with separate title-pages and pagination, the first
comprising 22 titles, the second 9 titles, and there is also a small treatise entitled
Modus Litigandi orForm of Process observed before the Lords of Coundl and Session in
Scotland normally bound in. These deal, as he tells us,19 with the constitution of
original rights, the transmission of original rights among the living and from the
dead, and the cognition and execution of these rights. One should note the title.
The word "Institutions" is clearly derived from Justinian's Institutions indicating
a general instructional book; "deduced from its originals" means, I think, that
principles and rules are arrived at by deduction from more fundamental origins,
sources of higher authority; "collated with the civil, canon and feudal laws and
with the customs of neighbouring nations" means that Scottish deductions are
compared with the deductions arrived at by the earlier, wide-ranging, European
systems and the customs of England, France and the Netherlands.

In 1683, while at Leiden, he published at Edinburgh The Decisions of the Lords of
Council in the most important Cases debate before them, Part First, containing
decisions noted by him from 1661 to 1671 when he became President. The book
runs to 720 pages and includes about 1200 cases in chronological order. This was

17. APS IX, 112.
18. On them see Scots Peerage, s.v. Stair.
19. Advertisement to Second edition.

147



THE DENNING LAW JOURNAL

the first volume to be published in Scotland containing reports of decisions in
recognisably modern form. In 1685, while still at Leiden, he published there a
work entitled Physiologia Nova Experimentalis, a treatise on natural philosophy or
physics, which must have been projected or even written earlier, as it is mentioned
in the royal licence he obtained for printing his Institutions in 1681. It was,
however, soon superseded by Isaac Newton's Principia of 1687, but has interest as
an account of the pre-Newtonian view of the natural world. It is at present being
translated for the first time.

Then in 1687 there appeared The Decis£ons of the Lords of Council and Session in
the Most Important Cases Debate Before Them; Part Second, covering the years 1671
to 1681, the years when he was Lord President, extending to 896 pages and
comprising about 1200 cases. This continued the reports of the previous volume. 20

Back in Scotland, he published in 1693 a revised edition of his Institutions, of
which I shall speak more later. In 1695, at the end of his life, he published a
Vindication of the Divine Perfections, eighteen meditations on God as revealed by
reason and revelation. Considering his public duties, as Lord President, member
of the Privy Council and Parliament, it was a considerable volume of publication.
The Institutions, Phys£olog£a and Divine Perfections may be regarded as parts of a
complete system of his philosophy, comprising knowledge of the relations of men,
of the universe and of God, and connects with his original concern in Glasgow fifty
years earlier with metaphysics and ethics, and goes some way to explain his view of
law as ultimately divinely ordained. His contract of 1681 with the printer21 refers
also to a treatise containing Four Enquiries concerning Human Knowledge,
Natural Theology, Morality and Physiology but unless the Physiologia and the
Divine Perfections are part of this enterprise, this work was never printed and is
now lost. There have also been attributed to Stair several anonymous pamphlets
designed to win support for the Revolution Settlement of 1689 but the authorship
of these is not certain. It is at present being investigated by computer analysis of
the word pattern and language used.

Of these works, the two volumes of Decisions must have been at the time of
immense value and utility. They were the first collections of decisions to be
published in Scotland. They cover the first twenty years after the Restoration in
chronological order and probably include all the important and interesting
decisions recorded by a very skilled lawyer who sat or presided when they were
argued and decided and we know that he recorded them contemporaneously.

To concentrate, however, on his most important work, the Institutions. In the

20. Several of Stair's colleagues on the bench after 1661 also collected decisions, but none of them were
published till later. These include Gilmour's Decisions, 1661-66 (published with Falconer's Decisions
in 1701), Nisbet, Lord Dirleton, whose Decisions were published with his Doubrs and Quesrions in rhe
Law in 1690, Falconer, whose Decisions appeared with Gilmour's in 1701 and Hog, Lord Harcarse,
whose Decisions appeared in 1757, while others compiled Pracricks, editions of the statutes or editions of
books. They were a distinguished and industrious set of judges, one of the most illustrious Benches ever
to have sat in Scotland.
21. Printed in Dallas Sryles (1st ed. Pt. II, 152; 2nd ed. Vol. I Pt. II, 76).

