An Act for taking away and abolishing the Heretable Jurisdictions in Scotland; and for making Satisfaction to the Proprietors thereof; and for restoring such Jurisdictions to the Crown; and for making more effectual Provision for the Administration of Justice throughout that Part of the United Kingdom, by the King’s Courts and Judges there; ...and for rendering the Union of the Two Kingdoms more complete.
The Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. 2. c. 43) was an Act of Parliament passed in the aftermath of the Jacobite rising of 1745 abolishing judicial rights held by Scots heritors. These were a significant source of power, especially for clan chiefs since it gave them a large measure of control over their tenants.
The position of sheriff-principal originated in the 13th century and still exists in modern Scotland. Originally appointed by the Crown, over the centuries the majority had become hereditary, the holders appointing legal professionals known as Sheriff-deputes to do the work. The Act returned control of these to the Crown.[2]
Since Article XX of the 1707 Acts of Union recognised these rights as property, compensation was paid to the deprived heritors.[3]
The long title of the Act, which sets out the scheme and intention, is:[4]
An Act for taking away and abolishing the Heretable Jurisdictions in Scotland; and for making Satisfaction to the Proprietors thereof; and for restoring such Jurisdictions to the Crown; and for making more effectual Provision for the Administration of Justice throughout that Part of the United Kingdom, by the King’s Courts and Judges there; ... and for rendering the Union of the Two Kingdoms more complete. For remedying the inconveniences that have arisen and may arise from the multiplicity and extent of heretable jurisdictions in Scotland, for making satisfaction to the proprietors thereof, for restoring to the crown the powers of jurisdiction originally and properly belonging thereto, according to the constitution, and for extending the influence, benefit, and protection of the King’s laws and courts of justice to all his Majesty’s subjects in Scotland, and for rendering the union more complete.
Such rights were not restricted to clan chiefs and were widespread throughout Scotland. There had been a number of previous attempts to either eliminate or weaken them; for example, the 1692 Church of Scotland Settlement removed the right of heritors to nominate church ministers for their own parishes.[6]
Many remained, one of the most significant being control of the thirty-three Sheriffs who presided over the Scottish court system. In 1745, only eight of these were appointed by the Crown, three were appointed for life, with the rest being hereditary; their owners employed legal professionals known as Sheriff-substitutes or deputes, who earned their salary by taking a percentage of the fines imposed.[7]
James, Duke of Hamilton (1724-1758); received £38,000 in compensation
The Act gave the Crown control over the appointment of Sheriffs, with the role of Justiciar transferred to the High Court of Justiciary. Since these were recognised as private property under Article XX of the 1707 Act of Union,[8] their owners were compensated, although Jacobites were excluded.[9]
A total of £152,000 was paid out in compensation, the two biggest payments being £38,000 to the Duke of Hamilton and £25,000 to the Duke of Argyll. Other recipients included Sir Andrew Agnew, hereditary sheriff of Wigtownshire, who received £4,000 in recognition of his support for the government in 1745.[10]
In speaking for the Bill, Lord Hardwicke argued Crown control over such rights was essential; since 'the people will follow those who have the power to protect or hurt them;' it was therefore imperative for ministers of a constitutional monarch to remove such powers from private ownership.[11] In response, Argyll quoted Montesquieu in support of his argument that multiple jurisdictions were a check on the Crown and thus a defence of liberty.[11]
Since Argyll was one of the main beneficiaries, his intervention was simply to enable Hardwicke to highlight the House of Stuart's outdated belief in the divine right of kings and unquestioning obedience.[12] He did so by agreeing such safeguards were required for states ruled by an absolute monarch but 'fortunately, Britain was not in that position.' This was because the constitution limited the powers of the Crown and ensured liberty; on the other hand, private jurisdictions endangered it by encroaching on the legal authority of a constitutional monarchy.[13]
George II, in a speech also written by Hardwicke, praised the Act as measures for "better securing the liberties of the people there".[13] The Prime MinisterHenry Pelham considered it the most important measure in dealing with Jacobitism in Scotland.[14] Most of its provisions have since been repealed, but it still specifies that any noble title created in Scotland after 6 June 1747 may grant no rights beyond those of landlordship (collecting rents).[4]
↑ The citation of this Act by this short title was authorised by the Short Titles Act 1896, section 1 and the first schedule. Due to the repeal of those provisions it is now authorised by section 19(2) of the Interpretation Act 1978.
