Forbes’s manuscript commentary on Justinian’s Institutes rediscovered in tercentenary year

Portrait of William Forbes (Sp Coll Mu3-f.28)

This year sees the 300th anniversary of the foundation of the University of Glasgow’s Regius Chair of Law, while this week the University also celebrates hosting the 21st British Legal History Conference.  A perfect time to announce the exciting rediscovery of a manuscript produced by the Regius Chair’s first holder.

In the spring of this year Ernest Metzger, Douglas Professor of Civil Law in the University, came across an unusual manuscript in the Special Collections Department of the University of Glasgow Library.  It numbered more than 500 folios, was bound in 4 volumes and had no authorship attributed (simply being described in the catalogue as 17th century in date).  The text contained detailed and scholarly annotations, in Latin, to the ‘Institutes’, the famous text-book of Roman Law commissioned by the Roman emperor Justinian (r. 527-565).  At one time there was rumour that William Forbes (d. 1745), the first holder of the Regius Chair of Civil Law in this University, had left behind a commentary on the Institutes.  This was reported by David Murray in his Memories of the Old College of Glasgow (1927).  [n1]  Later searches for the mystery manuscript, however, came up cold, the most recent scholar of Forbes writing, in 1993, ‘This [attribution] seems mistaken: at least there is no such identifiable, possible MS.’  [n2]  Yet the instant manuscript bore enough outward signs (particularly in content and style) to make an attribution to Forbes plausible, and a comparison with a known manuscript of Forbes’s was also favourable.  Prof Metzger then conferred with Robert MacLean of the University Library, and they proceeded together to consider the matter of Forbes’s authorship.  They have concluded that there is indeed compelling evidence that this manuscript is the work of Forbes.

Forbes’s 4 volume commentary on the Institutes (MS Gen 1256-9)

For our knowledge of Forbes we are indebted to Prof John Cairns of the University of Edinburgh, who has performed the most thorough research to date on the foundations of teaching law at the University of Glasgow.  [n3]  The Regius Chair was created in December 1713 and Forbes was elected by the faculty soon after.  He was an able teacher and scholar and a prolific writer of works on Scots Law.  Of writings on Roman (or ‘Civil’) Law, nothing had apparently survived.  Yet he did lecture in Roman Law, and though the details are largely lost, he will have conducted lectures on Justinian’s Institutes and Digest, in Latin, through much of his tenure until about 1739, when Hercules Lindsay (his second successor) took over the task.  The source of Forbes’s Roman learning is a matter of conjecture.  He required knowledge of Roman law for his admission to the Faculty of Advocates in 1696, and  he may have undertaken the study himself.  But Prof Cairns has built a case for the possibility that Forbes matriculated in Leiden in 1688 and learned his Roman law there: aspiring advocates at this time typically went abroad for instruction in Roman law, as it was not available in Scotland.  So if we wished to give broad dates for Forbes’s composition of a work on Roman law, we would give 1688-1739.

Scrap note in Forbes’s hand (click to enlarge)

Insert pinned into MS Gen 1256 (click to enlarge)

Forbes’s authorship is indicated by two, mutually corroborating factors:

1.  Scrap note and insert.  (i)  Loosely inserted between the endpapers of the fourth volume of the work was a scrap with the draft of a letter in English.  The scrap itself was torn from another letter —  the blank space used for the draft — and the handwriting of the draft closely matches the handwriting of the manuscript.  On the reverse of the scrap, preserving part of the original letter, a partial name and address is visible – ‘Mr William Forbe[s], Professor of Laws, University of Gla[sgow]’.  (ii)   A second letter was recycled in a similar fashion to the first, though with the entirety of Forbes’s name and address on the reverse.  The blank space in this letter, however,  has been used to supplement or correct the text on one of the folios.  It contains roughly 200 words, in Latin, and had been physically pinned to the relevant manuscript page.  Again, the handwriting of this ‘insert’ closely matches the handwriting of the manuscript.

2. Handwriting.  The cursive hand found throughout the manuscript and on the scrap note and insert has a number of quite distinctive characteristics which match well to known specimens of Forbes’s handwriting, many of which are held by Special Collections.  Notable is his rather rushed lower-case uncrossed t’s, the exaggeratedly left-leaning, often looped ascender of his lower-case d and the uneven lower-case v which starts high on the left and finishes low on the right.

Known sample of Forbes’s writing (click to enlarge)

V.1, p.5 of Forbes’s commentary (click to enlarge)

The two factors taken together suggest that the similarity in handwriting between known specimens of Forbes’s hand and the manuscript is not fortuitous: the known specimens, the scrap note and insert, and the manuscript, would be written by the same person.

Now to the contents.  The work is lemmatic in nature, i.e. it is based on a primary text — here, Justinian’s Institutes — and provides commentary to a series of selected words or phrases (lemmata) in that text.  Below is a brief passage from the Institutes, followed by a transcription and translation of the associated passage in the manuscript.  The Institutes passage introduces the main divisions of the law.  In Forbes’s time the printed editions ran as follows:

Omne autem ius, quo utimur, vel ad personas pertinet, vel ad res, vel ad actiones.  Et prius de personis videamus; nam parum est ius nosse, si personae, quarum causa constitutum est, ignorentur.  [‘All of the law we follow relates either to persons, things, or actions.  So first let us examine persons; for it is hard to understand the law without knowledge of the persons for whom the law was made.’]