148



149

VISCOUNT STAIR

Dedication of the first edition to Charles II, he calls the work" A Summary of the
law and customs of your ancient kingdom of Scotland", but he goes on "In which
material justice (the common law of the world) is, in the first place, orderly
deduced from self-evident principles, through all the several private rights thence
arising, and in the next place, the expedients of the most polite nations for
ascertaining and expeding the rights and interest of mankind, are applied in their
proper places, especially those which have been invented or followed by this
nation ... But there is not much here asserted upon mere authority ... but the
original motives, inductive of the several laws and customs, are therewith set
forth ... I have, as distinctly and clearly as I could, by this Essay, given a view of
the law and custom and the decisions of the Session, since the Institution of the
College of Justice, as they have been remarked and reported by the most eminent
judges and pleaders from time to time, which I hope shall be more enlarged and
improved by others." Legal rights accordingly were deductions from higher
principles, not merely rules laid down by authority.

The second edition of 1693 bears to be "Revised, Corrected and Much
Enlarged". It contains an Advertisement, Index of the Titles, the text, and an
Appendix dealing with some recently enacted statutes. In the Advertisement,
Stair points out that he has referred only to the later and more authentic and useful
collections of decisions. Also, "in the former edition, I designed the treatise to be
divided into three parts as being the most congruous to the subject-matter of
jurisprudence. The first part, being concerned with the constitution of original
rights; the second, concerning the transmission of these original rights, among the
living and from the dead; the third concerning the cognition and execution of all
these rights. Yet, finding it would be acceptable to divide the institutions of our
law into four books, as the Institutions of the Civil Law are divided, and, especially
because there is a more eminent distinction in our law between heritable rights of
the ground and moveable rights, I have divided this edition into four parts; the
first being of original personal rights; the second of original real rights; the third of
the conveyance of both; and the fourth of the cognition and execution of the
whole." He goes on to say that he had divided the long titles in the first book and
put them under more special titles and divided the paragraphs.

There have been four further posthumous editions of the Institutions of which
the fifth, by Professor J. S. More in 1832, has extensive notes substantially
bringing the text up to date; the sixth, which reprints the text of Stair's own second
edition was published in 1981 to celebrate the tercentenary of the book's first
publication.

What had prompted Stair to write his Institutions? There are several possible
factors, the study of Justinian's Institutions, his membership of the law reform
commission of 1649, the example of the Dutch jurists whose works he probably
saw in the Netherlands in 1649and 1650,22his membership of the commission on
22. These would include Joost van Damhouder (Praxis Rerum Civilium, 1567),Peter Peckius (Tractatus
deJure Sistendi, 1564), Petrus Gudelinus (De Jure Novissimo, 1624), Hugo Grotius (lnleiding tot de
Hollandsche Rechtsgeleerdtheyd, 1621and De Jure Belli ac Pacis, 1625), and Simon VanLeeuwen (Het
Roomsch Hollandsche Recht, 1651).



THE DENNING LAW JOURNAL

union in 1670,23 which showed the threat to Scots law, the need in the
comparatively settled times after the Restoration for a book to guide judges and
lawyers. There was still in the 1680's an almost complete dearth of textbooks;
Craig's Jus Feudale had been published in 1655 and was used by Stair24but only
covered part of the ground. It may have been simply the desire of a learned and
diligent judge, partly for his own satisfaction, partly for the benefit of his
colleagues and younger men, partly to assist and improve the administration of
justice, to try to set down in logical form the principles on which the courts should
act in administering justice. Manuscripts date from as early as 1664 and copies of
the work began to circulate in manuscript in the 1670's and this led him to publish
it. "My modesty did not permit me to publish it, lest it should be judicially cited
where I sat; but now, becoming old, I have been prevailed with to print it, while I
might oversee the press."25 He also wrote: "The former edition was collected by
me in many years and designed chiefly for my own particular use, that I might
know the decisions and Acts of Session, since the first institution of it, and that I
might the more clear and determine my judgment in the matter of justice."26

It is however hard to take this at face value. If Stair, or any other lawyer, were
compiling a book for his own use, his private reference book, it seems more likely
that he would have compiled it as notes, with references, as was done by the
compilers ofPracticks, rather than as a fully written out, discursive text. One must
suspect that he had publication and the instruction of others in mind from the
start, just as modem politicians assiduously keep diaries with an eye to their
eventual publication as their Memoirs.