↑ Robson, Peter, Rodger, Johnny (2017). The Spaces of Justice: The Architecture of the Scottish Court. Fairleigh Dickinson University. pp.33–34. ISBN1683930886.
↑ Kulisheck, P. J., "Pelham, Henry (1694–1754)", Oxford Dictionary of National Biography, Oxford University Press, September 2004; online edn, January 2008, accessed 15 June 2009.
Bibliography
Browning, Reed, ‘Lord Hardwicke, the Court Whig as Legist’, Political and Constitutional Ideas of the Court Whigs (Louisiana State University Press, 1982)
Jacobitism (Scots: Jacobitism was a political movement that supported the restoration of the senior line of the House of Stuart to the British throne. The name derives from the first name of James II and VII, which in Latin translates as Jacobus. When James went into exile after the November 1688 Glorious Revolution, the Parliament of England argued that he had abandoned the English throne, which they offered to his Protestant daughter Mary II, and her husband William III. In April, the Scottish Convention held that he "forfeited" the throne of Scotland by his actions, listed in the Articles of Grievances.
Clan Campbell is a Highland Scottish clan, historically one of the largest and most powerful of the Highland clans. The Clan Campbell lands are in Argyll and within their lands lies Ben Cruachan. The chief of the clan became Earl of Argyll and later Duke of Argyll.
The Highlands Services Act 1715 also known as the Disarming Act 1715 was an 18th-century Act of Parliament of Great Britain that was enacted to curtail Jacobitism among the Scottish clans in the Scottish Highlands after the Jacobite rising of 1715. The new law, which came into effect on 1 November 1716, aimed at "securing the peace of the highlands in Scotland". It outlawed anyone in defined parts of Scotland from having "in his or their custody, use, or bear, broad sword, poignard, whinger, or durk, side pistol, gun, or other warlike weapon" unless authorised.
A Scottish clan is a kinship group among the Scottish people. Clans give a sense of shared identity and descent to members, and in modern times have an official structure recognised by the Court of the Lord Lyon, which regulates Scottish heraldry and coats of arms. Most clans have their own tartan patterns, usually dating from the 19th century, which members may incorporate into kilts or other clothing.
The shires of Scotland, or counties of Scotland, are historic subdivisions of Scotland established in the Middle Ages and used as administrative divisions until 1975. Originally established for judicial purposes, from the 17th century they started to be used for local administration purposes as well. The areas used for judicial functions (sheriffdoms) came to diverge from the shires, which ceased to be used for local government purposes after 1975 under the Local Government (Scotland) Act 1973.
The Dress Act 1746 was part of the Act of Proscription which came into force on 1 August 1746 and made wearing "the Highland Dress" — including the kilt — illegal in Scotland as well as reiterating the Disarming Act 1715. The Jacobite Risings between 1689 and 1746 found their most effective support amongst the Scottish clans, and this act was part of a series of measures attempting to bring the clans under government control. An exemption allowed the kilt to be worn in the army along with its veterans who have served in the military, continuing the tradition established by the Black Watch regiment.
A sheriff court is the principal local civil and criminal court in Scotland, with exclusive jurisdiction over all civil cases with a monetary value up to £100,000, and with the jurisdiction to hear any criminal case except treason, murder, and rape, which are in the exclusive jurisdiction of the High Court of Justiciary. Though the sheriff courts have concurrent jurisdiction with the High Court over armed robbery, drug trafficking, and sexual offences involving children, the vast majority of these cases are heard by the High Court. Each court serves a sheriff court district within one of the six sheriffdoms of Scotland. Each sheriff court is presided over by a sheriff, who is a legally qualified judge, and part of the judiciary of Scotland.
