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Speaker: Dr Andrew Simpson
Abstract:
Sir Richard Maitland of Lethington (ca.1496-1586) is perhaps best remembered today as a collector of late-medieval Scots vernacular poetry, particularly that written by William Dunbar. Yet Maitland was also an accomplished poet and indeed a historian in his own right. In his work, he explored various legal themes, and this reflected his work as a judge or lord of session in the College of Justice. This was a court which had acquired supreme jurisdiction in Scottish civil matters at some point shortly before 1532. Prior to his death in 1586, Maitland had sat in that court for over thirty years, even after going blind in ca.1561. His manuscript Practicks, or collected decisions of the College of Justice, constitute important evidence of its work during that time.
As just stated, Maitland’s interest in the law was reflected in his vernacular poetry and his historical work, in which he attacked contemporaries for one practice which he found particularly “detestable”. This was the acquisition of wealth or property through “the inuention of new lawis and practises”. He made similar comments elsewhere. On one occasion he exhorted lawyers to “invent na to gar ws spend/ Our geir in this new zeir”. On another he commented that “Sum ar sair drest/ Sum sair molest, / Be new found lawis”. And there are other scattered references to such criticisms elsewhere in his poetry.
This paper will explore exactly what Maitland was criticising when he attacked these instances of the “invention” of new law. The question is of interest because the meaning of the word “invention” at this time was shifting. As Copeland has explained in her study of medieval heuristic practices, inventio literally meant “’a coming upon,’ a discovery of that which is there, or already there, to be discovered…”. She emphasises that “invention is… an ‘extractive’ operation”. In the medieval period, that extractive operation was associated closely with interpretative practices, because learning and truth were thought to be located in a range of authoritative texts. So when Maitland criticised the “invention” of new law by lawyers, he might well have been criticising their interpretative practices in developing the law for immoral ends. He might have been proposing an alternative interpretative approach that would result in the development of sound law. Contemporary lawyers also used the word “invention” in this older, medieval sense.
Alternatively, Maitland might have been using the word “invention” in a more modern sense. As is well-known, the Scottish poet Robert Henryson (d. ca.1490) made a complex link between the “invented” and something “feinzit” or “falsified”, on the one hand, and a completely new creation, on the other. Might Maitland’s uses of the word “invention” have reflected this? If so, what repercussions would it have had for his understanding of inappropriate and appropriate developments in the law?
These themes will be explored in this paper. Regardless of how Maitland used the word “invention”, his comments clearly indicate he held views concerning how lawyers ought to develop the law, and these he chose to communicate through his poetry. Indeed, it will be argued that he used poetry to do more than just communicate his views; poetic interpretative practices seem to have influenced his legal work more directly. Reconstructing Maitland’s views may shed further light on the complex thinking that underpinned the community of lawyers who worked in the sixteenth-century Scottish College of Justice.
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