Whether Stair realised it or not, and whether he was seeking deliberately to do
so or not, he was in fact doing what was being done all over Western Europe about
that time. All over Europe jurists were writing texts on the nascent distinct
national legal systems which were evolving separately as distinct nation-states
developing their distinctive legal system, utilising materials drawn from the civil,
canon and feudal laws which had previously, to various extents, been common to
them allY

What was his view oflaw, in the most general sense of that term? He defined law
as "the dictate of reason, determining every rational being to that which is
congruous and convenient for the nature and condition thereof ... "28Law then
was not to him the command of the current political superior, but what human
reason dictated. To him the absolute sovereign was divine law, which was also the

23. Cf., Cowell's InstitutionesJuris Anglicani, 1605; Zouche's ElementaJurisprudentiae, 1629.
24. On this see Walker, "The Background of the Institutions" in Stair Tercentenary Studies (Stair
Society, 1981), p. 69.
25. Dedication to First Edition ..
26. Preface to Second Edition.
27. K. Luig, "The Institutes of National Law in the Seventeenth and Eighteenth Centuries", 1972
Juridical Review 193.
28. Insl. I, 1, 1.

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VISCOUNT STAIR

law of all rational creatures and also called the law of nature. 29The law by which
private rights were constituted, conveyed or extinguished were divine or human. 30
Divine law was the law of nature written in the hearts of men and also called
conscience,31equity32or the morallaw;33 human law was introduced by men, by
tacit consent, custom or command of those having legislative power.34 Human
laws included the law of nations35 and the civil or municipal law of various
communities.36 Human positive law was needed to make precise the application of
principles of natural law in particular circumstances.J7 His attitude was
accordingly that rational creatures, by the exercise of their reason, saw law as the
principles regulating conduct, principles dictated by God, nature, reason,
conscience and morality. Human positive laws stood on a lower plane, being men's
attempts to make precise in particular cases what they thought God, nature and
reason prescribed. Thus Stair's view would have been that the law of God or of
nature dictated that after some time rights not exercised should be extinguished;
the human law of Scotland as to prescription lays down that some rights are
extinguished after five years, some after twenty years, and some never.

His view oflaw is very similar to that of Aquinas38and he owes a good deal to the
thought of the later Spanish jurist-theologians, to Vitoria, Molina and,
particularly, Suarez. He was also certainly much influenced by Grotius' De Jure
Belli ac Pacis of 1625, a book which ranges much more widely than its title would
suggest and which he cites repeatedly. Grotius also sought to deduce positive law
from principles of the law of nature.

Stair's attitude to and his view of law in general is accordingly traditional and
based in the medieval tradition; in its time it was possibly even rather old-
fashioned; he has little affinity with contemporary or later theorists such as Bodin
and Hobbes and he cannot be regarded as a precursor of the Scottish
Enlightenment or the Scottish School of Common Sense. This medieval theory of
natural law was more held by Catholics than Protestants, but was also widely held
by Protestants in the 16th and 17th centuries, not least by Calvin. There is nothing
inconsistent with Stair's Presbyterianism in his holding a view of law previously
developed mainly by Catholic thinkers. As the law has developed today we have to
devote all our attention to understanding the positive laws of men and one would
be hard pressed to deduce some of the modern rules from dictates of God, reason,
nature or conscience.

29. Ibid ..
30. I, 1,2.
31. I, I, 5.
32. I, 1,6.
33. I, I, 7.
34. I, I, 10.
35. I, I, II.
36. I, I, 12.
37. I, I, 15-16.
38. Summa Theologiae, I, 2, Qu. 90-91.

