Heritable Jurisdictions (Scotland) Act 1746

Heritable Jurisdictions (Scotland) Act 1746
Long title 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.
Citation 20 Geo. II c. 43 / 1746 c. 43
Territorial extent Kingdom of Great Britain
Other legislation
Relates to Acts of Union 1707
Status: Current legislation
Revised text of statute as amended

The Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. II 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.[1]

Since Article XX of the 1707 Acts of Union recognised these rights as property, compensation was paid to the deprived heritors.[2]

Purpose

Philip Yorke, Earl of Hardwicke (1690-1764) who drafted the 1746 Act

The long title of the Act, which sets out the scheme and intention, is:[3]

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.

History

John Campbell, 4th Duke of Argyll (1693-1770); paid £25,000

The Act was one of a number of measures taken after the defeat of the 1745 Jacobite Rising to weaken the traditional rights held by clan chiefs, the others being the 1746 Dress Act and the Act of Proscription.[4]

These inherited 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 e.g. the 1692 Church of Scotland Settlement removed the right of heritors to nominate church ministers for their own parishes.[5] However, many remained, one of the most significant being the ability to adjudicate civil and criminal cases among dependents; by 1745, only 8 of the 33 Scottish Sheriff positions were appointed by the Crown, 3 were appointed for life and the rest were hereditary. Their owners employed legal professionals known as Sheriff-substitutes or deputes, who earned their salary by taking a percentage of the fines imposed.[6] All Sheriffs were now appointed by the Crown while the role of Justiciar was also purchased and its functions transferred to the High Court of Justiciary

James, Duke of Hamilton (1724-1758); received £38,000 in compensation

Article XX of the 1707 Act of Union recognised jurisdictions and other heritable offices as private property which continued in spite of the Union.[7] The 1746 Act ended these practices; as private property, compensation would be paid but only to those like the Duke of Argyll or the Duke of Queensberry who had backed the government; Jacobite owners were not.[8] Parliament granted £152,000 in compensation for the purchase of heritable jurisdictions; the two biggest payments were £38,000 to the Duke of Hamilton and £25,000 to Argyll who had also held the position of Justiciar.[9] The Duke of Argyll still retains the title of Justiciar of Argyll but it has no power attached.

In support of the Bill, Lord Hardwicke argued restoring these powers to the Crown would secure the allegiance of the people. This 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.[10] The Duke of Argyll quoted Montesquieu in support of his argument that multiple jurisdictions were a check on the Crown and thus a defence of liberty.[10]

Argyll's intervention allowed Hardwicke to remind his audience of the divide highlighted by the Rebellion between Charles Edward Stuart, who believed in the divine right of kings and demanded unquestioning obedience, while most of his Scottish supporters were Protestant nationalists who opposed 'arbitrary' rule.[11] Hardwicke agreed 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.[12]

George II, in a speech written by Hardwicke, praised the Act as measures for "better securing the liberties of the people there".[12] The Prime Minister Henry Pelham considered it the most important measure in dealing with Jacobitism in Scotland.[13] 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).[3]

The last remnants of feudal tenure in Scotland were ended by the Abolition of Feudal Tenure etc. (Scotland) Act 2000 which came into force on 28 November 2004.

See also

Notes

  1. ↑ "Abolition of Heritable Jurisdictions Act." Encyclopædia Britannica. 2008. Encyclopædia Britannica Online. accessed 27 August 2008.
  2. ↑ Original text of the Act of Union
  3. 1 2 "Heritable Jurisdictions (Scotland) Act 1746". Acts of the Parliament of Great Britain. 20 Geo. II (c. 43). 1746. Retrieved 8 May 2017.
  4. ↑ Proceedings of the Scottish Parliament on 27 September 2000: A Debate on the Highland Clearances, accessed 27 August 2008.
  5. ↑ Lynch, Michael (1992). Scotland: a New History (2011 ed.). Pimlico. p. 304. ISBN 0712698930.
  6. ↑ Robson, Peter, Rodger, Johnny (2017). The Spaces of Justice: The Architecture of the Scottish Court. Fairleigh Dickinson University. pp. 33–34. ISBN 1683930886.
  7. ↑ Original text of the Act of Union
  8. ↑ "Abolition of heritable jurisdictions; Compensation applications". National Archives. Retrieved 19 July 2018.
  9. ↑ Chambers, p. 484.
  10. 1 2 Browning, p. 172.
  11. ↑ Stephen, Jeffrey (January 2010). "Scottish Nationalism and Stuart Unionism". Journal of British Studies. 49 (1, Scottish Special): 47–72.
  12. 1 2 Browning, p. 173.
  13. ↑ 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)
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