Heritable Jurisdictions (Scotland) Act 1746

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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

Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. II c. 43) was an Act of the Parliament of Great Britain passed in the aftermath of the Jacobite rising of 1745. It abolished the traditional judicial rights afforded to a Scottish clan chief and it also abolished the office of hereditary sheriff in Scotland. The office of sheriff had become hereditary, with a sheriff-depute appointed by the nobleman to undertake the substantive judicial work; these sheriffs-depute would become the modern-day sheriff principal. Following this act the sheriffs-depute were now appointed by the Monarch.[1]

Article XX of the Union with England Act, 1707, had recognized these jurisdictions and other heritable offices as rights of property which continued in spite of the union,[2] and so on abolition compensation was paid to the deprived heritors. There was opposition to the passage of the Act from the Duke of Argyll who argued that having multiple judicial jurisdictions ensured the liberty of the people of Scotland.

Purpose[edit]

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[edit]

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]

Even outside the Highlands, there were a large number of inherited rights, including that of adjudicating civil and criminal legal cases among dependants.[5] There had been a number of attempts to eliminate or weaken these rights eg the 1692 Church of Scotland Settlement removed the right of heritors to nominate church ministers for their own parishes.[6] However, many remained; by 1707, only 8 of the 33 Scottish Sheriff positions were appointed by the Crown, 3 were appointed for life and the rest were hereditary. The owners employed legal professionals known as Sheriff-substitutes, who earned their salary by taking a percentage of the fines imposed.[7] All Sheriffs were now appointed by the Crown; the role of the Justiciarship of Scotland, previously held by the Dukes of Argyll, was purchased and its functions transferred to the High Court and Circuit-courts of Justiciary.

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

Article XX of the 1707 Act of Union recognised jurisdictions and other heritable offices as rights of property which continued in spite of the Union.[8] 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.[9] Parliament granted £152,000 for the purchase of heritable jurisdictions.[10]

Lord Hardwicke spoke in favour of the Act, arguing restoring these powers to the Crown would enable it to secure the allegiance of the people, since 'The people will follow those who have the power to protect or hurt them.' This made it imperative for ministers of a constitutional monarch to remove such powers from private ownership.[11] 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.[12]

The 1745 Rebellion had highlighted the divide between Charles Edward Stuart who believed in the Catholic doctrine of the divine right of kings and demanded unquestioning obedience, whereas most of his Scottish supporters were Protestant nationalists who opposed 'arbitrary' rule.[13] Argyll's intervention allowed Hardwicke to respond that such safeguards were certainly needed for any state ruled by an absolute monarch who refused any constitutional checks on his powers (ie Charles Stuart). Fortunately Britain was not in that position, since its constitution limited the powers of the Crown and ensured liberty while private jurisdictions endangered it by encroaching on the legal authority of a constitutional monarchy.[14]

George II, in a speech written by Hardwicke, praised the Act as measures for "better securing the liberties of the people there".[15] The Prime Minister Henry Pelham considered it the most important measure in dealing with Jacobitism in Scotland.[16] 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]

See also[edit]

Notes[edit]

  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. ^ a b "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. Aug. 2008.
  5. ^ Robert Chambers, History of the Rebellion of 1745–6 (W. & R. Chambers, 1869), p. 484.
  6. ^ Lynch, Michael (1992). Scotland: a New History (2011 ed.). Pimlico. p. 304. ISBN 0712698930. 
  7. ^ Robson, Peter, Rodger, Johnny (2017). The Spaces of Justice: The Architecture of the Scottish Court. Fairleigh Dickinson University. pp. 33–34. ISBN 1683930886. 
  8. ^ Original text of the Act of Union
  9. ^ "Abolition of heritable jurisdictions; Compensation applications". National Archives. Retrieved 19 July 2018. 
  10. ^ Chambers, p. 484.
  11. ^ Browning, p. 172.
  12. ^ Browning, p. 172.
  13. ^ Stephen, Jeffrey (January 2010). "Scottish Nationalism and Stuart Unionism". Journal of British Studies. 49 (1, Scottish Special): 47–72. 
  14. ^ Browning, p. 173.
  15. ^ Browning, p. 173.
  16. ^ P. J. Kulisheck, ‘Pelham, Henry (1694–1754)’, Oxford Dictionary of National Biography, Oxford University Press, Sept 2004; online edn, Jan 2008, accessed 15 June 2009.

Bibliography[edit]

  • Browning, Reed, ‘Lord Hardwicke, the Court Whig as Legist’, Political and Constitutional Ideas of the Court Whigs (Louisiana State University Press, 1982)