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THE DENNING LAW JOURNAL

But Stair was trying to do more than set down the rules currently accepted in
Scotland. He was trying to deduce propositions from fundamental principles of
universal applicability. "The principles of law are such as are known without
arguing and the judgment, upon apprehension thereof, will give its ready and full
assent; such as God is to be adored and obeyed, parents to be obeyed and
honoured, children to be loved and entertained. And such are these common
precepts which are set forth in the civil law, to live honestly, to wrong no man, to
give every man his right.39But here we shall speak of the most general principles
which have influence upon all the rights of men, leaving the more particular ones
to the rights flowing therefrom in their proper places. "40He then lays down as the
first principles of equity, natural law or conscience, obedience to GOd,41human
freedom,42and human power to bind oneself,43and as the three prime principles of
positive law, the liberty of men to make societies, to delimit every man's property
and to maintain commerce with others. "The principles of equity are the efficient
causes of rights and laws; the principles of positive law are the final causes or ends
for which laws are made and rights constituted and ordered."44 That is: equity or
natural law gives rise to and creates rights and laws; laws are made and rights
constituted to give rise to principles of positive law.

An example of his deducing propositions from fundamental principles can be
seen in his treatment of reparation. Before his time there had been recognised
various kinds of wrongs which gave rise to claims by the victims for redress, such
as assythment for injuries, spuilzie of goods, ejection from land and so on. Stair
puts it this way: obligations by delinquence are introduced by the law of nature;45
the obligation to the victim is created by injury or wrongdoing;46 apart from
criminal consequences it gives rise to the right of exacting reparation for damage
inferred thereby;47 the interests of a person which may be damaged are his life,
limbs and health, his liberty, his fame, reputation and honour, his property.48
Under these heads fall the recognised specific delinquences, such as injury,
extortion, spuilzie, ejection, and others.49

What were Stair's models? It is important to observe that while in a general way
Stair was clearly influenced by Justinian's Institutions he did not copy the
structure or arrangement of that work.50Nor did he set out to adapt that work to

39. ef., Justinian, Inst. I, 1, 3: Honeste vivere, alterum non laedere, mum cuique tribuere.
40. I, 1, 18.
41. I, 1, 19.
42. 1,1,20; 1,2,1-16.
43. I, 1,21; I, 3 to I, 18.
44. I, 1, 18.
45. 1,9, 1.
46. 1,9,2.
47. 1,9,2 at end.
48. 1,9,4.
49. 1,9,7-30.
50. The structure of that work is: I: Introductory matters, persons and family law; II: Property rights
and wills; III: Intestacy; obligations by contract and quasi-contract; IV: Delicts; actions.

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Scotland nor to produce a Scottish edition or version of it. So far as has been
discovered the structure of his book is original and not closely founded on any
earlier work. If that is so, it adds to his intellectual stature that of himself he
devised such a logical structure.