Justinian’s Institutes 1.2.12

Forbes seizes on ‘Et prius de personis’ as an opportunity for comment.  He supports his remarks by citations to passages in Justinian’s Digest and Institutes.  (In the transcription below, the square brackets indicate places where Forbes’s abbreviations have been resolved.)

Et prius de personis.  Ratio ordinis hec est: cur prius de personis quam de rebus: quia personarum causa totum ius constitutum est h[oc] e[st] ut suum cuique tribuatur l.2 ff de statu homin[um] deinde quia personarum major est dignitas quam rerum § 37 infra de rer[um] divis[ione] l.44 ff de aedil[icio] edict[o].  Id autem hic notandum in ordine sive potius tractatione valde differre pandectas ab institutionibus.  Nam in his persona et res latius* actiones brevius: in pandectis contra de personis et rebus tantum quatuor titulis, de actionibus 49 libris integris explicatur.  Ratio differentiae est: quia pandecta composita et accommodata sunt ad ordinem edicti perpetui, l.2 ff de statu hom[inum].  At totum edictum in una tantum parte, h[oc] e[st] actionibus explicandis, atque iudiciis consumebatur.  Ut videre est in lib[ris] Pauli Ulpiani ad edictum.  [‘So first concerning persons.  This gives the basis for the order of subjects, the reason why ‘persons’ comes before ‘things’.  It is because all law was created for the sake of persons, that is, so each could be given his due: Digest 1.5.2.  A further reason is that persons are worth more than things: Institutes 2.1.37; Digest 21.1.44.  But it should also be noted here that with respect to order — or more aptly, treatment —  the Digest differs vastly from the Institutes.  For in the Institutes the treatment of persons and things is more extensive than that of actions: in the Digest, on the other hand, persons and things are treated in only four titles, actions, in forty-nine complete books.  The reason for the difference is that the Digest was constructed and adapted to the order of the perpetual edict: Digest 1.5.2.  And the entirety of the edict is taken up with only one division, namely, the treatment of actions, and especially trials.  You may see this in the books of Paul and Ulpian on the edict.’]

*edited 12/7/13 – ‘latius’ replaces ‘potius’

MS Gen 1256, pag. 65

Forbes’s commentary (MS Gen 1256, p.65)

In Forbes’s time there were many printed works of this kind, including some well-known works based on the Institutes by Antonius Matthaeus (1564-1637)  [n4]  and Arnold Vinnius (1588-1657)  [n5]  and editions continued to appear long after their authors’ deaths.  Forbes’s debt to such printed works is a matter for further study.  If the notes were in fact substantially composed by him, he probably recycled a lot of comments and citations.  It’s worth noting that these works were being overtaken in the Netherlands by a different style of teaching work, the ‘compendium’, which gave a running commentary to a primary text, and freed the teacher from having to teach the primary text itself.  [n6]  If Forbes used this manuscript to teach his course in the Institutes at Glasgow, one might say he was ‘bucking the trend’, though in Scotland, where the teaching of Roman law was so utterly new, it’s hardly possible to judge.  On the other hand, it’s possible the manuscript was not used for his course, but dates to his (hypothesized) stay in Leiden in the late 1680s, or to his private study of Roman law in advance of his admission to the Faculty of Advocates.

There is a great deal about the manuscript still to learn, but in the meantime we can be pleased we now have the only work of Civil Law to survive from the hand of the University’s first Professor of Civil Law: a splendid event for the Chair’s tercentenary year.

Co-written by Ernest Metzger & Robert MacLean.

Notes

n1.  Murray 1927, p. 216.  David Walker, citing Murray, repeated the claim: Walker 1985, p. 190.

n.2.  Cairns 1993, p. 175 n.165.

n.3.  Cairns 1993.

n.4.  Notae et animadversiones in libros IV institutionum iuris imperatoris Iustiniani. Editions: Herborn 1600, Franeker 1647, and others.

n.5.  Institutionum sive elementorum libri quatuor: notis.  Editions: Leiden 1646, Jena 1660, and many others.  The notes were later included in editions of Vinnius’ Commentary on the Institutes.

n.6.  See Cairns 1992, p. 145; Cairns 1993, p. 176.

Bibliography

Cairns, John W. 1993. ‘The Origins of the Glasgow Law School: The Professors of Civil Law, 1741-61.’ In The Life of the Law: Proceedings of the Tenth British Legal History Conference, Oxford 1991, edited by Birks, Peter, 151–194. London.

——. 1992. ‘John Spotswood, Professor of Law: A Preliminary Sketch.’ In Miscellany Three, 131–159. The Stair Society. Edinburgh.

Murray, David. 1927. Memories of the Old College of Glasgow. Some Chapters in the History of the University. Glasgow.

Walker, David. 1985. ‘William Forbes.’ In The Scottish Jurists, 185–194. Edinburgh.

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Categories: Special Collections

Tags: Civil Law, Commentaries, Institutes, Justinian's Institutes, manuscripts, Roman Law, Special Collections, University of Glasgow, UofGLibrary, William Forbes

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