The Act of Proscription, also called the Act of Proscription 1746 or the Disarming the Highlands, etc. Act 1745, was an Act of the Parliament of Great Britain, which came into effect in Scotland on 1 August 1746. It was part of a series of efforts to assimilate the Scottish Highlands, ending their ability to revolt, and the first of the "King's laws" that sought to crush the clan system system in the aftermath of the Jacobite rising of 1745. These laws were finally repealed on 1 July 1782.
In Scotland a sheriff principal is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the 11th century. Sheriffs principal were originally appointed by the monarch of Scotland, and evolved into a heritable jurisdiction before appointment was again vested in the Crown and the monarch of the United Kingdom following the passage of the Heritable Jurisdictions (Scotland) Act 1746.
A sheriffdom is a judicial district in Scotland, led by a sheriff principal. Since 1 January 1975, there have been six sheriffdoms. Each sheriffdom is divided into a series of sheriff court districts, and each sheriff court is presided over by a resident or floating sheriff. Sheriffs principal and resident or floating sheriffs are all members of the judiciary of Scotland.
Mary Hay, 14th Countess of Erroll was a Scottish noblewoman and suo jure Countess of Erroll. As 18th Hereditary Lord High Constable and Knight Marischal of Scotland, she was the Senior Great Officer among the Royal Officers of Scotland and Chief of the King's Household in Scotland. She inherited these titles in 1717 on the death of her unmarried brother, Charles Hay, 13th Earl of Erroll.
The Scottish Gaelic word clann means children. In early times, and possibly even today, Scottish clan members believed themselves to descend from a common ancestor, the founder of the clan, after whom the clan is named. The clan chief is the representative of this founder, and represents the clan. In the Scottish clan system, a chief is greater than a chieftain (ceann-cinnidh), a designation applied to heads of branches of a clan. Scottish clans that no longer have a clan chief are referred to as armigerous clans.
The Sheriff of Argyll was historically a royal officer charged with enforcing the king's rights in Argyll; in Scotland, the concept of sheriff gradually evolved into a judicial position.
In the Courts of Scotland, a sheriff-substitute was the historical name for the judges who sit in the local sheriff courts under the direction of the sheriffs principal; from 1971 the sheriffs substitute were renamed simply as sheriff. When researching the history of the sheriffs and sheriffs principal of Scotland there is much confusion over the use of different names to refer to sheriffs in Scotland. Sheriffs principal are those sheriffs who have held office over a sheriffdom, whether through inheritance or through direct appointment by the Crown. Thus, hereditary sheriff and sheriff-depute are the precursors to the modern office of sheriff principal.
A sheriffdom is a judicial district of Scotland. Originally identical to the Shires of Scotland, from the eighteenth century many counties were grouped to form "sheriffdoms".
The Glorious Revolution in Scotland refers to the Scottish element of the 1688 Glorious Revolution, in which James VII was replaced by his daughter Mary II and her husband William II as joint monarchs of Scotland and England. Prior to 1707, the two kingdoms shared a common monarch but were separate legal entities, so decisions in one did not bind the other. In both countries, the Revolution confirmed the primacy of Parliament over the Crown, while the Church of Scotland was re-established as a Presbyterian rather than Episcopalian polity.
The Independent Highland Companies were irregular militia raised from the Scottish clans of the Scottish Highlands by order of the British government between 1603 and 1760 in order to help keep the peace and enforce the law in the Highlands and were recognized as such by the government. The officers of the Independent Highland Companies were commissioned as officers of the British Army but the Independent Companies were not recognized as official regiments of the line of the army. The Independent Highland Companies were the progenitors of the Highland Regiments of the British Army that began when ten Independent Highland Companies were embodied to form the Earl of Crawford's Highland Regiment that was numbered the 43rd Regiment of Foot in 1739.
The Campbell of Argyll Militia also known as the Campbell militia, the Argyll militia, or the Argyllshire men, was an irregular militia unit formed in 1745 by John Campbell, 4th Duke of Argyll to oppose the Jacobite rising of 1745.
Events from the year 1747 in Scotland.
Duncan Forbes of Culloden was a Scottish lawyer and Whig politician who sat in the House of Commons from 1721 to 1737. As Lord President and senior Scottish legal officer, he played a major role in helping the government suppress the 1745 Jacobite Rising.
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