What were the sources of his particular propositions? In his Apology of 1690
Stair wrote: "And I did write the Institutions of the Law of Scotland and did derive
it from that common law that rules the world, and compared it with the laws civil
and canon and with the custom of the neighbouring nations ... " By the common
law which rules the world I understand him to mean the law of nature, conscience
or the moral law. The sources most commonly referred to for the rules of human
positive law applied in Scotland are the decisions of the Court of Session, drawn
largely from his own Decisions, and from some of the Practicks, particularly those
of Spottiswoode, Hope and Haddington. Next are statutes of the Scottish
Parliament. A long way behind these in frequency of citation are Craig's Jus
Feudale, the Dutch jurists, particularly Grotius, the Bible, the Roman civil law and
the canon law. Stair's book is accordingly a statement predominantly based on
indigenous materials, not on either theoretical or foreign ones. The hierarchy of
formal sources is (1) our ancient and immemorial customs called our common law,
as declared in frequent decisions of the Lords of Session; (2) Scottish statutes; (3)
Acts of Sederunt of the Lords; (4) recent customs and practices as evidenced by
decisions and, failing other sources, (5) the judges' views of what equity and
natural law prescribe. To him the civil, canon and feudal laws and the customs of
neighbouring nations were not sources from which to copy so much as sets of
principles and rules valuable as yardsticks for comparison. They might cast light
on Scots law by showing what the lawyers of other developed countries had
deduced from ideas of the law of nature. Stair made substantial reference,
particularly in Book I, to Roman civil law but not as authoritative nor to adopt it
but rather, when deducing the law of Scotland from principles of natural law, to
see how far the results corresponded with or departed from principles recognised
in Roman law. In some cases he suggests that a Roman rule should be adopted in
Scotland to fill a gap, in default of native authority. Similarly he recognises that in
certain areas, marriage, testamentary succession and executry, Scots law had,
under the influence of the medieval church, accepted rules of canon law but by
Stair's time that had become an historical source and no longer a well from which
to draw a living stream. So too with feudal law; Stair founded substantially on
Craig's Jus Feudale but a large part of his account is based on the analysis of the
customs and conveyancing practice of the 17th century and the decisions which
had shaped and clarified these customs: it was a restatement of the feudal law of
Scotland and there is not much incorporation of or even cross-reference to the
original feudal law of Western Europe. Of those "customs of neighbouring
nations" he refers mainly to England and France, but not nearly as much as did
Craig who pointed to numerous parallels with England, though he considerably
overstated the similarity.

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To what extent did Stair create modern Scots law? I think he did to a material
extent. In the first place he put a great many rules and groups oflegal propositions
into order, grouping them in a logical way, under general heads in a way that had
never been done before. There had previously been recognised various rules about
contracts and about harm to others and so on, but Stair, following Roman ideas,
recognised the broad general category of Obligations in General,5l which he then
divided into Conjugal Obligations springing from marriage, 52 Obligations
between parents and children, 53Obligations between guardians and their wards, 54
Obligations to make restitution of things belonging to others,55 Obligations to
make recompense or remuneration, 56 Obligations to make reparation for
delinquencies, 57 and Obligations Conventional, by promise, paction and
contract,58 followed by titles on the major particular kinds of contracts59 and
concluding with Liberation from Obligations.60 Previously, and to some extent
afterwards, an obligation meant in Scots law a bond, particularly to pay money;
Stair introduced the wider concept of obligations as a nexus between persons,
created by family relationship, by unjustifiable harm, or by promise or agreement.
Secondly, under each of the Titles his analysis and exposition of the principles is a
great advance on anything that had appeared previously. Previous writing,
published and unpublished, recorded the substance of particular statutes or of the
decision of particular disputes, but did not, as he did, state general principles or
propositions and deduce from them the precise rules which determined particular
disputes, with frequent illustrations from decisions which he and others had
noted. Most of the points collected in the earlier Practicks are specific points only
and it is not at all clear whether there is a higher and more general proposition.
Thirdly, at some points he filled gaps by suggesting the use of a principle derived
from elsewhere, frequently from Roman law. A notable one is the principle of the
carrier's liability derived from the Edict Nautae, Caupones, Stabularii.

What has been the importance and value of Stair's Institutions? The short
answer is: Enormous. From its first publication the Institutions has been regarded
as of outstanding importance and value. Not only does it cover the whole private
law but it presents the subject matter not as a series of dictates of a superior but as a
body of principles deduced from fundamental propositions of just dealing, which
principles are then elaborated, explained and exemplified and the exceptions
stated. Thus in relation to the right to be free from harm or injury, he expresses the
basic proposition "that obligations by delinquence are introduced by the law of
51. I, 3.
52. 1,4.
53. I, 5.
54. 1,6.
55. I, 7.
56. 1,8.
57. I, 9.
58. I, 10.
59. I, 11-17.
60. I, 18.

