The Heritable Jurisdictions (Scotland) Act 1746 (20 Geo. II c. 43) was an

Act of Parliament Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliame ...

passed in the aftermath of the

Jacobite rising of 1745 The Jacobite rising of 1745, also known as the Forty-five Rebellion or simply the '45 ( gd, Bliadhna Theàrlaich, , ), was an attempt by Charles Edward Stuart to regain the British throne for his father, James Francis Edward Stuart. It took ...

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 The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has differ ...

, 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."Abolition of Heritable Jurisdictions Act." Encyclopædia Britannica. 2008.
Encyclopædia Britannica Online. accessed 27 August 2008. Since Article XX of the 1707 Acts of Union recognised these rights as property, compensation was paid to the deprived heritors.

Purpose

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

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

The Act was one of a number of measures taken after the defeat of the

1745 Jacobite Rising The Jacobite rising of 1745, also known as the Forty-five Rebellion or simply the '45 ( gd, Bliadhna Theàrlaich, , ), was an attempt by Charles Edward Stuart to regain the British throne for his father, James Francis Edward Stuart. It took pl ...

to weaken the traditional rights held by clan chiefs, the others being the 1746 Dress Act and the Act of Proscription. 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. Many remained, one of the most significant being control of the thirty-three

Sheriff A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland that is commonly transla ...

s 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. 6thDukeOfHamilton

The Act gave the Crown control over the appointment of Sheriffs, with the role of

Justiciar Justiciar is the English form of the medieval Latin term ''justiciarius'' or ''justitiarius'' ("man of justice", i.e. judge). During the Middle Ages in England, the Chief Justiciar (later known simply as the Justiciar) was roughly equivalent ...

transferred to the

High Court of Justiciary The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cour ...

. Since these were recognised as private property under Article XX of the 1707 Act of Union, their owners were compensated, although Jacobites were excluded. A total of £152,000 was paid out in compensation, the two biggest payments being £38,000 to the

Duke of Hamilton Duke of Hamilton is a title in the Peerage of Scotland, created in April 1643. It is the senior dukedom in that peerage (except for the Dukedom of Rothesay held by the Sovereign's eldest son), and as such its holder is the premier peer of Sco ...

and £25,000 to the

Duke of Argyll Duke of Argyll ( gd, Diùc Earraghàidheil) is a title created in the peerage of Scotland in 1701 and in the peerage of the United Kingdom in 1892. The earls, marquesses, and dukes of Argyll were for several centuries among the most powerfu ...

. Other recipients included Sir Andrew Agnew, hereditary sheriff of Wigtownshire, who received £4,000 in recognition of his support for the government in 1745. In speaking for the Bill,

Lord Hardwicke Philip Yorke, 1st Earl of Hardwicke, (1 December 16906 March 1764) was an English lawyer and politician who served as Lord High Chancellor of Great Britain. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1 ...

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.Browning, p. 172. In response, Argyll quoted

Montesquieu Charles Louis de Secondat, Baron de La Brède et de Montesquieu (; ; 18 January 168910 February 1755), generally referred to as simply Montesquieu, was a French judge, man of letters, historian, and political philosopher. He is the princi ...

in support of his argument that multiple jurisdictions were a check on the Crown and thus a defence of liberty. Since Argyll was one of the main beneficiaries, his intervention was simply to enable Hardwicke to highlight the

House of Stuart The House of Stuart, originally spelt Stewart, was a royal house of Scotland, England, Ireland and later Great Britain. The family name comes from the office of High Steward of Scotland, which had been held by the family progenitor Walter fi ...

's outdated belief in the

divine right of kings In European Christianity Christianity is an Abrahamic monotheistic religion based on the life and teachings of Jesus of Nazareth. It is the world's largest and most widespread religion with roughly 2.38 billion followers representin ...

and unquestioning obedience. 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.Browning, p. 173. George II, in a speech also written by Hardwicke, praised the Act as measures for "better securing the liberties of the people there". The

Prime Minister A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is ...

Henry Pelham Henry Pelham (25 September 1694 – 6 March 1754) was a British Whig statesman who served as 3rd Prime Minister of Great Britain from 1743 until his death in 1754. He was the younger brother of Thomas Pelham-Holles, 1st Duke of Newcastle, who ...

considered it the most important measure in dealing with Jacobitism in Scotland.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. 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). 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.

Notes

Bibliography

* Browning, Reed, ‘Lord Hardwicke, the Court Whig as Legist’, ''Political and Constitutional Ideas of the Court Whigs'' (Louisiana State University Press, 1982) {{UK legislation Great Britain Acts of Parliament 1746 Jacobite rising of 1745 1746 in Scotland Acts of the Parliament of Great Britain concerning Scotland Judiciary of Scotland Scottish clan chiefs

Purpose

History

See also

Notes

Bibliography