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nature";61 the views of all men and all nations evince this by everywhere
acknowledging the reparation of damages. This had a double aspect, punishment,
which was a matter for God, and "the obligation of repairing his damage by
putting him in as good a condition as he was in before the injury."62 That is the
general principle. He then goes on to enumerate the interests which may be
infringed by a wrongdoer. 63"According to our several rights and enjoyments,
damages and delinquences may be esteemed. As first, our life, members and
health, ... next to life is liberty and the delinquences against it are restraint and
constraint ... The third is fame, reputation and honour ... The fourth interest
that may be damnified is our content, delight and satisfaction and especially by the
singular affection to, or opinion of the value or worth of anything that the owner
hath ... The last damage is in goods and possessions." This gives us a framework
or series of major heads under which the main applications of the principles of
repairing damage can be fitted. It is still a sound logical basis for stating and
explaining the law.64 Then later65 he deals with the individual kinds of
delinquences, assythment, extortion, circumvention and so on. The esteem in
which the work has been held is evidenced by the number of times it has been cited
in argument and decision and relied on as authority. It was being cited even in his
lifetime and repeatedly in the 18th and 19th centuries, the classical age of Scots
law. It was constantly referred to by the later text writers. Thus Hume in 1821told
his students: "He who has done most for us and stands certainly in the highest
place is Lord Stair, an acute reasoner certainly and a profound and intelligent
lawyer, who has given us a complete system of our law, from which all later
authorities have drawn, and were obliged to draw, a great part at least of what is
most valuable in their works."66

What accordingly has been Stair's achievement, and why do we, why should we,
honour him? In the first place he wrote the first connected narrative statement of
the whole private law of Scotland, laid out in clear logical order, and well
supported by references to authorities. Secondly, his text is an enormous advance
on all previous writings on the subject. Most of the earlier works, the Practicks,
were then still in manuscript, and some still are, and they were collections of notes
and references, very useful materials, but not integrated into a readable text.
Thirdly, the earlier works, apart from Craig, were collections of individual
instances and did not infer inductively any general propositions which justified
them and related instances. Fourthly, the Institutions is a creative work in that to a
very large extent he created the private law of Scotland as a complete and rational
system, seeking to deduce specific rules from fundamental principles, not simply

61. 1,9, 1.
62. 1,9,2.
63. 1,9,4.
64. The writer, in his Law of Delict in Scotland (1966), 2nd ed. (1981) found this classification of
interests the best basis for a statement of the modem law.
65. 1,9,6.
66. Lectures (ed. Paton, Stair Society), I, 14.

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the rules accepted in his time. Fifthly, it is highly original in that it owes little to
previous books in Scotland, or, for that matter, books at Rome or in England,
though he certainly owes some of his ideas to the Roman law. Sixthly, it
established Scottish private law as a rational body of principles which existed until
the present century, since when many of the principles have been overwhelmed by
exceptions and changes enacted in the name of reform or obscured by excessively
detailed provisions about particular cases. This statement in rational form was
probably of great importance when, only 14 years after the revised edition,
Scotland entered into the Union with England. The protection given for Scots law
in private rights by Article 18of the Treaty ofU nion would not have been of much
value against the ignorance of the eighteenth century Chancellors in the House of
Lords or the patronising disregard of parliaments (which in many respects
continues to this day) if Scottish lawyers had not had Stair's Institutions to point to
to prove what their law of private rights was. An English Chancellor, some fifty
years ago, referred patronisingly to "those interesting relics of barbarism,
tempered by a few importations from Rome, known to the world as Scots Law."
But it was not a Scot, but Oliver Cromwell, who is said to have described the law of
England, not much earlier than Stair's time, as "an ungodly jumble". Finally, and
by no means least, Stair's great work has been repeatedly accepted as authoritative,
as laying down the law as much as does a decision of the Court of Session.
Sometimes passages have been explained or qualified but in all substantials it has
repeatedly been accepted as the starting point for inquiry as to the principles
relevant to a specific difficulty. In the course of time, of course, much of the detail
of the law has been changed and there are many topics on which Stair says little or
nothing. But even the modem law can be fitted into the system and pattern which
he established. The foundations which he laid remain, though some of the
structures erected thereon have been replaced and many new ones added. But that
should not detract from his achievement. I cannot do better in conclusion than
quote some of the words of the memorial plaque in the entrance hall of the
University: "A Supreme Master of Jurisprudence who in his Institutions laid an
imperishable foundation for the law of Scotland." Glasgow has reason to be proud
of Stair.

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